Filch and Filch (Child support)

[2018] AATA 2413

Filch and Filch (Child support) [2018] AATA 2413 (15 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013276

APPLICANT:  Mr Filch

OTHER PARTIES:  Child Support Registrar

Mrs Filch

TRIBUNAL:Member F Hewson

DECISION DATE:  15 May 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides to refuse Mrs Filch’s application for the child support assessment to be extended beyond [Child 1]’s 18^th birthday.

CATCHWORDS
Child support - Particulars of the administrative assessment - Whether the assessment should be extended beyond the child’s eighteenth birthday - The child ceased to be in full-time secondary education before the child turned eighteen - Application to extend refused - Decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. This application for review is about whether Mrs Filch’s application to extend the child support assessment in respect of her daughter [Child 1] past her 18^th birthday should be accepted.

2. The child support assessment in this case was registered in August 2004. On 11 July 2017 Mrs Filch applied for the child support assessment to be extended to the end of the school year (20 November 2017) as [Child 1], born [on a particular date in] September 1999, was a full-time secondary student.

3. On 1 August 2017 an officer of the Department of Human Services—Child Support (the Department) made a decision to accept the application.

4. Mr Filch lodged an objection to the decision to extend the child support assessment.

5. On 20 October 2017 an objections officer made a decision to disallow Mr Filch’s objection to the decision to extend the child support assessment.

6. On 6 December 2017 Mr Filch lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 3 April 2018. Mr Filch attended the hearing by conference telephone. Mrs Filch did not attend the hearing. The tribunal also had regard to documents provided by the Department, a copy of which was also given to the parties.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act). Section 151B of the Act provides that if a child turns 18 during a year in which the child is in full-time secondary education, application may be made for an assessment to continue beyond the child’s 18^th birthday.

2. The Registrar must accept the application if certain requirements are met, as set out in section 151C:

   ·       the child has turned 17;

   ·       an assessment or agreement is in force, or is likely to be in force, on the day before the child turns 18 or an administrative assessment that takes the child into account is in force, or is likely to be in force, on the day before the child’s 18^th birthday;

   ·       the child is likely to be in full-time secondary education on their 18^th birthday;

   ·       the child’s 18^th birthday will occur on or before the last day of the secondary school year; and

   ·       the application was made before the child’s 18^th birthday (or there are, in the Registrar’s opinion, exceptional circumstances justifying the making of an application after the child’s 18^th birthday).

3. There is no dispute in this case that an application to extend the child support assessment was made before the child’s 18^th birthday. The issue in this case is whether [Child 1] was likely to be a full-time secondary student at the relevant times.

CONSIDERATION

1. The evidence before the tribunal shows that on 30 June 2017 the Department sent the parties a letter advising that as [Child 1] was turning 18 on [a particular date in] September 2017 she would no longer be included in the child support assessment from that date. The letter also advised that if [Child 1] was continuing her secondary studies Mrs Filch could apply prior to the child turning 18 for the child support assessment to be extended beyond her 18^th birthday.

2. On 11 July 2017 the Department received Mrs Filch’s application to extend the assessment. It subsequently made the decision to extend the child support assessment until 20 November 2017, which it recorded as the last day of the school year for [School 1].

3. Mr Filch initially objected to the decision on the basis that the last day of the school year for [School 1] was 24 October 2017. He also asserted that [Child 1] was no longer attending school. An email dated 15 August 2017 from [Ms A], personal assistant to the principal, stated that [Child 1] was no longer a student at [School 2].

4. Mr Filch submitted further evidence to the tribunal in support of his appeal, including a copy of an email dated 22 November 2017 from [Ms B], the Principal at [School 1], which states: “I can confirm that [Child 1] did not complete her year 12 certificate and has not attended school since late September.”

5. Following the hearing Mrs Filch provided a written statement. She argued that the application to extend the child support assessment beyond [Child 1]’s 18^th birthday was correctly accepted based on the information known at that time. She agreed, however, that due to unforeseen medical circumstances (in relation to which she provided medical evidence) [Child 1] was “unable to attend a large portion of schooling from July through to November”. She noted that, as per a directions hearing with the Administrative Appeals Tribunal, she was happy to accept the child support assessment ending on [Child 1]’s 18^th birthday.

6. The tribunal considered the available evidence. At the date of the original decision to accept Mrs Filch’s application to extend the child support assessment beyond [Child 1]’s 18^th birthday, the best evidence was that [Child 1] would continue in secondary education until the end of the school year, which the tribunal accepted was 20 November 2017 (the last day of VCE exams). The tribunal was satisfied on the basis of the evidence available on review, however, that [Child 1] ceased to be in full-time secondary education on or before her 18^th birthday on [a particular date in] September 2017. In the circumstances as they are now known, the tribunal decided that the conditions for extension of the assessment under section 151C of the Act are not met and the application should be refused.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides to refuse Mrs Filch’s application for the child support assessment to be extended beyond [Child 1]’s 18^th birthday.