Firby and Percy (Child support)

[2017] AATA 3191

Firby and Percy (Child support) [2017] AATA 3191 (14 June 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC011340

APPLICANT:  Mr Firby

OTHER PARTIES:  Child Support Registrar

Mrs Percy

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  14 June 2017

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Percy’s application for the child support assessment for [Child 1] to continue in force until 14 December 2017 be refused.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – whether the child was in full-time secondary education on eighteenth birthday – application should be 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. Ordinarily, child support is payable until a child turns 18. There is, however, provision in the child support legislation for a child support assessment to continue past a child’s 18^th birthday, provided certain formalities are attended to and the child is to continue in full-time secondary school education.

2. In early December 2016, Mrs Percy applied for the child support assessment for [Child 1] to continue past her 18^th birthday ([in] December 2016), since she would be completing her schooling in 2017. Her application was granted. Mr Firby unsuccessfully objected to this CSA decision, primarily on the basis of concerns about the likely extent of [Child 1]’s attendance. Mr Firby has sought further review before the Tribunal.

3. The provisions which potentially allow a child support assessment to continue after a child’s 18^th birthday in this context are found in sections 151B and 151C of the Child Support (Assessment) Act 1989.  Subsection 151B(1) provides:

   If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

4. The last day of [Child 1]’s secondary school year in 2016 was on 12 December 2016. The corresponding last day in 2017 will be 14 December 2017.

5. Member Glass has previously considered the construction of subsection 151B(1) in application number 2016/MC010148. To paraphrase the learned member’s reasons in the circumstances here, the condition necessary to enable an application to be made under subsection 151B(1) is that [Child 1] “turns 18 during a year in which the child is in full-time secondary education”.

6. I accept for present purposes that [Child 1] was in full-time secondary education in 2016 (despite Mr Firby’s concerns about her attendance). For the CSA’s decision to extend the child support assessment to be correct, the word “year” in this context must refer to something other than a “calendar year”. Had the subsection used that expression, no uncertainty would have arisen because of its definition in section 2B of the Acts Interpretation Act 1901 (Cth). The definitions in section 5 of the Act do not assist with the resolution of the question.

7. The Macquarie Dictionary offers the following relevant definitions of the word “year”:

• Firstly, “a period of 365 or 366 days divided into 12 calendar months, based on the Gregorian calendar and now reckoned as beginning 1 January and ending 31 December”.

• Thirdly, “a space of 12 calendar months reckoned from any point”.

• Tenthly, “a level or grade in an academic program, usually indicating one full year's study”.

1. As Member Glass correctly observed, words are to be understood in their primary and natural signification unless contrary indications appear. The primary signification of the word “year” is a period of time beginning 1 January and ending 31 December. The CSA’s decision is mistaken because it relies on a meaning of the word “year” inconsistent with its primary meaning.

2. There is no suggestion in this case of a school year which starts in the middle of one calendar year and finishes in the middle of the next. The year in which [Child 1] turned 18 was 2016. Subsection 151B(1) does not apply here because her 18^th birthday was after the last day of the secondary school year in 2016. Mrs Percy was therefore unable to apply to extend the child support assessment beyond 2016. It follows that her application should have been refused.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Percy’s application for the child support assessment for [Child 1] to continue in force until 14 December 2017 be refused.