Folwell and Gathercole (Child support)

[2021] AATA 461

Folwell and Gathercole (Child support) [2021] AATA 461 (20 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC020157

APPLICANT:  Ms Folwell

OTHER PARTIES:  Child Support Registrar

Mr Gathercole

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  20 January 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the application for the child support assessment for [Child 1] to continue beyond his 18^th birthday be accepted but with a terminating event happening on, and with effect from, 24 August 2020.

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 his eighteenth birthday – application should be accepted – terminating event when education became part-time – 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 review is about extending the child support assessment for the child [Child 1] (born July 2002) until the last day of the secondary school year in which he turned 18 years of age.

2. Ms Folwell and Mr Gathercole are the parents of [Child 1].  There has been a child support assessment in place since 16 October 2008 and Ms Folwell is the liable parent.

3. On 13 May 2020 Mr Gathercole applied to the Child Support Agency seeking to extend the assessment for [Child 1] past his 18^th birthday.  On 10 June 2020 the Child Support Agency made the decision to accept this application and extend the child support assessment to 27 November 2020.

4. On 7 July 2020 Ms Folwell objected to this decision and on 8 October 2020 the Child Support Agency disallowed the objection (the objection decision).

5. On 2 November 2020 Ms Folwell applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 20 January 2021.  Ms Folwell and Mr Gathercole gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (66 pages).

7. The Tribunal also received additional evidence from Ms Folwell (A1-A3) and from Mr Gathercole (B1-B67) prior to the hearing and copies were distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act).

2. A child support assessment applies until the child turns 18 years of age (section 12).  A parent entitled to child support may, however, apply for the assessment to continue “until the last day of the secondary school year in which the child turns 18” (section 151B).

3. The Child Support Registrar (the Registrar) must accept a valid application that meets certain criteria (section 151C).

4. The issue which arises in this case is whether or not the application to extend the child support assessment for [Child 1] until the last day of his secondary school year should be accepted.

CONSIDERATION

1. In order to make a decision to continue an administrative assessment under section 151C of the Act, the Registrar must determine whether or not the following requirements are met:

   ·     the child has turned 17 years of age at the time of the application;

   ·     an administrative assessment in relation to the child 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 is made before the child’s 18^th birthday or there are exceptional circumstances justifying the making of the application after the child’s 18^th birthday.

2. Ms Folwell told the Tribunal she did not believe the application to extend the child support assessment met the required conditions as [Child 1] was not in full-time secondary education in 2020.  She said [Child 1] was enrolled at [School 1] but his attendance was very poor.  Ms Folwell added that in addition to missing many days of school in Year 12 [Child 1] had a poor attendance record in Years 9, 10 and 11.

3. Ms Folwell said that [Child 1] had stopped attending school well before he turned 18 years of age.  Ms Folwell said for the 16 weeks she was making child support payments after he turned 18 years old [Child 1] attended school for only 12 days.  She said in her view this could not be considered full-time education.  Ms Folwell also pointed out that [Child 1] did not sit any South Australian Certificate of Education (SACE) exams in 2020 and did not complete Year 12.

4. Ms Folwell told the Tribunal that [Child 1] had a car accident in mid-2020 and she accepted this had impacted on his attendance, however, his time at school had already declined well before the accident.  Ms Folwell said the school had advised her [Child 1] went part-time from 24 August 2020 and was only attending two days every week.

5. The Tribunal notes in evidence from the Child Support Agency a 2020 Semester 1 Report for [Child 1] from [School 1].  It shows grades of C -, C -, D and C for his four SACE subjects while his progress towards a Certificate II in [Discipline 1] is described as ‘needs improvement’.  His attendance is listed under Pastoral care as 59 per cent.

6. The Tribunal also notes in evidence provided by Ms Folwell an email exchange she had with [Mr A] at [School 1].  In response to a question from Ms Folwell about [Child 1]’s attendance, [Mr A] states on 2 November 2020 that for the first five weeks of Term 3 [Child 1] was “still under the “old” arrangements – attending full time” and in the second half of Term 3 he “moved to the new arrangements of being required at school for only two days per week”.  [Mr A] also confirms that the end of the school year for Year 12 students was Friday, 22 October 2020.[1] In a second email from [Mr A] dated 3 November 2020 he states that the school considered [Child 1] “became a part time student as from the week beginning Monday 24 August 2020”.

   [1] The Tribunal notes that 23 October 2020 is a Friday and not 22 October 2020.

7. Ms Folwell told the Tribunal that despite the email from [Mr A] she did not agree that [Child 1] was in full-time education as he was not attending school at all until he went part-time.  She said all Year 12 students at [School 1] finished on 22 October 2020, however, [Child 1] had not attended in the final week and his last day was 15 October 2020.

8. Mr Gathercole told the Tribunal that [Child 1] had a number of health issues in 2020 which impacted his attendance at school including a car accident on 31 May 2020.  He said as a result of the accident [Child 1] had suffered mild brain damage which caused significant problems for [Child 1] at school and exacerbated his poor attendance.

9. Mr Gathercole said ultimately, as a result of the accident, [Child 1] fell further behind in his work and the school had agreed to him attending part-time.  Mr Gathercole said the focus was on [Child 1]’s Year 12 trade lessons with a view to an apprenticeship as an [Occupation 1].

10. Mr Gathercole acknowledged that [Child 1] did not complete his SACE or his Certificate II in [Discipline 1].  Mr Gathercole said he had also been advised by [Mr A] that [Child 1] last attended school on 15 October 2020.

11. The Tribunal notes in evidence from Mr Gathercole an email he received from [Mr A] confirming that [Child 1] attended his last day of school on 15 October 2020.

12. The Tribunal finds, based on the evidence provided, that there was an administrative assessment of child support for [Child 1] in force on the day before his 18^th birthday in July 2020.  The Tribunal is also satisfied that Mr Gathercole applied to the Registrar on 13 May 2020 for the administrative assessment to continue and this was before [Child 1] turned 18 years of age and after he turned 17 years of age.  [Child 1]’s 18^th birthday also occurred before the last day of the secondary school year at [School 1].

13. Ms Folwell argues, based on his attendance record, that [Child 1] was not in full-time secondary education at [School 1].  She has pointed out that for the period after [Child 1] turned 18 years of age he attended school for only 12 days.

14. The term “full-time secondary education” is defined in subsection 5(1) of the Act and means “education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education”.  It is the view of the Tribunal that the 2020 Semester 1 Report for [Child 1] indicates [Child 1] was likely to be in full-time secondary education on his 18^th birthday.  The subsequent statements made by [Mr A] from [School 1] confirm the school considered [Child 1] to be in full-time secondary education until he transitioned to part-time study from 24 August 2020.

15. The Tribunal finds that all of the legislative requirements of the Act with respect to Mr Gathercole’s application for the administrative assessment of child support for [Child 1] to continue have been satisfied.  The Registrar was, therefore, correct in accepting Mr Gathercole’s application.

16. Section 12 of the Act deals with a series of circumstances giving rise to the happening of a terminating event, in other words, when a child support assessment must end.  If an application to extend an assessment beyond a child’s 18^th birthday is accepted then the effect is to change the definition of a terminating event as set out under section 12.  A terminating event happens instead on the earlier of the day on which the Registrar is satisfied the child ceased to be in full-time secondary education or the last day of the secondary school year to which the application relates (section 151D of the Act).

17. In this case the Tribunal is satisfied that [Child 1] ceased to be in full-time secondary education on 24 August 2020.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the application for the child support assessment for [Child 1] to continue beyond his 18^th birthday be accepted but with a terminating event happening on, and with effect from, 24 August 2020.