Gilthorpe and Bloomfield (Child support)

[2024] AATA 3239

Gilthorpe and Bloomfield (Child support) [2024] AATA 3239 (2 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027956

APPLICANT:  Mr Gilthorpe

OTHER PARTIES:  Child Support Registrar

Ms Bloomfield

TRIBUNAL:Member J Nalpantidis

DECISION DATE:  2 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – extension past child’s 18th birthday to last day of secondary school – birthday ‘during a year in which the child is in full-time secondary education’ – child’s birthday fell before school year started – home schooling and casual work – study to continue next year – extension to end of this school year only – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 extension of the child support assessment for [the child] (born 17 January 2006) past her 18th birthday until 1 November 2024.

2. Ms Bloomfield and Mr Gilthorpe are the parents of [the child] and there has been a child support assessment in place since 27 November 2006. Mr Gilthorpe is the parent liable to pay child support.

3. On 4 December 2023 Ms Bloomfield applied to Services Australia – Child Support (Child Support) seeking to extend the assessment for [the child] past her 18th birthday until 1 November 2024. On 4 December 2023 Child Support decided to accept Ms Bloomfield’s application and extend child support for [the child] past her 18th birthday.

4. On 8 December 2023 Mr Gilthorpe objected to this decision, and on 20 April 2024, an objections officer of Child Support disallowed the objection.

5. On 17 May 2024 Mr Gilthorpe 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 2 August 2024. Mr Gilthorpe and Ms Bloomfield gave evidence on affirmation by Microsoft Teams audio. Child Support provided documents relevant to the review (119 pages).

ISSUES

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

2. Subsection 31(2) of the Act provides that child support is payable until the day immediately before the day a child support terminating event occurs in relation to the child, the carer entitled to child support, the liable parent or all three of them.

3. Paragraph 12(1)(c) of the Act provides that a child turning 18 years of age is a terminating event. Section 151B of the Act, however, provides for a parent entitled to child support to apply for the assessment to continue until the last day of the secondary school year in which the child turns 18 years of age, if certain conditions are met.

4. If a valid application meets certain criteria, then it must be accepted (section 151C). The consequences of acceptance are set out in section 151D of the Act. A child support terminating event no longer happens when the child turns 18 years of age but instead on the day the child has ceased to be in full-time secondary education, or otherwise on the last day of the secondary school year to which the application relates, whichever occurs first.

5. The issue which arises in this case is whether or not the application to extend the child support assessment for [the child] past her 18th birthday should be accepted.

CONSIDERATION

1. Section 151B of the Act relevantly provides:

   Application for assessment … to continue beyond child's 18th birthday

   (1) 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 … in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

2. Generally, child support will cease when a child turns 18 years of age (paragraph 12(1)(c) of the Act).  A parent entitled to child support for a child who is turning 18 years of age can apply to extend a child support assessment provided the child will be in full-time secondary education on their 18th  birthday. In those circumstances, the child support assessment can be extended until the last day of the secondary school year in which a child turns 18 years of age.

3. The issue which arises is whether [the child] turned 18 “during a year” in which she was in full-time secondary education. If this is the case Ms Bloomfield may then apply for the assessment to continue until “the last day of the secondary school year” in which [the child] turns 18 years of age.

4. The statutory definition of 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”.

5. Section 5 of the Act provides that the last day of the secondary school year is either:

• if the child is not required to sit an examination, the last day of classes for the school year (as determined by the school);

• if the child is required to sit an examination, the later of:

  ­the last day of the period of examinations for the child s year level, and

  ­the last day of classes for the school year (as determined by the school.

Mr Gilthorpe’s evidence and contentions

1. In his written application to the Tribunal, Mr Gilthorpe stated (unedited):

   I would like to contest this rejection of my appeal for extended Child Support payments beyond [the child]'s 18th birthday. The continued payment of Child Support to Ms Bloomfield was made due to the enrolement of [the child]into full time studies in yr 11 in 2024.

   [The child] has herself informed me verbally that both her and her Mother are working in a shop (shop details given if requested) for cash renumeration. this employment is some 40min away from their home, with consideration of a minimum 4 hour shift, this would involve an approximat 6hr turn around journey. The current school year consists of 180 days, traditionally beening 6 hrs in duration (not accounting for regular breaks to keep the mind fresh). A year 11 sylabus consists of a minimum of 12 units with one unit based on 60 hours of study in a year ( as per 'Guidelines for Home Schooling Registration, Section 10. Curriculum for Senior Secondary Education- Years 11 and 12'). As per these stipulations, a year 11 student is expected to study for 720 hrs per year, or 4 hours per day over the school year. With the added information provided verbally by both Ms Bloomfield and [the child], [the child] will be attending TAFE for some of her subjects, again involving travel time to and from TAFE facilities. With this information I question the validity of [the child] being able to studying full time. I was not aware of [the child]'s intention to be home schooled as she herself informed me that she would be attending TAFE this year. In relation to [the child]'s Certificate of Home Schooling Registration, I was not aware of this until receiving a copy from Services Australia which was received by me on 21 April 2024. I believe that during the application process, a parent is required to submit a syllabus and learning outcomes the student would follow to achieve their goals. I have not been provided this information. I am also unaware of what processes are in place to monitor [the child]'s ongoing attendents/commitment to compleating this mode of schooling. This also creates doubts.

2. Mr Gilthorpe gave evidence that he had a telephone conversation with the child, who told him that she will attend TAFE.  A follow-up call by Child Support then advised him that the child was being ‘home schooled’ which ‘was news to me’.  He was not provided with any details about the home schooling and what that study involved.  He subsequently went to the New South Wales Government website which lists guidelines for Year 11 and 12 home schooling, including the curriculum, subject requirements, hours of study and assessment.  He questioned whether the criteria on the website were met by the child.  Mr Gilthorpe questioned how the child’s home schooling was assessed. 

3. Mr Gilthorpe told the Tribunal that when he last spoke with the child in January 2024, he understood that, as well as her study, she was working in a casual job and questioned how she could be studying full time as well as working. He questioned whether the child was studying and meeting the study requirements for home schooling.

4. Mr Gilthorpe noted that the child would not complete exams in 2024 and referred the Tribunal to a Child Support record of first contact with Ms Bloomfield, dated 15 April 2024 which stated:

   First contact with Ms Bloomfield

   Ms Bloomfield's role in the objection is Respondent

   Ms Bloomfield contacted Child Support

   This call is not related to a care decision

   Explained the objections process including evidence based decision making to Ms Bloomfield

   OEI and editing of documents were explained to and acknowledged by Ms Bloomfield

   Ms Bloomfield has accepted electronic Open Exchange of Information and email address on Cuba has been confirmed or updated

   Ms Bloomfield was advised of the 60 days timeframe and impact of delays to responses *AAT Appeal rights were explained

   Decision discussed with Ms Bloomfield:

   The decision on 4 December 2023 to accept Ms Bloomfield's application to extend child support assessment beyond [the child]'s 18th birthday until 1 November 2024.

   Date of original decision: 04/12/2023

   Ms Bloomfield was advised of the applicant's grounds for the objection

   Ms Bloomfield elected to provide a verbal response to the objection, as follows:

   [The child] is home schooled, completing year 11 and 12 through Nesa Home Schooling.

   She's currently completing year 11 in 2024. Year 11 finishes in October/November, and she will then study year 12 until the end of the school year. She is considered a full‐time student.

   Ms Bloomfield agreed that the above record is a true representation of her response

   Ms Bloomfield has stated she will provide the following evidence by 29/04/2024:

   ‐ Letter from Nesa confirming [the child] is a full time secondary student, and her last day of school this year.

   *Ms Bloomfield has stated evidence will be provided by myGov

   Ms Bloomfield will respond to the objection at a later time. She has been advised she can do so either in writing or by calling us by 29/04/2024.

   Additional information:

   [The child] is not completing exams in 2024, and Ms Bloomfield is unsure what the last day of classes for 2024 will be. [The child] She will be continuing year 12 in 2025. Confirmed we can only extend until the last day of school in 2024, as [the child] turned 18 in 2024.

5. He told the Tribunal he was disappointed that he was not informed about the child’s home schooling or the issues that led to the child being home schooled.  He contends he has questions about the qualification of people in the so-called ‘Facebook network’ who are providing support, how the child’s hours of study are assessed and what is involved in the assessment.

6. In response to the Tribunal’s question about what evidence he had that the child was not meeting the requirements of home schooling, as listed in the government website, Mr Gilthorpe responded he did not have information about the child’s study activities.  He was told very little by Child Support and therefore referred to the website – NSW Education Standards Authority (NESA) Guidelines for home schooling registration | NSW Government - 10. Curriculum for senior secondary education – Years 11 and 12 | NSW Government.  He told the Tribunal he did not have evidence as such, he had a number of questions which Child Support did not answer in its communication with him and advised he could apply to the Tribunal if he was dissatisfied with Child Support’s decision to extend child support to November 2024. He did not have specific evidence to present to the Tribunal and lodged the application with the Tribunal so that his questions could be addressed. 

Ms Bloomfield’s evidence and contentions

1. Ms Bloomfield referred the Tribunal to a certificate of home-schooling registration from the New South Wales Government, dated 10 November 2023, for the child.

2. She told the Tribunal that the child is registered for home-schooling until November 2025.  The child studies on her own and has ‘work books’ for all her subjects which she completes during the year.  Ms Bloomfield assists the child as needed.  In Year 11 a home school teacher named [Mr A] attended their home and checked the child’s work books; the child received her school certificate and is continuing with her home schooling.  [Mr A] will attend again towards the end of the year to check the child’s progress.  As part of the Year 11 curriculum the child has a work experience subject and is allowed to do both voluntary and paid work.  She also undertakes various other activities as part of her curriculum, such as sports, dancing and soccer.  The child is required to study four hours per day, five days per week, which is what she does.

3. Ms Bloomfield told the Tribunal that the child generally undertakes her study from Monday to Friday between the hours of 9.00 am and 3.00 or 4.00 pm; she undertakes sporting activities on weekends.  Her subjects include mathematics, language (Japanese), geography, English, science and cooking.  She has text books and works through those texts and has access to online resources as well as staff resources to call on, such as [Mr A], if required.  Her completed work books are checked by [Mr A].  There is also a home-schooling site on Facebook – the NSW Home Schooling Registration Support Network which can be accessed for questions and support as required.  This network can direct the child and Ms Bloomfield to appropriate resources who may assist with their queries.

4. Ms Bloomfield told the Tribunal the child works through her curriculum independently and if she is stuck, asks for her assistance; her brother is also available to assist her.

5. Ms Bloomfield told the Tribunal the child experienced bullying in Year 10 and as a result has bad anxiety and experiences panic attacks.  She had suicidal thoughts for a few months.  She was not eating properly for nine months which Ms Bloomfield said may have been related to anorexia.  The child undertook some volunteer work at the time to get her out of the house and to occupy herself with something constructive.  Her doctor recommended home schooling as did the school social worker.  The child has “come a long way since” and home schooling has been beneficial for her.

6. Ms Bloomfield told the Tribunal she has cared for the child with little input from Mr Gilthorpe and she did not consider it necessary to involve Mr Gilthorpe in the decision around home schooling, or to provide him with information or answer his questions about home schooling.     

7. Ms Bloomfield provided a certificate of home-schooling registration from the New South Wales Government, dated 10 November 2023, which certified that [the child] has been registered under the provisions of Part 7 of the Education Act 1990 for senior secondary education from 2 November 2023 to 1 November 2025. The certificate was signed by the Director, Regulations of Schooling, NESA.

8. Ms Bloomfield gave detailed evidence about the child’s pattern of study, which was consistent with the NESA guidelines for Year 11 and 12 secondary study.  The NESA guidelines include a pattern of study with selected courses over the year, including the following key learning areas:  English, mathematics, science, technology, human society and its environment, creative arts, personal development health and physical education, languages and vocational education and training. Courses can be selected from a wide range of NESA syllabuses, including vocational education courses.

9. The NESA guidelines refer to a syllabus for each course, with a pattern of study which includes the number of subject areas, the sequence in which the course is taught and the number of units for each course.  Most courses have a two unit value. A unit is a measure of time with one unit based on 60 hours of study in a year and two units based on 120 hours of study in a year. A Year 11 educational program includes a minimum of 12 units (including 2 units of English). As most Year 11 courses are two unit courses, a Year 11 student typically studies a two unit English course and five other two unit courses.

10. A Year 12 educational program includes a minimum of 10 units (including two units of English). As most Year 12 courses are two unit courses, a Year 12 student typically studies a two unit English course and four other two unit courses.

11. The Tribunal finds that [the child] was enrolled in full-time secondary home schooling in 2024 when she turned 18 in January 2024. She was enrolled to undertake this study throughout the 2024 calendar year, with the anticipated completion of her study year on 1 November 2024.

12. The Tribunal finds that subsection 151B(1) of the Act is met and Ms Bloomfield was, therefore, able to apply for the assessment to continue beyond [the child]’s 18th birthday.

13. Section 151C of the Act then sets out the criteria to be met for the application to extend an assessment to be accepted. Child Support must be satisfied:

    ·     the child 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 18th birthday;

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

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

    ·     the application is made before the child’s 18th birthday or there are exceptional circumstances justifying the making of the application after the child’s 18th birthday.

14. The Tribunal finds, based on the evidence provided, there was an administrative assessment of child support for [the child] in force on the day before her 18th birthday. The Tribunal is satisfied that Ms Bloomfield applied to Child Support on 9 December 2023 for the administrative assessment to continue and this was before [the child] turned 18 years of age and after she turned 17 years of age. The Tribunal has also established that [the child] was in full-time secondary education on her 18th birthday even though this birthday fell during a holiday period.

15. The Tribunal finds that Ms Bloomfield’s application to extend the assessment was properly accepted. In accordance with section 151D of the Act, the administrative assessment will continue until [the child]’s last day of Year 12, or any other preceding child support terminating event.

DECISION

The decision under review is affirmed.