Groover and Sheridan (Child support)

[2021] AATA 3174

Groover and Sheridan (Child support) [2021] AATA 3174 (20 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/CC020939

APPLICANT:  Mr Groover

OTHER PARTIES:  Child Support Registrar

Ms Sheridan

TRIBUNAL:Member F Staden

DECISION DATE:  20 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond child’s eighteenth birthday – definition of secondary school year – application accepted – decision 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. Mr Groover and Ms Sheridan are the separated parents of twins, who turned 18 [in] December 2020 (the children). There has been a child support assessment for this case from 4 October 2013 and Mr Groover is currently the parent liable to pay child support. Ms Sheridan opted for collection of child support by Services Australia – Child Support (Child Support) from 30 March 2015.

2. On 24 August 2020, Ms Sheridan applied to Child Support for an extension of the child support assessment for the children from [December] 2020 to 17 December 2021 on the basis that 17 December 2021 was the last day at school for the children. Child Support told Mr Groover of Ms Sheridan’s application by letter dated 24 August 2020.

3. On 15 September 2020, Child Support informed Mr Groover and Ms Sheridan of the decision to accept Ms Sheridan’s application and extend the end date for the assessment from [December] 2020 to 19 November 2021.

4. Mr Groover lodged an objection to the 15 September 2020 decision on 14 September 2020, having been verbally informed on that date of Child Support’s likely decision to extend the assessment. Ms Sheridan responded to Mr Groover’s objection on 8 November 2020.

5. On 9 February 2021, an objections officer disallowed Mr Groover’s objection.

6. On 4 March 2021, Mr Groover applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

7. A hearing was conducted on 28 May 2021. Mr Groover and Ms Sheridan gave sworn evidence by telephone. The tribunal had before it documents provided by Child Support (117 pages), a copy of which was sent to the parents before the hearing.

8. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

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

2. The issue which arises in this case is:

   ·      Should the assessment for the children be extended and if so to what date?

CONSIDERATION

1. Subsection 151B(1) of the Assessment Act states:

   (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, 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. (tribunal emphasis)

2. The unqualified word “year” in the context of subsection 151B(1) has sometimes been understood by this tribunal, differently constituted, to mean calendar year, with that year then defining the secondary school year to which the extension would apply. For this case that would mean that, as the children turned 18 in 2020, the assessment could only be extended to the end of the 2020 secondary school year. As the 2020 secondary school year was over by the children’s 18^th birthday [in] December 2020, it would follow that Ms Shepherd could not apply for an extension of the assessment for the children.

3. The tribunal observed that section 151B was added to the Assessment Act by the Child Support Legislation Amendment Bill 1998. The Explanatory Memorandum for that Bill indicates that the unqualified “year” referred to in section 151B is the school year of a secondary school student:

   This Bill amends the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 to enable a child support assessment to continue to the end of the school year in which a full-time secondary student turns 18.

4. School year is not defined in the Assessment Act. However, section 5 of the Assessment Act defines the last day in relation to a child’s secondary school year as:

   (a)if the child is not required to sit an examination--the day determined by the secondary school to be the last day of classes for the school year; and

   (b)  if the child is required to sit an examination--the later of:

   (i)  the day determined by the secondary school to be the last day of the period of examinations for the child's year level; and

(ii)  the day determined by the secondary school to be the last day of classes for the school year.

1. The tribunal found that, assuming continuing enrolment, it logically follows from the definition of the last day of the secondary school year that the next day is the first day of the next secondary school year. This understanding of the continuity of secondary school years is analogous to the definition of full-time study for the purposes of the youth allowance activity test in section 541B of the Social Security Act 1991. Under section 541B, relevantly here, continuing students who are on vacation from the course they are undertaking are regarded as full-time students if they continue to be enrolled in that course. They do not cease to be full-time students during vacations. Therefore, as the 2020 secondary school year ended before the children’s birthday on [date] December 2020, the children turned 18 in the 2021 secondary school year. Ms Sheridan was thus able to apply for an extension of the assessment for the children to the end of the 2021 secondary school year.

2. Under subsection 151C(2) of the Assessment Act, the Registrar must accept an application under section 151B if, relevantly here, satisfied that: the child has turned 17; there is an assessment in force, or likely to be in force, that takes the child into account on the day before the child’s 18^th birthday; the child is likely to be in full-time secondary education on the child’s 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 18th birthday.

3. It was found above that the children’s birthday fell in the 2021 secondary school year. Therefore, all other requirements of subsection 151C(2) being met, the tribunal found that Child Support properly accepted Ms Sheridan’s application to extend the assessment for the children to the end of the 2021 secondary school year, specifically 19 November 2021.

4. The tribunal is aware that the Child Support Guide, the online technical and policy guide to the administration of the child support scheme, was recently amended to reflect the calendar year approach to the interpretation of subsection 151B(1). The first paragraph of 2.5.5 Application to have an assessment continue past a child’s 18^th birthday now reads:

   A carer entitled to child support for a child who is turning 18 can apply to extend a child support assessment (including one based on an agreement) provided the child will be in full-time secondary education on their 18th birthday. The child support assessment can be extended until the last day of the secondary school year in which a child turns 18. Where the child's 18th birthday falls in the holiday period in between 2 secondary school years, the carer entitled to child support would be unable to apply to extend the child support assessment. (tribunal emphasis)

5. According to the principles established in Drake and Minister for Immigration and Ethnic Affairs (No2) (1979) 2 ALD 634 and subsequent cases where those principles have been applied, the tribunal is obliged to take account of departmental policy and guidelines unless inconsistent with legislation or operating unjustly in a particular case. The tribunal has not followed Child Support’s current policy in relation to the interpretation of subsection 151B(1) for the reasons set out below.

6. Taking the unqualified “year” in subsection 151B(1) to be a secondary school year, with that year beginning on the day after the last day of the previous secondary school year promotes consistency with the wording of other relevant provisions in the Assessment Act as well as in the effect of the legislation on carers applying for an assessment extension.

7. Additionally, although a child’s last year of secondary school is often the calendar year in which they turn 18, there are children, as in this case, for whom this is not true. There are many reasons for this, for example, previous or current enrolment in an overseas non-calendar year-based education system, delayed school commencement or ill health. That such circumstances result in a paying parent not having to support their child through their last year at secondary school appears to be unfair and not in line with the intent of the legislation.

DECISION

The decision under review is affirmed.