Leith and Leith (Child support) - [2025] ARTA 1631

Leith and Leith (Child support) [2025] ARTA 1631 (17 July 2025)

Applicant:Ms Leith
Respondent:  Child Support Registrar
Other Party:  Mr Leith
Tribunal Number:  2025/SC029465
Tribunal:General Member S Irvine
Place:Hobart
Date:17 July 2025
Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – extension past eighteenth birthday – end date the year following eighteenth birthday – extension of time to object granted – terminating event – child support assessment changed to end on last day of the secondary school year of children turning eighteen – financial detriment as a result of error – may be eligible for compensation under the Scheme for Compensation for Detriment caused by Defective Administration – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Ms Leith and Mr Leith are the parents of [Child A] and [Child B], both born on [date] December 2005. A child support assessment for [Child A] and [Child B] commenced on 12 September 2007, and would ordinarily end [in] December 2023, the day before the children turned 18.
On 27 April 2023 Services Australia – Child Support (Child Support) made a decision to extend the child support assessment for [Child A] and [Child B] until 14 November 2024, which Child Support had determined would be the last day of the 2024 school year for the children.
On 20 September 2024 Mr Leith objected to Child Support’s decision, and lodged a request for an extension of time to object as his objection was not lodged within 28 days of him being advised of the decision. On 18 November 2024 Child Support decided to grant Mr Leith’s request for an extension of time, and on 15 February 2025 a Child Support objections officer allowed Mr Leith’s objection. The objections officer set aside the decision made on 27 April 2023 and made a new decision to extend the child support assessment until 19 December 2023, the last day of the 2023 school year for the children.
On 10 March 2025 Ms Leith applied to this Tribunal for an independent review of Child Support’s decision. A hearing took place on 4 July 2025. Ms Leith attended the hearing by video and Mr Leith attended the hearing by telephone, and both parties gave sworn evidence. The Tribunal had before it documents submitted by Child Support numbered 1 to 127.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The issue arising in this case is the correct date on which the administrative assessment of child support for [Child A] and [Child B] ended.

CONSIDERATION

Paragraph 12(1)(c) of the Act provides that a child support assessment for a child will ordinarily end the day before the child’s 18th birthday. However, section 151B of the Act provides that a carer entitled to child support may apply for the assessment to continue until the last day of the secondary school year in which the child turns 18. If the application is accepted, the child support assessment for the child will end on the day determined pursuant to paragraph 151D(1)(b) of the Act, being the later of the day on which the child ceased to be in full-time secondary education or the last day of the secondary school year to which the application relates.
It is not disputed that Ms Leith made an application under section 151B of the Act in respect of [Child A] and [Child B] on 5 April 2023, and it is not disputed that that application met the requirements set out in that section. Section 151C of the Act sets out that such an application must be accepted if (relevantly to this matter):
·      The child has turned 17;
·      An administrative assessment of child support 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 the child’s 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.
[Child A] and [Child B] turned 18 [in] December 2023. At the hearing, Ms Leith confirmed that in 2023 [Child A] and [Child B] were in year 11, and that their last day of classes in that year was 19 December 2023. I am satisfied also that [Child A] and [Child B] continued their secondary education in 2024.
Section 5 of the Act provides that:
last day, in relation to a child’s secondary school year, means:
(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.
I find that [Child A] and [Child B’s] 18th birthdays occurred before the last day of the 2023 secondary school year, and therefore Ms Leith’s application under section 151B was properly accepted. The child support assessment therefore ended on “the last day of the secondary school year to which the application relates”.
In the decision made on 27 April 2023, Child Support appears to have determined that the “secondary school year to which the application relates” was the 2024 secondary school year, and consequently the decision was that the child support assessment for both children would be extended to 14 November 2024.
However, it is clear from subsection 151B(1) of the Act that the application that may be made is for the assessment to continue in force until the last day of the secondary school year in which the child turns 18. In this case, that is the 2023 school year. I therefore find that, pursuant to paragraph 151D(1)(b) of the Act, a terminating event occurred in relation to the administrative assessments for [Child A] and [Child B] on 19 December 2023.
Ms Leith told the Tribunal that her concern was that she relied on the decision made by Child Support in April 2023, that the child support assessment would be extended to the end of the 2024 school year when the children completed their secondary education. This appeared to her to be an entirely reasonable decision, since the children still required the support of their parents to complete their education, and it should not be up to the community to support them. She only became aware that there was any issue with that decision in November 2024, when she was advised of Mr Leith’s objection. Ms Leith pointed out that Mr Leith’s objection was made well outside of the usual objection timeframe of 28 days from being advised of the decision.
While Ms Leith did not necessarily dispute that the original decision was an error, she said she had been significantly disadvantaged by that error. She accepted the child support payments made by Mr Leith in good faith. She now finds herself in a position of having to repay a significant overpayment of child support, of over $24,000, which she is not in a position to repay. She also said that Child Support’s error, and the extended time that it took for them to realise and correct that error, meant that she has missed the opportunity to make an application for an order that Mr Leith pay maintenance for the children while they completed their education (an application that is available under the Family Law Act 1975). Ms Leith said she has consulted Legal Aid about her options and has been told that such an order will not be made retrospectively.
Ms Leith also raised concerns about Child Support’s decision to grant Mr Leith an extension of time to object to the decision made in April 2023. As discussed in the hearing, the Tribunal’s jurisdiction to review a decision of the Child Support Registrar is limited. Section 89 of the Registration Act sets out the decisions in respect of which an application may be made to the Tribunal. The Tribunal can only review a decision on an application for extension of time where an application for that review is made by the person who applied for the extension of time. Ms Leith does not have standing to make that application, and so the Tribunal has no jurisdiction in this matter to review the extension of time decision.
Mr Leith told the Tribunal that he also did not initially realise Child Support’s error, and so he did not initially object to the decision made in April 2023. Initially his objection, lodged in September 2024, was simply on the basis that he believed the 2024 school year for the children would end earlier than the date determined by Child Support – he believed the children would cease full-time study on 25 September 2024, not 14 November 2024. However, after lodging his objection he did some further research including consulting the online Child Support Guide, and it was then that he realised that the assessment should only have been extended to the end of the 2023 school year. Mr Leith said that from his perspective he had paid child support for almost a year in a situation where he was not liable to do so. He said payment of the child support through 2024 caused him financial hardship and he had to borrow money to keep up the payments, which meant he incurred additional cost in interest payments on that loan that he cannot now recover.
I accept that both parties have acted in good faith in relation to this matter. There is no indication that either party provided any false or misleading information to Child Support, or had any reason to believe that they could not or should not rely on the decisions made by Child Support. I also accept that the error made by Child Support in April 2023 has created a very difficult situation in particular for Ms Leith, who now finds herself in a situation where she must repay the money she received and applied to the support of the children for a period of almost a year and also has, according to the legal advice she has received, lost the opportunity to obtain that support through a maintenance order under the Family Law Act 1975. Mr Leith has put to the Tribunal that he has also suffered financial detriment as a result of Child Support’s error.
However, I must make a decision according to law, and I have found that pursuant to the provisions of the Act, the correct end date for the administrative assessment of child support for [Child A] and [Child B] is 19 December 2023. Consequently I must affirm the decision under review.
To the extent that they believe they have suffered financial detriment as a result of actions taken by Child Support in this matter, it is open to either party to discuss with Child Support whether they are eligible for compensation under the Scheme for Compensation for Detriment caused by Defective Administration (the CDDA Scheme). Information on the CDDA Scheme is available at: claiming-compensation-from-us. The information at this site says in part:
Defective administration
Where there’s no legal right to compensation, we’ll consider whether we can compensate you under the Scheme for Compensation for Defective Administration (the CDDA Scheme). You need to show all of the following:
·our administration was defective
·you suffered a loss or detriment as a result
·we could reasonably have expected you would suffer loss or detriment as a result.
It is not the Tribunal’s role to provide any advice as to whether an application under the CDDA Scheme would be successful. Applications under the CDDA Scheme are discretionary; they are assessed on their individual merits, and a finding that a mistake has been made by an official does not automatically mean compensation is payable. The Tribunal has no jurisdiction in respect of perceived defective administrative matters of Services Australia and has no jurisdiction over the administration of the CDDA Scheme.

DECISION

The Tribunal affirms the decision under review.

Date of hearing:	Friday, 4 July 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented