Macksville and Macksville (Child support)

[2018] AATA 4581

Macksville and Macksville (Child support) [2018] AATA 4581 (13 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014321

APPLICANT:  Ms Macksville

OTHER PARTIES:  Child Support Registrar

Mr Macksville

TRIBUNAL:Member J Thomson

DECISION DATE:  13 November 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – particulars of the administrative assessment – start date of a binding child support agreement – decision under review affirmed

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. Ms Macksville and Mr Macksville are the parents of [Child 1], born 2007. The care percentages being assessed by the Department are 51% to Ms Macksville, and 49% to Mr Macksville.

2. Ms Macksville seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 18 May 2018. This decision partially allowed Mr Macksville’s objection to a Department decision dated 26 February 2018 accepting Mr Macksville’s application for registration of a Binding Child-Support Agreement dated 9 August 2016, and setting 31 January 2018 as the commencement date for that agreement.

3. The Objection decision under review set aside the Department’s decision and determined the commencement date for the agreement as 11 December 2017, the date of Mr Macksville’s application for registration of the agreement with the Department.

4. The Tribunal heard the matter on 13 November 2018. Both parents attended the hearing by conference telephone and gave affirmed evidence. The Tribunal had before it copies of documents provided by the Department and the parents. These were admitted into evidence and marked Exhibits 1, A and B. Both parents had copies of these documents with them at hearing.

ISSUES

1. The statutory provision relevant to this review is section 34B(2)(d) of the Child Support (Assessment) Act 1989, (the Act). This section provides, relevantly, that, with respect to an application for acceptance of a binding child-support agreement made more than 28 days after the day on which the agreement was signed, the child-support period starts on the day on which the application was made to the Registrar for acceptance of the agreement.The issues which arise in this case are:

   ·       the issue in this case is the determination of the effective date of commencement of [Child 1]’s enrolment at [School 1] at [Suburb 1], [State 1] ([School 1]) in accordance with the meaning of the words “the commencement of [Child 1]’s enrolment” as used in clause 13 of the Binding Child-Support Agreement  attached to consent orders made in the Family Court of Australia at [City 1] on [date] August 2016 (the Agreement), the subject of Mr Macksville’s application to the Registrar on 11 December 2017, before the Tribunal at pages 44 to 59 of Exhibit 1.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of both parents at hearing, and the documents contained in Exhibit’s 1, A and B.

2. Both parties accepted that Mr Macksville’s application for acceptance of the Agreement was made to the Registrar on 11 December 2017.

3. Mr Macksville did not challenge the objections officer’s determination of 11 December 2017 as the effective commencement date for the Agreement, accepted by the Registrar on 26 February 2018 in response to Mr Macksville’s application of 11 December 2017.

4. The issue in the case centres upon the wording of clause 13 of the Agreement, extracted below, in particular, the interpretation of the meaning and effect of the words “commencement of [Child 1]’s enrolment”:

   13. That pursuant to s.124 of the Child Support (Assessment) Act 1989, in the event that [Child 1] be enrolled at [School 1] or such other private school as the parties may agree in writing, that from the commencement of [Child 1]’s enrolment at that school (authors emphasis) until the conclusion of [Child 1]’s secondary education (or December in that year, whichever is later), the father will pay child support for [Child 1] as follows:

   13.1 The total amount payable to [School 1] on all invoices raised from time to time for school fees; and

   13.2 All other incidental costs relating to enrolment at either school including, but not limited to, textbooks, school uniforms, excursions, bus fares and extra-curricular activities.’

5. On 9 August 2016, the parties reached agreement as to the terms of a Binding Child-Support Agreement dealing with, amongst other issues, [Child 1]’s schooling arrangements, agreeing, relevantly, that he should attend [School 1] from the commencement of year 5 in 2018 until the completion for secondary education.

6. The evidence suggests that an approach had already been made to [School 1] to enrol [Child 1] as a student, to commence at that school in the first term of 2018.

7. On 2 August 2016, the Head Master of [School 1] sent a letter to Mr Macksville and Ms Macksville, relevantly, offering [Child 1] a year 5 Day Boy placement at the Junior School, [Suburb 1] for 2018, and inviting Mr Macksville to sign an Acceptance Form enclosed with the letter, and return it to the school by 19 August 2016, together with his payment in favour of the school for $2,800 by way of a non-refundable Enrolment Fee. A copy of the Head Master’s letter was before the Tribunal at page 89 of Exhibit 1.

13.It was not disputed at hearing that the Mr Macksville had complied with the requirements set out in the [School 1]’s Head Master’s letter of 2 August 2016, in particular the signing and return of the Acceptance Form enclosed with that letter, and the payment of the $2,800 non-refundable enrolment fee.

1. On 12 August 2016, the school sent an email to the parents confirming [Child 1]’s placement as a year 5 Day Boy at [School 1] for the 2018 academic year, and acknowledging the receipt of the $2,800 non-refundable Enrolment Fee (see page 90 of Exhibit 1).

15.Ms Macksville‘s case at hearing was that there is a distinction to be drawn between Mr Macksville’s application in or about August 2016 to [School 1] for [Child 1]’s enrolment to attend that school in the academic year commencing in January 2018, and [Child 1]’s actual enrolment at that school on the day he actually commenced at the school as a student in January 2018.

1. Her submission was founded on the proposition that the Head Master’s letter offering [Child 1] a place as a year 5 Day Boy at the school for 2018, the acceptance of that offer by Mr Macksville, and payment of the non-refundable $2,800 fee, described in the head Master’s correspondence, and the subsequent acknowledgement by the school of receipt of that payment as an Enrolment Fee amounts to no more than the securing of a placement for [Child 1] as a year 5 student commencing at the start of the 2018 academic year in January 2018, and that it is not until [Child 1] actually commences as a year 5 Day Boy at the school on the first day of the commencement of the 2018 academic year in January of that year, that he is “enrolled” as a student at that school.

2. The Tribunal rejects Ms Macksville’s submissions for the following reasons.

3. Although Ms Macksville was somewhat dismissive of the use of dictionary definitions for the purposes of defining the meaning of the term “enrolment”, as this case involves interpretation of the meaning of that word and its effect in the context of clause 13 of the Agreement under consideration, the Tribunal considers recourse to the Concise Oxford Dictionary is appropriate in the circumstances.

4. The Concise Oxford Dictionary’s definition of the verb “enrol” is to ‘write (the) name of (person) on list… Incorporate (person) as member… Enter one’s name on list’.

5. The [School 1] Head Master’s letter of 2 August 2016 speaks in terms of an offer of a place for [Child 1] as a year 5 Day Boy at the school for 2018, and invites Mr Macksville to accept that offer by signing and returning an Acceptance Form and playing a $2,800 Enrolment Fee by Friday, 19 August 2016.

21.In response to that letter, and consistent with the terms of the offer contained therein, Mr Macksville arranged for the completion and signing of the school’s Acceptance Form, and its return to the school together with the non-refundable $2,800 Enrolment Fee, the consequential effect of which was the placement of [Child 1]’s name on the list of students to commence at the school as a year 5 Day boy, in 2018, as confirmed in the subsequent email sent by the school to Mr and Ms Macksville on 12 August 2016, page 90, Exhibit 1.

22.As a matter of law, upon completion and return of the Acceptance Form and payment of the non-refundable Enrolment Fee, a binding contract between [School 1] and [Child 1]’s parents came into existence, the effect of which was that [Child 1] was enrolled from the date of acceptance of [School 1]’s offer for a place as a year five Day boy at the school from the commencement of term 1 of the 2018 academic year.

1. The Tribunal therefore finds that by completing, signing and returning [School 1]’s Acceptance Form and paying the $2,800 Enrolment Fee, Mr Macksville had commenced and completed the process of having [Child 1]’s name placed on a list of students “enrolled” to commence as a year 5 Day Boy at [School 1] in 2018, and that , accordingly the words used in Clause 13 of the Agreement should be construed to mean that the commencement of [Child 1]’s enrolment at [School 1] was effected when Mr Macksville returned the school’s Acceptance Form and paid the non-refundable Enrolment Fee in or about the early part of August 2016.

2. As Mr Macksville did not apply to the Registrar for Acceptance of the Binding Child-Support Agreement until 11 December 2017, more than 28 days after the Agreement came into existence, the effective date for acceptance of the Agreement Is 11 December 2017, and the effective date for the purpose of application of the provisions of Clause 13 of the Agreement Is 11 December 2017.

3. As the Tribunal has reached to the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.