Marson and Marson (Child support)

[2022] AATA 3060

Marson and Marson (Child support) [2022] AATA 3060 (22 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC023636

APPLICANT:  Mrs Marson

OTHER PARTIES:  Child Support Registrar

Mr Marson

TRIBUNAL:Member A Schiwy

DECISION DATE:  22 June 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mrs Marson’s application for the administrative assessment in relation to [Child 1] to continue beyond his 18^th birthday is accepted.

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 eighteenth birthday – application should be accepted – 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 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. Mrs Marson and Mr Marson are the parents of [Child 1].  [Child 1] turned 18 [in] January 2022.  This application is about Mrs Marson’s application to extend the child support assessment for [Child 1] until the end of secondary school.

2. On 15 December 2021 Mrs Marson lodged an application for the child support assessment to be extended past [Child 1’s] 18^th birthday.  She requested that the assessment continue until the end of the school year in 2022.  On 16 December 2021 Services Australia (Child Support) decided to refuse the application.

3. On 11 January 2022 Mrs Marson objected to this decision and on 8 March 2022 an objections officer decided to dismiss her objection.

4. On 5 April 2022 Mrs Marson lodged an application for review to the Administrative Appeals Tribunal (the tribunal). 

5. A hearing was held on 22 June 2022. Both Mrs Marson and Mr Marson gave evidence on affirmation at the hearing by conference telephone.

6. In considering this matter, the tribunal took into account the oral evidence of Mrs Marson and Mr Marson and the relevant documentation provided by the Child Support Registrar. Copies of the papers were provided to all parties prior to the hearing.

ISSUES

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

2. Section 151B of the Act provides that if a child turns 18 during a year in which the child is in full-time secondary education, an application may be made, by the carer in receipt of child support, for an assessment to continue beyond the child’s 18^th birthday.  There is no dispute that Mrs Marson made a valid application.

3. Subsection 151C(2) of the Act states that the application must be accepted if, and only if:

   (a) the child has turned 17; and

   (b)an administrative assessment in relation to the child either is in force, or is likely to be in force, on the day before the child’s 18th birthday; and

   (c)the child is likely to be in full-time secondary education on the child’s 18th birthday; and

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

   (e)the application is made before the child’s 18th birthday.

4. Child Support refused Mrs Marson’s application on the basis that [Child 1] was not considered to be in full-time secondary education on his 18^th birthday; it is Child Support’s view that he ceased secondary education towards the end of 2021 and would not be in secondary education again until the start of the school year which was 9 February 2022.

5. The issues in this case are whether [Child 1] was in full-time secondary education on his birthday while on summer holidays and whether his 18^th birthday occurred on or before the last day of the secondary school year.

CONSIDERATION

1. The relevant facts in this case are not in dispute:

   ·[Child 1] attended [a named] secondary school, full time in 2021.

   ·As of 7 December 2021, he was enrolled full time for 2022.

   ·[Child 1] turned 18 [in] January 2022.

2. The tribunal considered what constitutes the ‘secondary school year’.  Child Support have decided that the year commences on the first day of studies, the date the students return to school.

3. The Act does not refer to the ‘first day’ of the school year; only what constitutes the last day and the latter is used to determine when the child support assessment will end if the decision has been made to extend the case beyond the child’s 18^th birthday.

4. The Act allows for an application to be made if a child turns 18 during their full-time secondary education.  It does not specify when the school year starts.

5. If Child Support’s view was correct, had [Child 1] turned 18 one month later the application would have been granted.  In addition, if he turned 18 during a term holiday (when there are no lessons) Child Support would accept that he was in full-time secondary education.  To form a view that turning 18 during the summer holidays means that the child was not in secondary education does not appear to be the intention of the legislation.

6. The tribunal does not accept that the start date of the secondary school year is only meant to be taken as the day lessons begin.  [Child 1] has been attending school on a full-time basis continuously since he commenced Year 7.  He was enrolled to attend Year 12 in December 2021.  The fact that there is a holiday between Year 11 lessons ending and Year 12 lessons beginning does not result in [Child 1] not being in full-time secondary education during the holiday. 

7. The tribunal decided that [Child 1] was in full-time secondary education on his birthday, and it occurred before the last day of the secondary school year.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mrs Marson’s application for the administrative assessment in relation to [Child 1] to continue beyond his 18^th birthday is accepted.