Nealey and Nealey (Child support)

[2021] AATA 1279

Nealey and Nealey (Child support) [2021] AATA 1279 (17 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020299

APPLICANT:  Mr Nealey

OTHER PARTIES:  Child Support Registrar

Ms Nealey

TRIBUNAL:Member J D’Arcy

DECISION DATE:  17 February 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – last day of school year correctly applied – 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. Mr Nealey has requested a review of the decision to extend the child support assessment for his daughter, [Child 1], to 1 December 2020.

2. A child support assessment for [Child 1] has been in place since 17 May 2018.

3. On 21 January 2020 Ms Nealey applied to extend the assessment past [Child 1]’s 18^th birthday to 18 November 2020. She supplied supporting evidence from [School 1] stating that the final school day for 2020 was 8 December 2020.

4. Services Australia extended the assessment to 8 December 2020.

5. Mr Nealey objected to the decision stating that his daughter’s last examination was held on 19 November 2020. He provided supporting evidence from her school confirming that her last day of classes was 28 October and her final examination was on 19 November. However, she would be required to attend compulsory activities on 7 and 8 December 2020.

6. On 21 November 2020 Services Australia partly allowed Mr Nealey’s objection and extended the child support assessment until 1 December 2020, the last day of examinations for [Child 1]’s year level.

7. On 24 November 2020 Mr Nealey lodged an application for review with the Administrative Appeals Tribunal (the tribunal).

8. A hearing was conducted on 17 February 2021 with Mr Nealey by telephone.

9. Services Australia supplied the parties and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (81 pages).

CONSIDERATION

1. Mr Nealey raised the following issues in the hearing:

   ·Services Australia made decisions and sent out letters on the basis of information provided by the payee, without consulting the payer or explaining the rationale or the supporting evidence on which the decisions were made.

   ·The decisions made by Services Australia were inconsistent with the legislation because a decision was subsequently made to extend the assessment to 8 December 2020, being the last day of school, not the last day of examinations for the year level. Mr Nealey was sent a letter about this change but again there was no adequate explanation for the change. He described receiving a “constant chain of inaccurate information”.

   ·Despite numerous conversations with officers from Services Australia he was only advised of the relevant legislation towards the end of his period of dealings with them. The legislation was not included in any letters to him.

   ·The child support assessment should cease on the last day of an individual’s examination. Payers should not be compelled to continue to pay child support until all remaining students have completed their VCE examinations.

   ·Mr Nealey’s individual circumstances should be taken into account in determining the extension of the assessment period. For the past year he has been receiving Job Keeper payments. However, he has demonstrated an ongoing commitment and support for his daughter. He has never been late in his payments.

2. The tribunal acknowledged that the reasons for the decisions made by Services Australia were not included in the letters to Mr Nealey, nor was the legislation referred to in those letters.

3. The relevant legislation is contained in section 151B of the Child Support (Assessment) Act 1989 which states that if a child turns 18 years 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, to continue in force until the last day of the secondary school year in which the child turns 18 years. The last day is defined in section 5 as follows:

   "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.

1. According to the Victorian Certificate of Education 2020 Examination Timetable, the last day of examinations for VCE students was Tuesday, 1 December 2020.

2. Under the above definition of last day, the child support assessment can be extended until 1 December 2020. There is no discretion in this part of the Act to take into account the date on which [Child 1] finished her final examination on 19 November 2020, nor to consider Mr Nealey’s individual circumstances.

DECISION

The decision under review is affirmed.