Pittard and Pittard (Child support)

Pittard and Pittard (Child support) [2022] AATA 1559 (24 March 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023131
APPLICANT:  Mrs Pittard
OTHER PARTIES:  Child Support Registrar
Mr Pittard

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 24 March 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the application for the child support assessment for [Child 1] to continue beyond her 18th birthday be accepted with a terminating event happening on, and with effect from, 17 November 2022 (or an earlier date if [Child 1] ceases full-time secondary education sooner).

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 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

This review is about extending the child support assessment for the child [Child 1] (born [date] 2004) past her 18th birthday.
Mrs Pittard and Mr Pittard are the parents of [Child 1] and there has been a child support assessment in place since 12 January 2006. Mr Pittard is the liable parent.
On 1 November 2021 Mrs Pittard applied to the Child Support Agency seeking to extend the assessment for [Child 1] past her 18th birthday until 17 November 2022. On 5 November 2021 the Child Support Agency made the decision to refuse the application.
On 2 December 2021 Mrs Pittard objected to this decision and on 13 January 2022 the Child Support Agency disallowed the objection (the objection decision).
On 14 January 2022 Mrs Pittard applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 24 March 2022. Mrs Pittard and Mr Pittard gave evidence on affirmation by Microsoft Teams audio. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (71 pages).
The Tribunal also received additional evidence from Mrs Pittard (A1–A16) and Mr Pittard (B1–B12) prior to the hearing. The Child Support Agency, pursuant to section 39AA of the Administrative Appeals Tribunal Act 1975, sought leave to make a written submission in relation to the matter and this was received on 23 March 2022 (C1–C7). A copy of all additional evidence was distributed to the parties.

ISSUES

The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act).
A child support assessment applies until the day immediately before the day a child support terminating event occurs in relation to the child (subsection 31(2) of the Act). One such child support terminating event is when the child turns 18 years of age (section 12). A parent entitled to child support may, if the child “turns 18 during a year in which the child is in full-time secondary education”, apply for the assessment to continue “until the last day of the secondary school year in which the child turns 18” (section 151B).
If a valid application meets certain criteria then it must be accepted (section 151C). The consequences of acceptance are set out in section 151D of the Act. A child support terminating event no longer happens when the child turns 18 years of age but instead on the day the child has ceased to be in full-time secondary education or otherwise on the last day of the secondary school year to which the application relates, whichever occurs first.
The issue which arises in this case is whether or not the application to extend the child support assessment for [Child 1] past her 18th birthday should be accepted.

CONSIDERATION

Mrs Pittard told the Tribunal she felt the decision made by the Child Support Agency to refuse to extend the assessment was unfair because [Child 1] was still attending school on a full-time basis in 2022. Mrs Pittard said that [Child 1] was being disadvantaged simply on the basis her 18th birthday fell during the end of year holiday period between two school years.
Mrs Pittard explained that [Child 1] was attending the [School 1] as a full-time Year 12 student in 2022. She said [Child 1] was currently undertaking studies for her Victorian Certificate of Education (VCE) and her subjects included English, psychology, legal studies, further maths and health and human development. Mrs Pittard said [Child 1] was also studying religion but she understood there was no VCE examination for this subject.
Mrs Pittard pointed out that [Child 1] had commenced her Year 12 VCE studies on 22 November 2021 before the end of the 2021 school year. Mrs Pittard said the school had assigned [Child 1] teachers for each VCE subject, provided a timetable, allocated class rooms and given her homework. Mrs Pittard said if this homework was not completed during classes in 2021, it was expected to be done during the school holidays and handed in when [Child 1] returned for the commencement of the school year on 1 February 2022. Mrs Pittard said [Child 1] did much of the homework she had been assigned and read a novel for English during the summer school break before school started in 2022.
The Tribunal notes in evidence provided by Mrs Pittard a VCE (2022) Orientation Program provided by the [School 1] outlining classes for various subjects commencing on 22 November 2021. An email addressed to [Child 1] from the school dated 18 November 2021 confirms that [Child 1] has been allocated VCE classes during orientation week. A table included in this evidence confirms that [Child 1] has been assigned English (V3ENG1A), psychology (V3PSY1B), legal studies (V3LEG1B), further maths (V3MTF1B) and health and human development (V3HHD1A). The Tribunal further notes that [Child 1] was provided assignments in core data and statistics, reading in law and justice, holiday homework in legal studies as well as psychology. Her assignment in psychology made it clear that work not finalised during orientation week would need to be completed “over the holidays in readiness for 2022”.
Mrs Pittard told the Tribunal when she applied on 1 November 2021 for the child support assessment to be extended beyond [Child 1]’s 18th birthday there was no doubt [Child 1] was going to continue with her secondary education. Mrs Pittard said in mid-2021 she had already re-enrolled [Child 1] for the 2022 school year and paid a deposit.
The Tribunal notes in evidence from the Child Support Agency a copy of an [School 1] student re-enrolment application for 2022. The application is signed by Mrs Pittard on 16 August 2021 and shows that a deposit of $500 was paid. In the application Mrs Pittard has ticked the section indicating that [Child 1] “IS DEFINITELY returning in 2022”.
Mr Pittard told the Tribunal he agreed [Child 1] was undertaking full-time Year 12 studies at the [School 1] in 2022. Mr Pittard said he was aware that [Child 1] had participated in Year 12 orientation week before the end of the 2021 school year but was uncertain if this constituted the formal start of her Year 12 studies. Mr Pittard added that as far as he was aware [Child 1] was studying the five VCE subjects outlined by Mrs Pittard.
Mr Pittard said he had no further comments to make and was happy for the review process to take its course.
An application to extend a child support assessment beyond a child’s 18th birthday turns initially on meeting the requirements of subsection 151B(1) of the Act. In this instance [Child 1] must turn 18 years of age “during a year” in which she is in full-time secondary education. If this is the case Mrs Pittard may then apply for the assessment to continue until “the last day of the secondary school year” in which [Child 1] turns 18 years of age.
The Tribunal has consistently held in previous decisions on such matters[1] that the word “year” as it appears in subsection 151B(1) means a calendar year. The condition necessary to enable an application to be made under section 151B(1), therefore, is that the child turns 18 years of age in the calendar year in which the child is in full-time secondary education. Once this condition is met then consideration can be given to the date of the last day of the secondary school year in which the child turns 18 years of age might be.
[1] See, in particular, the decision of Deputy President J Walsh in application number 2017/BC011340 dated 14 June 2017
In its written submission the Child Support Agency argues “if a child does not turn 18 during a secondary school year, as distinct from the calendar year in which the child is undertaking full-time secondary education, the assessment cannot be extended”. The submission goes on to state that an extension under section 151B does not arise because [Child 1] “turned 18 before the secondary school year began” and “It follows that s 151B is simply unavailable”.
The Tribunal does not accept the interpretation of section 151B put forward by the Child Support Agency.
[Child 1] turned 18 years of age in calendar year 2022. The statutory definition of the term “full-time secondary education” is defined in subsection 5(1) of the Act and means “education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education”. Given [Child 1] had been enrolled for Year 12 at the [School 1] in 2021, had commenced her Year 12 studies in 2021 before that school year had concluded and was undertaking assignments during the end of year school holiday period, the Tribunal is satisfied that she was actively receiving a full-time secondary education when she turned 18 years of age in calendar year 2022.
The Tribunal finds that subsection 151B(1) of the Act is met and Mrs Pittard was, therefore, able to apply for the assessment to continue beyond [Child 1]’s 18th birthday.
Section 151C of the Act then sets out the criteria to be met for the application to extend an assessment to be accepted. The Child Support Agency must be satisfied:
·     the child turned 17 years of age at the time of the application;
·     an administrative assessment in relation to the child 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 their 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 or there are exceptional circumstances justifying the making of the application after the child’s 18^th birthday.
The Tribunal finds, based on the evidence provided, there was an administrative assessment of child support for [Child 1] in force on the day before her 18th birthday. The Tribunal is satisfied that Mrs Pittard applied to the Child Support Agency on 1 November 2021 for the administrative assessment to continue and this was before [Child 1] turned 18 years of age and after she turned 17 years of age. The Tribunal has also established that [Child 1] was in full-time secondary education on her 18th birthday even though this birthday fell during the holiday period between two school years.
If an application to extend an assessment beyond a child’s 18th birthday is accepted then the effect is to change the definition of a terminating event as set out under section 12. A terminating event happens instead on the earlier of the day on which the Child Support Agency is satisfied the child ceased to be in full-time secondary education or the last day of the secondary school year to which the application relates (section 151D of the Act).
In circumstances where a child is required to sit examinations, the term “last day”, in relation to that child’s secondary school year, is defined in subsection 5(1) of the Act as the later of “the day determined by the secondary school to be the last day of the period of examinations for the child’s year” and “the day determined by the secondary school to be the last day of classes for the school year”.
The parents agree that [Child 1] is sitting VCE examinations in 2022. According to the Victorian Curriculum and Assessment Authority website the last day of the period of VCE written examinations for [Child 1]’s year is 16 November 2022[2]. Although the last day of school term at the [School 1] is 2 December 2022 the school website indicates the last day of classes is 17 November 2022[3]. This is later than the last day of VCE examinations for [Child 1]’s school year.
[2] [details deleted]
The Tribunal finds that [Child 1] was in full-time secondary education at the [School 1] on her 18th birthday in 2022 and that this birthday was on or before the last day of the secondary school year as defined under the Act.
All of the legislative requirements of the Act with respect to Mrs Pittard’s application for the administrative assessment of child support for [Child 1] to continue until 17 November 2022 – the last day of classes for the secondary school year in which [Child 1] turns 18 years of age – have been satisfied.
The Tribunal therefore finds the application made by Mrs Pittard must be accepted.

DECISION

[2022] AATA 1559

24 March 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Remedies