Rateliff and Wilkinson (Child support)

[2021] AATA 1288

Rateliff and Wilkinson (Child support) [2021] AATA 1288 (11 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020738

APPLICANT:  Mr Rateliff

OTHER PARTIES:  Child Support Registrar

Ms Wilkinson

TRIBUNAL:Member M Baulch

DECISION DATE:  11 March 2021

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar (the Registrar) for reconsideration in accordance with the directions that:

• The Registrar exercise their information gathering powers to determine if the technical and further education institution [the child] attended from 20 July 2020 considered [the child] to be in full-time secondary education from 20 July 2020; and

• If [the child] was not in full-time secondary education from 20 July 2020, a child support terminating event occurred on 20 July 2020; and

• If [the child] was in full-time secondary education from 20 July 2020, a child support terminating event occurred on 20 November 2020.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – whether the child remained in full-time secondary education – whether terminating event occurred – insufficient evidence – decision under review set aside and sent back with directions

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. This application for review is about the child support assessment that applies to Mr Rateliff and Ms Wilkinson.

2. Mr Rateliff and Ms Wilkinson are the separated parents of [the child], who was born on 2 July 2002.  Since 9 January 2002, Mr Rateliff has been assessed as liable, by the Department of Human Services (now known as Services Australia) – Child Support (Child Support), to pay child support to Ms Wilkinson.

3. On 10 February 2020, Ms Wilkinson applied to Child Support to have the child support assessment for [the child] extended past her 18th birthday.  That request was considered by a Child Support employee who decided, on 30 March 2020, that the child support assessment for [the child] would continue until 20 November 2020.

4. On 8 July 2020, Ms Wilkinson contacted Child Support to advise that [the child] would cease attending [Senior High School] and commence a [trade] apprenticeship at TAFE from 20 July 2020.  That information was considered by a Child Support employee, who decided that the child support assessment for [the child] would continue until 19 July 2020.

5. Mr Rateliff objected to that decision and, on 25 January 2021, that objection was partly allowed.  The objections officer decided that the child support assessment for [the child] would continue until 4 August 2020 (the decision under review).  Mr Rateliff has now applied to this tribunal for an independent review of Child Support’s decision.

6. A hearing into the application for review was held by the tribunal on 1 March 2021.  Mr Rateliff and Ms Wilkinson both discussed the application for review with the tribunal by conference telephone and both gave evidence under affirmation during the hearing.  On 1 March 2021, the tribunal deferred determining the application for review to seek further submissions from both parties.

7. On 11 March 2021, the tribunal determined the application for review. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 61, copies of which Child Support had sent to both parties.  The tribunal also had regard to submissions received from Mr Rateliff on 5 March 2021 (labelled folio A1).

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care. 

2. A parent’s liability to pay child support in respect of a child will end with the happening of a child support terminating event, one of which is defined to occur when a child turns 18 years of age (see paragraph 12(1)(c) of the Act).

3. There is no dispute that [the child] turned 18 years of age on 2 July 2020.  In normal circumstances this would constitute a child support terminating event, ending the assessment of child support in respect of [the child].

4. Notwithstanding the fact that a child turning 18 is a child support terminating event in respect of that child, section 151B of the Act provides that a parent may apply to the Registrar to have a child support assessment for a particular child who is still in full-time secondary education extended beyond that child’s 18th birthday, until the last day of secondary school in the year the child turned 18.

5. There is no dispute that Ms Wilkinson made her application to extend the child support assessment for [the child] on 10 February 2020.  That request was accepted on 3 March 2020 and the child support assessment for [the child] was to continue until 20 November 2020.  The acceptance of Ms Wilkinson’s request means that a child support terminating event instead occurs on the earliest of the following:

   ·      The day on which the Registrar 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.

   (see paragraph 151D(1)(b) of the Act)

6. On 20 July 2020, [the child] ceased attending [Senior High School] and commenced studying at TAFE.

7. Subsection 5(1) of the Act defines full-time secondary education to mean education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education.  The term secondary school is defined to include technical and further education institutions (i.e. a TAFE).

8. On 20 July 2020, [the child] commenced studies at TAFE.  A TAFE is included in the definition of secondary school specified in subsection 5(1) of the Act, so [the child] remained at secondary school from 20 July 2020.  However, it is unclear to me if the TAFE in question considers the education being provided to [the child] to be full-time secondary education.

9. Mr Rateliff submitted that [the child]’s TAFE studies are tertiary education or on the job training.  I presume the essence of those submissions is that Mr Rateliff does not accept that [the child] was in full-time secondary education after she commenced studying at TAFE on 20 July 2020. 

10. Ultimately, in my view there is insufficient evidence before me to determine whether or not [the child] was engaged in full-time secondary education after 20 July 2020.  The definition of full-time secondary education makes it clear that it is the secondary school in question which determines whether or not the education being given to [the child] constitutes full-time secondary education.

11. I considered it appropriate that Child Support exercise its information gathering power to request that the TAFE at which [the child] is attending advise whether or not it considered [the child] to be in full-time secondary education from 20 July 2020.

12. If [the child]’s TAFE studies do not constitute full-time secondary education, then a terminating event occurs on the day she ceased to be in full-time secondary education (subparagraph 151D(1)(b)(i) of the Act).  Even though [the child] remained enrolled at [Senior High School] until 4 August 2020, she was not engaged in secondary studies after 20 July 2020 as she commenced her TAFE studies.  I considered that [the child] ceased to be in full-time secondary education from 20 July 2020, being the date [the child] commenced her TAFE studies, irrespective of when her enrolment at [Senior High School] ended. 

13. If [the child]’s TAFE studies do constitute full-time secondary education, then the terminating event occurs on the last day of the secondary school year to which Ms Wilkinson’s application related (subparagraph 151D(1)(b)(ii) of the Act).  In this case, that was 20 November 2020.

14. I consequently decided to set aside the decision under review and send the matter back to Child Support for consideration in accordance with certain directions, that I have spelt out below.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar (the Registrar) for reconsideration in accordance with the directions that:

• The Registrar exercise their information gathering powers to determine if the technical and further education institution [the child] attended from 20 July 2020 considered [the child] to be in full-time secondary education from 20 July 2020; and

• If [the child] was not in full-time secondary education from 20 July 2020, a child support terminating event occurred on 20 July 2020; and

• If [the child] was in full-time secondary education from 20 July 2020, a child support terminating event occurred on 20 November 2020.