Ratliff and Ratliff (Child support)

[2022] AATA 1566

Ratliff and Ratliff (Child support) [2022] AATA 1566 (20 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023188

APPLICANT:  Mr Ratliff

OTHER PARTIES:  Child Support Registrar

Ms Ratliff

TRIBUNAL:Member H Moreland

DECISION DATE:  20 April 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the application for the child support assessment for [the child] to continue beyond his 18^th birthday be 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 his 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. This application for review is about the extension of the child support assessment for [the child] (born on 25 January 2004) beyond his 18^th birthday.

2. Mr Ratliff and Ms Ratliff are the parents of [the child]. A child support case between Mr Ratliff and Ms Ratliff has been registered with Child Support since 8 February 2018.[1]

   [1] Child Support papers, p 55.

3. On 29 November 2021, Mr Ratliff lodged an application to extend the child support case for [the child] past his 18^th birthday, which was on 25 January 2022. On 29 November 2021, Child Support decided to refuse Mr Ratliff’s application.

4. On 6 December 2021, Mr Ratliff objected to Child Support’s decision and on 26 January 2022, an objections officer decided to disallow Mr Ratliff’s objection.[2]

   [2] Child Support papers, p 4.

5. On 28 January 2022, Mr Ratliff lodged an application for a review of the objections officer’s decision with the Administrative Appeals Tribunal (the Tribunal).

6. On 20 April 2022, the Tribunal held a hearing which Mr Ratliff and Ms Ratliff participated in via Microsoft Teams audio. They both gave evidence on affirmation.

7. Prior to the hearing, Child Support provided the Tribunal, Mr Ratliff and Ms Ratliff with a bundle of documents taken from its files (80 pages). Child Support also asked the Tribunal if they could make written submissions to the Tribunal in relation to this matter and the Tribunal granted this request. The documents provided by Child Support, as well as their written submissions, were copied to Mr Ratliff and Ms Ratliff.  Relevant aspects of the evidence and material before the Tribunal will be referred to in the Tribunal’s consideration of the issues to be decided.

CONSIDERATION

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

2. Subsection 31(2) of the Act provides that child support is payable until the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all three of them.

3. Paragraph 12(1)(c) provides that a child turning 18 years of age is a terminating event.

4. Section 151B of the Act however, provides for a parent to apply for child support to remain payable until the last day of the secondary school year in which a child turns 18 years of age if the child turns 18 years of age during a year in which the child is in full-time secondary education.

5. According to subsection 151C(2) of the Act, the Registrar must accept the application if the Registrar is satisfied that:

   (a)  the child has turned 17 years of age; and

   (b)  any of the following applies:

   (i)there is an administrative assessment or child support agreement in relation to the child in force, or likely to be in force, on the day before the child’s 18^th birthday;

   (ia) a suspension determination under section 150F provides that child support is not payable in respect of the day before the child’s 18^th birthday;

   (ii)an administrative assessment that takes the child in to account is in force or likely to be in force on the day before the child’s 18^th birthday; and

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

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

   (e)  either the application is made before the child’s 18^th birthday or there are exception circumstances justifying the making of the application after the child’s 18^th birthday.

6. There is no dispute that at the time Mr Ratliff made his application for an extension (29 November 2021): [the child] had turned 17 years of age; there was an administrative assessment in force; his 18^th birthday was likely to occur before the last day of the secondary school year; and the application was made before [the child] turned 18 years of age.

7. What is in dispute is whether [the child] was “likely to be in full-time secondary education on the child’s 18^th birthday”.

8. In its submissions, Child Support said that the combined effect of sections 151B and 151C of the Act meant that [the child]’s 18^th birthday did not fall within a “secondary school year” because the secondary school year at [School] commenced on or after 28 January 2022.[3]

   [3] Child Support additional papers, paragraphs 16 and 22.

9. With regard to section 151B of the Act, Child Support submitted that the end date for the provision providing for the extension of a child support assessment in cases where a child turns 18 years of age in a secondary school year is based on the “last day” of school as defined in section 5 of the Act, which is based on when the child’s schooling ends, rather than the end of the relevant calendar year. This, Child Support submits, means that the intention of the legislation is that the secondary school year, for the purposes of applying section 151C is based on the secondary school institution’s dates, rather than a calendar year.

10. With regard to section 151C of the Act, Child Support submitted that for an extension of the child support assessment to be allowed, “the Registrar must be satisfied before accepting an application that: the child is likely to be in full-time secondary education on the child’s 18^th birthday…”. This, Child Support submitted, means that there is an expectation that the child is to be “receiving education” at the time of the decision for the extension to be granted.

11. This means Child Support concluded that [the child] was not in full-time secondary education on his 18^th birthday because he turned 18 years of age during the school holidays.

12. The Tribunal considered the following in relation to [the child]’s status at the time he turned 18 years of age.

13. Mr Ratliff told the Tribunal that in 2021, [the child] was enrolled at [School] and this enrolment continued into the new school year in 2022. He also told the Tribunal that [the child] was accessing a VCAL program via [School], to be delivered by Skill Invest and that the transition for [the child] into the VCAL program commenced in late 2021.

14. In considering [the child]’s situation, the Tribunal finds that during the school holidays between the 2021 and 2022 school years, [the child] continued to be a secondary school student and was in full-time secondary education on his 18^th birthday on 25 January 2022. This is because there was a continuity between his 2021 and 2022 school years and the common sense description of [the child] during the summer holidays is that he was a secondary school student during that period.

15. Also, considering the alternative proposition, it is difficult to determine what [the child] was if he was not a secondary school student in full-time secondary education on that date. He was not considered a member of the adult workforce, nor unemployed because he was a secondary school student on that date.

16. Further, the Tribunal observes that the approach of Child Support is similar to rejecting a claim made by a parent in the case of a child turning 18 years of age in any of the intervening school holidays (between terms 1 and 2, 2 and 3, or 3 and 4). The Tribunal is not convinced that this kind of outcome is what was intended by the legislation.

17. The Tribunal prefers a more straightforward interpretation of the legislation. That being that a child support assessment continues until a terminating event, which may be any of the terminating events provided for under section 12 of the Act, unless the requirements providing for an extension beyond the child’s 18^th birthday are met and that in those cases, an extension applies until the last day of school within that year, unless another terminating event intervenes.

18. In this case, the Tribunal finds that [the child] met the requirements under section 151C of the Act and this means that the application for the child support assessment for [the child] is to continue beyond his 18^th birthday.

19. The Tribunal also notes that during the hearing, Mrs Ratliff said that she simply wanted an independent decision-maker to make a decision providing an outcome in keeping with the rules.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the application for the child support assessment for [the child] to continue beyond his 18^th birthday be accepted.