Redding and Pilko (Child support)

[2018] AATA 3056

Redding and Pilko (Child support) [2018] AATA 3056 (28 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014046

APPLICANT:  Mr Redding

OTHER PARTIES:  Child Support Registrar

Ms Pilko

TRIBUNAL:Member Y Webb

DECISION DATE:  28 June 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Extension of child support assessment after child’s 18^th birthday – Whether child in full-time secondary education – Evidence given by the school – 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. This review relates to whether the child support assessment in relation to Mr Redding’s and Ms Pilko’s child (the child) was correctly extended.

2. The child support case was registered with the Department of Human Services (Child Support Agency) on 4 April 2005 and was registered for collection by the Child Support Agency on 29 December 2017.

3. The child turned 18 years old on 10 January 2018. The child is recorded as being in the 93% care of Ms Pilko and 7% care of Mr Redding.

4. On 15 December 2017 Ms Pilko applied to the Child Support Agency to extend the child support assessment past the child’s 18^th birthday and until 14 December 2018 on the basis that the child would be a full-time secondary student throughout 2018.

5. Mr Redding does not accept that the child is a full-time secondary student in 2018.

6. Ms Pilko provided letters from [School 1] dated 25 January 2018 and 7 March 2018 confirming that the child is enrolled as a full-time student for 2018 from 29 January 2018 to 14 December 2018.

7. Mr Redding provided an email from [School 1] dated 25 January 2018 which relevantly stated that the child ‘is currently enrolled as a full-time student at [School 1]’.

8. On 30 January 2018 the Child Support Agency contacted [School 1] and was advised that the child was a full-time student and was required to attend school until 14 December 2018.

9. On 30 January 2018 the Child Support Agency decided to accept Ms Pilko’s application to extend the child support assessment for the child past the child’s 18^th birthday and until 14 December 2018. Both parents were informed of the decision by letter of the 30 January 2018.

10. On 13 February 2018 Mr Redding objected to that decision but on 26 April 2018 an objections officer affirmed the decision to extend the child support assessment for the child until 14 December 2018.

11. On 11 May 2018 Mr Redding applied to the Administrative Appeals Tribunal (the Tribunal) for review.

12. Mr Redding and Ms Pilko both attended the hearing by way of telephone conference and both gave evidence on affirmation.

13. In addition to the Child Support Agency papers, Ms Pilko provided (prior to the hearing):

    ·         a letter confirming that the child is a volunteer with [an organisation] and a timetable of her volunteer attendance;

    ·         a covering email; and

    ·         a letter from TAFE [confirming] that the child is undertaking a Certificate III [at] [Suburb 1] TAFE.

ISSUES

1. The issues which arise in this case are:

   ·         Has Ms Pilko made a valid application to extend the assessment?

   ·         Is the child in full-time secondary education?

   ·         Should the application to extend the assessment be accepted?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (Assessment Act).

2. Pursuant to section 151B of the Assessment Act, if a child turns 18 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 (or a child support agreement) in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

3. Section 151D of the Assessment Act details the consequences of the Registrar accepting an application under subsection 151B(1) of the Assessment Act for the assessment to continue. In summary, the consequences are that a terminating event will not occur until the last day of the school year or until the child ceases to be in full-time secondary education (whichever happens first); and the child is taken to be aged 17 for the purposes of applying Part 5 of the Assessment Act

4. Mr Redding and Ms Pilko agreed that in this case there was no child support agreement in existence. There is also no dispute that the child turned 18 [in] January 2018.

5. Section 5 of the Assessment Act defines ‘full-time secondary education’, ‘last day’ and ‘secondary school’.

6. ‘Full-time secondary education’ is defined in relation to a child as ‘education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education.’

7. ‘Last day’ is defined in relation to a child’s secondary school year as:

   (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.

8. ‘Secondary school’ is defined as ‘a school, technical and further education institution or any other educational institution at which full-time secondary education is provided.

9. Section 151C of the Assessment Act provides that the Registrar must accept an application if:

   ·         The child has turned 17; and

   ·         an administrative assessment is in force or likely to be in force on the day before the child turns 18;

   ·         the child is likely to be in full-time secondary education on their 18^th birthday; and

   ·         the last day of the secondary school year will be within 365 days after the child’s 18^th birthday; and

   ·         the application was made before the child’s 18^th birthday (or there are exceptional circumstances justifying the making of the application after the child’s 18^th birthday)

10. The only issue in dispute in this matter is whether the child is in undertaking full-time secondary education in 2018. The Tribunal finds that the other requirements as detailed in section 151C of the Act have been met.

11. Mr Redding contended that the child is not undertaking full-time secondary education. He stated that under the Flexible Learning Centre arrangements all students are classified as full-time. He asserted that the child only attends one day per week to undertake the research project and that the child is almost finished that subject. He strongly argued that the child was a part-time student and that when the child finishes the research project she will have sufficient points to obtain the [educational certification].

12. Ms Pilko disputed Mr Redding’s claims. She contended that the child was a full-time student and that, in addition to the research project, the child’s [Certificate III] course was being counted as part of the child’s [educational certification]. In addition, the volunteer work which the child was undertaking for the [organisation] could also be included in the [educational certification].

13. The Tribunal acknowledges that the parents have very different views about whether the child is undertaking full-time secondary education. However, the legislation is very clear that the responsibility for determining whether the child is in ‘full-time secondary education’ rests with the secondary school at which the child is receiving education as detailed above. It is also the secondary school which determines the last day of the secondary school year (taking into account whether the child is required to sit an examination or not).

14. In this case [School 1] has provided two relevant letters with identical wording dated 25 January 2018 and 7 March 2018 both of which state:

    ‘This letter is to confirm that (name of child) (DOB) is enrolled at [School 1] as a full-time student for 2018.

    (Name) is undertaking studies to achieve her [educational certification].

    She will continue her studies from Monday 29^th January until Friday, 14^th December 2018.’

15. [School 1] also provided an email dated 25 January 2018 which stated:

    To whom it may concern

    (name of child) is currently enrolled as a full-time student at [School 1], [Suburb 1]. She is enrolled under the Department of Education’s FLO Enrolment Policy. Should any further information regarding the FLO Enrolment Policy be required, please contact the [Department] of Education directly’.

16. On 30 January 2018 the Child Support Agency papers confirm that an officer of the Child Support Agency contacted [School 1] and spoke with a staff member of the Flexible Learning Community at the high school who confirmed that the child was a full-time student at the school until 14 December 2018.

17. The Tribunal is satisfied that the Child Support Agency correctly accepted the application by Ms Pilko to extend the child support assessment past the child’s 18^th birthday until 14 December 2018.

18. Mr Redding urged the Tribunal to require further information from [School 1] given his contentions that the child was not undertaking full-time secondary education. However, the Tribunal is satisfied that the secondary school at which the child is undertaking her education has been expressly clear that the education which the child is receiving is full-time secondary education. [School 1] has also confirmed this when contacted by an officer of the Child Support Agency.

19. The Tribunal therefore concludes that the child is undertaking full-time secondary education until 14 December 2018 and that all of the legislative requirements to extend the child support assessment past the child’s 18^th birthday have been met. Hence, the Child Support Agency correctly accepted Ms Pilko’s application to extend the child support assessment past the child’s 18^th birthday.

DECISION

The decision under review is affirmed.