Saraceni and Cosaves (Child support)

[2024] AATA 4122

Saraceni and Cosaves (Child support) [2024] AATA 4122 (19 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC028029

APPLICANT:  Mr Saraceni

OTHER PARTIES:  Child Support Registrar

Ms Cosaves

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  19 August 2024

DECISION:

The decision under review is varied so that a child support terminating event happens in relation to [Child 1] on 20 September 2024.

CATCHWORDS 

CHILD SUPPORT – Particulars of the Assessment – an application to extend an assessment beyond a child’s 18th birthday is that a terminating event – date of [Child 1]’s last day of secondary school – decision under review varied

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. As relevant to this application, Mr Saraceni and Ms Cosaves are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born February 2006). This application concerns a single decision of Child Support about the end date for inclusion of [Child 1] in the child support case.

2. On 2 January 2024, Child Support decided to accept Ms Cosaves’ application to extend the child support assessment in respect of [Child 1] past her 18th birthday until 31 October 2024.

3. On 27 February 2024, Mr Saraceni objected to this decision and, on 7 May 2024, a Child Support objections officer partly disallowed the objection, extending the date of [Child 1]’s inclusion in the child support case until 22 October 2024 instead of 31 October 2024.

4. On 3 June 2024, Mr Saraceni lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating (unedited):

   I originally objected to the last day of payment for my daughter, [Child 1] , who has turned 18. The other party expected me to pay until December 2024, but when I reviewed the term dates, and the last day of VCAL attendance, it was set down as the 20th September 2024. I supplied that information to Child Services via a letter, however Child Services allegedly made a phone call and were provided with information suggesting VCAL students were expected to attend school until the 20th October. I have received an email from [a] School stating definitively that the last day of school for my daughter is the 20th September 2024. On that basis I request the Tribunal overturns the decision made by Child Services in their letter of the 7th May 2024.

5. Mr Saraceni and Ms Cosaves both participated in a hearing before me on 19 August 2024 by telephone and gave evidence on affirmation. The Child Support Registrar did not seek leave to participate and did not participate in the hearing.

6. I took into account the oral evidence of Mr Saraceni and Ms Cosaves and the documentary material provided by Child Support to the Tribunal, Mr Saraceni and Ms Cosaves (marked Exhibit 1, pages 1 to 122).

ISSUES

1. The statutory provisions relevant to this review are found 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 a child support terminating event occurs in relation to the child, the carer entitled to child support, the liable parent or all three of them. Relevantly, paragraph 12(1)(c) of the Act provides that a child turning 18 years of age is a terminating event. However, section 151B of the Act provides for a parent entitled to child support to apply for the assessment to continue until the last day of the secondary school year in which the child turns 18 years of age, if certain conditions are met.

3. 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.

4. Section 5 of the Act provides that the last day of the secondary school year is either:

   (a)    if the child is not required to sit an examination, the last day of classes for the school year (as determined by the school);

   (b)    if the child is required to sit an examination, the later of:

   ­the last day of the period of examinations for the child’s year level; and

   ­the last day of classes for the school year (as determined by the school).

5. The issue that arises in relation to this application is the date of [Child 1]’s last day of secondary school.

CONSIDERATION

1. Mr Saraceni’s position is that [Child 1]’s last day of secondary school will be 20 September 2024, the last day of classes for the school year. Ms Cosaves agrees that 20 September 2024 is the last day of classes for the school year and further agrees that the course that [Child 1] is doing does not require her to sit exams. However, Ms Cosaves said that there is a chance that [Child 1] may have to carry on attending school after 20 September 2024 and, further, she is officially a student of the school until 20 December 2024 and the school has confirmed that she can continue to attend for things like career counselling etc. Ms Cosaves says she doesn’t know at this point, but it is possible that [Child 1] might have to continue to attend school up until 23 October 2024 to qualify for a year 12 pass. When queried as to what evidence Ms Cosaves relies upon in that regard, she said that she does not have a letter or document to that effect but has just been told by a couple of the teachers that that may be required.

2. I discussed with Mr Saraceni and Ms Cosaves that the information relied upon by the objections officer is noted as being a conversation with the assistant principal of the school when it was confirmed that the last day of formal required attendance is 22 October 2024. I noted that the last day of formal required attendance is different to the criteria set out in the legislation, that is, either the last day of the period of examination or the last day of classes and that it appeared clear on the evidence that the relevant last day for [Child 1] pursuant to the legislation was the last day of classes, 20 September 2024. Ms Cosaves said that she would not know until the end what the last day requirement would be for [Child 1] (she might need to go back for a couple of weeks to finish things off). Ms Cosaves acknowledged, however, that in the absence of something additional occurring, 20 September 2024 is the last day of classes for [Child 1].

3. It is not in dispute that the requirements for the administrative assessment of child support in respect of [Child 1] to continue in force until the last day of secondary school in 2024 are met. The sole matter in issue is what is the ‘last day of secondary school’ for the purposes of section 151B of the Act.

4. Based on the evidence as canvassed, I find the last day of secondary school for [Child 1] is 20 September 2024.

5. The effect of accepting an application to extend an assessment beyond a child’s 18th birthday is that a terminating event (which is otherwise determined pursuant to section 12 of the Act) happens instead on the earlier of the day on which the child ceases 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). I accept that [Child 1] continues to be enrolled at the school until 20 December 2024, however I have determined that ‘the last day of the secondary school year’ as defined is 20 September 2024 and section 151D of the Act provides that a terminating event happens on the earlier of those two dates, that is, 20 September 2024.

6. As I have reached a different conclusion to that of Child Support, the decision under review will be varied.

DECISION

The decision under review is varied so that a child support terminating event happens in relation to [Child 1] on 20 September 2024.