Snell and Snell (Child support)

[2020] AATA 4781

Snell and Snell (Child support) [2020] AATA 4781 (16 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019489

APPLICANT:  Mr Snell

OTHER PARTIES:  Child Support Registrar

Ms Snell

TRIBUNAL:Member K Buxton

DECISION DATE:  16 September 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the application made by Ms Snell on 2 April 2020, to extend the child support case past [Child 1’s] 18th birthday, is refused.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – application to extend the child support assessment beyond the child’s eighteenth birthday – the child was not in full-time secondary education on his eighteenth birthday – application should be refused – 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

1. Ms Snell and Mr Snell are the parents of [Child 1], born [in] May 2002. A child support case has been registered with the Child Support Agency (CSA) for [Child 1] and his younger brother [who] were both recorded as in the 100% care of Ms Snell. [Child 1] turned 18 years of age [in] May 2020.

2. On 2 April 2020, prior to [Child 1] turning 18 years old, Ms Snell applied to the CSA for an extension to the child support case on the basis that [Child 1] was undertaking full-time secondary education at a college operated by [College 1] at [location]. That application was accepted and a decision made to extend the child support assessment to 16 December 2020. Mr Snell objected to that decision and, on 10 July 2020, a CSA objections officer disallowed the objection.

3. Ms Snell applied to the tribunal for review of the objection decision. At the hearing, scheduled by the tribunal on 16 September 2020, the tribunal heard sworn evidence from Mr Snell and Ms Snell, who participated in the hearing by conference telephone, and accepted into evidence the subsection 37(1) Statements and Documents provided by the CSA (Exhibit 1) and documents provided by and Mr Snell (Exhibit A). Child support advocate [Advocate A] represented Ms Snell at the hearing and made submissions on her behalf.

CONSIDERATION

1. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act) which provides that an application may be made to extend a child support assessment beyond a child’s 18th birthday to the last day of the secondary school year in which the child turns 18 if the child is in full-time secondary education (section 151B of the Act). If the application is made prior to the child’s 18th birthday, and the child is likely to be in full-time secondary education on his 18th birthday, then the application is to be accepted (paragraphs 151C(2)(c) and (e) of the Act). An application may be accepted after the child turns 18, under section 151C of the Act, if there were exceptional circumstances justifying a late application.

2. [Child 1] was enrolled and attending [College 1] prior to and as at his 18th birthday. Ms Snell provided the CSA with a copy of a document from [College 1] which showed that [Child 1] had been enrolled since February 2020. She also gave sworn evidence at the hearing confirming that [Child 1] was enrolled in and undertaking a Certificate III in [a Vocational subject]. She submitted that [College 1] was an educational college that offered secondary studies and [Child 1] was undertaking such studies. The CSA documents contain a fax communication from the student support team of [College 1’s] office stating as follows: “Please find attached Confirmation of Enrolment for [Child 1] to confirm he is studying a Certificate III level course (equivalent of Year 12).” The CSA’s documents also contain a note of a call to a [College 1] officer on 10 July 2020 named [name] in which she confirmed that [Child 1] was enrolled full-time in a Certificate III course and that that this was “equivalent to Year 12”.

3. Mr Snell submitted that [Child 1] was no longer in full-time secondary study, having met and completed the requirements for Year 12 study in 2019. Mr Snell submitted that [Child 1] had graduated from his high school, where he had been school captain, and had graduated from secondary studies, completing all the requirements to obtain a High School Certificate. Ms Snell accepted that to be correct. Mr Snell submitted that any further study being undertaken by [Child 1] was in the nature of tertiary study, or vocational training, but was not in the nature of secondary education.

4. The tribunal notes that Mr Snell made a number of submissions about errors in both the process and decision-making within the CSA. The tribunal undertakes a merits review process whereby the tribunal will reach its own correct or preferable decision. It is not the role of the tribunal to critique the internal processes of the CSA or its decision-makers, but simply to conduct the review and reach a decision.

5. “Full-time secondary education” is defined in section 5 of the Act to mean education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education. Section 5 also provides that a technical and further education institution at which full-time secondary education is provided is a “secondary school”.

6. The enrolment details demonstrate that [Child 1] is studying for his Certificate III on a full-time basis and Mr Snell accepted this, although had had not accepted that to be the case when he lodged his objection. The tribunal is satisfied based on the available material that [College 1] is a secondary school and that [Child 1] is enrolled in the Certificate III course on a full-time basis.

10. However, although [College 1] is properly to be regarded as a “secondary school” as that term is used in section 5 of the Act, and it is possible that the Certificate III course in which [Child 1] was enrolled could be regarded “secondary education”, the tribunal is not satisfied that [Child 1] is undertaking secondary education.

11.  [Advocate A] submitted, on behalf of Ms Snell, that the course followed the [state] school term, that [Child 1’s] holidays aligned with school holidays and that his course fees were charged per term. These factors, she submitted,  supported the contention that [Child 1] was undertaking secondary education. Ms Snell explained that [Child 1’s] course could not be undertaken during high school as it was full-time and required attendance both at the college and at [a named agency] where [Child 1] undertakes practical and academic parts of his course. The fact that [Child 1] was not able to undertake the course and undertake his senior schooling at the same time is indicative of the fact that [Child 1] is undertaking the course on a tertiary, rather than a secondary, basis. [Child 1] instead chose to complete his secondary studies at school and he did so in 2019.

12.  The Certificate III course is a pre-vocational training course of the kind offered by a tertiary institution, rather than a school. An email dated 27 August 2020, provided by Mr Snell to the tribunal from the legal department of the college, confirmed this position. Even if the course were available for [Child 1] to use instead of academic credit in order to satisfy the requirements for a High School Certificate, he is not in fact using the course for that purpose. [Child 1] has already satisfied those requirements during his secondary schooling which he completed in 2019. Therefore, although the July 2020 correspondence from [College 1] indicates that that the course is the “equivalent” of Year 12, it is not being undertaken by [Child 1] as part of [his] secondary education. For this reason, the tribunal finds that [Child 1’s] undertaking of the Certificate III course constitutes tertiary, rather than secondary, study. For this reason, [Child 1’s] current studies did not fall within the definition of “full-time secondary education” when he turned 18.

13.  The tribunal notes that, during the hearing, [Advocate A] referred to a relevant earlier decision of the tribunal and indicated that she would provide details of that decision following the hearing for consideration by the tribunal. Immediately following the hearing [Advocate A] provided, by email, a reference to the decision Redding and Pilko (Child Support) [2018] AATA 3056 (28 June 2018) which, she stated, supported Ms Snell’s contentions. The tribunal notes that, in that decision, the child was enrolled in a Certificate III course that was to be counted towards her High School Certificate and this was a factor in the tribunal’s determination that the child was in full-time secondary education. Each case is different and, for the reasons set out above, the circumstances of [Child 1’s] education differ in a fundamental way from the facts of that decision.

14.  The application to extend the child support case is not, therefore, to be accepted. As the tribunal has reached a decision that differs from that of the objections officer’s, the decision under review is set aside and a decision substituted that gives effect to the tribunal’s finding.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the application made by Ms Snell on 2 April 2020, to extend the child support case past [Child 1’s] 18th birthday, is refused.