Storey and Storey (Child support)

[2023] AATA 3391

Storey and Storey (Child support) [2023] AATA 3391 (14 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026012

APPLICANT:  Mr Storey

OTHER PARTIES:  Child Support Registrar

Ms Storey

TRIBUNAL:Member J Leonard

DECISION DATE:  14 September 2023

DECISION:

The decision under review is affirmed.

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 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 application for review is about extension of the child support assessment for [Child 1] (born [in] January 2005) past his 18th birthday.

2. Ms Storey and Mr Storey are the parents of [Child 1] and there has been a child support assessment in place since 20 June 2018. Mr Storey is the parent liable to pay child support.

3. On 29 December 2022 Ms Storey applied to Services Australia – Child Support (Child Support) seeking to extend the assessment for [Child 1] past his 18th birthday until 29 December 2023. On 9 January 2023 Child Support decided to refuse Ms Storey’s application.

4. On 26 February 2023 Ms Storey objected to this decision and submitted an extension of time application to object. The extension of time application was granted on 31 March 2023. On 11 April 2023 an objections officer decided to allow Ms Storey’s objection and decided to extend the assessment to 21 November 2023.

5. On 26 April 2023 Mr Storey applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 14 September 2023. Ms Storey and Mr Storey gave evidence on affirmation by Microsoft Teams audio. Child Support provided documents relevant to the review (114 pages). Prior to the hearing, the Tribunal received additional evidence from Mr Storey (A1–A3).

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.

3. Paragraph 12(1)(c) of the Act provides that a child turning 18 years of age is a terminating event. Section 151B of the Act, however, 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, if certain conditions are met.

4. If a valid application meets certain criteria, then it must be accepted (section 151C). 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.

5. The issue which arises in this case is whether or not the application to extend the child support assessment for [Child 1] past his 18th birthday should be accepted.

CONSIDERATION

1. Section 151B of the Act relevantly provides:

   Application for assessment … to continue beyond child's 18th birthday

   (1) 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 … in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.

2. The issue which arises is whether [Child 1] turned 18 “during a year” in which he was in full-time secondary education. If this is the case Ms Storey may then apply for the assessment to continue until “the last day of the secondary school year” in which [Child 1] turns 18 years of age.

3. The statutory definition of the term “full-time secondary education” is defined in subsection 5(1) of the Act and means “education that is determined by the secondary school at which the child is receiving the education to be full-time secondary education”.

4. In a letter dated 3 April 2023, [Mr A], principal of [College 1] stated that [Child 1] “…commenced studying Year 12 on 21 November 2022 and is a current Year 12 student at [College 1]. Enrolment Date: 30.01.2017…”.

5. The Tribunal finds that [Child 1] was enrolled in full-time secondary school in 2017 and was automatically re-enrolled each year. When he turned 18 in January 2023 he was still enrolled at [College 1].

6. Ms Storey explained that [Child 1]’s education was disrupted due to the COVID-19 pandemic and he was largely home schooled while undertaking Year 10 and Year 11. The school progressed him to Year 12, but it became apparent that “he was not going to make it” and he repeated Year 11 in 2022 with the intention that he would undertake Year 12 in 2023 and obtain a Victorian Applied Certificate of Learning (VCAL) upon completion of Year 12. In November 2022 [Child 1] undertook a [specified] Program at [College 1] in order to ensure he was well placed to undertake Year 12 in 2023.

7. Ms Storey stated that as part of VCAL [Child 1] is undertaking English, Numeracy, Mathematics, Cooking, a work placement and a TAFE course. He is a full-time student. During the January 2023 school holidays, [Child 1] did not have any assessment tasks to study, but he was given books to read for his Year 12 subjects.

8. Mr Storey told the Tribunal he felt the decision to extend the assessment was unfair because [Child 1] had already completed six years of secondary education and he turned 18 between the end of one school year and the start of another. He provided an extract from the Services Australia website that stated:

   we do not consider your child to be in full time secondary study if your child turns 18 during a school holiday period that falls between two different school years-for example, between the end of year 11 and the start of year 12.

9. Mr Storey submitted that Ms Storey cannot apply for the assessment to be extended as when [Child 1] turned 18 he was between school years and as such he was not in full-time secondary education.

10. The Tribunal considered whether the word “year” as it appears in subsection 151B(1) of the Act means a secondary school year, or a calendar year.

11. This issue was recently considered in the Federal Court decision of Child Support Registrar v CDJ22 [2023] FCA 1057 (6 September 2023) at paragraphs 34 to 36:

    I also consider that the word “year” as used in the first line of s 151B(1) should be given its plain and ordinary meaning, which is a calendar year, a period of 12 months commencing on 1 January, rather than as a shorthand reference to the phrase “secondary school year” used later in that section. Where the legislature could have used the same word or phrase and chose to use a different one, it is assumed that the intention was that the words have a different meaning: Construction Forestry Mining Energy Union v Hadgkiss (2007) 169 FCR 151 at [53] (Buchanan J). If the legislature had intended “year” to have the same meaning as “secondary school year” it would be expected that it would have used that phrase at the first opportunity. Instead it deliberately chose to use the word “year” not “secondary school year” in s 151B(1) and by that I assume it intended “year” to mean something different to “secondary school year”.

    If “year” is given its plain and ordinary meaning, then “secondary school year” cannot be confined to the academic year commencing on the first day of Term 1. As the Registrar observes, to give “year” its plain and ordinary meaning is inconsistent with the Registrar’s construction of “secondary school year”.

    The school year in Australia runs alongside the calendar year. It is reasonable to expect that a child, who is enrolled in year 12 on a weekday in early January, to say they are in year 12 this year despite the academic term not having yet commenced. The commencement of “secondary school year” should not be confined by reference to the gazetted school terms.

12. In this case [College 1] has explained that Year 12 commenced on 21 November 2022 and as such it spans two calendar years. Given [Child 1] remained enrolled for Year 12 at [College 1] and had commenced the [specified] Program in 2022 before that school year had concluded, the Tribunal is satisfied that he was in full-time secondary education when he turned 18 years of age in the calendar year 2023. Even if Year 12 did not span two calendar years, consistent with the findings of the Federal Court, [Child 1] was in full-time secondary education when he turned 18 in January 2023.

13. The Tribunal finds that subsection 151B(1) of the Act is met and Ms Storey was, therefore, able to apply for the assessment to continue beyond [Child 1]’s 18th birthday.

14. Section 151C of the Act then sets out the criteria to be met for the application to extend an assessment to be accepted. Child Support must be satisfied:

    ·     the child turned 17 years of age at the time of the application;

    ·     an administrative assessment in relation to the child is in force, or is likely to be in force, on the day before the child’s 18th birthday;

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

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

    ·     the application is made before the child’s 18th birthday or there are exceptional circumstances justifying the making of the application after the child’s 18th birthday.

15. The Tribunal finds, based on the evidence provided, there was an administrative assessment of child support for [Child 1] in force on the day before his 18th birthday. The Tribunal is satisfied that Ms Storey applied to Child Support on 9 January 2023 for the administrative assessment to continue and this was before [Child 1] turned 18 years of age and after he turned 17 years of age. The Tribunal has also established that [Child 1] was in full-time secondary education on his 18th birthday even though this birthday fell during a holiday period.

16. The Tribunal finds that Ms Storey’s application to extend the assessment was properly accepted. In accordance with section 151D of the Act, the administrative assessment will continue until [Child 1]’s last day of Year 12, or any other preceding child support terminating event.

DECISION

The decision under review is affirmed.