Wheeler and Wheeler (Child support)

[2019] AATA 2524

Wheeler and Wheeler (Child support) [2019] AATA 2524 (18 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC016174

APPLICANT:  Ms Wheeler

OTHER PARTIES:  Child Support Registrar

Mr Wheeler

TRIBUNAL:Member M Kennedy

DECISION DATE:  18 June 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was a terminating event in respect of the child support assessment relating to [Child 1] on 10 April 2018.

CATCHWORDS

CHILD SUPPORT –identification of a child support terminating event – previous acceptance of application to extend the assessment past child’s 18th birthday – whether child was ‘in’ full-time education - 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

1. Ms Wheeler and Mr Wheeler are the parents of [Child 1], in respect of whom a child support assessment was in place. [Child 1] turned 18 on [date].

2. Prior to [Child 1] turning 18, Ms Wheeler applied for the child support assessment to continue beyond [Child 1’s] 18^th birthday as provided for by section 151B of the Child Support (Assessment) Act 1989 (the Act).  That application was accepted on 12 April 2018.

3. Unfortunately, technicalities associated with the child support law and the jurisdiction of the Tribunal have combined to complicate matters from this point onwards.  The Registrar had framed the decision to accept the extension application to the child support assessment as a decision to extend the assessment ‘until 14 December 2018’.  However, such a statement incorporates two decisions under the child support law.  One is to accept the extension application, and the other is the identification of a child support terminating event.

4. Mr Wheeler objected to the decision as expressed to extend the assessment to 14 December 2018.  As observed by Senior Member Harvey in matter AC014507, the objection officer purported to allow the objection by changing the end date of the extension period (which at law is actually the identification of a child support terminating event).  The Tribunal construed the decision of the objections officer in substance as disallowing Mr Wheeler’s objection to the acceptance of the extension application, and the making of a new primary decision about a terminating event.

5. When Ms Wheeler applied to the Tribunal for review in relation to the end date of the extension, the Tribunal found itself without jurisdiction to review that matter because it had not first been the subject of an objection decision.

6. Ms Wheeler subsequently objected to the decision reached identifying a child support terminating event.  An objections officer granted an extension of time to allow the objection to proceed. 

7. On 12 March 2019, an objections officer disallowed Ms Wheeler’s objection to the decision made identifying a terminating event for 22 June 2018. Ms Wheeler applied to the Tribunal for review of that decision on 25 March 2019.

8. As the decision regarding the terminating event has now been the subject of an objection, the Tribunal has jurisdiction to undertake a review of that decision.

Terminating events

1. The child support law contains a range of circumstances that will amount to a child support terminating event: section 12 of the Act.  Where, as in this case, the Registrar has accepted an application to extend a child support assessment beyond a child’s 18^th birthday (which would otherwise be a terminating event), the child support law operates to remove the child turning 18 as a terminating event, and substitutes two alternative events:

   ·the day on which the Registrar is satisfied the child ceased to be in full-time secondary education: sub-paragraph 151D(1)(b)(i) of the Act;

   ·the last day of the secondary school year to which the application relates: sub-paragraph 151D(1)(b)(ii) of the Act.

2. A child support terminating event will occur on whichever of those two days occur first: section 151D of the Act.

3. For the following reasons, I consider that the first of the two alternatives is determinative of this review.

   The day on which [Child 1] ‘ceased to be in full-time secondary education’

4. The Act further defines the term ‘full-time secondary education’ 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 of the Act.

5. The application of these provisions will be relatively straightforward in circumstances where there is clear evidence from a secondary school about whether it considers a child is receiving full-time secondary education. It is clear that the intent of the legislation is for those determinations to be made by the school and then implemented in the child support assessment.

6. However, in this case the evidence from the school is not clear despite apparent attempts by staff at the Department to seek clarification. Much of the difficulty turns on the language of the legislation that refers to a child being ‘in’ full-time education, without specifying whether that term means merely ‘enrolled in’ or ‘enrolled in and undertaking’.

7. I have been unable to identify any authority to assist me in interpreting and applying sub-paragraph 151D(1)(b)(i) of the Act, nor am I aware of any policy of the Registrar directly on point as to what being ‘in’ full-time secondary education requires. 

8. On 2 July 2018, [School 1] advised the Department that it had consulted with its legal directorate and would confirm that [Child 1] was ‘enrolled in [School 1 in Program 1]…on a full time basis’.  However, the school then chose to elaborate that ‘…[Child 1] was not attending full time’.  The school confirmed that [Child 1] was required to attend a minimum of 3 to 4 hours per week.  Although it is surprising to note that the school would accept that 3 to 4 hours attendance a week would constitute full-time attendance, that is clearly intended to be a judgement for the school.

9. On 27 July 2018, [School 1] again confirmed that [Child 1] was enrolled in [Program 1] (in Semester 2 of 2018).  This time the school did not elaborate on whether this was a full-time or part-time enrolment.  The school detailed [Child 1’s] timetable of 7 hours per week.

10. I note that an officer at the Department had contacted the school on 4 July 2018 seeking clarification of the letter of 2 July 2018.  It is apparent that the school would not confirm whether it considered [Child 1] was in full time education, or whether he was ‘receiving’ full time education, but repeated only that [Child 1] was ‘enrolled’ in full time education.

11. I note that the objections officer accessed publicly available information about [Program 1] offered by the school – but in examining that material, I note that the program provides for both part-time and full-time participation, and so in that sense the general information about the program is of no assistance.

12. I have also had regard to the information provided by Ms Wheeler and Mr Wheeler about their respective positions, but as mentioned above, the legislation envisages that it is the school’s position that will be determinative. 

13. Having assessed the information provided by the school, I find that [Child 1] was enrolled in full-time secondary education in Semester 1 of 2018, and appeared to be enrolled in more subjects in Semester 2. I infer therefore (given the school’s failure to clarify) that [Child 1] was enrolled in full time secondary education in both Semester 1 and Semester 2 of 2018.

14. However, the issue then arises as to whether mere enrolment is sufficient to be ‘in’ full time secondary education.

15. I find on the basis of the information provided by the school that [Child 1] was not attending on a full time basis in Semester 1 of 2018 – to the extent that the school made a point of mentioning this in its correspondence of 2 July 2018.  It would also follow in my view that that [Child 1] was not receiving full time secondary education, despite being enrolled.

16. In the absence of any clear authority on the point, I must therefore decide whether being ‘in fulltime secondary education’ is satisfied by mere enrolment, or whether the term includes attendance and receipt of education. 

17. On the one hand, a purposive approach to construing the provisions providing for an extension to child support liability to allow for 18-year-old students to complete their secondary education while being maintained by both parents strongly suggests that being ‘in full-time secondary education’ requires more than mere enrolment, otherwise there is no basis for the exception of extending the child support assessment beyond a child’s 18^th birthday. On the other hand, it is clear that it is not intended for the Registrar to enquire into the nature of the education beyond receiving information about whether the school considers the child to be in full-time secondary education.

18. On reflection, I have decided to place greater weight on the purposive approach to interpreting what is meant by a child being ‘in full-time secondary education’.  I would not have drawn this distinction had the school clearly expressed whether or not [Child 1] was in full-time education.

19. I consider that where the school advises that the child has not been attending on a full time basis, it cannot be said that the child is in full-time secondary education, even if the child happens to be enrolled on a full-time basis.

20. It follows therefore that I find that at no time since the child support application was extended was [Child 1] in full-time secondary education, and therefore he ceased to be in full time secondary education on the first day the case was extended. 

21. I find there to be a child support terminating event within the meaning of sub-paragraph 151D(1)(b)(i) on 10 April 2018.  I am obliged to set aside the decision under review and substitute a decision to give effect to that finding.

22. For completeness, I record that at the commencement of the hearing I raised this issue of construction of the legislation, and discussed the possibility that I might find the terminating event was much earlier than had been identified by the objections officer, or much later.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was a terminating event in respect of the child support assessment relating to [Child 1] on 10 April 2018.