Baiss and Forster (Child support)

[2023] AATA 4456

Baiss and Forster (Child support) [2023] AATA 4456 (14 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026127

APPLICANT:  Mr Baiss

OTHER PARTIES:  Child Support Registrar

Ms Forster

TRIBUNAL:Member J Bakas

DECISION DATE:  14 December 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Baiss’s objection is allowed, and the application for a change of assessment is refused.

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child – whether cost of maintaining child significantly affected – no ground of departure established – 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 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Baiss and Ms Forster are the parents of two children (about 15 years of age) in respect of whom a child support assessment is in place. The children are in the above primary care of Ms Forster.

2. Mr Baiss applied to Services Australia (Child Support) for a change of assessment on 18 October 2022 on the basis that he believed the assessment to be unjust and inequitable on account of his income, property and financial resources (Reason 8A). On 27 December 2022, Ms Forster cross-applied for a change to the administrative assessment on the basis that she believed the assessment to be unjust and inequitable on account of Reason 2 (special needs of the children).

3. At the time of the application, for the period 1 October 2022 to 31 December 2023, Mr Baiss was assessed to pay the fixed annual rate of $3,042 based on his 2021/2022 Australian Taxation Office (ATO) issued adjusted taxable income of $4,305 and Ms Forster’s 2020/2021 provisional taxable income of $2,306.

4. On 7 February 2023 a delegate of the Registrar decided that Reason 8A had not been established but Reason 2 had and increased Mr Baiss’s annual rate payable for the period 1 October 2022 to 30 September 2023 by $1,208 and by $1,207 for the period 1 October 2023 to 30 September 2024.

5. On 27 February 2023 Mr Baiss objected to that decision and on 19 April 2023 the objection was disallowed.

6. Mr Baiss applied to the Tribunal for review on 19 April 2023.

7. A telephone direction hearing was held on 20 September 2023 with Mr Baiss only, as Ms Forster had expressed to the Tribunal that she did not wish to participate in the hearing. At this telephone directions hearing Mr Baiss indicated he had not been able to access his hearing papers and a second telephone directions hearing was held on 31 October 2023. Again, only Mr Baiss participated.

8. A hearing was held on 14 December 2023, at which Mr Baiss gave affirmed evidence via MS Teams audio. Ms Forster had indicated on multiple occasions in her communications with the Tribunal registry that she did not wish to be contacted by the Tribunal or participate in this matter.

9. The documentary evidence before the Tribunal consists of the ‘Section 37(1) Documents and Statements’ C1 to C261, ‘Section 38AA Request and Documents’ C262 to C288, and Mr Baiss’s documents A1 to A10.

ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the level of care provided and the income of each parent.

2. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a departure from the administrative assessment in relation to a child.

3. Under section 98C of the Act, before making a departure determination on an application made under section 98B of the Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Act exist, and that it would be just and equitable and otherwise proper to make a particular determination.

4. The issues for me to determine in this case are therefore:

   ·      Whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exist; and, if so (and only if so),

   ·      Whether it would be just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment of child support.

CONSIDERATION

Is there a ground to depart from the administrative assessment of child support?

1. While Mr Baiss initially raised Reason 8A as a ground to depart, he was no longer pursuing this. His reason for seeking a review with the Tribunal is only in relation to the findings regarding Reason 2.

2. To establish Reason 2, Ms Forster must show that the costs of maintaining the children are significantly affected by their special needs.

16.  Subparagraph 117(2)(b)(ia) of the Act provides that there is a ground for departure if, in the special circumstances of the case, the costs of maintaining the child[ren] are significantly affected because of the special needs of the child[ren].

Reason 2

Special needs of the children

1. As detailed above, Ms Forster did not participate in the hearing and expressed on a number of occasions that she did not wish to be contacted any further by the Tribunal.

2. As such, the Tribunal considered the information contained in the hearing papers as well as Mr Baiss’s oral evidence.

3. The Tribunal notes that Ms Forster advised Child Support of the following (as detailed in the objections officer’s decision):

19.1.Both children require orthodontic dental work in the form of twin blocks for realignment of their jaw at a cost of $2,415 each. Ms Forster stated she paid this amount in July 2022. Ms Forster stated there was a delay in applying as she has continuously been responding to objections and appeals that Mr Baiss lodges regarding his assessed rate of child support which has been time-consuming.

19.2.Ms Forster stated public dental services are available for general dental care. Specialist dental work (orthodontic) is restricted and subject to additional eligibility criteria. Ms Forster states the children were assessed and went on the waiting list for orthodontic work on 18 March 2021. One of the children was further assessed on 15 November 2022 and is eligible for braces and has seen the orthodontist at the public clinic on 20 December 2022, 8 February 2023 and on 20 April 2023, and treatment option will be chosen.

19.3.The other child was assessed on 9 February 2023 and found to be ineligible. However, the orthodontic treatment the children had (twin blocks) is not offered by public clinics. If this child has braces at a later date, they will also need to be via a private service. Eligible public services that are available have been claimed.

19.4.Ms Forster does not have anything in writing regarding the public dental services. She states the public system does not work like that. Ms Forster stated she has to call the public dental service for an appointment and the only letter they send is the one that provides their appointment details. At the appointment, they verbally discuss their situation and she is then advised verbally if the children are eligible or not. This information is not provided in writing.

19.5.Ms Forster said the public dental hospital provide a limited service for children under 16 years. Not all services are provided. She said the children’s teeth are measured and various checks done and they plug this information into a formula, and if the costs are above the formula, they are not eligible. Ms Forster states she has not incurred any additional dental costs other than the invoices she provided previously.

1. In support of her claims, she provided Child Support with the following invoices from [Health Service 1]:

20.1.8 March 2022 consultation for both children – $45 each (total $90)

20.2.31 March 2022 for both children – $450 each (total $900)

20.3.27 April 2022 – functional orthopaedic appliance both children – $750 each (total $1,500)

20.4.30 May 2022 one child – $1,170

20.5.3 June 2022 – the other child – $1,170

20.6.TOTAL – $4,830.

1. Mr Baiss’s position, as expressed at the hearing and in his submissions and documentary evidence, includes the following:

   21.1.While there are invoices, there is no evidence that the costs incurred were due to the special needs of the children. It could be that this work was undertaken for beautification purposes rather than medical need.

   21.2.Ms Forster, who is seeking to rely on this Reason, has not provided documentation to establish a special need.

2. I considered Reason 2 (special needs of the children).

3. I note that the evidence in regard to Reason 2 is limited to the invoices contained in the hearing papers and the oral evidence of Ms Forster to a Child Support officer, as detailed in the hearing papers.

4. The invoices refer to “Functional Orthopaedic Appliance – Custom Fabrication” as well as “Issue” and “Consultation” and an item labelled “Rec”. There is no documentation from the treating medical provider regarding the need for the treatment.

5. I find this is rather limited evidence regarding establishing a special need that could have been easily addressed such as by a letter from the orthodontist. However, Ms Forster made it clear in her communications with the Tribunal that she did not wish to be involved and did not want to be contacted. Ms Forster’s conduct in the proceedings did not lend itself to the Tribunal seeking this additional information from her.

6. I find Mr Baiss’s comments regarding a lack of evidence of special need are valid.

7. Having considered the evidence regarding the special needs of the children, the Tribunal finds that it cannot be satisfied that there are special circumstances of the case to justify departing from the administrative assessment.

8. As a result, the Tribunal does not find a ground of departure from the statutory formula has been established.

9. The application for a change of assessment (or rather Ms Forster’s cross-application) must therefore be refused.

10. I will set aside the objections officer’s decision and allow Mr Baiss’s objection so as to refuse the application for a change of assessment.

11. For the sake of completeness ad as detailed above, the Tribunal notes that Mr Baiss was no longer pursuing the Reason for his initial application (Reason 8).

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Baiss’s objection is allowed, and the application for a change of assessment is refused.