Battley and Battley (Child support)

[2023] AATA 850

Battley and Battley (Child support) [2023] AATA 850 (8 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024919

APPLICANT:  Mr Battley

OTHER PARTIES:  Child Support Registrar

Ms Battley

TRIBUNAL:Member Y Webb

DECISION DATE:  8 March 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 July 2022 to 30 June 2025 the annual rate of child support payable by Mr Battley is increased by $1,387 per year in relation to the eldest child’s orthodontic treatment.

CATCHWORDS

CHILD SUPPORT – departure determination – orthodontic costs – a ground for departure established – decision to depart - 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. This review relates to the issue of child support regarding the children of Mr Battley and Ms Battley (‘the children’). They have four children aged [specified ages]. There have been a number of changes in relation to the care of the children. The Child Support Agency records appear to show that from approximately 21 October 2022 the care of the second eldest child was 86% to Mr Battley and 14% to Ms Battley and the care of the other three children was 93% to Ms Battley and 7% to Mr Battley. However, at the hearing the parents advised that since January 2023 the second eldest child has been in the 78% care of Mr Battley and the 22% care of Ms Battley and the other children have been in the 78% care of Ms Battley and 22% care of Mr Battley. The most recent care calculations are based on the children spending two nights a fortnight and half of the school holidays with one parent and 12 nights a fortnight and half of the school holidays with the other parent.

2. The child support case was registered from 16 September 2020 and has been collectable by the Child Support Agency since 2 February 2022.[1]

   [1] C1 – page 246

3. On 23 April 2022, Ms Battley applied to the Child Support Agency for a change to the administrative formula assessment on the basis of Reason 3. Specifically, Ms Battley stated that she was seeking that Mr Battley contribute 50% of the costs associated with the eldest child’s orthodontic treatment.[2]

   [2] C1 – page 79

4. At the time of the application for a change to the assessment the formula assessment calculated that for the period 30 January 2022 to 30 April 2022 Mr Battley was assessed to pay an annual rate of child support of $6,207 based on his 2020/2021 adjusted taxable income of $64,495 and Ms Battley’s 2020/2021 adjusted taxable income of $30,107 taking into account the care of the children at that time. Care changes resulted in changes to Mr Battley’s child support liability which by July 2022 had increased to approximately $8,000 per annum. For the period 1 August 2022 to 31 October 2023 the annual rate of child support payable was $8,219 based on Mr Battley’s 2021/2022 adjusted taxable income of $64,570 and Ms Battley’s 2021/2022 adjusted taxable income of $39,410.

5. On 11 June 2022 a Child Support Agency officer decided that Reason 3 had not been established and that no other reason had been established. The officer therefore refused Ms Battley’s application.

6. On 21 July 2022, Ms Battley objected to that decision.

7. On 25 October 2022, an objections officer allowed Ms Battley’s objection. The objections officer determined that the claim for a contribution to the orthodontic costs should have been assessed as a Reason 2 claim. The objections officer determined that Reason 2 had been established. The objections officer found that the total out of pocket cost for the orthodontic treatment for the eldest child was $9,233 and that the cost of the orthodontic treatment significantly affected the cost of maintaining the eldest child. The objections officer determined that Mr Battley’s annual rate of child support should be increased by $1,539 per annum for the period 1 July 2022 to 30 June 2025. The objections officer set aside the original decision replacing it with the above decision. The objections officer calculated that the impact on the assessment would be that from 1 July 2022 the child support payable would be approximately $9,689 per annum increasing to $9,969 per annum and that from August 2022 the child support payable would be approximately $9,758 per annum.

8. On 27 October 2022 Mr Battley requested review by the Administrative Appeals Tribunal (‘the Tribunal’).

9. A telephone directions hearing was conducted with both parents on 12 January 2023.

10. Both parents attended the Tribunal hearing on 23 February 2023 by way of a conference telephone hearing. Both parents gave evidence on affirmation.

11. The Tribunal deferred making a decision pending receipt of further clarification to be provided by Ms Battley regarding the costs of the orthodontic treatment.

12. Ms Battley provided further information and a copy was provided to Mr Battley for his possible response. Mr Battley did not provide a response.

13. The Tribunal made its decision on 8 March 2023.

ISSUES

1. The central issues for the Tribunal to determine in this case are:

   · whether one or more of the grounds for departure from administrative assessment referred to in subsection 117(2) of the Child Support (Assessment) Act 1989 (the Assessment Act) exists; and if so,

   ·      whether it would be:

   (a)  just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (b)  otherwise proper

   to make a particular determination to depart from the administrative assessment of child support.

DOCUMENTARY EVIDENCE

1. The Tribunal had before it a number of documents, organised into exhibits as set out in the attached Schedule. The Tribunal had regard to all of the relevant evidence and refers specifically to particular items in this Statement of Reasons.

CONSIDERATION

The child support law

1. The legislation relevant to this review is contained in the Assessment Act and the Child Support (Registration and Collection) Act 1988.

2. The rate of child support payable by the liable parent is usually based on an administrative formula assessment under Part 5 of the Assessment Act. This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided and the income of each parent.

3. The liable parent or carer may apply to the Child Support Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Assessment Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process as described in paragraph 14 above.

4. The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Assessment Act. Each ground for departure from the administrative formula is prefaced by the words ‘in the special circumstances of the case’. Therefore, when considering whether a ground exists in this case, the Tribunal must be satisfied that there are ‘special circumstances’ in the case. If satisfied that there are ‘special circumstances’ and that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act. Section 98S sets out a range of determinations that may be made under the departure provisions.

5. The phrase ‘special circumstances of the case’ is not defined in the legislation. In the case of Gyselman and Gyselman (Gyselman),[3] the Full Court of the Family Court of Australia held that:

   Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

   [3] (1992) FLC 92-279

6. Subsection 98C(3) of the Assessment Act provides that subsections 117(4) to (9) of the Assessment Act apply to the Registrar and therefore the Tribunal must consider those provisions when deciding whether, if a ground is established, it would be just and equitable and otherwise proper to make the departure decision.

Does a ground or grounds exist to depart from the administrative formula assessment?

1. In considering whether a ground or grounds exist which justify departing from the administrative formula assessment, the Tribunal considered the extensive information contained within the documentation provided by the Child Support Agency as well as the additional information provided by the parents at the hearing.

2. The Tribunal found both Mr Battley and Ms Battley to be genuine and credible in their statements to the Tribunal and the Tribunal accepts them both as truthful.

Reason 2

1. In relation to Ms Battley’s claim that the eldest child has special needs, the legislative test is detailed in subparagraph 117(2)(b)(ia). The test is whether:

   (b)…in the special circumstances of the case, the costs of maintaining the child are significantly affected: …

   (ia)because of special needs of the child; …

2. This reason is informally referred to as Reason 2. The child support assessment in its usual form is intended to cover the ‘normal’ costs of raising a child. However, it does not cover costs which are out of the ordinary or ‘special’ which may be the case where the child has a particular medical or dental need. Lightfoot and Hampson[4] established the principle that if these costs are necessary or desirable for the child’s welfare and they impact significantly on the costs of raising the child, a change to the formula assessment may be required.

   [4] (1996) FLC 92-663

3. Ms Battley in her application for a change to the assessment stated that the eldest child requires braces and that she was seeking that Mr Battley pay half of the cost. She referred to the consultation with the orthodontist on 7 December 2021 and detailed the costs which she calculated to be $9,785. She advised that she had made two credit card payments, one of $82.20 and one of $1,000, and that she had received rebates of $66.80 on 7 December 2021 and $540 on 16 February 2022 from her private health insurer. She had received a further rebate of $12 which she believed was from Medicare on 16 February 2022. She advised that the amount owing at the time of her application was $8,233 payable at $250 per month commencing from 15 March 2022. She stated that Mr Battley had initially agreed to pay half but then refused to pay. She provided a letter from [Doctor A], the orthodontist, dated 9 February 2022, which detailed the costs of the orthodontic treatment, the pre-treatment costs and the post-treatment cost of fixed retention wires. The letter also stated that the child ‘requires active orthodontic treatment with fixed appliances to correct her occlusion’. He also stated that the ‘treatment is to align the teeth and correct the occlusion and is not only for cosmetic purposes’.[5]

   [5] C1 – page 108

4. Prior to the hearing Ms Battley provided verification that she received rebates from Medicare and her private health insurer as detailed above.[6]

   [6] B16–B17

5. The Tribunal was concerned that the amount of the out of pocket costs was not completely clear in the orthodontist’s letter and statements which he provided. Mr Battley expressed his concerns that it was unclear what the out of pocket costs were because limited information had been provided about the rebate available from Ms Battley’s private health insurer including the lifetime limit. In addition, Mr Battley asserted that Ms Battley requested that he pay half of the full cost and not half of the out of pocket costs and he did not agree to that. He also was aggrieved that he was not able to be present at the consultation with the orthodontist and he did not have an opportunity to have input into the decision to go ahead with the orthodontic treatment. He wanted to explore other less expensive options but he did not have an opportunity to do so.

6. The Tribunal is satisfied that the orthodontic treatment for the eldest child was reasonably necessary based on the letter from the orthodontist. Orthodontic treatment is not factored into the child support formula as an ordinary expense. The Tribunal is therefore satisfied that the orthodontic treatment is a special circumstance. Hence the Tribunal finds that the eldest child has special needs that are out of the ordinary.

7. In relation to the costs of the orthodontic treatment, Ms Battley sought further information from the orthodontist and her private health insurer in the interests of clarifying the costs of the orthodontic treatment and the rebates available.[7] Taking into account all of the information provided the Tribunal finds that the entire costs are as follows:

   [7] B18–B27

Pre-treatment costs
Study models, photographic records, consultation and cephalometric analysis TOTAL = $289	Less discount = $140 Less private health = $66.80	Out of pocket costs = $82.20
Treatment costs
Orthodontic costs = $8,600 Treatment plan = $75 Tooth width reduction = $110 Post-treatment costs = $700 TOTAL = $9,485	Less private health = $1,233.20 (balance of lifetime limit) Less Medicare = $12	Out of pocket costs = $8,239.80 $82.20 + $8,239.80 = TOTAL OUT OF POCKET COSTS = $8,322

1. In relation to the issue of whether the costs of the orthodontic treatment significantly affect the costs of maintaining the eldest child the Tribunal is satisfied that the out of pocket costs totalling $8,322 are very significant and that they affect the costs of maintaining the child, taking into account the cost of the child amount in the administrative formula which (as at October 2022) was approximately $2,749 per annum and is currently approximately $1,872 per annum.

2. Hence, the Tribunal finds that Reason 2 has been established.

Would it be just and equitable to depart from the administrative assessment?

1. Section 3 of the Assessment Act states that parents have the primary duty to maintain their children and that this duty takes priority over all commitments of the parents other than commitments necessary to enable the parent to support themselves or any other child or another person that the parent has a legal duty to maintain. The Assessment Act contemplates not only that both parents contribute to the support of their children but that the parents’ capacity to contribute must be taken into account.

2. Having found a reason for departure, the Tribunal must consider whether it is just and equitable to depart from the administrative formula assessment. The Tribunal must have regard to a range of matters set out in subsection 117(4) of the Assessment Act. This requires an assessment of the duty of the parents towards their children; the needs of the children; any income, earning capacity and financial resources of the children; the income, earning capacity and financial resources of the parents; self-support commitments; and an evaluation of hardship on the parties (and/or the children) if the Tribunal increased or decreased the amount of child support payable.

3. In considering these issues, the Full Family Court, in the case of Gyselman, stated that:

   However, some of the matters listed in sub-section [117](4) may overlap with matters already considered under subsection (2) and some of the paragraphs in subsection (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under subsection (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under subsection (2).

4. Of particular relevance in this matter are the following aspects of subsection 117(4) of the Assessment Act.

The proper needs of the children

1. In determining the proper needs of the children, subsection 117(6) of the Assessment Act requires the Tribunal to have regard to the manner in which the parents expected the children to be cared for, educated and trained as well as a consideration of any special needs of the children.

2. The Tribunal has found that the eldest child has special needs in that she is undergoing orthodontic treatment and this significantly increases the costs of maintaining her. The Tribunal has found that the total out of pocket costs of the orthodontic treatment (including pre- and post-treatment costs) are $8,322. Ms Battley is seeking that Mr Battley pay 50% of the costs and the Tribunal considers that may be a reasonable request especially taking into account that Mr Battley’s income is higher than Ms Battley’s and she has the majority of the care in relation to three of their children.

3. Ms Battley also raised that one of the children now requires spectacles and she provided verification that her out of pocket costs were $95.25.[8] While the Tribunal accepts that she has incurred this cost the Tribunal is not persuaded that it significantly affects the cost of maintaining the child as the outlay for the spectacles works out to approximately $1.80 per week if spread over a year. Hence the Tribunal did not consider it appropriate to amend the assessment in relation to the cost of the spectacles.

   [8] B17

4. The parents did not raise any other issues in relation to the proper needs of the children.

The income, property and financial resources of the children

1. Both parents agreed that the children have no significant income, property and financial resources of their own and the Tribunal finds that the children are wholly dependent on their parents for their care.

Mr Battley’s income, property, financial resources, expenses and earning capacity

1. Mr Battley is a wage and salary earner. He provided a Statement of Financial Circumstances. He declared a gross average income of $1,200 per week.[9] This annualises to $62,400 per annum. He explained that his pay fluctuates to some extent and this is evident in his payslips which showed earnings of $1,142.32 on 11 January 2023 and of $1,175.26 on 25 January 2023.

   [9] A2

2. Mr Battley has been employed by [Employer 1] as [an occupation 1] for almost four years. He receives a small amount of family tax benefit which cannot be counted as income for child support purposes. He owns two cars with a total value of approximately $13,000 and household contents which he valued at approximately $2,000. He explained that some of his superannuation was awarded to Ms Battley in the property settlement and he now has approximately $98,736 in superannuation. He owns no real estate and he advised – and the Tribunal accepts – that he has less than $1,000 in savings.

3. In relation to his expenses, he has personal loans totalling approximately $60,000 the repayments for which are approximately $300 per week. He declared income tax on his earnings of approximately $251 per week[10] and although this was around $30 to $45 higher than indicated on his payslips the Tribunal accepts that overtime may increase the tax paid. He estimated that his household expenses total approximately $705 per week ($36,660 per annum). His rent expenses are quite modest at $205 per week which he explained is because he shares the rental costs with his partner.

   [10] A7

1. No evidence has been provided which suggests that Mr Battley is earning income from any other source or that his income is not fully disclosed and reflected in his income as assessed by the Australian Taxation Office (ATO) and the Tribunal so finds.

2. Mr Battley also provided a copy of a notice lodged by Ms Battley in the [named court] seeking payment from Mr Battley of $3,397.75 for unpaid legal fees in relation to property settlement issues. Mr Battley denies that he owes the money claimed and the matter remains in dispute. Mr Battley provided the document to show that he may potentially have a debt to pay if the claim is found to be valid. While this issue is not directly relevant to the current matter the Tribunal acknowledges that Mr Battley may potentially be liable for a debt.

3. In relation to earning capacity, Mr Battley is working full-time. He has not changed his occupation or reduced his hours of work or working pattern and the Tribunal finds that he is exercising his full earning capacity.

Ms Battley’s income, property, financial resources, expenses and earning capacity

1. Ms Battley is a wage and salary earner. She provided a Statement of Financial Circumstances. She confirmed that she is working as a casual employee at [Employer 2] and this has been the case for about one year. Her hours of work vary and this is evident in the payslips which she provided which show that in January 2023 her weekly earnings for two weeks were $467.55 and $935.11 respectively. She stated that her average weekly wage is approximately $1,148 but that if she needs to take time off such as when she or the children are sick or for school holidays, she is only paid for the hours she actually works. She is hopeful that in the near future she can convert to being a permanent employee which will allow her to take paid sick and holiday leave; however her usual rate of pay will be lower without the casual loading. In the 2020/2021 financial year, the ATO assessed Ms Battley’s income as $30,107 and in the 2021/2022 financial year it was assessed as $39,410. Ms Battley also provided a Centrelink Income Statement which showed that she receives carer allowance of $163.46 per fortnight and family tax benefit (which is not counted as income for child support purposes) as well as parenting payment which varies depending on her income from employment. She reports her earnings fortnightly to Centrelink and depending on how much she has earned in that fortnight she may or may not receive some parenting payment. No evidence has been provided which suggests that Ms Battley is earning income from any other source or that her income is not fully disclosed and reflected in her income as assessed by the ATO and the Tribunal so finds.

2. In relation to real estate, Ms Battley is buying a home which she valued at approximately $430,000. Her mortgage payments have recently increased due to the interest rate rises and her repayments are now approximately $700 per week. She advised that she owes approximately $417,000 on her mortgage.

3. Ms Battley owns a car which she valued at approximately $28,000 and she valued her home contents at approximately $4,000. Her superannuation is valued at approximately $25,000 following the property settlement when she received $21,000 of Mr Battley’s superannuation. Ms Battley has no debts other than her mortgage. In relation to expenses, she pays income tax of approximately $260 per week (approximately $13,497 per annum) as reflected in her payslips[11](and depending on her earnings). Her household expenses total approximately $1,300 per week ($67,600 per annum). The largest household expense is her mortgage repayment at $700 per week. All of her other expenses are modest and unremarkable.

   [11] B11–B12

4. In relation to her earning capacity Ms Battley is working and combines working with her family responsibilities. Her income has increased in recent years. There is no issue regarding her earning capacity and the Tribunal finds that she is exercising her full earning capacity.

Necessary commitments to support themselves or others

1. The Tribunal notes that the Family Court of Australia has been prescriptive about the types of expenses that can be considered ‘necessary’ expenses and that there are only a few expenses that can be considered to take priority over a parent’s primary duty to support their children. This includes expenses such as a reasonable amount for payment of rent or mortgage, food, utilities and some loans. In Mee and Ferguson[12] the Full Court of the Family Court stated at paragraph 128:

   Some of the items obviously have to be taken into account before maintenance is arrived at; for example, the cost of reasonable transport, food and clothing, and other like expenses are necessary to the continued reasonable existence of a parent, and, barring legislative direction to the contrary, it would not accord with the understanding in this jurisdiction to suggest that those items should be put out of consideration before child maintenance is determined. On the other hand there is no doubt that one of the primary responsibilities of a parent is the continued support of children to the extent to which the parent continues to be able to do so and that may in appropriate circumstance mean making financial sacrifices or cutting one’s cloth to meet that commitment during the years when it applies.

   [12] [1986] FamCA 3

2. Neither Ms Battley nor Mr Battley raised any issues at this time in relation to self-support and the Tribunal finds accordingly.

Any hardship to either parent or the children by the making of, or refusal to make, an order

1. Mr Battley stated that he considers he would suffer hardship if the assessment was changed and he had to share the costs of the orthodontic treatment. He doesn’t believe that he can afford the additional expense and that if he had to pay more he would find it difficult to financially support the children especially the child who lives mostly with him. Mr Battley stated that if he has to share the cost he would prefer that it is spread over at least a three-year period.

2. Ms Battley stated that she does not believe that she would be in financial hardship if Mr Battley did not contribute to the orthodontic costs. However she thinks that he should, as a responsible parent, share in the costs because the costs are special and are significant. Ms Battley stated that she would not oppose spreading the costs for Mr Battley over a three-year period.

Proposed determination

1. The Tribunal has carefully considered the evidence provided and the statements and submissions of both parents.

2. The Tribunal is satisfied that Mr Battley has some scope within his finances to contribute to the costs of the eldest child’s orthodontic treatment. Notwithstanding, the Tribunal’s task is to decide whether the child has special needs that are out of the ordinary and whether the costs of maintaining the child are higher because of the costs related to her special needs. The Tribunal has found that these tests have been met and it is satisfied that Mr Battley has the capacity to contribute to these costs. In the Tribunal’s view there is no compelling reason why Mr Battley should not equally share these costs with Ms Battley.

3. The Tribunal has found that the total out of pocket costs of the orthodontic treatment are $8,322 and the Tribunal considers that it would be just and equitable for each parent to contribute $4,161 for the costs of the orthodontic treatment. The Tribunal considers that it would be fair to spread the costs over a three-year period which correlates generally to the period of the treatment. The Tribunal is also mindful that, particularly due to the repayments on the personal loan, Mr Battley’s finances are quite tight. Nevertheless Mr Battley earns a higher income than Ms Battley and she has the majority of the care of the children so the Tribunal is satisfied that it is just and equitable that he contributes 50% of the orthodontic costs. The Tribunal considered a change to the assessment commencing from April 2022 when Ms Battley made her application for a change to the assessment but due to Mr Battley’s financial circumstances the Tribunal is not persuaded that Mr Battley can afford significant arrears and therefore the Tribunal proposes that the change to the assessment in relation to the orthodontic treatment will commence from 1 July 2022. Therefore for the period 1 July 2022 to 30 June 2025 the annual rate of child support payable by Mr Battley will be increased by $1,387. This is an additional amount (added to the formula assessment) of approximately $26 per week for a three-year period. In all of the circumstances the Tribunal is satisfied that this is a just and equitable outcome for both parents.

4. The impact of the proposed determination on the assessment will be that from 1 July 2022 to 12 July 2022 the total annual rate of child support payable by Mr Battley will be approximately $9,538 per annum; for the period 13 July 2022 to 31 July 2022 approximately $9,817; from 1 August 2022 approximately $9,606 per annum and from January 2023 (when there was a significant change in the care of the children) the annual rate of child support payable will be approximately $7,000 per annum. These figures are approximate because there is limited information within the papers about the specific dates when care changes occurred. In addition, if there are changes in care in the future this may affect the child support liability. 

5. The Tribunal proposes to set aside the objections officer’s decision and substitute its decision because although the Tribunal has reached a very similar outcome to the objections officer it has found that the out of pocket costs of the orthodontic treatment are less than the figure determined by the objections officer (with the Tribunal finding the total out of pocket costs to be $8,322 and the objections officer finding the out of pocket costs were $9,233).

6. The Tribunal considers this proposed determination is fair, just and equitable and that it balances the needs and financial capacities of both parents.

Is it otherwise proper to depart from the administrative assessment?

1. The final step for the Tribunal to undertake is to determine whether it is ‘otherwise proper’ to make the particular determination to depart from the administrative assessment. Subsection 117(5) of the Assessment Act requires the Tribunal to take into consideration the following matters:

   (a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

   (b) the effect that the making of the order would have on:

   (i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

   (ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

2. The Tribunal must consider whether the proposed departure is ‘proper’ within the context of the public interest and welfare expenditure by the community (see Gyselman). It is a prime objective of the child support legislation that parents should be obliged to support their own children to the extent of their real capacity, and that that obligation should not be unnecessarily left to the public welfare system when the parents themselves have the capacity to maintain their children.

3. The Tribunal has reached the conclusion that Ms Battley needs assistance with the costs of the orthodontic treatment for the eldest child and that Mr Battley has the capacity to contribute to those costs.

4. Paragraph 117(5)(b) of the Assessment Act directs the Tribunal to have regard to the effect that the making of the order would have upon the rate of entitlement to any income-tested pension, allowance or benefit.

5. Ms Battley is receiving family tax benefit and she confirmed that she is aware of the impact of child support payments on that benefit.

6. The Tribunal is satisfied that the proposed determination is ‘otherwise proper’ and that the determination should be made.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 July 2022 to 30 June 2025 the annual rate of child support payable by Mr Battley is increased by $1,387 per year in relation to the eldest child’s orthodontic treatment.

SCHEDULE

List of Exhibits

1. Services Australia – Child Support Agency marked as C exhibits:

   ·     CSA’s large bundle of 285 pages marked as exhibit – C1

2. Mr Battley has provided the following documents marked as A exhibits:

   ·     A1–A10                Statement of Financial Circumstances  

   ·     A11–A13              Civil claim – final notice

   ·     A14–A15              Payslips

   3. Ms Battley has provided the following documents marked as B exhibits:

   ·     B1–B10                Statement of Financial Circumstances

   ·     B11–B12              Payslips

   ·     B12  Payslip

   ·     B13–B15               Centrelink Income Statement

   ·     B16–B17              Private health insurance rebates

   ·     B19  Letter from orthodontist re fees

   ·     B20–B25              [Health insurer]- services and rebates

   ·     B26–B27              Orthodontist – detailed statement of costs and payments