Bennett and Floyd (Child support)

Bennett and Floyd (Child support) [2023] AATA 4286 (13 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/AC026195
APPLICANT:  Mr Bennett
OTHER PARTIES:  Child Support Registrar
Ms Floyd

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 13 November 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to vary the annual rate of child support payable by Mr Bennett by increasing it by $2000 per annum for the period 1 February 2023 to 30 January 2024.

This means that the annual rate of child support will be determined according to the administrative formula, preserving the use of estimates and adjusted taxable income, and the liability will then increase by $2000 per annum for 12 months.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the child is significantly affected – 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 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

Mr Bennett and Ms Floyd are the parents of [Child 1] (8) and [Child 2] (4) in respect of whom a child support assessment is in place. Ms Floyd has sole care of the children.
From 1 September 2022, Mr Bennett was liable to pay $11,393 per annum (pa) based on his estimated adjusted taxable income of $65,152 and Ms Floyd’s estimated adjusted taxable income of $80,821. At that time, an additional amount of $2,597 pa was included in the liability based on an earlier change of assessment decision. The rate changed to $8,796 pa from 1 February 2023 when the previous change of assessment decision expired.
On 12 September 2022 Mr Bennett applied for a departure from the administrative assessment of child support (i.e. a ‘change of assessment’) raising the grounds known as Reason 7 and Reason 8A. Mr Bennett contended that he had significant ongoing bills, credit card and phone debt. Mr Bennett requested a decrease in his child support liability to $3,500 pa. On 26 September 2022 Mr Bennett added the ground known as Reason 8A asserting that Ms Floyd’s income estimate was too low.
On 13 October 2023 Ms Floyd cross applied on the ground known as Reason 8B, alleging that any reduction from full time work by Mr Bennett was not justified based on caring for his elderly mother and further cross applied on the ground known as Reason 3 pertaining to [Child 1]’s school fees and Reason 2 pertaining to [Child 1]’s psychology treatment, and medical treatment in relation to a metabolic disorder of [Child 2].
On 12 December 2022, Services Australia – Child Support (Child Support) decided that Mr Bennett’s grounds were not established; essentially because Mr Bennett’s commitments for his own self-support did not significantly affect his ability to maintain his children and Ms Bennett’s estimate had in fact over-estimated her income when compared to available evidence about her income. Child Support decided that Ms Floyd’s grounds were established in relation to the costs of the children being significantly affected by their special needs, and the costs of educating [Child 1] in the manner expected by the parents. Child Support also found that Mr Bennett’s income exceeded the amount of his estimate sufficiently to establish Reason 8, but otherwise found medical evidence justified Mr Bennett’s decision to reduce his hours of employment below full time. Child Support varied the annual rate of child support payable by Mr Bennett to $11,300 pa.
Mr Bennett objected on 12 January 2023, disputing the findings of income and pointing to impending legal expenses.
On 24 May 2023 the objection was partly allowed, with essentially the same findings made in relation to the grounds as were made by the primary decision maker. The objections officer varied Mr Bennett’s adjusted taxable income to $71,000 pa from 1 February 2023 to 31 January 2024 and increased the annual rate payable by $2,966 pa as contribution to education and special needs costs. The annual liability for child support increased to $13,118 pa from 1 July 2023 (for example).
On 30 May 2023, Mr Bennett informed Child Support, in response to the change of assessment decision that made provision for [Child 1]’s psychology expenses, that a court order was in place that prevented such treatment proceeding without his consent, and he had not provided that consent.
On 31 May 2023 Mr Bennett applied to the Tribunal for review.
On 10 August 2023 the parties participated in a telephone directions hearing before me. I issued procedural directions for the provision of relevant documents to be provided. Compliance with that direction by Mr Bennett was not in good order, with information not provided, documents received that could not be accessed by the Tribunal and missing attachments.
The hearing proceeded on 29 September 2023. It was necessary for Mr Bennett to resubmit material with missing pages after the hearing, and this process was also accompanied by delays. The post-hearing exchange of documents and submissions was not completed until 22 October 2023.
Mrs Floyd submitted further material and allegations to the Tribunal on the day prior to the publication of this decision and reasons. I directed that the material submitted not be received into evidence. The material made assertions of some seriousness (regarding financial resources) and made allegations against third parties. The allegations were wholly uncorroborated by any other evidence. I considered that the material was insufficiently probative or corroborated to justify the significant procedural steps that would be required for the material to be considered in these proceedings.

LEGISLATIVE FRAMEWORK

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 taxable income of each parent.
Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Child Support Registrar (the Registrar) in writing, requesting a departure from the administrative assessment in relation to a child.
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, equitable and otherwise proper to make a particular determination.
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 exists; and, 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

There is a ground to depart from the administrative assessment of child support

As to the ground known as Reason 7, sub-subparagraph 117(2)(a)(iii)(A) provides that the ground will be established if, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of commitments of the parent necessary to enable the parent to support themselves.
In his application for a change of assessment, Mr Bennett identified having a large mobile phone bill which he attributes to taking on commitments under a phone plan prior to separation to benefit Ms Floyd and the children. Mr Bennett also contends that he carries consumer debt which he attributes to spending during the relationship.
To demonstrate his financial difficulties in this regard, Mr Bennett has lodged extensive documentary evidence of utility bills, final notices, personal bank accounts showing various expenses, and negotiations with his landlord regarding an increase in rent. It is clear from this material, and I accept, that Mr Bennett is facing difficulty meeting the costs of living. In addition to this, Mr Bennett has identified incurring legal costs, and meeting high travel costs to spend time with his elderly parents in the mid-north of South Australia.
At the hearing, Mr Bennett confirmed in relation to this ground that the amount of child support that is being garnished from his salary has impacted on his ability to meet his other commitments, and referred to receiving constant notifications and threats to have services disconnected for non-payment. Mr Bennett stated that he has had to meet legal expenses of $50,000 to $60,000 to defend himself from allegations made by Ms Floyd. Mr Bennett also referred to recent increases in his rent.
In response, Ms Floyd engaged with aspects of the expenses raised by Mr Bennett, providing her own perspective on the mobile phone costs and whether other costs Mr Bennett faced in this regard were justified.
Generally speaking, in this regard I note that many of the grievances and responses engage with matters that would ordinarily be addressed in property settlement proceedings (such as household effects and debt incurred during the relationship). A substantial part of the documentary evidence before the Tribunal was also addressed to such matters. As I explained to the parties at the hearing, no part of the child support scheme or the provision for a change to the assessment is directed towards resolving disputes between the former parties to a relationship in relation to the distribution of property and debt from that relationship. In other words, it would be inappropriate for adjustments to be made to the ongoing rate of child support (the purpose for which is to provide for the maintenance of children in accordance with the respective parents’ capacity) to address perceived unfairness associated with property settlement outcomes, or the absence of a property settlement. I consider it necessary to re-emphasise this point given material directed towards property settlement complaint continued to be provided to the Tribunal after the hearing.
As mentioned above, in order for the ground raised by Mr Bennett to be established, I must be satisfied that in special circumstances of the case, his capacity to provide support to his children is significantly reduced because of his commitments to support himself. In context, this ground engages with a component of the administrative formula that identifies and quarantines a statistical ‘self-support’ amount from a parent’s adjustable taxable income.
While I accept that Mr Bennett is struggling to manage his finances and meet his living expenses, the matters he relies upon in this regard are not unusual expenses (living expenses), matters that are not appropriate to address through a child support assessment (matters arising in relation to property settlement) or matters that are not special so as to justify an adjustment to the ongoing rate of child support, which again is provided for the purpose of maintaining children (legal costs).
The administrative assessment of child support is calculated by reference to Mr Bennett’s adjusted taxable income, and in this regard Mr Bennett is a salary earner. Having regard to his estimated adjusted taxable income of $65,152 as at 1 September 2022, and evidence of his actual income from his employment for 2022/2023 now before the Tribunal ($70,682.59 per income statement at A42), I am not satisfied that Mr Bennett’s costs of self-support are special circumstances or significantly reduce his capacity to provide financial support for his children.
The ground known as Reason 7 is therefore not established in my view. However, I am obliged to take into account Mr Bennett’s income, property and financial resources in making or refusing to make any particular departure determination in the event that another ground is established.
As to the ground known as Reason 3, subparagraph 117(2)(b)(ii) of the Act provides that the ground will be established if, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being educated in the manner that was expected by his or her parents.
[Child 1] attends a catholic school in the southern suburbs of Adelaide. The cost of tuition at that school is $2,750 in 2023.
Mr Bennett’s position in this regard is that he did expect [Child 1] to attend a catholic school, having signed enrolments for a different catholic school during the relationship. The current school however is not the school he would have chosen, noting it is now some distance from where the family had previously been living, but it is in the same ‘bracket’. Mr Bennett clarified that it was his expectation that his daughter would attend a catholic school at the time [of the earlier enrolment], but not for the future. Upon further questioning of Mr Bennett in this regard, I understood his remarks to relate to the overall affordability of the child support assessment, incorporating a component for the tuition fees after the change of assessment decision was made.
I find that [Child 1] is being educated in the manner expected by her parents, and the costs of this education are significant, in the amount of $2,750 pa for tuition fees. I consider these costs significantly affect the costs of maintaining her, noting for example that they represent a significant proportion of the annual child support assessment in place at the time the application for a change of assessment was made. I find that in the circumstances of this case, these costs amount to a special circumstance and the ground is established.
As I am satisfied that there is at least one ground to depart from the administrative assessment of child support, the next step is to consider whether it is just, equitable and otherwise proper to depart from the assessment. The remainder of the grounds raised by the parents will be addressed in the course of that analysis.
For completeness, I learned later in the course of the hearing from both parents that educational arrangements for the children for 2024 are unresolved, with changes accompanying changes to the care arrangements. It is likely, as I understand it, that the children will be attending a different school, and it is possible that the school may be a public school.

A just, equitable and otherwise proper departure

In deciding whether it is just and equitable, the Tribunal must have regard to the following matters set out in subsection 117(4) of the Act:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
I am mindful of, and take into account, the nature of the duty of a parent to maintain a child as stated in section 3 of the Act. The parents of a child have the primary duty to maintain the child, and the duty of a parent to maintain a child is not of lower priority than the duty of the parent to maintain any other child or person. The duty to maintain the child has priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves and any other child or person the parent has a duty to maintain, and is not affected by the duty of any other person to maintain the child, or any entitlement of the child or another person to an income tested pension, allowance or benefit.

Proper needs of the children

As to the proper needs of the children, Ms Floyd raised the ground known as Reason 2 which may be addressed under this factor. For reference, that ground (in itself) will be established if, in the special circumstances of the case, the costs of maintaining a child are significantly affected because of the special needs of the child: subparagraph 117(2)(b)(ia) of the Act.
Ms Floyd relies on [Child 1] attending psychological therapy since 17 June 2022. The document at C373 is a redacted letter from a registered psychologist explaining that it is recommended that [Child 1] and [Child 2] attend psychological therapy to ascertain their psychological wellbeing before visiting their father in light of charges being addressed, with those details apparently being subject to the redactions. For completeness, it is worth recording that at no stage was the Tribunal asked to make an order under section 35 of the Administrative Appeals Tribunal Act 1975 and the redactions are unauthorised. In any event, an unredacted copy of the letter is contained at T452.
Noting that Mr Bennett had asserted that the Court had prevented further psychological treatment without his consent, I asked for the applicable orders to be provided to the Tribunal. A copy of those orders is at A45. In those orders Jarrett J ordered on 30 March 2023 that Ms Floyd be restrained from taking the children to any psychologist, counsellor or therapist without the written consent of the applicant or by order of the Court.
Ms Floyd explained that she was hopeful that the order would be overturned by the Court after it was initially made on an interim basis, but instead it has been upheld. Ms Floyd asks that I still take into account the costs of approximately $700 that she did incur in psychological consultations for [Child 1] before the order was made.
There are no reasons from the Court available for the orders it made. I suggested to Ms Floyd that an order in those terms would be a very unusual order for a court to make if there was any evidence suggesting psychological treatment was needed by the child. Ms Floyd explained that it was a negotiated order, and the independent children’s lawyer also ‘upheld’ (supported) the order.
Mr Bennett’s position is that the Court made that order because it found that his daughter didn’t need the treatment, and she should not have been taken there in the first place.
In the absence of reasons from the Court for the order, and after hearing evidence from both parents as to their recollections of the circumstances in which the order was made, I infer that a court would not have made such an order if a proper need of [Child 1] was to have such psychological treatment. It appears to me to be a significant intervention by the Court to restrain a parent from obtaining such treatment, and the evidence before me that the Court made this intervention is, on reflection, inconsistent with me making a finding that psychological treatment is a proper need of the child, and outweighs the opinion expressed in the brief report of the psychologist at T452. In these circumstances, I do not consider it is appropriate to make provision for any of the costs of psychological treatment for [Child 1] in a departure determination.

Ms Floyd also identifies costs associated with treatment of a metabolic disorder of [Child 2]. In this regard, [Child 2] has a rare metabolic condition of [specified condition], and is under the care of specialists at [Hospital 1]. Ms Floyd relies on the costs of medication and parking at the hospital.
In relation to medication, evidence of pharmacy receipts are at C707, C708 and C709 and B39 and B40. The receipts at C707 to C709 are unremarkable. The documents at B39 and B40 are a Pharmaceutical Benefits Scheme (PBS) Safety Net prescription record form. It shows subsidised medication and progression towards the PBS Safety Net. While it is clear that [Child 2] requires a range of prescription medications to address his condition, I note all are subsidised under the PBS and the annual amount of out of pocket expenses is a little over $500. I do not consider these costs are out of the ordinary in the context of the existence of the PBS Safety Net, and are properly accounted for in the child support assessment without further adjustment.
Likewise, noting that Ms Floyd resides in greater metropolitan Adelaide, I do not consider that travel expenses associated with occasional outpatient visits to [Hospital 1] are sufficiently out of the ordinary or significant to be taken into account as a proper need of the child so as to justify adjustment to the child support liability otherwise calculated under an administrative assessment. I further understand that recent changes have been made to the care arrangements for [Child 2] such that future expenses of this nature will inevitably be shared. Ms Floyd did not press these expenses when discussed in the course of the hearing.
I understand from Ms Floyd that other expenses associated with [Child 2]’s condition such as therapy addressing minor developmental delay and delayed language development is covered by the National Disability Insurance Scheme, and there are no further associated out of pocket expenses.
I have otherwise examined Ms Floyd’s Statement of Financial Circumstances which includes household expenditure. I have identified no further matters to address in relation to the proper needs of the children.

Mr Bennett’s income, property and financial resources

Mr Bennett is employed by [Employer 1] as a salaried employee. His income from employment therefore can be readily taken into account through the ordinary administrative provisions of the Act with adequate accuracy. In this regard, I note that Mr Bennett lodged estimates of his income with effect from 1 September 2022 that his income was $65,152. Mr Bennett has subsequently provided evidence demonstrating that his income from employment in 2022/2023 was $70,682.59 (before any taxation deductions).
Noting the analysis of the objections officer, I am not persuaded that the detailed analysis that arrived at a 2022/2023 adjusted taxable income of $71,000 is a preferable approach to relying on the administrative provisions of the Act, informed of course by information available to me that was not available to the objections officer. I see nothing in the evidence before me as to Mr Bennett’s income from employment that justifies a departure from the administrative provisions of the Act in this regard. Even if it can be identified that Mr Bennett’s estimate may prove to be slightly lower than reality, I consider that is the nature of an estimate and note that the administrative provisions of the Act are well suited to address any inaccuracy, through estimate reconciliation and penalty where appropriate. I am not satisfied that Mr Bennett’s estimate was so inaccurate as to require intervention in the form of a departure determination addressing his adjusted taxable income.
Deposits totalling $550 over 2 months were identified by the objections officer. Mr Bennett was not in a position to address what those 2 deposits were for. Mr Bennett has however given sworn and categorical evidence that his only source of income is from remunerative employment with [Employer 1], and I accept his evidence in this regard.
Ms Floyd raised Mr Bennett’s association with a trust, and has provided evidence (via an ABN match) of the existence of an entity called [Trust 1]. Mr Bennett’s evidence is that this structure is now ‘defunct’. It was established by his uncle and he was a potential beneficiary, but has not received any distributions from the trust in the last 5 years. I have no evidence to indicate that Mr Bennett has received any income from a private trust, company or other structure.
Mr Bennett denies Ms Floyd’s allegation that he has commenced operating a business dealing with surveillance camera installation. There is no corroborating evidence before me to sustain that allegation, and I am not satisfied Mr Bennett has any business interests.
I have had regard to Mr Bennett’s Statement of Financial Circumstances and identified no valuable property, other than 2 motor vehicles. As mentioned above, Mr Bennett rents his home. Ms Floyd takes issue with the value ascribed by Mr Bennett to the motor vehicles, but I do not consider anything turns on this for the purposes of a just and equitable determination of child support.
Having regard to all of the evidence before me in relation to Mr Bennett’s income, property and financial resources, I am satisfied that the ordinary administrative provisions of the Act dealing with estimates, reconciliation and adjusted taxable income adequately quantify his financial capacity to maintain his children, and no departure from the administrative provisions of the Act in this regard are required in the justice and equity of the case.

Mr Bennett’s earning capacity

It has been documented by Mr Bennett’s employer that Mr Bennett has had periods of reduced work hours and reduced salary as he dealt with ongoing legal matters, and caring for his elderly parents who live some distance from his home. It is this reduction in working hours and consequential reduction in take-home earnings that gives rise to Ms Floyd’s request that I turn my mind to whether Mr Bennett’s earning capacity renders the child support assessment unjust and inequitable.
As to earning capacity, subsection 117(7B) of the Act provides that I may determine that Mr Bennett’s earning capacity is greater than is reflected in his income only if satisfied that:
(a)one or more of the following applies:
(i)the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)the parent’s caring responsibilities; or
(ii)the parent’s state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Mr Bennett estimated in his evidence that about $15,000 to $20,000 in ordinary salary had been foregone by additional leave he had taken to deal with commitments he faced regarding legal matters and attending to his parents. Additional leave without pay was however ad hoc and followed no particular pattern.
Medical correspondence of September 2022 has also been provided to Child Support (T414), unhelpfully redacted without authorisation from the Tribunal, which I infer is a referral letter to a redacted mental health professional from a redacted medical practitioner, and mentions Mr Bennett is experiencing stress, anxiety and depression as he is going through separation. The correspondence does not specifically address Mr Bennett’s capacity for work as a consequence of these matters. Further evidence is provided at A8, dated September 2023, but provides no further information.
Ms Floyd contends that Mr Bennett has reduced his income unnecessarily in order to reduce the amount of child support he pays. Ms Floyd points out that where Mr Bennett has been required to invest time in dealing with legal matters, she has too. Ms Floyd also contends that Mr Bennett has siblings who are better placed to provide care to his elderly parents.
I find that Mr Bennett has reduced the hours of week of his employment below the normal number of hours that constitutes full time work, albeit in an ad hoc way that is difficult to define precisely. Nonetheless, I consider that subparagraph 117(7B)(a)(ii) is met.
I consider a real question arises as to whether the change to Mr Bennett’s working pattern is justified by his state of health. Although there is some evidence provided by Mr Bennett that points to mental health conditions being at play, the evidence provided is insufficiently precise for me to find that the mental health conditions justify the reduction in the number of hours per week Mr Bennett works, and indeed the ad hoc nature to the reduction in hours work described by Mr Bennett and documented by the correspondence from the employer is not consistent with Mr Bennett’s state of health being the justification for that change.
As to whether Mr Bennett has otherwise demonstrated that it was not a major purpose of his decision to reduce his hours of work to affect the administrative assessment of child support, I consider that on balance Mr Bennett has adequately demonstrated a different purpose of his reduction. I accept that Mr Bennett has demonstrated and explained the purpose of the ad hoc access to leave without pay and other arrangements to meet his commitments, including attending to legal matters and also to travel to the mid-north to attend to his elderly parents. In the latter regard, medical evidence at A44 demonstrates that Mr Bennett’s mother has advanced dementia and Mr Bennett’s father is unable to drive. It is readily understandable why Mr Bennett must therefore rely on a degree of flexibility in his work arrangements, and take some amount of leave without pay, to attend to them generally. Mr Bennett does not contend that he is a full time carer for his elderly parents, and I do not consider it to the point whether or not other family members may be in a position to provide care or reside closer.
I am satisfied that Mr Bennett has demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the children, and it follows that an earning capacity determination may not be made.

Ms Floyd’s income, property, financial resources and earning capacity.

Ms Floyd is an employed [Occupation 1]. Ms Floyd told me, and I accept, that income from her employment as a [Occupation 1] and a small amount of additional income from [specified seasonal work] is her only source of income, other than family tax benefit and child support. She works at 0.8 FTE and has worked this pattern for 3 years.
Ms Floyd has no interests in any private trusts or companies, and does not operate a business. Ms Floyd provided the Tribunal with an updated Statement of Financial Circumstances at B115. She does not own valuable property other than a motor vehicle, and meets accommodation expenses of $550 per week.
The administrative provisions of the Act dealing with estimates, reconciliation of estimates and adjusted taxable income adequately take into account Ms Floyd’s financial capacity to maintain her children in my view. I note Ms Floyd explained, by reference to her payslips, that she may also be required from time to time to take leave without pay to attend to legal matters. Nonetheless, I am satisfied that there is no justification for interfering with the ordinary operation of the administrative provisions of the Act in respect of Ms Floyd’s income, property or financial resources.
Nothing arises in relation to Ms Floyd’s earning capacity. I accept her evidence that she has worked 0.8 FTE for many years, and I note she has had primary care of the children.

The direct and indirect costs incurred by the carer entitled to child support in providing care for the child

Ms Floyd asks that I take into account the costs of child care and out of school hours care (OSHC). She has provided evidence in the form of receipts from the child care centre and the school and gave evidence consistent with those documents to the effect that she has faced out of pocket child care expenses in the order of $45 to $60 per week and out of pocket OSHC fees of between $40 and $80 per week. Ms Floyd asks that Mr Bennett contribute 50% of those costs.
In response, Mr Bennett’s position was that he would not have used child care and made other arrangements, and feels that if Ms Floyd had elected to use child care or OSHC then she should carry the cost.
In considering this matter, I have taken into account that high child care costs can amount to a ground in itself to depart from the administrative assessment of child support, in the special circumstances of the case. In considering whether a ground is established in that context, the legislation imposes a specific threshold before child care costs are to be considered high. Under that legislative test (at subsection 117(3A) of the Act) child care costs for a parent can only be high (for the purposes of establishing a ground) if, during a child support period, they total more than 5% of the amount worked out by dividing the parent’s adjusted taxable income for the period by 365; and multiplying the quotient by the number of days in the period.
I have insufficient evidence to perform complete calculations in this regard (the issue in relation to child care fees was introduced late in the proceedings), but I have nonetheless taken that threshold into account in considering this matter. On the basis that Ms Floyd incurs $100 in out of pocket child care and OSHC expenses each week for 40 weeks per year, then the total would approach or approximate that threshold having regard to her income estimate and adjusted taxable income. I accept therefore that Ms Floyd does face relatively high child care and OSHC fees, and I will take that into account in identifying a just and equitable departure from the administrative assessment.
Finally, I take into account that Ms Floyd receives family tax benefit, and am mindful that any determination I make must be otherwise proper and take into account the effect of the child support assessment on that means tested benefit.
Having considered all of the factors provided for in subsection 117(4) of the Act, I consider that a departure from the administrative assessment that preserved the administrative provisions of the Act in respect of income estimates, reconciliation and adjusted taxable income is appropriate, but consider that in the justice and equity of the case, an additional amount of child support should be paid by Mr Bennett to meet the high costs of educating his daughter in the manner expected, and to assist Ms Floyd to meet the relatively high cost of child care and OSHC she has faced.
After discussing different potential approaches to addressing the high costs of education with the parents at hearing, I consider that the straightforward approach of splitting those costs equally is desirable. I will make a departure determination that adds $1,375 to the annual rate of child support Mr Bennett is liable to pay for the period 1 February 2023 to 30 January 2024. I will further increase that figure by $625 as a just and equitable contribution towards the direct costs Ms Floyd has faced in child care and OSHC fees, noting the evidence before me in that regard is limited, and noting also the evidence I have identified regarding Mr Bennett having difficulties meeting the cost of living.
An annual liability of $8,796 pa payable by Mr Bennett is produced on the basis that his and Ms Floyd’s income estimates continue to apply (to 30 June 2023). It follows therefore that the effect of the departure determination will be that Mr Bennett would have a child support liability of $10,796 pa, subject to income estimate reconciliation, subsequent lodgements of taxation returns and changes to the care arrangements for the children.
As I understand there is potential for educational arrangements for the children to change, it is not appropriate to extend the departure beyond the end of the period identified. The rationale for the period of the departure is that it commences upon the cessation of the previous departure determination and continues for 12 months. I was not persuaded by Ms Floyd’s submissions in support of a retrospective change to the assessment that would conflict with the previous change of assessment decision made that was not objected to at the time.
I have taken into account the assessment produced by the proposed departure, and am satisfied that it is affordable for Mr Bennett and does not place either parent or the children in hardship. I am satisfied the departure is just, equitable and otherwise proper.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to vary the annual rate of child support payable by Mr Bennett by increasing it by $2000 pa for the period 1 February 2023 to 30 January 2024.

[2023] AATA 4286

13 November 2023

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