Bizkit and Johnson (Child support)
[2025] ARTA 1994
•18 September 2025
Bizkit and Johnson (Child support) [2025] ARTA 1994 (18 September 2025)
Applicant/s: Mr Bizkit
Respondent: Child Support Registrar
Other Parties: Ms Johnson
Tribunal Number: 2025/MC029108
Tribunal: General Member I Sheck
Place:Melbourne
Date:18 September 2025
Decision:
The Tribunal sets aside the decision under review and replaces it with the following:
For the period 31 July 2024 to 31 October 2025, Ms Johnson’s adjusted taxable income is set at $80,000; and
For the period 31 July 2024 to 30 July 2025, the annual rate of child support payable by Mr Bizkit is reduced by $5,000.
CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources – cost of maintaining the children – costs of special needs of the children – costs of 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 omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Bizkit and Ms Johnson are the separated parents of [Child A], born [in] November 2011 and [Child B], born [in] January 2015. The records of Services Australia – Child Support (Child Support) indicate that the child support assessment was first registered on 19 January 2012 and Child Support has been responsible for the collection of child support from Mr Bizkit from 23 January 2018. Mr Bizkit applied to Child Support for a departure from the administrative assessment on 31 July 2024 on the basis that, in the special circumstances of the case, the assessment was unfair because of the additional costs of [Child A’s] special needs, the extra costs in educating [Child A] and the income, financial resources or earning capacity of Ms Johnson. At the time of the application the annual rate of child support payable under the administrative assessment was $13,132.
On 25 October 2024 an officer of Child Support decided that grounds for departure had been met. Ms Johnson’s adjusted taxable income was set at $82,000 for the period 31 July 2024 to 31 October 2025; also the annual rate of child support payable by Mr Bizkit was reduced by $2,333 in the period 1 July 2024 to 31 December 2025. This had the effect of reducing the annual rate of child support to $10,799 with effect from 1 July 2024 and $5,367 with effect from 31 July 2024.
On 31 October 2024 Mr Bizkit objected to the decision and on 25 November 2024, Ms Johnson objected to the decision. An objections officer of Child Support considered the reasons for departure and on 16 October 2024 set aside the decision of the original decision maker. The objections officer set Ms Johnson’s adjusted taxable income at $82,000 for the period 1 July 2024 to 31 December 2024 and reduced the annual rate of child support by $3,167 in this period. The objections officer additionally increased Mr Bizkit’s self-support amount by $4,330 in the period 1 December 2024 to 31 December 2026.
By application received on 6 January 2025, Mr Bizkit asked the Tribunal to review the objections officer’s decision. The Tribunal received documents 1 to 585 from Child Support in accordance with section 23 of the Administrative Review Tribunal Act 2024. A directions hearing was held on 13 August 2025, following which the parties were directed to provide various documents. Further documents A1 to A135 and B1 to B104 were submitted by Mr Bizkit and Ms Johnson respectively and were provided to both parties. On 15 September 2025, the Tribunal conducted a hearing at which Mr Bizkit and Ms Johnson gave evidence by MS Teams audio.
CONSIDERATION
The legislative framework and issues for the Tribunal to determine
The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Act). This involves the application of a statutory formula, which takes into account factors such as the number of children, the age of each child, the level of care provided and the income of each parent. The income used in the calculation has a number of components making up the adjusted taxable income, which is worked out using section 43 of the Act. The general approach is that the Child Support Registrar will utilise a parent’s personal adjusted taxable income as assessed by the Australian Taxation Office for the last relevant year of income.
The liable parent or a carer may apply for a determination departing from the administrative assessment under Part 6A of the Act. Section 98C establishes a 3‑step process to be satisfied prior to a departure determination being made: that there is a ground for a departure from the administrative assessment; that it is just and equitable to depart; and that it is otherwise proper to do so. Once satisfied as to these 3 issues, the Tribunal may make one of the determinations prescribed in section 98S of the Act.
Reason 2: The special needs of the child
Subparagraph 117(2)(b)(ia) of the Act provides that there may be a reason for changing the assessment 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. The term ‘special needs’ is not defined in the legislation, but generally has been considered to relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child (Lightfoot v Hampson [1996] FLC 92-663). In the matter of Holman & Child Support Registrar & Ors (SSAT Appeal) (No. 2) [2014] FCCA 2382, the Federal Circuit and Family Court of Australia (FCCA) considered that the costs of orthodontic treatment that is essential rather than cosmetic may constitute special needs.
The term ‘significantly affected’ is also not defined in the Act. The special needs must involve a cost that is additional to the normal needs of a child that are expected to be met from the usual child support liability. The fact that the child suffers from a severe disability or has a special ability does not, in itself, mean that a ground for departure exists.
Mr Bizkit told the Tribunal that he was advised when [Child A] was around 9 that she would require orthodontic treatment and this should start when she was around 12. In November 2023 Dr [A] from [Dental services 1] was of the view that the treatment needed to start immediately. Ms Johnson had formed the view that there were cheaper treatment options than the [braces] recommended by Dr [A] but once Mr Bizkit paid the deposit of $2,000 the [braces] were ordered by Dr [A] straight away due to the urgency of the need for treatment. The total price for treatment will be $9,500 to $10,000.
In this case it is common ground and the Tribunal finds that [Child A] has a [bite condition] therefore her need for orthodontic treatment is necessary rather than cosmetic. Treatment commenced in January 2024 and should be completed around the end of 2025. Both parties have provided invoices for payments made. Mr Bizkit has made payments of $6,000 from December 2023 to the end of 2024 and Ms Johnson has made one payment of $800 on 13 January 2025. It appears likely that Mr Bizkit’s total costs over the 2025 calendar year will be around $2,700, based on a total price for the treatment of $9,500.
At the time of Mr Bizkit’s departure application on 31 July 2024 the costs of [Child A] under the formula were calculated as $10,764. The Tribunal concludes that the additional costs associated with [Child A’s] special needs significantly affect the cost of maintaining her. This means that grounds to depart from the administrative assessment of child support under 117(2)(b)(ia) of the Act have been established.
Is it fair or “just and equitable” in relation to Mr Bizkit, Ms Johnson, [Child A] and [Child B] to make a particular departure determination?
As the Tribunal is satisfied that there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is fair as regards the parents and the children to make a particular determination in accordance with sub‑subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the Tribunal to have regard to a range of factors, including but not limited to those set out in subsections 117(4) and (6) to (8) of the Act, such as the needs of the children, the parents’ assets, liabilities, income and commitments and any hardship that would be caused by departing or not departing from the formula. The Tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application (Gyselman and Gyselman [1991] FamCA 93 at [39]).
The needs and costs of the children
Section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain (Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250). In this case, the parents have the primary duty to financially support [Child A] and [Child B] and contributing to their costs should take priority over all other costs other than their necessary costs of self-support. Neither of the parents has a legal duty to support any other children (for instance, from other relationships) or dependant adults.
In determining the proper needs of the child, subsection 117(6) of the Act also requires the Tribunal to have regard to the manner in which the parents expected the child to be cared for, educated and trained. Mr Bizkit has also raised this as a ground for departure however as a ground has already been established it is not necessary for the Tribunal to also make a determination as to whether this ground for departure would have been met. Having said that, the Tribunal was not of the view that [Child A’s] attendance at [School A] from January 2024 comprises education in the manner expected by both parents. Mr Bizkit advised the Tribunal that he had attended [School A] as a child and was of the view that private schooling is the better option for secondary education. Ms Johnson, conversely, had been educated in the public system and asserted that the parties had agreed that [Child A] and [Child B] would be educated in the public system. This is what occurred (and remains the case for [Child B]) during their primary schooling. It appears that the parties were broadly agreeable to [Child A] selecting her school of choice and for this reason both parents signed enrolment forms for a number of schools including [School A] and [School B]. As it transpired, it appears that [Child A] was never particularly happy at [School A] and has transferred to [School B] from 3rd term of 2025, where most of her friends from primary school study. Ms Johnson told the Tribunal that [Child A] is thriving at this school.
Mr Bizkit asserts that it is unfair to expect him to pay the whole of the fees for [School A]. Ms Johnson had agreed for [Child A] to attend [School A] but later said that was only on the condition that he paid all of the fees. Ms Johnson responded that she was responsible for the whole of the children’s educational costs while they were in primary school. On this point, the normal costs of public education are factored into the calculation of the child support liability, therefore Mr Bizkit was contributing to [Child A] and [Child B’s] education costs over the years by paying child support. The Tribunal is of the view that it may be just and equitable for Ms Johnson to contribute financially to the school fees at [School A], should the Tribunal find that she has the financial capacity to do so. The Tribunal also notes that Ms Johnson purchased [Child A’s] school books for 2025 at a cost of some $390.
In addition to [Child A’s] special needs due to her orthodontic treatment, the parties advised that [Child B] suffers from autism and undertakes a number of therapies. He has a support person in class. He is improving greatly but still struggling with sensory inputs. [Child B’s] treatments are fully funded by NDIS. The Tribunal concludes that, other than [Child A’s] additional costs as discussed above, the costs of the children are consistent with those of an “average” child of the relevant age.
The income, property, financial resources and commitments of each parent
Ms Johnson
While the Tribunal has determined that the ground for departure is established, based on the additional costs due to [Child A’s] special needs, the Tribunal must still consider whether it is just and equitable, based on the parents’ assets, liabilities, income and commitments, to depart from the administrative assessment and make a particular departure determination. The Tribunal has had regard to the Statements of Financial Circumstances provided by Mr Bizkit and Ms Johnson and supporting documents, as well as the evidence they have provided to Child Support and the oral evidence given at the hearing.
By way of background, Ms Johnson told the Tribunal that she commenced [Diploma 1] in 2018. She had always planned to undertake [Bachelor 1] and then [Vocation 1] studies and that is what she is doing. After completing [Bachelor 1] in 2023 she worked full time in 2024. This was a “Graduate Year” and was a pre-requisite for acceptance into the Graduate Diploma in [Vocation 1]. She is undertaking the Grad Dip studies this year. Mr Bizkit asserted that Ms Johnson only enrolled in the Grad Dip course after he had made the departure application but Ms Johnson denied that this was the case. The Tribunal prefers Ms Johnson’s evidence on this point and is satisfied that Ms Johnson has not reduced her income for the purpose of affecting the rate of child support.
Ms Johnson works for [Employer 1] on a casual basis therefore her income varies. While Child Support calculated Ms Johnson’s income over a limited period the Tribunal has the benefit of additional information including Ms Johnson’s Income Statement for the 2024-25 financial year. This indicates that her gross salary, including $9,277.47 by way of salary packaging, was $81,720 in that financial year. The Tribunal was of the view that after some work-related deductions (at the time of the directions hearing Ms Johnson had not lodged her income tax return for the 2024-25 year) this would result in a taxable income in the vicinity of $80,000. Ms Johnson’s salary is deposited into her NAB account [number] and there does not appear to be much of a disparity in her wages between the last half of 2024 and the first half of 2025, now that she has resumed studies (other than a period in May/June 2025 when Mr Bizkit took out an IVO that prevented Ms Johnson from attending her workplace). The Tribunal was of the view that Ms Johnson’s ongoing income from employment will remain in the vicinity of $80,000 for the remainder of the year. This will be reflected in her adjusted taxable income for the 2024-25 year which will become the relevant year used in the administrative assessment once her tax returns are lodged. Ms Johnson also receives family tax benefit, carer allowance and child support, which are not counted as income but may be relevant when considering whether a party would be caused hardship by the making of a particular determination.
Turning to Ms Johnson’s liabilities and financial commitments, the Tribunal was not entirely satisfied that these had been accurately set out by Ms Johnson. In her Statement of Financial Circumstances completed on 28 January 2025, Ms Johnson listed her household expenses as $1,566 a week, including rent of $390 a week. Ms Johnson completed another household expenses table pursuant to the Tribunal’s directions and the total was listed as $1,382 a week, including rent of $265 a week. Ms Johnson told the Tribunal that she lived in a home owned by her parents and paid less than market rate rent. She is also involved in renovating the property and her purchases for the renovation are in lieu of rent. The intention is that at some point she will purchase this property from her parents. Mr Bizkit submitted that this property should be considered to be Ms Johnson’s financial resource but the Tribunal is not of the view that it is.
Ms Johnson stated in her letter to Child Support of 10 October 2024 that she lived fortnight to fortnight and budgeted as best she could, however this is not at all consistent with her pattern of expenditure. Ms Johnson has provided her NAB credit card statements which indicate purchases of $31,805 over 11 months. Most of these purchases appear to be of a discretionary nature, including entertainment, holidays or travel, and a great number of purchases from online traders such as Temu and Shein as well as through PayPal. There are also frequent purchases relating to eating out/entertainment from her main NAB account [number]. Ms Johnson has paid out her education fees in full as she does not want to incur a HECS or student loan debt. She has also borrowed some money from her parents. In her Statement of Financial Circumstances of January 2025 the amount owing was $11,800. Ms Johnson told the Tribunal that the balance owing at present was $6,000 to $7,000.
Mr Bizkit
Mr Bizkit told the Tribunal that he was employed in [Industry 1]. There is little work available in Victoria compared to [State 1], so he currently drives 8 hours to his work site and remains there for 6 nights. Mr Bizkit also receives carer allowance in respect of [Child B] and has no other source of income. The Tribunal was satisfied that Mr Bizkit’s available income is appropriately reflected by his adjusted taxable income and this varies somewhat due to the availability of contracts. In his Statement of Financial Circumstances of 26 January 2025 Mr Bizkit has listed his gross salary as $2,508 a week and pays tax on this of $545. He had investments of some $26,000 and told the Tribunal that this is down to around $21,000. Mr Bizkit’s household expenditure totals $2,109, which includes $165 a week for [Child A’s] education expenses as well as $100 a week for her orthodontic treatment.
A significant part of Mr Bizkit’s household expense is his mortgage of $840 a week. Mr Bizkit said that he bought a block of land and built on it. He moved in to his new home last year. The Tribunal asked Mr Bizkit whether his partner contributed to the mortgage and he responded that she did not, as she is a full-time student. Turning to Mr Bizkit’s other expenditure, his CBA account has various purchases consistent with moving into a new home, such as landscaping and blinds/curtains. Mr Bizkit also advised the Tribunal that the novated lease on his motor vehicle has ended and he has a standard car loan of $1280 per calendar month. He is expecting to soon receive the bill for the “balloon” payment to end the lease. Mr Bizkit did not mention his legal fees but there are several entries relating to these in his bank statements; also both parties mentioned a number of legal proceedings which had taken place recently or are ongoing.
It was clear from Mr Bizkit’s Statement of Financial Circumstances that his net salary is less than his personal and household expenditure and the Tribunal asked Mr Bizkit how this has been maintained. Mr Bizkit responded that he had to borrow $5,000 from his mother and another $5,000 from his partner in order to meet his commitments. His financial situation is a little better now that [Child A] has left [School A] but he still has the orthodontic bills to pay and [Child B] is likely to need orthodontic treatment as well in the future.
What is the determination to be made?
The Tribunal has considered the evidence relating to [Child A’s] special needs as well as the usual costs of the children that were assessed under the administrative assessment of child support. The income, resources, benefits and assets together with the commitments and liabilities of both parties were also studied to determine an appropriate departure determination. Subsection 117(4) of the Act requires the Tribunal to consider whether any departure determination or failure to make a departure will cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support.
As a starting point, the Tribunal was of the view that it is appropriate to set Ms Johnson’s adjusted taxable income at $80,000 until her taxable income catches up with her actual income around October 2025. In terms of a start date, Mr Bizkit now submits that this should take effect from when Ms Johnson started receiving her higher rate of income however in his departure application notes that “I have been waiting until Ms Johnson had been in her new employment for several months before applying.” In view of this, the Tribunal considers it appropriate to commence Ms Johnson’s higher adjusted taxable income from 31 July 2024, the date that Mr Bizkit made his application.
Turning to [Child A’s] additional costs, her school fees were $4,330 in 2024 and the Tribunal assumes around $2,300 in 2025 (for the half year). The costs of her orthodontic treatment over 2 years will be approximately $9,500 and Ms Johnson has contributed $800 towards this already. The Tribunal is of the view that Ms Johnson should make an overall contribution of a further $5,000 towards these two items of expenditure, which is less than half of the total and takes into account the disparity in the salaries of the parties. This can be done by reducing the annual rate of child support over a 12-month period. The Tribunal notes that as at 5 August 2025 Mr Bizkit was completely up to date with the currently assessed liability. As the Tribunal is extending the period over which Ms Johnson’s adjusted taxable income is increased (from that decided by the objections officer) Mr Bizkit will have paid too much child support to Ms Johnson and the liability will need to be offset for a while until this overpayment is reduced to nil. The Tribunal has considered whether this decision will cause hardship to Ms Johnson and the children and, in view of the Tribunal’s observations regarding Ms Johnson’s level of discretionary spending, is not of the view that it will.
Is it otherwise proper to make a particular departure determination?
The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) of the Act sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination. The relevant matters under this step relate to whether the child support payee receives family tax benefit from Centrelink. A decision to depart from the administrative assessment which results in an increase in the rate of child support will reduce the impact on the public purse as the amount of child support payable reduces the amount of family tax benefit received. In this case the rate of child support will reduce from that calculated under the administrative assessment which will result in an increase in Ms Johnson’s family tax benefit entitlement. Notwithstanding this, the Tribunal considers that it is otherwise proper to make the particular determination to more appropriately reflect the responsibilities of both parents to provide financially for their children.
DECISION
The Tribunal sets aside the decision under review and replaces it with the following:
For the period 1 July 2024 to 31 October 2025, Ms Johnson’s adjusted taxable income is set at $80,000; and
For the period 1 July 2024 to 30 June 2025, the annual rate of child support payable by Mr Bizkit is reduced by $5,000.
Date(s) of hearing: Monday, 15 September 2025
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