Britland and Britland (Child support)

Britland and Britland (Child support) [2023] AATA 193 (18 January 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/AC024335
APPLICANT:  Mrs Britland
OTHER PARTIES:  Child Support Registrar
Mr Britland

TRIBUNAL:Member D Cox
DECISION DATE: 18 January 2023
DECISION:

The decision under review is affirmed.

This means the appeal is unsuccessful.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – no ground for departure established – decision under review affirmed

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

Mr Britland and Mrs Britland are the parents of a son, [Child 1], born [in] November 2004, and a daughter, [Child 2], born [in] August 2010.
A child support case was registered on 15 May 2022 and has been collectable by Services Australia (Child Support) since that date. The parents have shared care of both children.
On 4 October 2021 Child Support made a decision to depart from the administrative assessment with the following determinations:
·      For the period 1 July 2021 to 31 October 2021, Mr Britland’s adjusted taxable income (AT) is set at $72,225.
·      For the period 1 July 2021 to 23 November 2022 Mrs Britland’s ATI is set at $60,014.
·      For the period 1 July 2021 to 23 November 2022, the annual rate of child support payable by Mr Britland will decrease by $1,918 to reflect his contribution for the private school fees of [Child 1].
·      This resulted in an annual rate of child support of $nil for the period 1 July 2021 to 23 November 2022.
On 24 February 2022 Mrs Britland applied for a change to the assessment to share the cost of private school fees for [Child 2].
Mr Britland disagreed with the proposed change and on 26 March 2022 Child Support made a decision not to change the assessment.
On 23 April 2022 Mrs Britland lodged an objection to the decision of 26 March 2022.
On 21 July 2022 an objections officer disallowed the objection.
On 26 July 2022 Mrs Britland made an application to the Tribunal for a review of the objections officer’s decision.

LEGISLATIVE FRAMEWORK

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The rate of child support payable by a liable parent is usually based on an administrative 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 and age of children, the level of care provided and the taxable income of each parent.
Under section 98B of the Assessment Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply in writing to the Child Support Registrar (the Registrar) requesting a departure from the administrative assessment in relation to a child.
Under section 98C of the Assessment Act, before making a departure determination on an application made under section 98B of the Assessment Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Assessment Act exist. In this case paragraph 117(2)(b):
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
and subparagraph117(2)(b)(ii):
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
If the Tribunal is 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. 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 Assessment 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 or 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 making of, or the refusal to make, the order.
Pursuant to section 3 of the Assessment Act, the parents of a child have a primary duty to maintain a child. That duty is not of lower priority than the duty of the parent to maintain any other child or another person; and has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself.
Section 98F of the Assessment Act which says that if there are no grounds for departing from the administrative assessment or that it would not be equitable and proper to make a determination, the Registrar may refuse to make a determination.
The issues for the Tribunal to determine in this case are:
· Whether one or more of the grounds for departure referred to in subsection 117(2) of the Assessment 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.

HEARING AND EVIDENCE

Mr Britland and Mrs Britland attended the hearing and made affirmations to tell the truth.
Mrs Britland told the Tribunal that she had appealed because she believed Mr Britland should contribute to [Child 2’s] private school fees at [College 1] and that they had planned for her to go there from the beginning.
She had made the decision to enrol [Child 2] for [Grade] at [College 1] for Term 1 of 2022. Mr Britland had not objected but then refused to sign the enrolment form. She had chosen that year because [Child 1] was still at [College 1] in [Grade] which she believed would assist [Child 2] in her transition to the new school.
Mr Britland and Mrs Britland told the Tribunal that [Child 1] completed [Grade] in 2022, attained [a specified mark] and is now studying [a course] at [a named university].
Mrs Britland provided the following documentary evidence:
·      An enrolment form signed by her and Mr Britland on 1 June 2017 for [Child 1] to commence in [Grade] at [College 1] in Term 1 of 2018. The form lists [Child 2] under the heading: “Children who may attend in future.”
·      A letter from [College 1] of 26 June 2017 making an offer of a place for [Child 1] which is countersigned by both parents the same day, accepting that offer.
·      An enrolment form for [College 1] for [Child 2] signed by Mrs Britland but not Mr Britland.
·      A schedule of fees for [Child 2] from [College 1] for 2022 totalling $9,821.00.
It is not in dispute that Mr Britland refused to sign the enrolment form for [Child 2].
Mrs Britland told the Tribunal that [Child 2] had been expecting to go to [College 1] from [an earlier grade]. Her brother had gone to [College 2] from [that earlier grade] and he had started at [College 1] in [a later Grade].
Later in the hearing Mrs Britland told the Tribunal that she and Mr Britland had agreed that [Child 2] would attend [College 1] at least for high school.
Mr Britland told the Tribunal that they had a family business consisting of a [product 1] shop and [transport] vehicles. The business failed in 2019 and they were locked out of the [product 1] shop in 2020. The vehicles were sold to repay part of the business debts.
They also own two investment properties with significant mortgages.
Mr Britland told the Tribunal he is the director of the business and the investment properties are in his name so he is personally liable for the debts which he has been repaying.
Mr Britland made a submission to the Tribunal, see page B9 of the hearing papers, in which he said:
We intended for [Child 2] to attend a private school as a couple but after separation and losing business, we made a lot of losses. I was left to pay all the debts on my own. At the time of decision making for [Child 2’s] schooling, I told [Ms Britland] I am not in a financial position to share [Child 2’s] fees with her. She has still decided to enrol [Child 2] in [College 1]. Which was her sole decision.
On 4 January 2023 Mr Britland made the following conditional offer to contribute to [Child 2’s] school fees at [College 1]; see page B10 of the hearing papers [unedited]:
Following is the offer that your lawyers has made when they sent me their last letter
Our clients offer to settle
Our client makes the following offer of settlement:
• Both units are transferred into her sole name;
• The matrimonial property is transferred into your sole name;
• In exchange for the matrimonial property, you pay our client $150,000;
• Otherwise, each party retain all property in their possession unencumbered by the other party; and,
• There you a superannuation equalisation order.
If you agree to the abovementioned offer please inform our office so we can begin drafting the documents to action this.
I am happy to agree to all the offers except the first one. I believe we both should have 1 unit each and you can choose which you want. If we agree on this:
I offer not to claim any debts/bills in future that I have paid while we were separated under the same roof
I offer to take responsibility of the remaining debts i.e., [Bank 1] personal loan and [Bank 2] credit card
I offer to share [Child 2’s] education expenses from year 2023 if we agree to above mentioned offers
As at the date of the hearing, Mrs Britland had not accepted the terms of Mr Britland’s offer set out in paragraph 28 of these Reasons for Decision. She told the Tribunal that she believed that [Child 2’s] school fees and the property settlement should be dealt with separately.
Mrs Britland told the hearing that the question of where [Child 2] would go to school in 2023 had not been resolved. [Child 2] had asked to go to [School 1], apparently because she has a friend going there. [Child 2] experienced anxiety during 2022.
Mr Britland told the Tribunal he had concerns about [Child 2] changing schools each year. However, he did not offer any agreement to contribute to the cost of her school fees for [College 1] for 2023, other than the conditional offer he had made on 4 January 2023 linked to specific terms of a property settlement; see paragraph 28 of these Reasons for Decision.
It is not the role of the Tribunal to make decisions in relation to a property settlement or to determine which school a child should attend. Those are both matters for the parents.
Mrs Britland provided text messages between herself and [Child 2] regarding the question of which school she would prefer to attend. The Tribunal does not rely on the evidence of children when determining child support matters.
Mrs Britland also provided text messages between her and Mr Britland; see pages 143 and 144 of the hearing papers. These were provided to Child Support on 7 June 2022 and show a lack of agreement by Mr Britland to pay for [Child 2’s] schooling at [College 1] in 2022. In one text Mr Britland said [unedited]:
You’re already dealing with child support regarding [Child 2’s] schooling.
You’ve applied for change of assessment and been unsuccessful. I’ve no sign on the enrolment form because you’ve solely decided to change her school and didn’t take my consent.
When you asked me for it in the past, I asked you to help me pay for debts and you refused. That’s why I am paying for all the debts that has been left behind after you left. I.e. [Person 1’s] debt, [named utilities] bills, [Bank 1] personal loan I’m paying it still.
I will be able to tell you whether I can/will share [Child 2’s] fees after our financial settlement and where I stand after that. I hope you understand.
The Tribunal also took evidence to determine whether any departure decision would be just, equitable and otherwise proper. It is not necessary to detail that information in these Reasons for Decision as no departure decision has been made.

CONSIDERATION

The threshold question in this case is whether [Child 2] is being educated in the manner that was expected by her parents, as per the test set out in subparagraph117(2)(b)(ii) of the Assessment Act.
Establishing the expectation of both parents requires determining what they have agreed in relation to the manner of the child’s education, in this case whether [Child 2] should be attending [College 1].
There is documentary evidence in the form of [Child 1’s] enrolment form signed by both parents in 2017 that [Child 2] may attend [College 1]; see paragraph 20 of these Reasons for Decision.
The common English usage of may attend is not the same as will attend, so that document falls short of being an agreement that [Child 2] will attend [College 1].
Mrs Britland told the Tribunal that she and Mr Britland had planned for [Child 2] to go to [College 1] from the beginning, see paragraph 17 of these Reasons for Decision.
It is evident that from the beginning did not mean Year 1 because [Child 2] was not enrolled there until [Grade]. This leaves open the question of when they planned to enrol her at [College 1].
Mrs Britland told the Tribunal that [Child 2] had been expecting to go to [College 1] from [the earlier grade] and her brother had gone to [College 2] from [that earlier grade] and he had started at [College 1] in [later grade].
This might be taken to imply some expectation of private schooling for [Child 2] from [the earlier grade] but neither parent acted on it. Mrs Britland said in her submission to the Tribunal, see page A5 of the hearing papers: “because of our relationship issues, we could never take any action when she was in [the earlier grade].”
Mrs Britland’s submission, see page A5 of the hearing papers, also says that at the time she moved out of the matrimonial home, which Mr Britland says occurred in May 2021, see page A99 of the hearing papers, she was considering another private school for [Child 2]. In her submission she wrote:
...looking for rental property close to [College 1] or [School 2]. And I asked [Mr Britland] verbally if he is ok with this, to which, he replied me, to do as I like as he doesn’t care. But [School 2] didn’t have any vacancy at that time.
The evidence set out in paragraphs 43 and 44 of these Reasons for Decision indicate that Mr Britland’s and Mrs Britland’s expectations about how [Child 2] should be educated were somewhat fluid.
Mrs Britland told the Tribunal that she and Mr Britland had agreed that [Child 2] would attend [College 1] at least for high school, see paragraph 23 of these Reasons for Decision. Mr Britland did not respond to this statement at the hearing.
Mrs Britland enrolled [Child 2] at [College 1] in [Grade], which is the start of middle school and not high school. That is inconsistent with her representation of their mutual expectation set out in paragraph 23 of these Reasons for Decision.
In October 2021 when Mrs Britland asked Mr Britland to sign the enrolment form for [Child 2] to commence [Grade] at [College 1] in 2022, he refused. She submitted the enrolment form without his signature and paid [Child 2’s] school fees for the 2022 school year.
Mr Britland’s refusal to sign [Child 2’s] enrolment form or contribute to her fees is a clear signal that there was no mutual expectation for her to attend [College 1] from [Grade].
The Tribunal finds that subparagraph 117(2)(b)(ii) of the Assessment Act, that the child is being cared for, educated or trained in the manner that was expected by his or her parents, known as Reason 3, is not established.
As there is no ground for departing from the administrative determination, pursuant to section 98F of the Assessment Act, the Tribunal refuses to make a departure determination from the administrative assessment.

DECISION

The decision under review is affirmed.

This means the appeal is unsuccessful.

[2023] AATA 193

18 January 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Costs

Judicial Review

Statutory Construction