Burne and Anketell (Child support)

Burne and Anketell (Child support) [2023] AATA 854 (12 January 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024543
APPLICANT:  Mr Burne
OTHER PARTIES:  Child Support Registrar
Ms Anketell

TRIBUNAL:Member J Nalpantidis
DECISION DATE: 12 January 2023
DECISION:

The Tribunal set aside the decision under review and substituted its decision that for the period 1 January 2022 until 31 December 2025, the annual rate of child support is increased by $11,630 to reflect Mr Burne’s 50% contribution to the child’s annual school fees .

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are 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

BACKGROUND

Mr Burne and Ms Anketell are the separated parents of two children aged 13 years and 11 years, and the children are reflected as being in Ms Anketell’s 100% care. A case has been registered with Services Australia –Child Support (the Agency) since 20 December 2010 where Mr Burne is the payer of child support and Ms Anketell the payee. Child support has been collectable by the Agency from 29 January 2015 and as at the objections decision date, 2 August 2022, the account was up to date.
At the time the relevant application was made, the following child support assessment was in place:
·     for the period 1 November 2021 to 12 May 2022, the annual rate of child support was $15,408, based on an income estimate of $97,205 for Mr Burne and a 2020/2021 adjusted taxable income for Ms Anketell of $79,146;
·     for the period 13 May 2022 to 30 June 2022, the annual rate of child support was $17,414, based on an income estimate of $97,205 for Mr Burne and 2020/2021 provisional income for Ms Anketell of $49,671;
·     for the period 1 July 2022 to 31 January 2023, the annual rate of child support was $32,622, based on a 2020/2021 adjusted taxable income of $196,942 for Mr Burne and a 2020/2021 adjusted taxable for Ms Anketell of $79,146.
On 22 February 2022, Ms Anketell applied for a departure determination on the basis that the child support assessment was unfair because the costs of maintaining the oldest child (the child) are significantly affected by the costs of caring for, educating, or training them in a way that both parents intended (called “Reason 3” by the Department).
On 11 April 2022, an employee of the Agency found the ground was established and made a departure determination and the assessment was changed as follows:
· for period 1 January 2022 to 31 December 2022, the annual rate of child support payable by Mr Burne is increased by $2,908.
On 27 April 2022, Ms Anketell objected to this decision.
On 2 August 2022, an objections officer of the Agency considered and set aside the original determination made on 11 April 2022, replacing it with the following.
· for the period 1 January 2022 until 31 December 2025, the annual rate of child support is increased by $4,162 to reflect Mr Burne’s contribution to the child’s school fees.

The impact of the objections officer’s determination on the assessment was as follows:

·     from 1 January 2022 to 12 May 2022 the annual rate of child support is $19,570;
·     from 13 May 2022 to 30 June 2022, the annual rate of child support is $21,056; and
·     from 1 July 2022 to 31 December 2023, the annual rate of child support is $21,120.

On 29 August 2022, Mr Burne made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision.
A directions hearing was conducted by the Tribunal on 18 November 2022, on which date the parties spoke to the Tribunal by MS Teams audio.
The Tribunal hearing was conducted on 12 January 2023 and the parties again spoke to the Tribunal by MS Teams audio and gave evidence on affirmation.
At the hearing the Tribunal had before it documents provided by the Agency (1 to 365), documents provided by Mr Burne (A1 to A86) and documents provided by Ms Anketell (B1 to B73). These documents had been exchanged between the parties prior to the hearing and they confirmed receipt of the documents with the Tribunal. On 22 December 2022, Mr Burne provided further submissions, which were also exchanged with the parties (A87 to A89).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and 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 Assessment Act. 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 98C of the Assessment Act provides that the Registrar may make a determination to depart from the formula assessment and establishes a three step process. The Registrar, and the Tribunal standing in the place of the Registrar, must be satisfied that:
(i)there is a ground to depart from the administrative assessment of child support;
(ii)it is just and equitable to depart; and
(iii)it is otherwise proper to depart.
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 is prefaced by the term “in the special circumstances of the case”. The term “special circumstances” is not defined in the Assessment Act. In Gyselman and Gyselman (1992) FLC 92-279, the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.
If satisfied 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.

Issue 1 – Is there a ground established to depart from the administrative assessment of child support?

Because of the matters raised by the parties before the Agency and before the Tribunal, the Tribunal considered the ground the manner in which the child was being educated. Subparagraph 117(2)(b)(ii) of the Assessment Act provides that a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by their parents.

Evidence before the Tribunal in relation to the child being cared for, educated or trained in the manner that was expected by their parents

Mr Burne’s evidence

Mr Burne referred the Tribunal to his written application to the Tribunal which referred to numerous errors he submitted were made by the objections officer:
Error establishing intention
The decision is in error as to establishing an intention to privately school (the child). This is because it fails to give appropriate weight to my change in circumstances and the chronological occurrence of events in the context of key text message exchanges between Ms Anketell and me. In January and February 2020, I advised Anketell that we needed to look into more affordable private schools and mentioned a school with fees of slightly over $3000. At the time I was employed by [Employer 1] and could have afforded such fees. The decision maker has placed undue weight on this text message without taking into account my significant change in circumstances after this date and text messages subsequently sent.
On the 17th of February 2021, after seeking legal advice, I again advised Ms Anketell via email that I could not afford [School 1] or private school fees as I was no longer working and being discharged from [Employer 1].
Furthermore my son was born on [date]. I was then discharged from [Employer 1] due to a diagnosis of severe PTSD on 18 February 2021 and I no longer receive a wage as such, but income protection insurance and workers compensation, which as outlined in my previous replies, will only be payable for a maximum of 5 more years. In addition, my treating psychiatrist and psychologist are doubtful I will work in any full-time capacity again.
The decision maker has failed to take this dramatic change of circumstances into account and has unreasonably used a text message from early 2020 which predates this change on which to base a finding of intention as to schooling. I note another text message was sent by me again on 16 February 2022 saying “…I am advising you I will not be able to afford private school fees from 2023 and that schooling in the public system needs to be considered and looked into for both (the child) and (the other child)”. I note the decision maker has made no reference to this message, or accounted for it in anyway. This is patently unreasonable given my change in circumstances, particularly in relation to the extension of the period for which the decision applies to be until 31 December 2025.
Error in relation to consideration of undue financial hardship
In addition, the decision maker was in error for failing to take into account, and give due weight to, the evidence I provided about the potential for the decision to cause me undue financial hardship. I put forward an itemised break down of my estimated monthly expenditure based on the previous years, which showed I was already likely to run at a small loss before any school fees were accounted for. I also outlined what a difficult financial position someone in my circumstances is more generally, given my age (52 years), lack of any other qualifications or training for alternative employment and significant future expenses I am likely to encounter (like the need for a new car, travel overseas to care for elderly parents etc.), let alone a need to be able to provide for my current family (including 20 month old son and my partner) and any hope of a retirement. Also, due to being on a limited pension, I have another 5 years to significantly reduce my mortgages or face the reality of having to struggle with such in the near future.
Indeed, rather than take this difficult situation into account the decision maker appears to have acted improperly and scoffed at the situation saying “I acknowledge Mr Burne raised concerns surrounding affordability of education costs for the children as soon as his financial circumstances altered and I am not minimising the fact that he has many other financial commitments. However, he is still receiving an income (albeit reduced) and will be for a number of years, and I am satisfied he is able to contribute the additional amount I have calculated, although it will likely mean he will need to rethink his already finely balanced finances”. Given my listed expenses don’t even include an amount for reasonable personal expenses or for supporting my young son and already have me running at a loss, the mind boggles and what “re-thinking” I could reasonably do.
Error in relation to failure to take action in relation to false and misleading information
I have also raised a number of concerns about improper and illegal conduct by Ms Anketell, about which the decision maker did nothing. Firstly, I’ve provided several text message exchanges showing something nearing coercion by Ms Anketell where she pressured me to sign confirmation of enrolment and fee agreement forms despite my insistence I could not afford to (even suggesting I could just “pay whatever”, a clear lie based on her subsequent conduct as can be seen by the current process and simply designed to induce me to sign the forms).
Ms Anketell then in her objection provided a text message taken out of context to attempt to mislead the decision maker by making the suggestion that I had signed the confirmation of enrolment forms (the text message where she refers to me saying “her enrolment is secured”), when in fact I had not signed the forms at all (and was referring to the fact that she didn’t require my input at all as she had already gone ahead and enrolled and signed fee agreements for (the child)). The full text message exchange is shown in my reply.
The decision maker makes reference to discussing these matters with Ms Anketell to which the decision maker quotes Ms Anketell as saying “she did what she needed to get (the child) into the school. She stated she did this because this is what the parents had always wanted”. This is again a false and misleading statement (proven by the fact that (the child) is enrolled and attending the school without me signing any confirmation of enrolment or fee agreement forms or contributing in anyway), in addition with the numerous text messages I’ve provided to show it was not my intention at all for (the child) to attend that school, but Ms Anketell’s intention alone.
Providing false and misleading information to a Commonwealth agency is an offence under Section 137(1) of the Criminal Code Act but has not been addressed by the decision maker. I have since made a complaint to the Minister for Government Services and [the Australian Federal Police] in this regard as she appears to have made a number of false and misleading statements to Child Support without any action being taken by the agency.
Other errors
I also note there does the decision maker as to the calculation of wages make errors for Ms Anketell and also in relation to her expenditures. In the Objecting to a Child Support Decision form by Ms Anketell dated 24/02/22 she listed her income as $4582.37 per fortnight which amounts to $119141.62 annually. This is confirmed by the payslips supplied with the form. The decision maker listed her annual income as $97970.
In my replies I have listed a number of discrepancies in Anketell’s declared expenses, which weren’t addressed or appear to have been given any consideration.
On 22 December 2022, Mr Burne provided further submissions to the Tribunal:
Further submissions
1. My understanding is that Ms Anketell is still in a relationship with [Mr A]. This is on the basis that she is still residing at his address, driving a car he has purchased for her and one would assume paying for much of her living expenses and running expenses of her vehicle. I also make this assertion on the basis of conversations I’ve had with mutual friends since the last pre-hearing day when Ms made the statement that she has been “single for a year”.
2. If point 1 is incorrect and she is indeed single and seeking to find suitable rental accommodation, this will significantly affect her financial position and ability to meet any school fees. As stated in my previous child support applications, I suspect her parents and [Mr A] are a significant source of alternative financial means and if Ms Anketell wishes the girls to go to exclusive private schools she should make use of this resource as she has been. If she doesn’t have this resource I would submit she would be unable to afford even a half share of the school fees and needs to make a more reasonable and sensible financial decision in the best interests of stability for both (the child) and (the second child).
3. I have provided the financial disclosure required. However, I would note that my home loans will be coming off fixed rates in April 2023 and I will face yet another significant increase in financial costs. I also note the current uncertain economic climate and particularly high inflation as another financial stressor, particularly in relation to petrol and food costs for which my current commitments are already high.
4. As previously mentioned it is common for parents to put children’s names down at schools soon after birth to keep options open. It isn’t evidence of an intention to definitely send a child there. The fact that Ms Anketell failed to take into consideration any of my concerns or suggestions for alternatives should leave her liable for all costs. The Family Law Act clearly states both parents have joint parental responsibility but once again I was denied this right to participate in the decision process. It is unreasonable to expect me to pay anything under such circumstances.
In his direct oral evidence to the Tribunal about the child “being cared for, educated or trained in the manner that was expected by their parents”, Mr Burne acknowledged he signed an “Application for enrolment” dated 8 February 2010 jointly with Ms Anketell, for the child to be enrolled at [School 1]. Mr Burne told the Tribunal this was prior to the separation and he considered this to be an application for the child to be placed on the waiting list to obtain a place at [School 1]. At the time he was working as a [Occupation 1] and had a higher salary than his current income, and he also had the opportunity to increase his earnings with overtime. Mr Burne told the Tribunal that after the separation, their second child was born, who was also placed on the waiting list at [School 1], with both parents signing an application for enrolment dated 14 June 2017.
Mr Burne told the Tribunal his circumstances have since changed. He experienced mental health issues three years ago and was medically discharged from his job as a [Occupation 1]. He has been on income protection payments since that time and his income has reduced dramatically. As a result of these changed circumstances Mr Burne submitted that the parties would need to look for other options as far as the child’s education was concerned. Mr Burne told the Tribunal he contacted Ms Anketell to discuss the child’s education and that he could no longer afford the [School 1] school fees, which he considered excessive, and for the parties to consider more modest alternatives. At the time he was prepared to contribute $3,000 per year towards school fees. He said the application for [School 1] was signed 12 years ago and his employment circumstances are different, and although he previously was prepared to make a contribution towards the school fees, when he was asked to sign paperwork in relation to school fees, he was not prepared to do so.
While he acknowledged he signed an application for enrolment for the child, Mr Burne disputed he held the intention for the child to actually attend [School 1]. He submitted that by signing the application for enrolment, he was simply placing the child on the waiting list so as the option was available when the time came for the child to start school. He submitted it was not meant to be a fixed intention or guarantee that the child attend [School 1]. He signed the application to keep the option open and when it came time for the child to actual commence school the enrolment did not need to proceed. He did something similar with a previous (older) child, and the same principle applied in relation to the securing a place at [School 1] for this child. Mr Burne told the Tribunal his preference was for his children to have a Catholic and private education which is what [School 1] offered. The issue for him was the cost. Noting his other child is also enrolled at [School 1], he cannot afford the $50,000 per year cost of fees for two children to attend that school. He submitted he contacted Ms Anketell to look at other options but she was not interested in discussing alternatives.
The Tribunal referred Mr Burne to the conditions of enrolment form he had signed jointly with Ms Anketell on 8 February 2010, which states in part:
6 Fees
6.1 The Board of [School 1] has issued a Fees Policy which requires all College fees to be paid in advance on the Fees Due Date. The College fees will be set out in a Statement of Fees issued before the commencement of each term.
6.2 Completion and signing of this form signifies acceptance of the College Fees Policy. A copy of the Fees Policy can be found on the [School 1 website]
7 Confirmation of Enrolment Fee
7.1 A non-refundable Confirmation of Enrolment Fee is payable prior to the student commencing at the College.
8. DECLARATION
I/We apply to have the student named in this application enrolled at [School 1] and agree to be severally and jointly responsible for the payment of all fees and charges and to support the Mission and Values and all practices of the College and to abide by the above conditions of enrolment.

The Tribunal also referred Mr Burne to financial consent orders signed by the parties on 18 January 2012 in which he undertook to pay Ms Anketell child support as assessed by the Child Support Agency, half of primary school fees at a public school for both children, and half of secondary school fees at a private school.
Mr Burne told the Tribunal he would have liked the child to attend [School 1], as it was a Catholic and private school. He signed the application for enrolment a long time ago, in 2010, and at the time he knew the school fees were expensive. He submitted that although he wanted the child to attend the school, this did not mean that the child would actually attend when the time came for the child to start school. Mr Burne told the Tribunal that before deciding on [School 1] (in 2010), other school options were discussed with Ms Anketell but he cannot recall the details, however he recalls one school was in Freshwater. Mr Burne told the Tribunal they only completed an application for enrolment at [School 1], and no other school, because they were told there was a waiting list and they needed to complete an application to secure a place.
Mr Burne acknowledged he signed an application for enrolment at [School 1] for a second child in June 2017. While he accepted this was the case, he gave evidence that he was contacted by [School 1] in July 2021 and asked to sign an enrolment contract for the child, which he refused.
Mr Burne gave evidence that when he was employed as a [Occupation 1] he had a base salary of $126,000 and with overtime he earned more than $132,000 per year. Three years ago as a result of mental health issues, his circumstances changed, nevertheless, he was prepared to contribute $3,000 per year for the child’s school fees; he told the Tribunal school fees at a school like Mater Maria Catholic College were $3,174 per year. Mr Burne told the Tribunal he was still employed and on workers’ compensation and income protection payments. However, he was medically discharged from his job as a [Occupation 1] after being off work for 9 months and his salary reduced to 75%, which is approximately $97,500 per year, an overall reduction of $30,000 to $35,000 gross per year compared to his previous income. On this income he could no longer afford to contribute anything to private school fees for the child.
Mr Burne told the Tribunal that it was impossible for him to engage in discussions with Ms Anketell; she is fixed about what she wants and is not prepared to consider his changed circumstances at all. He told the Tribunal that it is reasonable for the child(ren) to attend a public school because he cannot afford the cost of private school. He submitted that Ms Anketell also could not afford private school fees; he told the Tribunal he cannot contribute to any private school fees for the child(ren).
Mr Burne submitted he shared equal responsibility for the children with Ms Anketell and it was her choice for the child to attend private school at [School 1], and to pay $24,000 per year in school fees. His intention was to have an option of private school for the child, and he submitted such an intention does not continue for 10 or 15 years. He attempted to find a reasonable solution with Ms Anketell but this was not possible. He did not dispute the original decision maker’s ruling that he should contribute $3,000, but when it increased to more than $4,500 he realised that he could not afford such a contribution and moreover he could not afford to make any contribution to school fees.
Mr Burne submitted that the parents having looked at other private schools, such as [School 2] (and the other child being enrolled at this school) shows that the intention for the child’s education was not confined to just attending [School 1].
In response to Ms Anketell’s evidence, Mr Burne acknowledged his former wife and older child attended [School 1] but that does not mean he has the intention the child attend that school. He submitted that the comparable school listed by Ms Anketell have fees of $30,000 to $35,000 per year which is not reasonable for him. In relation to the school Stella Marist, Mr Burne acknowledged he contacted the school registrar to advise that he agreed to the second child attending the school, but he will not sign any forms or agree to contribute to the school fees. While he could not stop the enrolment he wanted to make it clear to the school that he cannot afford to contribute to the school fees at all. He told the Tribunal that he had previously agreed to pay school fees no more than [School 1], and Mater Maria may have been an option which could be made to work in relation to transportation.

Ms Anketell’s evidence

Ms Anketell referred the Tribunal to her written submissions, which she did not wish to repeat:
I request that Mr Burnes guaranteed income, rental properties, and taxable income from 2020-2021 of $196,142 now be taken into consideration. I have submitted within the child support documents all evidence showing that it was always the intention that (the child) and her sister ….. were to attend [School 1] being an Independent Girls Catholic School which is the only school that has both parents’ signatures on the enrolment.
I have submitted all financial documents showing that my financial standing cannot continue to cover Mr Burnes 50% share of the school fees. I also cover other schooling/sports fees for [Child 1] and [Child 2] above all living expenses. I request that your decision is made for the duration of (the child’s) schooling at [School 1] with a provision to include the yearly increase in school fees to be provided in January of each year.
I submit that Mr Burne is trying to get out of paying for (the child’s) school fees and will use any means possible including providing the following reasons:
- His financial situation has changed
- He is experiencing financial hardship
- He has changed his mind on the childrens schooling
- He has to provide for his adult children
- He has to provide for his partners children
- A previous boyfriend I was in a relationship with should pay the school fees etc
Mr Burne Income
On the [Employer 1] website in relation to TAL Life limited (TAL) being the income protection
payments it states that the person can receive payslips and to contact their case manager to request these. Also stated on the website it states that from the date of Injury the person receives 100% of their pay for the first 9 Months then 75% of their pay for the next 7 Years.
EML Payments from what I can see through looking on the internet pay monthly and the person can log into the portal to print off all statements.
EML payments are indexed twice per year in April and October.
These payments are so that the person receiving payments are still able to cover all costs which
includes child support and school fees.
As Mr Burne stated on Page 292 that he is entitled to receive these payments until August 2027.
(The child) is due to complete year 12 in 2027.
On the website it does state that there are provisions to TPD lump sum payments that Mr Burne would be entitled to apply for as he indicated that he may not return to working after 7 years.
Mr Burnes claims of financial hardship
On page 289, Mr Burne states that he lives with his partner their 2 year old son and her two children in [Town 1] NSW. He then states the property he owns in [City 1] he is providing for his Adult son [Mr B] Burne (approx. 23 years old) who is full time employed and charging him $100 for sundry items like “toilet paper”. On page 290 he states as a reason to not paying for [Child 1]’s school fees is that he wants to provide for “his partners children”.
Mr Burne then states that the [Town 2] property is his primary residence and holiday place but he hasn’t been able to rent it out because its hard for him to get down and clean it.
If Mr Burne was under financial hardship he could rent either of these properties at market rent or sell either property. Renting one of these properties at market rent would cover more than half of (The child’s) school fees.
Mr Burne is not claiming an income from either [Town 2] or [City 1] to reduce his taxable income and subsequently reduce the child support which would be calculated.
On page 290 he states as a reason to not paying for (the child’s) school fees is that he wants to provide for “his partners children”. Could the member please question why Mr Burne would provide for his partners children whilst they have a mother and father providing for them before providing for (the child’s) school fees.
This is evidence that Mr Burne will go to great lengths including excel spreadsheets showing outgoing costs for two properties to remain untenanted to avoid meeting the commitment of (the child’s) school fees.
My current situation
I would like to request the member take into consideration that I am the sole carer and provider for (the child) and ……. My relationship status is single and within my total savings I also have the commitment for (the child’s) sister who is enrolled to attend [School 1] in 2024.
As submitted within the updated financial circumstances forms I am currently looking for an appropriate rental and I have estimated (E) any amounts for the year which are unknown.
Supporting this is a letter from [Ms C] stating that they are providing temporary accommodation and storing our furniture and household items until we can secure a rental.
Comparable Schools
To evidence the difficulty with enrolling (the child) and …… in a comparable school. Mr Burne has contacted the registrar at Stella Maris after I advised Mr Burne I will attempt to enrol [Child 2]. The registrar called me to advise that Mr Burne had contacted the school to say he agrees to her going but he will not pay the school fees.
Could this be taken into consideration when deciding if it is fair to calculate an average of comparable schools or if the school that both parents have signed the enrolment forms for should be the school fees calculated. I believe [Child 1] has no option of enrolment in another school because Mr Burne will not communicate for anything to do with the children and his considerations are not in the best interests of the children. The below listed text messages were sent from Mr Burne to me:
30 January 2020 - “Do not contact me in regards to this matter unless to amend the Court Orders”
30 January 2020 - “I will not discuss this matter any further with you”
2 February 2020 - “ I have clearly told you not to contact me again about this”
16 February 2022 - “So we are very very clear, do not contact me by any means, including through a third person, except through an Australian legal practitioner”
22 April 2022 - “on or about the 1st of September you will receive a letter from my solicitor in regards to schooling”
Mr Burne communicating information from the directions hearing
At 3.19pm on Friday 18 November 2022 (approximately 5 minutes after the AAT directions hearing ceased) Mr Burne messaged …… aged 11 years old:
“Your mother said she’s broken up with [Mr A]”
This message was sent deliberately as Mr Burne had not sent a single message to ….. before this for 3 months. Even though ….. has had milestones and school achievements he has not messaged to ask her about.
After this and the message that he sent both (the child) aged 12 and …… aged 10 at 10.35pm on Sunday 10 April 2022:
“I sadly don’t make money like [Mr A] does (he makes $600 000 a year now……”
For reference I had broken up with [Mr A] in 2021.
I will be cautious with how I answer your questions at the hearing on 12 January 2023 given Mr Burne is likely to communicate inappropriate information to the children.
Ms Anketell gave evidence that it was always the joint intention of the parties that the children attend [School 1], and this is reflected in the 2010 signed application for enrolment. It is further evidenced by the later application for enrolment for the younger child dated 14 June 2017, which was well after the signed application for the first child in 2010. Ms Anketell told the Tribunal that it was a requirement that the second child be baptised to be enrolled at [School 1]. She told the Tribunal that although Mr Burne is Catholic, she is not and to be enrolled at [School 1] the child has to be baptised. Mr Burne facilitated the second child’s baptism so as to be enrolled at [School 1]. Ms Anketell facilitated the sacraments and other rituals for the children, as agreed by the parents.
Ms Anketell told the Tribunal that Mr Burne has children from an earlier relationship, an older son and older daughter. Both were enrolled in Catholic private schools, and the daughter was enrolled at [School 1]; Mr Burne’s previous partner was also attended [School 1]. The school had a strong link with Mr Burne and was highly recommended. Both the children attended an open day at [School 1] on 11 March 2018, which reflected the intention that both children attend the school. She advised Mr Burne by text as he was travelling in India at the time.
Ms Anketell gave evidence that they attended schools other than [School 1], which is not regarded amongst the top echelon of schools in Sydney, and the parties decided that the children attend [School 1]. There was no discussion about alternative schools being an option and the financial orders made in January 2012 referred to the parties each contributing 50% towards private school fees in secondary school. This is reflected in the email correspondence provided to the Agency. At point 6 in an email dated 28 November 2011, Mr Burne agreed to pay, “Mr Burne is to pay half of secondary school fees at a private school on an amount that does not exceed the full tuition fees at [School 1] at [location].” In another email dated 5 December 2011, Mr Burne offered to pay the school fees for his older children with no obligation which shows the care he has for his children’s education.
Ms Anketell told the Tribunal she was sent an email by [School 1] to provide updated details such as email and address of the parties. This is when Mr Burne said he did not want to be responsible for the fees at [School 1]. Ms Anketell told the Tribunal, she asked Mr Burne what he could offer and he gave no response, and said that the children should attend a different school without offering alternatives.
Ms Anketell told the Tribunal that parties had an intention for the children to attend the school, not simply to be on a waiting list. The child was not on a waiting list at [School 1] and her place was confirmed when they completed the application for enrolment in 2010. The second child also had her place confirmed to commence at [School 1] in 2024, as planned, in January 2022. This is when Mr Burne told her he did not know that he could afford the school fees.
Ms Anketell gave evidence other schools were considered by the parties, such as [School 2], which had a waiting list; both parties signed enrolment applications for this school but it was a smaller Catholic school and they had “no chance” of a place at that school.
Ms Anketell told the Tribunal she has paid all school fees this year and also covered the extra cost for both children. The child plays [Sport 1] and [Sport 2] which involved extra costs. She has put savings aside to cover her 50% share of the school fees because there was always a plan in place between the parents that they share private school fees at [School 1].
Ms Anketell submitted the alternative schools listed by Mr Burne were not comparable:

NBSC Mackellar Girls Campus (free): is not actually free unless parents show they cannot pay any fees, for example they must show they receive Centrelink payments including rent assistance – this does not apply to Ms Anketell and Mr Burne’s circumstances.

Covenant Christian School ($3,400): is non-denominational, co-educational and not a Catholic school with fees of $3,395 per term not per year. Ms Anketell told the Tribunal the parents have never discussed the option of a co-educational school for the children.

Mater Maria ($6,750) is co-educational and located in Warriewood which is difficult to get to requiring three buses, and the $6,750 fee does not include the individual subject fees which are on top

Stella Marist ($15,540): is an independent Roman Catholic girl’s school in Manly, and there is no change of the child obtaining a place at that school quickly. Ms Anketell has put the second child’s name for a place and Mr Burne contacted the school registrar to advise that he agreed to the second child attending the school, but he will not sign any forms or agree to contribute to the school fees.

Roseville College ($19,000): is an Anglican girl’s school, the fees for Years 7 and 8 are $30,960 per year and if Ms Anketell could afford the fees she would consider this school for the children.

Ms Anketell provided her detailed written response in relation to four comparable schools and their fees. She stated she listed comparable schools as being “similar’”, “like” or “equivalent” schools in relation to being single sex private Catholic schools for girls, which could be accessible via public transport from [Suburb 1].

School	Description	Fees	Distance from home	Status
[School 1]	Independent Roman Catholic single-sex private school for girls located at [location]	2022 fees Year 7/8 $23,260 Year 9/10 $24,140 Year11/12 $25,860	Direct bus from home 40mins bus 20mins car	Currently attending
Stella Maris College Manly	Independent Roman Catholic private high school for girls located in Manly	2023 school fees Years 7 to 12 $16,740	Private school bus – extra fee	(The child) not enrolled, I put her sister [Child 2] on the waitlist however Mr Burne has called the school to advise he agrees to her attending however will not sign any forms as he doesn’t want to be responsible for the school fees.
[School 2]	Independent Roman Catholic single sex private school for girls located in Kirribilli	2022 school fees Year 7-9 $25,080 Year 10-12 $27,660	Similar distance via bus as [School 1]	(The child’s) name was put down at this school by both Ms and Mr Burne in 2010 however at the time we were advised that she would have no chance of getting in.
Brigidine College	Independent Catholic single sex secondary school for girls located at St Ives	2023 school fees Year 7-12 $20,800	No direct bus, cannot see information of private bus, Over 1 hour of travel time with three buses	Not enrolled would consider this school too far away
Mercy Catholic College	2022 school fees Year 7 $6,426 Year 8 $6,585	No direct bus, cannot see	Not enrolled would consider

Ms Anketell submitted the parents made a joint decision for the child to attend a private school and that school was [School 1]. It was always the parents’ decision that the child would attend [School 1] and the child has attended that school as planned. The child has excelled in sport and is part of representative teams for [Sport 1] and [Sport 2]; she is part of the [University 1] team and competes at a national level. The child is a sensitive person, [School 1] is a supportive school and private schooling has been recommended by her psychologist; it would be difficult to find a comparable school. Ms Anketell submitted it was important for the child to have stability in her future education. The child has known for a long time they would be attending [School 1] and they attended the school open day and prepared for this. Ms Anketell submitted as it was the parents’ intention for a long time, Mr Burne was obliged to meet 50% of the fees for the child’s entire secondary school from 2022 to 2025.

Findings

There is no dispute that the parties signed an application for enrolment dated 8 February 2010 for the child to attend [School 1] in secondary school from 2022 (from year 7 secondary school). The signed document refers to the parties agreeing to pay all college fees in advance of the fees due date as set out in the statement of fees issued before the commencement of each term and by signing the form the parties accept the college fee policy. The parties declared they applied for the child to be enrolled at [School 1] and agreed to be severally and jointly responsible for the payment of all fees. The parties also signed an application for enrolment on 14 June 2017 for their second (younger) child to attend the same school from 2024. The child has subsequently commenced attending [School 1] and is continuing to attend that school.

The material before the Tribunal includes a financial consent order dated 24 January 2012 which refers to an agreement that the parties meet 50% of the private secondary school fees, and there was also documented agreement by way of an email dated 28 November 2011, that Mr Burne agreed to pay half of secondary school fees at a private school in an amount that does not exceed the full tuition fees at [School 1] at [location].
Ms Anketell gave detailed evidence that it was a long held joint intention of the parties that the children attend [School 1], which was a private Catholic girl’s school in close proximity to their home. It was Ms Anketell’s contention that prior to the separation Mr Burne wanted their children to be educated in the private all girls’ Catholic education system. It was Ms Anketell’s evidence, accepted by the Tribunal, that Mr Burne preferred a private Catholic girls’ school education for his children as he was Catholic and he had a connection with [School 1] previously, through his former partner and his older daughter. Ms Anketell was not Catholic. Evidence was also presented by Ms Anketell, not challenged by Mr Burne, that to be enrolled at [School 1] it was a requirement that a child be baptised and Mr Burne facilitated the second child’s baptism so as to be enrolled at [School 1]. Ms Anketell gave evidence that she facilitated the sacraments and other rituals for the children, as agreed by the parents.
The year 7 tuition fees for [School 1] in 2022 were $23,260 per year. The Tribunal accepts these costs in relation to the children’s education.
Mr Burne acknowledged he signed the application for enrolment dated 10 February 2010, but this was many years ago and was simply to be put on the waiting list for [School 1] so as to secure a place to attend the school as an option when the child was due to attend secondary school. He submitted that it should not be considered a firm intention on his part that the child attend the school. The Tribunal does not find this submission persuasive. Mr Burne further submitted that his circumstances changed some three years ago and essentially if he had an intention previously, he withdrew the intention as he could no longer afford 50% of the school fees charged by [School 1]. He submitted he was prepared to contribute $3,000, but then upon reflection he could not afford to contribute anything and proposed the child should not attend private school.
The Tribunal noted that subparagraph 117(2)(b)(ii) refers to the past expectation of the parents rather than ‘agreement’, current or otherwise: see for example, F & S [2003] FMCAfam 531 per Bryant CFM (as Her Honour then was). The expectation required the Tribunal to consider the manner of education. The Tribunal needs to consider the type of education expected by both parents, rather than any particular school intended by the parents: see Wild and Ballard (1997) FLC 92-771.
Mr Burne gave evidence that things changed some three years ago when he was medically discharged from his employment, and as a result his income had reduced to some 75% of his previous salary. The Tribunal has found that the parties entered into an agreement about the child’s education in 2010 including that the type of education the child would attend was an all girls’ private Catholic school, for the child’s secondary education and [School 1] was specifically identified by the parties. There was also an intention that Mr Burne contribute an amount that “does not exceed the full tuition fees at [School 1] at [location]”. The Tribunal finds that the intent between the parties was in relation to the type of education, the general fees to be paid and the specific school. Mr Burne submitted that his changed circumstances should be considered and if he had an intention, it was withdrawn due to his changed circumstances. The Tribunal accepts that the circumstances of the parties and between the parties may change after separation, nevertheless, this does not automatically denote their respective positions surrounding an intent to educate their child(ren) has changed. The Tribunal found sufficient evidence in this case of mutual intention between the parties in relation to the manner of education for both children, being a Catholic private all girls’ school education, at [School 1]. While Mr Burne gave evidence that he no longer agrees to a private all girls’ Catholic school education, and indeed an education at [School 1], or to contribute 50% of the school fees for the child, whether that be at [School 1] or another private school, the Tribunal finds that the parents had a long standing mutual intention that the child attend an all girls’ private Catholic secondary school and that school was [School 1]. The first threshold requirement is therefore met.
The Tribunal finds that the costs of educating the child, when compared with the costs of educating a child in the government school system, establish special circumstances in this case. The Tribunal accepts the cost of educating the child at [School 1] in 2022 were approximately $23,260 and the annual costs of maintaining the child under the child support formula was $12,611. The Tribunal finds that the costs of educating the child, in the manner intended by the parents significantly affects the costs of maintaining the child. This means the second requirement is also met.
The ground for departure under subparagraph 117(2)(b)(ii) of the Assessment Act, that the costs of maintaining the child is significantly affected because they are being educated in a manner expected by their parents, is therefore established in this case.

Issue 2 – Is it just and equitable to depart from the administrative assessment of child support?

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 just and equitable as regards the children, the liable parent and the carer entitled to child support to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Assessment Act.
In deciding whether or not to change the assessment I must consider whether a change to the assessment would be fair (just and equitable) to the children and both parents. Mr Burne and Ms Anketell have the primary duty to financially support their children and this duty has priority over all other commitments of the parents other than expenses for their own self support or the support of any other person or child they have the duty to maintain. In addition to the costs of maintaining the children are significantly affected because they are being educated in a manner expected by his parents, discussed in detail above, the Tribunal is required to consider:
·     the nature of the duty of a parent to maintain a child and the earning capacity, property and financial resources of the child/ren;
·     the proper needs of the child/ren;
·     the parents’ earning capacity;
·     the income, property and financial resources of the parents;
·     the necessary self-support commitments of the parents;
·     any direct and indirect costs incurred by Ms Anketell in providing care for the child/ren; and
·     any hardship to the parents or the children by the making of a departure determination.

The nature of the duty of a parent to maintain a child and the income, earning capacity, property and financial resources of the child

There was no evidence before the Tribunal that the child/ren have access to any other income, property or financial resources from which to support themselves and the Tribunal finds accordingly. The child is entirely reliant on their parents to meet all of his needs.

The proper needs of the children

Subsection 117(6) of the Assessment Act states that in having regard to the proper needs of the child, the court must have regard to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and any special needs of the child.
The Tribunal has considered the education costs of the children in some detail above. Mr Burne gave evidence that other than the child’s sporting expenses; there were no other particular needs. He pays annual child support of some $21,000 and he considered this was sufficient to meet the children’s reasonable needs and activities they may undertake.
Ms Anketell provided detailed evidence of extra payments she meets for the child’s school related expenses, totalling $4,287.96, excluding outstanding fees for Term 1 and Term 4 [Sport 1] and School Representative [Sport 1], school representative uniform and [state championship] in February 2023 registration/accommodation and bus.
Ms Anketell gave evidence she has met various other costs for the children in relation to medical care for operations, broken legs and various other incurred costs. She also paid the costs of braces, with contribution by Mr Burne under an change of assessment.
Ms Anketell told the Tribunal she also pays for various costs, totalling $2,008.10, in relation to the other child, as follows:

Date	Description	Amount	Paid To	Paid From
28 Nov 21 13 Nov 21	School fee	$280 $25 $136	[specified]	Ms ANKETELL Mastercard 392
31 March 2022	School fee	$59	[specified]	Ms ANKETELL Mastercard 392
7 April 22	School fee	$449	[specified]	Ms ANKETELL Mastercard 392
24 Jun 22	School fee	$395	[specified]	Ms ANKETELL Mastercard 392
8 Aug 22	School fee	$20	[specified]	Ms ANKETELL Mastercard 392
5 Sept 22	School fee	$365	[specified]	Ms ANKETELL Mastercard 392
24 Sept 22	Incursion	$22	[specified]	Ms ANKETELL Mastercard 392
14 Nov 22	Japanese Drum incursion	$5	[specified]	Ms ANKETELL Mastercard 392
5 Dec 22	Year 6 leavers jacket	$50	Ms Anketell Mastercard 392
10 Jan 22 31 Oct 21	Flexi schools	$101.05 $101.05 $30.35	[specified]	Ms Anketell Mastercard 392

Ms Anketell gave detailed evidence, accepted by the Tribunal, of meeting various extra schooling costs for both children and costs of sporting activities for the child, in the amount of $6,296, with no contribution from Mr Burne.

The income, property and financial resources of Mr Burne

Mr Burne gave evidence that three years ago he was prepared to contribute $3,000 per year for the child’s school fees; he told the Tribunal school fees at a school like Mater Maria Catholic College were $3,174 per year. When his circumstances changed three years ago, Mr Burne was employed with a base salary of $126,000 and with overtime he earned more than $132,000 per year. He was medically discharged after being off work for 9 months and his salary reduced to 75%, which is approximately $97,500 per year, a reduction of $30,000 to $35,000 gross per year compared to his previous income.
Mr Burne gave evidence that he was discharged from his [Occupation 1] employment in the 2020–21 financial year which meant he was paid out his long service leave (four to six months) and other leave accruals on top of his usual salary of $126,000. As a result of COVID lockdowns in Australia and no international travel, he also had an unusually higher income from his investment property at [Town 2]. The leave accruals and his increased investment income resulted in his income for that financial year being $196,000. He expects his current year income to be much less.
Mr Burne submitted he would not make enough investment income from the [Town 2] property to cover school fees. Generally he claims 20% personal usage of the property and has claimable expenses. The peak season for rental is winter, from June to October, when the property is rented out for $3,500 per week. It is available for the whole year but usage is much less in summer, when the rate of rent is also reduced. Mr Burne told the Tribunal he generally uses the property for personal holidays when it is available. He does not go to the property a lot, this year he has gone to the [Town 2] property, attending around bookings every second or third weekend. Mr Burne told the Tribunal he earned a small income from the [Town 2] property during COVID because the resorts shutdown; as a result he lost bookings and had to refund payments from previous years’ bookings. He said the property has expenses such as cleaning, laundry, interest costs, repairs and maintenance; he estimated the maximum gross income he could make from the property is $18,000 gross per year, with estimated net income of $3,000 to $5,000 per year, which may be $2,000 after tax.
Mr Burne gave evidence he has a $70,000 mortgage on his [City 1] home. The mortgage is currently $60,000, with a re-draw of $10,000 available. He estimated the property was valued at $500,000. His [Town 2] investment property has a mortgage of approximately $210,000 mortgage and he estimated it was valued at $350,000.
In the Statement of Financial Circumstances, Mr Burne listed his average weekly income at $1,870.76, plus investment income of $86.94. He listed his partner’s income at $3,747 gross per week. He listed his home (in [City 1]) as valued at $500,000 (with a mortgage of $60,350), and other (in [Town 2]) property of $350,000 (with a mortgage of $204,745). He listed other assets as shares valued at $2,290 and two motor vehicles valued at $7,550, household contents of $15,000 and superannuation of $318,265. Mr Burne listed unpaid tax of $7,500 a credit card debt of $2,449 and child support arrears of $3,085. His total liabilities were listed as $278,129. The value of his total property assets was listed at $874,840 (excluding superannuation of $318,265). The Tribunal accepted that the above amounts represent Mr Burne’s level of income, property and financial resources.
Ms Anketell submitted that Mr Burne’s ability to re-draw $10,000 on one of his mortgages should be considered a resource he can draw on. She submitted that consideration should also be given to the support he provides his older children despite both being adults and in full-time employment. He also supports his child with his new partner and two stepchildren, even though his partner’s income is listed at approximately $180,000 per year which should be sufficient to support her own children. Ms Anketell submitted that this support should not be at the expense of support for the child.
Ms Anketell referred to Mr Burne’s income tax return which states his [Town 2] property was available for rent for 52 weeks in the year and in a July statement says the property was rented out for $2,000 per week; Mr Burne did not provide a statement for August which she submitted was the high season, and would be significant. Ms Anketell noted that Mr Burne’s tax return shows he had income of approximately $100,000 last year which included a claimed $8,000 loss on his investment property. She submitted that Mr Burne is currently being paid an income support payment and if he earns any outside income, his payment will be reduced, therefore there is no incentive for him to find work and increase his income. She submitted that Mr Burne gave evidence he is the sole carer of his young child, which shows he has a capacity to look after a young child.
Ms Anketell submitted that Mr Burne’s contention about his payments being stopped within the next four years should be given limited weight because she calculated he will potentially be on benefits until August 2025, and if his circumstances change at any stage he can apply for a change of assessment as far as child support is concerned.

The earning capacity of Mr Burne

Subsection 117(7B) of the Assessment Act requires the Tribunal to consider the following matters in determining that a parent’s earning capacity is greater than is reflected in his or her income used in the administrative assessment:
·   Whether the parent:
oIs not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
oHas reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
oHas changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and
·   If the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and
·   If the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).
There is no dispute that Mr Burne worked as a [Occupation 1] for many years and it was his evidence that he was medically discharged due to his mental health in 2020–21. He has been off work for a number of years, and it was Mr Burne’s evidence that his psychiatrist and psychologist continue to certify him unfit for work and he has poor prospects of returning to work in the next 18 to 24 months. Mr Burne told the Tribunal in reality he may never work again. He is paid at 75% of his base salary, for seven years, indexed twice yearly and this is currently $97,500 per annum. Mr Burne told the Tribunal, in accordance with the insurance policy, in four or five years his income may reduce to $40,000 per year. He gave evidence that within that time he hopes to pay off one of his properties and live off the income he earns from the other property.
·     Is not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
·     Has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
·     Has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and
The Tribunal does not have direct medical evidence in relation to Mr Burne’s medical condition and capacity for work, it was Mr Burne’s evidence that he continues to be certified unfit for work and this is likely to continue for the next 18 to 24 months. Ms Anketell did not challenge this evidence. The Tribunal found that Mr Burne’s usual occupation was a [Occupation 1] and he was medically discharged from this employment, and has been in receipt of workers’ compensation/income protection payments for a number of years. In the circumstances of the case, the Tribunal has concluded that it is not appropriate for the Tribunal to make an earning capacity determination in respect of Mr Burne work.

The income, property and financial resources of Ms Anketell

The Tribunal finds that Ms Anketell works as an [Occupation 1] and is a PAYG employee. She provided payslips for three fortnights from 27 October 2022 to 24 November 2022, listing her gross annual salary at $99,929; the Tribunal noted a regular “composite” amount of 22% ($842) is added to Ms Anketell’s salary which effectively makes her annualised gross income $121,498.
In a Statement of Financial Circumstances provided to the Tribunal, dated 22 December 2022, Ms Anketell stated her current income was $2,839 gross per week, being salary of $2,336, interest and dividends of $97.50 and child support of $404 (which is $1,407 in arrears). This was consistent with the amount shown on recent payslips provided by Ms Anketell to the Tribunal.
Ms Anketell listed savings of $178,400, an “ITF” account of $28,562, a “coin jar” account of $3,254 and two share accounts of $28,727 and $35,128. She had superannuation of $302,033 and a motor vehicle valued at $61,000, household contents and personal effects valued at $10,000. The value of her total property was $316,345 (excluding superannuation). Ms Anketell listed a credit card debt of $5,838. The Tribunal accepted that the above amounts represent Ms Anketell’s level of income, property and financial resources.

The earning capacity of Ms Anketell

The Tribunal accepted Ms Anketell is employed on a full-time basis and has 100% care of the children. Ms Anketell gave evidence that she has worked as a full-time [Occupation 1] with [Employer 2] for many years and this is ongoing.

The Tribunal finds that it is not open to make an earning capacity determination in respect of Ms Anketell’s circumstances.

The necessary commitments of Mr Burne

Mr Burne told the Tribunal he lives with his current partner, in a property that she owns in [Town 1], where he stays for five or six days per week. He owns an investment property at [Town 2] which is mainly rented out in the winter time and he also has his residential property at [City 1], where he stays for one or two days per week. Mr Burne gave evidence that [Town 1] is some 45 to 60 minutes from [Town 2] and he uses the [Town 2] property for personal and family stays, when it is not tenanted.
Mr Burne listed total weekly household expenses of $3,941, with $1,386 apportioned to him and $2,545 apportioned to his partner. Mr Burne gave evidence his costs include the costs of maintaining his own home unit in [City 1]. Mr Burne listed costs of $425 he incurred including gas, electricity, heating, water charges, telephone/internet and council rates.
The Tribunal noted Mr Burne listed an amount of $10 per week for activities he may undertake with the children. He also listed $70 per week for child care as he uses a nanny to care for the children for a couple of hours a couple of times per week. He listed $70 per week for entertainment for the rare occasions this occurs.
Mr Burne gave evidence he has no surplus funds and no discretionary spending. He keeps [specified animal] as a hobby, attends [Sport 3] once a week which costs $60 per annum, and plays [Sport 2] ($500 per annum) and goes skiing in the season at a cost of $900 per year and buys a pool pass to go swimming at a cost or $200 per year. Fuel costs are expensive so he minimises his travel and he stopped yoga because of the cost. He submitted he does not live an extravagant lifestyle. His [Town 2] investment property supplements his income in a limited way and he uses the property for holidays when it is available.
Mr Burne submitted that if his child support payment is increased, he will have to rely more on his partner who is already stretched financially. He would not be able to contribute as much towards the cost of food, and he may need to ask her to find his fuel costs to transport the children to their activities. He submitted that the added financial stress would exacerbate his already poor mental health.

The necessary commitments of Ms Anketell

The Tribunal was provided a Statement of Financial Circumstances by Ms Anketell which listed total weekly household expenses of $2,668, with $707 being her costs and $1,958 apportioned to the two children. This included an estimate of $900 per week although she is currently living with her parents on a temporary basis while looking for longer term accommodation. She has not found any suitable accommodation for less than $1,000 per week and submitted her estimate of $900 per week rent is conservative. Ms Anketell’s other major expense is school fees of $570 per week and food of $280 per week. She listed $185 per week for holidays and entertainment, with $115 apportioned to the two children Ms Anketell told the Tribunal this is what it cost for family holidays last year to Fiji, Hawaii and Wet n’ Wild. She listed $230 per week for gifts, with $200 per week apportioned to the children. She said this included gifts for birthdays, Christmas and attending other people’s birthdays, for example in January alone the child attended seven birthday parties. Ms Anketell listed the costs of the child’s [Sport 2] and [Sport 1] as $100 per week. .

The direct and indirect costs incurred by Ms Anketell in providing care for the children

The Tribunal noted that the legislation requires the Tribunal to consider any direct and indirect costs incurred by the carer entitled to child support in providing care for the child.
The Tribunal has presented the costs incurred by Ms Anketell in relation to the children above.

Hardship

Paragraph 117(4)(g) of the Assessment Act requires the Tribunal to consider any hardship that would be caused to Mr Burne, Ms Anketell and to the children or other person that the parties have a duty to support, by the making of, or the refusal to make, a departure determination.
The Tribunal notes that Ms Anketell is assessed on her 2020–21 adjusted taxable income of $79,146 and her current payslips list her salary as $99,929; with a regular “composite” amount of 22% ($842) added resulting in an annualised gross income of $121,498. If this higher income was substituted into the current assessment it would alter the rate by around $1 per day, which I do not consider significant enough to make a change.
Mr Burne’s income for the purposes of the child support assessment has varied and he is currently assessed on an income estimate of $97,205. In 2020–21, Mr Burne’s taxable income was $196,942, while he was assessed on an income of $122,477 throughout 2020–21. A previous change of assessment decision considered Mr Burne`s income relating throughout this period 2020–21. Mr Burne gave evidence his current weekly income is $1,957.70 (approximately, $104,000 per annum). The Agency’s automatic estimate reconciliation process will identify any discrepancies between Mr Burne`s estimate of income and the actual income he receives during the period.
The Tribunal has determined the ground for departure from the administrative assessment under Reason 3 has been established in this case. The Tribunal has found that the child’s current annual school fees are $23,260, and in the circumstances of this case, it is appropriate that these fees are shared equally by the parents. The annual rate of child support paid by Mr Burne will therefore increase by $11,630. In their presentation to the Tribunal, it was apparent that the parents may not reach an agreement in relation to school fees for the child or the manner of education. To allow for certainty for the parties and the child the Tribunal has set the period of the determination from 1 January 2022 to 31 December 2025, when the child is due to complete year 10.
This determination will operate in conjunction with the prior change of assessment determination, dated 22 September 2021, to increase the annual rate of child support (payable by Mr Burne) by $2,050 for the period 21 June 2021 to 20 June 2023 to reflect his contribution towards the child’s orthodontic treatment. The Tribunal does not intend to interfere with the previous findings in relation to the change of assessment relating to the child’s orthodontic treatment.
Mr Burne raised concerns about foreseen changes in his financial circumstances in relation to his income in the years ahead and he submitted that this will further impact on his ability to afford contributing to the education costs for the child. The Tribunal also notes that the parents have another child who is due to commence private secondary education (at [School 1]) in 2024. The Tribunal is satisfied Mr Burne has the capacity to contribute the additional amount of child support so as to contribute to the private school fees of the child, albeit some adjustments may be required in his finances.
The Tribunal has considered Mr Burne’s submissions in relation to his financial circumstances and his capacity to contribute anything towards the school fees. On balance the tribunal does not consider its decision will cause undue hardship to Mr Burne, noting his current financial circumstances include ongoing annual income of $100,000 and additional potential income from his investment property and his apparent second principle residential property. On the evidence before the Tribunal, it is not satisfied about the level of income and expenses claimed for the investment property. The Tribunal is satisfied that there is some flexibility in Mr Burne’s financial circumstances as evidenced by his ability to contribute towards his adult children’s costs and the costs of the children of his current partner. In the Tribunal’s view this financial support would be more appropriately redirected to the children of this assessment.
In the matter before the Tribunal, it has considered an increase in the annual rate of child support (by $11,630) to reflect Mr Burne’s 50% contribution to the older child’s annual school fees. The Tribunal notes that there was evidence about an intention for the younger child to also attend private school from 2024. It is open for Ms Anketell to make another change of assessment application, under Reason 3, when the fees for the second child are known with updated information about both children’s school costs.
If there is a material change in the parents’ circumstances prior to the expiration of this determination, it is open for either parent to apply for a change of assessment in future, accompanied by relevant evidence to support their application.
Given the findings of the Tribunal above regarding Mr Burne’s overall circumstances, including his financial circumstances, Ms Anketell’s financial circumstances and the costs she meets for the children, including the costs of schooling, it accepts the child support assessed under the administrative assessment is insufficient to meet the necessary expenses of the children, including the costs of educating the child. The Tribunal accepts Mr Burne has the income and financial resources to meet half the school fees for the child and there is no hardship caused to Mr Burne from the Tribunal’s decision.
The Tribunal finds that Ms Anketell has 100% care of the children and is incurring significant costs in raising the children, over and above children of their age, due to the manner in which they are being educated, which the Tribunal has found was the intention of the parents. The Tribunal finds that Ms Anketell would face significant financial hardship if it were to refuse to depart from the administrative assessments of child support, given the additional costs that she incurs in providing care for the child/ren. The Tribunal further finds that the child would also experience hardship if the Tribunal were to refuse to make a departure determination in this matter, given Ms Anketell would experience difficulty in continuing to educate the children in the manner expected by the parents and difficulty in continuing to meet their other necessary costs.

What is the proposed departure determination in this case?

The Tribunal considers it would be just and equitable to make a departure determination that reflects the significant schooling costs being incurred by Ms Anketell and that also reflects Mr Burne’s income and financial resources.
The Tribunal considered that a failure to make a departure determination would cause significant financial hardship to Ms Anketell, who has 100% care of the children and who is currently meeting the children’s education, and other needs.
The Tribunal considered that while it is not limited to considering the same period as that considered by the Agency, ending the departure determination on 31 December 2025 gives the parties certainty going forward while also allowing for a reassessment of the children’s needs at that point in time.
The Tribunal considers that the school fees for the child of $23,260 are significant, and will continue for the period of the child’s secondary education. The Tribunal therefore proposes to make the following departure determination: for the period 1 January 2022 until 31 December 2025, the annual rate of child support is increased by $11,630 to reflect Mr Burne’s 50% contribution to the child’s annual school fees.

Issue 3 – Is it otherwise proper to make a 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 Assessment Act. The Tribunal accepted from Ms Anketell’s Statement of Financial Circumstances that she is not currently in receipt of family tax benefit and other income support payments from Centrelink. The Tribunal decided that any departure determination made by the Tribunal is not likely to have an impact on the public purse and the Tribunal therefore concluded that it is otherwise proper to make the proposed departure determination.

DECISION

[2023] AATA 854

12 January 2023

Key Legal Topics

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Family Law

Legal Concepts

Jurisdiction

Statutory Construction

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