Dawber and Dawber (Child support)

Dawber and Dawber (Child support) [2022] AATA 2102 (28 April 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022399
APPLICANT:  Mr Dawber
OTHER PARTIES:  Child Support Registrar
Ms Dawber

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 28 April 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

for the period from 20 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Dawber is reduced by $7,880; and
for the period from 1 January 2021 to 29 August 2021 the annual rate of child support payable by Mr Dawber is reduced by $2,055.

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 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

This review is about whether or not there should be a departure from the administrative assessment of child support.
Mr Dawber and Ms Dawber are the parents of [Child 1] (born February 2004) and [Child 2] (born April 2008). There has been a child support assessment in place since 25 March 2019 and Mr Dawber is the liable parent under the assessment.
The following administrative assessment is under consideration:
· for the period from 1 November 2019 to 31 January 2021 Mr Dawber was assessed to pay an annual rate of $12,852 based on a 2018–19 adjusted taxable income of $152,703 for Mr Dawber and a 2018–19 adjusted taxable income of $122,969 for Ms Dawber.
On 20 January 2020 Mr Dawber applied to the Child Support Agency for a change to the assessment on the basis of the costs of caring for, educating or training the children (the ground commonly known as Reason 3), money, goods, or property received by the child, the payee or a third person (Reason 5) and his legal duty to support another person (Reason 9). Mr Dawber subsequently withdrew Reasons 5 and 9 from his application.
On 17 April 2020 the Child Support Agency made the decision to change the assessment (the original decision) so that:
· for the period from 20 January 2020 to 31 December 2021 and only at such times as [Child 1] is enrolled and attending [College 1], the annual rate of child support payable by Mr Dawber is reduced by $3,357 representing Ms Dawber’s contribution to [Child 1’s] education costs; and
· for the period from 20 January 2020 to 31 December 2021, the annual rate of child support payable by Mr Dawber is further reduced by $5,097 as to Ms Dawber’s contribution to [Child 2’s] costs to attend [College 2].
On 11 June 2021 Ms Dawber objected to this decision and on 11 August 2021 the Child Support Agency allowed the objection in part and made the decision to change the assessment (the objection decision) so that:
·     for the period from 20 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Dawber is increased by $2,217 being the outstanding amount of his share of the mandatory school fees for both [Child 1] and [Child 2];
·     for the period from 1 January 2021 to 31 December 2021, the annual rate of child support payable by Mr Dawber is increased by $2,289 being the outstanding amount of his share of the mandatory school fees for both [Child 1] and [Child 2]; and
·     for the period from 20 January 2020 to 31 December 2021 the assessment will be calculated under the provisions of the ordinary formula assessment. This means the assessment will be calculated using each parent’s last relevant year of income.
On 24 September 2021 Mr Dawber applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).
A directions hearing was held on 20 January 2022. Both Mr Dawber and Ms Dawber attended by conference telephone. Prior to the directions hearing the Child Support Agency provided the Tribunal and the parties with a bundle of documents in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (753 pages).
Mr Dawber and Ms Dawber were directed to provide further information to the Tribunal. Both parents complied.
A hearing was held on 28 April 2022. Mr Dawber and Ms Dawber gave evidence on affirmation by Microsoft Teams audio. Prior to the hearing the Tribunal received documents folioed A1 to A434 from Mr Dawber and B1 to B59 from Ms Dawber and these were distributed to the parties.
At the directions hearing and at the commencement of the hearing the Tribunal clarified with Mr Dawber and Ms Dawber the reasons for their applications.
Mr Dawber told the Tribunal he had never agreed to pay the full amount of school fees for the children. He said the Child Support Agency had made an error in calculating his contribution towards these fees. Mr Dawber said he believed Ms Dawber had additional financial resources which the Child Support Agency had not considered. Mr Dawber also raised the matter of backdating any decision made by the Tribunal to account for school fees and other contributions he made in 2019. Ms Dawber said she was satisfied with the decision made by the Child Support Agency.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.
Under Part 6A of the Act, the liable parent or the carer of the child or children may apply to the Child Support Registrar for a determination to depart from the administrative assessment (section 98B).
Section 98C of the Act provides that the Registrar may make a determination to depart from the administrative assessment and establishes a three-step process such that the issues for determination by the Tribunal are:
·     whether a ground is established to depart from the administrative assessment of child support; and if so,
·     whether it is just and equitable to make a particular departure determination; and if so,
·     whether it is otherwise proper to make a particular departure determination.
The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.
Each ground is prefaced by the words “in the special circumstances of the case”. The meaning of this expression is not defined in the Act, but the Family Court in Gyselman and Gyselman [1991] FamCA 93 has held that:
as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the formula in the ordinary run of cases.
In Philippe and Philippe (1978) FLC 90-433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”.
If the Tribunal is satisfied that a ground exists 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 Act.
The range of determinations which can be made includes variations to the annual rate of child support payable; or to the adjusted taxable incomes of the parents and/or carer; or to other components of the statutory formula used to calculate child support.

CONSIDERATION

Issue 1 – Is there a ground for departure?

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 expected by the parents (subparagraph 117(2)(b)(ii) of the Act). The most common costs that arise under this reason are private school fees.
Mr Dawber told the Tribunal that in 2020 [Child 1] was in Year 11 at [College 1] while [Child 2] was in Year 7 at [College 2]. Mr Dawber said [Child 1] completed his education at [College 1] in 2021. Mr Dawber said both he and Ms Dawber had intended the children to be educated in the Catholic system.
Ms Dawber told the Tribunal she agreed the parents had wanted the children to receive a private education. Ms Dawber said she and Mr Dawber had both signed the enrolment forms for [Child 1] to attend [College 1] and for [Child 2] to attend [College 2].
It is not in contention and the Tribunal finds that both parents made the decision for the children to attend these private fee-paying colleges.
Mr Dawber said up until his application to the Child Support Agency he was meeting the full cost of fees for both children. Mr Dawber pointed out that after the parents separated, they had looked at a binding child support agreement in which he was to pay the fees, however, this was never finalised. Mr Dawber said he expected Ms Dawber to meet a share of the costs of educating the children particularly given her substantial financial resources.
Mr Dawber told the Tribunal that in 2020 he paid $5,079.50 and in 2021 he paid $5,126 direct to [College 1] for fees for [Child 1]. Mr Dawber said in 2020 he paid at least $13,445 and in 2021 he paid $6,960 direct to [College 2] for fees for [Child 2].
Ms Dawber acknowledged that Mr Dawber had initially been paying the school fees for both children. Ms Dawber said under the original decision made by the Child Support Agency the amount of child support payable by Mr Dawber was reduced in recognition that he was meeting the entire amount of the fees. She said because Mr Dawber did not comply with this decision and honour the payment to the schools the Child Support Agency then determined that the parents should be responsible for an equal share of the fees.
Ms Dawber said the binding child support agreement was drawn up by lawyers acting for Mr Dawber. Ms Dawber added that although it was not formalised, the binding child support agreement did show an intent by Mr Dawber to continue paying the school fees.
The Tribunal notes in evidence from the Child Support Agency a binding child support agreement between the parents drafted by [a legal firm] in 2019. In relation to school fees the binding child support agreement states that Mr Dawber will meet the tuition fees for [Child 1] to attend [College 1] and for [Child 2] to attend [College 2]. The binding child support agreement is undated and unsigned.
Ms Dawber told the Tribunal she did not dispute the amounts Mr Dawber had paid to [College 1] and [College 2] in 2020 and 2021. Ms Dawber said the fees were currently in arrears and both schools had informed her she was responsible for half. Ms Dawber said it would be unfair for her to be left with this cost given Mr Dawber had initially been paying less child support in return for meeting the full fees. Ms Dawber added she had also been paying for schoolbooks, other school-related costs and extracurricular activities for the children.
The Tribunal notes in evidence from the Child Support Agency fees and charges information for [College 1] in 2020. It shows tuition fees for a Year 11 student of $6,546, year 11 level charges of $948, facilities levy of $1,260, ICT levy of $706, traffic management charge of $113, college yearbook of $62, student insurance of $58 and other charges such as student passport and elective subject fees. In response to directions Mr Dawber provided the Tribunal with a statement in his name dated 18 January 2021 showing payments made and a balance owing for [Child 1] of $0. In response to directions Mr Dawber also provided the Tribunal with a statement in his name dated 18 January 2022 for [College 1] fees in 2021. It shows a total cost of $5,126 comprising tuition fees of $3,273, year 12 level charges of $545.50, facilities levy of $630, ICT levy of $353, traffic management charge of $56.50, college yearbook of $31, student insurance of $29 and other charges such as elective subject fees. Mr Dawber confirmed these costs were for his half share. The statement shows payments made and a balance owing for [Child 1] of $0.
The Tribunal is satisfied that Mr Dawber made payments of $5,079.50 towards the 2020 school fees for [Child 1] and of $5,126 towards the 2021 school fees for [Child 1].

The Tribunal notes in evidence from the Child Support Agency fees and charges information for [College 2] in 2020. It shows tuition fees for a Year 7 student of $9,675, a coursework fee of $680, facilities levy of $2,180, ICT levy of $600, camp out cost of $210 and voluntary P&F levy of $100. This totals $13,445. In response to directions Mr Dawber provided the Tribunal with a statement in the names of both parents dated 9 February 2022 showing total charges for [Child 2] in 2020 of $13,445. It shows a balance brought forward of $200.14, various payments made and an outstanding balance owing for [Child 2] of $0. In response to directions Mr Dawber also provided the Tribunal with a statement in his name dated 9 February 2021 for [College 2] fees in 2021. It shows tuition fees of $9,675, a coursework fee of $680, facilities levy of $2,180, ICT levy of $600, parent network levy of $100 and year 8 camp cost of $685. This totals $13,920. Mr Dawber said he paid half this amount and this is confirmed by the statement which shows payments made of $6,960.
The Tribunal is satisfied that Mr Dawber made payments of $13,445 towards the 2020 school fees for [Child 2] and of $6,960 towards the 2021 school fees for [Child 2].
The Tribunal is of the view that costs for such things as laptop devices, schoolbooks, yearbooks, camps, P&F levies and subject levies are part of the ordinary costs across all schools and not unique to a private school education. These costs are allowed for in the normal child support assessment. The Tribunal will not consider them further.
The Tribunal finds the exceptional costs for [Child 1] to attend [College 1] in 2020 to be $8,754. The Tribunal finds the exceptional costs for [Child 2] to attend [College 2] in 2020 to be $12,535. The total cost of children in the formula assessment is $39,562. As such the Tribunal is satisfied these education costs are significant, affect the cost of maintaining the children and constitute special circumstances. This means a ground for departure is established.
The Tribunal also finds the exceptional costs for [Child 1] to attend [College 1] in 2021 to be $8,897 and the exceptional costs for [Child 2] to attend [College 2] in 2021 to be $12,535.
Mr Dawber said [Child 2] was continuing at [College 2] in 2022 and the parents were being billed separately for the fees. The Tribunal examined the website for [College 2][1] and determined the exceptional costs for [Child 2] to attend [College 2] in 2022 to be $13,025.

Issue 2 – Is it just and equitable to make a particular determination?

[1] [Source deleted.]

As the Tribunal finds there is a ground to depart from the administrative assessment of child support, the next step is to consider whether or not 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 Act. This in turn requires the Tribunal to consider the matters discussed below,[2] which are as set out in subsection 117(4) of the Act:
[2] The Tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886.
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

The nature of the duty of a parent to maintain a child (as stated in section 3 of the Act)

Section 3 of the Act states that it is the primary duty of a parent to maintain the child and this duty has priority over nearly all other commitments. In this case the parents have a duty to support [Child 1] and [Child 2]. Mr Dawber told the Tribunal that he had an adult daughter with a disability who received a disability pension. The Tribunal was not otherwise made aware that either parent has a responsibility to any other child or person.

The proper needs of the child

In relation to the proper needs of the child, regard must be had 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 (subsection 117(6) of the Act).
The Tribunal has found there are extra costs to be taken into account in respect of the children’s education. Mr Dawber told the Tribunal that [Child 1] had also required braces and he paid the full cost of the treatment apart from a small contribution by Ms Dawber. The Tribunal explained that any consideration of costs for braces should be the subject of a new application by Mr Dawber under the change of assessment process.
The Tribunal was not made aware by either parent that [Child 1] or [Child 2] were to be cared for in a particular way or had any other special needs. The Tribunal is satisfied it is appropriate to calculate the costs of their needs – other than the education costs – by reference to the Costs of the Children Table (provided for in section 155 of the Act).

The income, earning capacity, property and financial resources of the children

Mr Dawber told the Tribunal that [Child 1] had funds in a trust which could be utilised to assist with his education costs. Mr Dawber added that [Child 1] had been also working part-time as a casual since the beginning of 2021. Ms Dawber said [Child 1] did receive a compensation payment arising from an injury, however, she did not think it appropriate for this to be used to pay his education costs. Ms Dawber agreed that [Child 1] had been working in a casual role but had been using his salary to meet his own personal expenses such as petrol and had not been paying her board. Ms Dawber said [Child 1] could earn up to $150 per week depending on the number of shifts but had stopped working in this role when he commenced university at the start of 2022.
The Tribunal notes in evidence from Mr Dawber an email dated [in] August 2020 from [a nominated official] at [Agency A]. The email confirms that [Court 1] awarded [Child 1] a total amount of $43,425 and these funds were being held by the [Agency 2] until [Child 1] turns 18 years of age. The email states, relevantly, that the [Agency 2], “is able to consider requests for the advance of funds for the maintenance, education or benefit of [Child 1] should the need rise”.

There is no evidence before the Tribunal to indicate that a request for access to the award received by [Child 1] has been made by either parent. The Tribunal is satisfied that these funds are not a financial resource available to [Child 1] until her turns 18 years of age by which time he will no longer a child of the assessment.
The Tribunal may consider income a child receives from employment if it is sufficient to warrant a change to the assessment. Generally this income must be regular and exceed the equivalent of the youth allowance payable to a child living at home which is approximately $17,945 per annum. The Tribunal does not consider this to be the case in relation to the income [Child 1] received from his casual employment.
The Tribunal is satisfied the children have no income, earning capacity, property and financial resources which should be taken into account for the purpose of child support.

The income, property, financial resources and earning capacity of each parent

Mr Dawber told the Tribunal he was an [occupation 1] but was not currently working. Mr Dawber said he had been working at a community service organisation but had agreed to leave [in] July 2021 in what he described as a “mutual parting of ways”. Mr Dawber said he was hoping to start in a new role soon and was volunteering in the meantime.
The Tribunal notes in evidence from the Child Support Agency that Mr Dawber’s adjusted taxable income in 2019–20 was $179,047. On 22 February 2021 Mr Dawber lodged an estimate of income of $161,060 (annualised) and on 30 August 2021 he lodged another estimate of $0 which remains in place. Mr Dawber told the Tribunal that as soon as he commenced work again, he would update his estimate of income for the 2021–22 financial year.
Mr Dawber said although it was now out of date he was happy for the Tribunal to rely on his Statement of Financial Circumstances provided to the Child Support Agency with his change of assessment application. He said despite not working his personal expenses had remained broadly the same at approximately $87,570 per annum although this did not include child support. Mr Dawber explained that following the sale of the former family home he had carried forward debts including $305,000 on a line of credit secured against a property valued at $405,000, a further home loan of approximately $299,490 and a car loan of approximately $43,346. Mr Dawber has approximately $116,942 in superannuation.
The Tribunal is satisfied the financial resources available to Mr Dawber are accurately reflected in the assessment.
Mr Dawber said the parents were currently proceeding through property settlement. Mr Dawber raised a number of financial matters relating to the marital assets as well as cash payments made to Ms Dawber and funds he argues Ms Dawber improperly accessed after the parents separated. It is not the role of the Tribunal to investigate such matters which are more appropriately addressed through the courts as part of property settlement.
The Act permits a parent to elect to use an estimate of their adjusted taxable income to apply from the day of the election to the end of the financial year. The parent making the estimate election must also estimate their adjusted taxable income from the start of the financial year to the beginning of the estimate period (year-to-date income). This allows a reconciliation to be undertaken when information is available from the Australian Taxation Office for the relevant financial year. In this case the estimates made by Mr Dawber will ultimately be reconciled against his actual income during the estimate periods. If his actual adjusted taxable income is higher than his estimates the assessment will be amended.
The Tribunal finds that, for the purposes of child support, Mr Dawber is fairly assessed under the usual administrative processes.
Ms Dawber told the Tribunal she was currently employed by [Agency 3] and working at [Venue 1]. Ms Dawber said her salary had not changed recently and her income was correctly reflected in her tax return.
The Tribunal notes in evidence from the Child Support Agency that Ms Dawber’s adjusted taxable income in 2019–20 was $125,267. Ms Dawber said she would shortly be filing her 2020–21 tax return.
Ms Dawber said she was also happy for the Tribunal to rely on her Statement of Financial Circumstances provided to the Child Support Agency. Ms Dawber said her personal expenses had remained broadly the same at approximately $76,521 per annum although this did not include legal costs. She said her rent and medical expenses had now increased. Ms Dawber said she had no significant assets apart from her motor vehicle. Ms Dawber has superannuation of approximately $162,170.
Mr Dawber told the Tribunal that Ms Dawber had received a significant inheritance from the estate of her late father and had also received cash payments from her father prior to his passing. He said Ms Dawber also had a new motor vehicle. Mr Dawber argued that Ms Dawber had deliberately failed to disclose these resources. Mr Dawber added that he had recently discovered a discretionary trust established by Ms Dawber on 1 July 2021 which he believed was created in anticipation of funds being transferred from the estate of her father. Mr Dawber said he was actively pursuing these matters through the courts.
Ms Dawber told the Tribunal her father had passed away in August 2021 and probate had yet to be finalised. Ms Dawber said she had not received any funds from her father’s estate. Ms Dawber said she was unaware of the trust Mr Dawber referred to but thought it may have been established by her lawyer. Ms Dawber acknowledged she was driving her father’s car and also had [Child 1’s] car registered in her name. Ms Dawber said her father had purchased [Child 1’s] car for him and at one point had transferred funds into her account when she took leave without pay to care for him before he passed away.
While Mr Dawber argues that Ms Dawber has access to undisclosed funds from the estate of her father he has also pointed out that he is pursuing this through the courts. This, again, is the most appropriate avenue to address such issues and the Tribunal will not consider them further.
The Tribunal is satisfied that the financial resources currently available to Ms Dawber are accurately reflected in the assessment.
In order to establish that Mr Dawber’s earning capacity might be greater than that reflected in the child support assessment and render the assessment unfair, all three compulsory criteria set out in subsection 117(7B) of the Act must be satisfied. Those three criteria are:
(a) one or more of the following applies:
·the parent does not work despite ample opportunity to do so (subparagraph 117(7B)(a)(i));
·the parent has reduced the number of hours per week of their employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged (subparagraph 117(7B)(a)(ii));
·the parent has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and
(b) the parent’s decision not to work, to reduce the number of hours, or to change their occupation, industry or working pattern is not justified on the basis of:
·the parent’s caring responsibilities (subparagraph 117(7B)(b)(i)); or
·the parent’s state of health (subparagraph 117(7B)(b)(ii)); and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child (paragraph 117(7B)(c)).
Mr Dawber is not currently working. He has told the Tribunal he left his role at a community service organisation [in] July 2021 by mutual agreement. Mr Dawber has not provided any evidence that it was either his health or caring responsibilities that were the reason for the change to his employment status. The Tribunal is therefore satisfied that both the first and second criterion are met.
The intent of the legislation in relation to earning capacity is primarily to protect against a situation where, after an assessment of child support is issued, a parent has deliberately reduced their income and this has had a significant effect on the assessment. There is no evidence before the Tribunal to suggest Mr Dawber left his employment deliberately to impact the child support assessment. The Tribunal notes that, despite not working from [July] 2021, Mr Dawber continued to be assessed on his 2019–20 adjusted taxable income of $179,047 until submitting an estimate of $0 on 30 August 2021. The Tribunal is therefore satisfied that affecting the child support assessment was not a major purpose for Mr Dawber’s decision to leave his employment at the community service organisation.
As all three criteria must be satisfied, it follows that if one is not satisfied, then this ground cannot be considered. The Tribunal finds that the earning capacity criteria (set out in subsection 117(7B) of the Act) are not met for Mr Dawber in this case. The Tribunal is also satisfied that the earning capacity criteria are not met in relation to Ms Dawber.

Any hardship that would be caused

The Tribunal has found that both parents are fairly assessed under the administrative assessment of child support.
At the time Mr Dawber made his application for a change on 20 January 2020 he was being assessed on his 2018–19 adjusted taxable income of $152,703 and Ms Dawber was being assessed on her 2018–19 adjusted taxable income of $122,969. The annual rate of child support payable by Mr Dawber was $12,852. Mr Dawber is currently being assessed on his estimate of income of $0 and has been since 30 August 2021. Ms Dawber is currently being assessed on her 2019–20 adjusted taxable income of $125,267 and has been since 1 December 2020. The Tribunal notes, however, there has since been a change of care with Ms Dawber now providing 100 per cent care of both children. There would be a minimum amount of child support currently payable by Mr Dawber under the ordinary administrative assessment given his income estimate which remains in place.
Mr Dawber has total estimated expenditure of approximately $87,570. He told the Tribunal he was currently being supported by his partner. Mr Dawber said that he was still being billed for his half of [Child 2’s] fees at [College 2] and intended to pay this off when he returned to work. Ms Dawber has total estimated expenditure of approximately $76,521. Ms Dawber said she was meeting additional costs for the children now that she had 100 per cent care.
The Tribunal has found that there are exceptional costs to be taken into account in relation to the education of the children. The total combined costs for [Child 1] and [Child 2] in 2020 were $21,289 and the total combined costs in 2021 were $21,432.
The objections officer considered the income of both parents and found that, although Mr Dawber’s income was higher, it was reasonable for them to share the exceptional school costs equally. The Tribunal considers this to be fair particularly in light of the change in income for Mr Dawber from 30 August 2021. Mr Dawber’s equal share of the combined costs in 2020 would, therefore, be approximately $10,644 and in 2021 it would be $10,716.
The parents agree, however, that Mr Dawber has already made a direct contribution to [College 1] and [College 2] towards these combined education costs of $18,524 (rounded) in 2020[3] and of $12,086 in 2021[4]. As Mr Dawber has made contributions above his 50 per cent share in both 2020 and 2021 the Tribunal considers it reasonable to reduce his child support liability by an equivalent amount. In 2020 this would be $7,880 and in 2021 this would be $1,370.
[3] $5,079 (rounded) for [Child 1] and $13,445 for [Child 2]
[4] $5,126 for [Child 1] and $6,960 for [Child 2]
The Tribunal is limited to making a determination in respect of a day in a period that is not more than 18 months prior to the date the change of assessment application was made (paragraph 98S(3B)(a) of the Act). Mr Dawber made his application for a departure on 20 January 2020 and sought to have any change made from 25 March 2019. The Tribunal must decide whether or not it is just and equitable to backdate the determination.
On balance, the Tribunal is of the broad view that retrospectively changing entitlements should be avoided without compelling reasons. Given there was nothing preventing Mr Dawber from applying sooner the Tribunal will commence its determination from 20 January 2020, being the date of his application, rather than an earlier date.
Having considered the interests of both parents the Tribunal proposes to make the following determination:
· for the period from 20 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Dawber is reduced by $7,880; and
· for the period from 1 January 2021 to 29 August 2021 the annual rate of child support payable by Mr Dawber is reduced by $2,055.

Under the decision of the Tribunal the annual rate of child support payable by Mr Dawber from 20 January 2020 to 31 December 2020 will fall by $7,880 to approximately $4,972. The additional amount in fees Mr Dawber paid for both children above his 50 per cent share in 2021 was $1,370. Under the formula assessment Mr Dawber will have a minimum child support liability from 30 August 2021. To ensure his annual rate of child support is reduced by the amount of $1,370 in the period from 1 January 2021 to 29 August 2021 the Tribunal has divided $1,370 by the nearly eight months from 1 January 2021 to 29 August 2021 and then multiplied it by 12 months for the full year. This amounts to $2,055. This means the amount of child support payable by Mr Dawber from 1 January 2021 to 29 August 2021 will fall by $2,055. From 30 August 2021 the ordinary formula assessment will continue to apply.
Under the decision of the Tribunal Ms Dawber will be responsible for her 50 per cent share of the exceptional school fees in 2020 and 2021. Mr Dawber has already met more than his share. Ms Dawber will be required to make her payments direct to the schools. This will remain the case in 2022 as both parents are being billed separately for the fees at [College 2].
The Tribunal is satisfied that, on balance, the proposed determination will not cause hardship to Mr Dawber, Ms Dawber or the children and is otherwise just and equitable.

Issue 3 – 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) sets out the matters that must be considered when deciding whether it would be otherwise proper to make a departure determination. It focuses on the balance of support carried between the parents on one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. The Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the children may be affected by the level of child support.
The Tribunal notes neither parent is in receipt of an income tested pension or benefit that might be affected by a change to the child support assessment. This decision will not, therefore, have any direct financial impact on the community. The Tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and would otherwise be proper.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

for the period from 20 January 2020 to 31 December 2020 the annual rate of child support payable by Mr Dawber is reduced by $7,880; and

for the period from 1 January 2021 to 29 August 2021 the annual rate of child support payable by Mr Dawber is reduced by $2,055.

[2022] AATA 2102

28 April 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness

Statutory Construction