Dowdesell and Wickens (Child support)

[2022] AATA 735

Dowdesell and Wickens (Child support) [2022] AATA 735 (11 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021920

APPLICANT:  Ms Dowdesell

OTHER PARTIES:  Child Support Registrar

Mr Wickens

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  11 February 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – earning capacity – costs of education - manner expected by both parents – no grounds of departure established – decision not to depart - decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review is about whether or not there should be a departure from the administrative assessment of child support.

2. Ms Dowdesell and Mr Wickens are the parents of [Child 1] (born September 2008).  There has been a child support assessment in place since 24 November 2008 and Mr Wickens is currently the liable parent under the assessment.

3. The following administrative assessments are under consideration:

   ·     for the period from 1 August 2020 to 31 July 2021 Mr Wickens was assessed to pay an annual rate of $13,310 based on a 2019–20 adjusted taxable income of $123,822 for Mr Wickens and a 2019–20 adjusted taxable income of $87,602 for Ms Dowdesell;

   ·     for the period from 1 August 2021 to 4 September 2021 Mr Wickens was assessed to pay an annual rate of $15,628 based on a 2020–21 adjusted taxable income of $152,470 for Mr Wickens and a 2020–21 adjusted taxable income of $101,329 for Ms Dowdesell; and

   ·     for the period from 5 September 2021 to 31 October 2021 Mr Wickens was assessed to pay an annual rate of $19,458 based on the same adjusted taxable income amounts for both parents.  The change in the amount of child support is due to [Child 1] turning 13 years of age.

4. On 15 December 2020 Ms Dowdesell applied to the Child Support Agency for a departure from the administrative assessment on the basis of the high costs of caring for, educating or training the child (the ground commonly referred to as Reason 3), money, goods or property received by the child, the payee or a third person (Reason 5), her necessary commitments of self-support (Reason 7) and a parent’s income, property and financial resources or earning capacity (Reasons 8A and 8B).

5. On 23 March 2021 the Child Support Agency made the decision to refuse the application under section 98F of the Child Support (Assessment) Act 1989 (the Act).

6. On 15 April 2021 Ms Dowdesell objected to this decision and on 28 June 2021 the Child Support Agency disallowed the objection (the objection decision).

7. On 11 July 2021 Ms Dowdesell applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).

8. A directions hearing was held on 4 November 2021. Ms Dowdesell and Mr Wickens 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 (391 pages).

9. Ms Dowdesell and Mr Wickens were directed to provide further information to the Tribunal.  Both complied to the satisfaction of the Tribunal.

10. A hearing was held on 13 January 2022.  Ms Dowdesell and Mr Wickens gave evidence on affirmation by conference telephone.  The Tribunal received documents folioed A1 to A56 from Ms Dowdesell and B1 to B32 from Mr Wickens. These were distributed to the parties prior to the hearing.  Additional documents were also received from the Child Support Agency (pages 392–418).

11. At the directions hearing and at the commencement of the hearing the Tribunal clarified with Ms Dowdesell and Mr Wickens the reasons for their concerns.  Ms Dowdesell told the Tribunal the Child Support Agency had incorrectly assessed Mr Wickens’s income for the purposes of child support as it was too low.  She said Mr Wickens should also be required to pay a portion of the fees for [Child 1’s] attendance at [College 1].  Ms Dowdesell added that she did not wish the Tribunal to pursue the other grounds raised in her initial application to the Child Support Agency (Reason 5 and Reason 7).  Mr Wickens told the Tribunal he felt the decision made by the Child Support Agency was the right decision and was fair.

12. At hearing Ms Dowdesell advised the Tribunal she had not received the documents provided by Mr Wickens folioed B1 to B32.  The Tribunal agreed to resend these documents and give Ms Dowdesell additional time to provide any written comments she may wish to make.  No further comments were received.  The Tribunal also requested a written copy of an opening statement read by Ms Dowdesell during the hearing and this was received on 17 January 2022 (A57–A61).  Mr Wickens advised the Tribunal he had received a copy of this opening statement from Ms Dowdesell and provided a written response received on 17 January 2022 (B33–B36).

ISSUES

1. The statutory provisions relevant to this review are contained in the Act.

2. The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.

3. 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).

4. Section 98C of the Act provides that the Registrar may make a determination to depart from the administrative assessment and it establishes a three-step process such that the issues for determination by this Tribunal are:

   ·     whether or not a ground is established to depart from the administrative assessment of child support; and if so

   ·     whether or not it is just and equitable to make a particular departure determination; and if so,

   ·     whether or not it is otherwise proper to make a particular departure determination.

5. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.

6. 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.

7. 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”.

8. 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.

9. 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?

1. In circumstances where multiple grounds for departure are put forward, the Tribunal needs only be satisfied that one ground is established before going on to determine whether or not a particular determination is just and equitable and otherwise proper.

Income, property and financial resources of the parents

1. A ground for departure exists where, in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the income, property and financial resources of either parent (subparagraph 117(2)(c)(ia) of the Act).

2. Ms Dowdesell told the Tribunal that Mr Wickens was currently working overseas and earning a considerable income.  She said since submitting her application for a change, the incomes of both parents for 2020–21 had been determined by the Australian Taxation Office (ATO).  Ms Dowdesell said that Mr Wickens’ income had increased as had hers and an adjustment to the assessment was necessary to account for these higher incomes.  Ms Dowdesell argued the new incomes should be applied for the maximum period relevant to the review.  Ms Dowdesell said Mr Wickens was also now receiving additional income from a rental property.

3. Ms Dowdesell pointed out that the Child Support Agency, independent of her application, had already adjusted the child support figures from 1 August 2021 after Mr Wickens had submitted his 2020–21 tax return.  Ms Dowdesell reiterated the new incomes of both parents should be backdated in the assessment prior to this date as the assessment was currently incorrect.

4. Mr Wickens told the Tribunal he was employed at [Agency 1] and had been since 2008.  Mr Wickens said he was currently based in [Country 1] after moving there around [July] 2021 to support his wife who had taken an overseas posting.  Mr Wickens explained that his role had largely remained the same and he was working remotely to Canberra.  Mr Wickens said he expected his salary would decrease in the current financial year as there was no overtime or allowances associated with his new work arrangements.

5. Mr Wickens said after moving to [Country 1] the family home in Canberra had been rented with the tenancy agreement commencing [in] July 2021.  He said the rental income was $870 per week of which he would receive half and his wife half.  Mr Wickens pointed out there would be costs associated with the rental such as interest on the loan, insurances and maintenance and at this stage he was uncertain exactly what the net rental income might be.

6. In response to directions Mr Wickens provided the Tribunal with three recent payslips from his employment at [Agency 1].  The most recent, for the pay period ending 27 October 2021, shows a gross year-to-date amount of $36,189.88.  This equates to an annualised income of approximately $111,000. The Tribunal notes the three payslips do not include overtime or allowances whereas a payslip in evidence from the Child Support Agency for the pay period ending 9 December 2020 shows overtime, penalties and a composite allowance.

7. Mr Wickens told the Tribunal his tax returns were up-to-date and there were no discrepancies about his income.  He said he did not agree to the backdating of his income in the assessment.

8. The Tribunal notes in evidence from the Child Support Agency that Mr Wickens had an adjusted taxable income of $152,470 in 2020–21. Mr Wickens said his income in 2020–21 was higher than the 2019–20 amount of $123,822 largely due to the amount of overtime worked.

9. Mr Wickens also provided the Tribunal with a Statement of Financial Circumstances received on 30 July 2021.  It lists his total average weekly income at approximately $2,282 which includes his salary from employment and rental income.  His average weekly household expenses amount to $1,084 which includes $480 in mortgage costs, $129 in food and the remainder in the usual living costs.  Mr Wickens states his total personal expenditure is approximately $742 per week including income tax of $417, child support of $255, minimum credit card payments of $25 and health insurance of $45.  He has total assets valued at $462,619 comprised of his share of the family home at $387,500, household contents of $50,000 and cash at bank.  Mr Wickens does not own a motor vehicle.  His liabilities total $363,192, the significant majority of which is his share of the mortgage on the family home.  Mr Wickens has superannuation in two funds valued at $436,798.

10. The Tribunal finds that in 2020–21 Mr Wickens had an adjusted taxable income of $152,470.  The Tribunal is satisfied this fairly represents the income, property and financial resources available to Mr Wickens for the purposes of child support in 2020–21.

1. The Tribunal also considered the income, property and financial resources of Ms Dowdesell.

2. Ms Dowdesell told the Tribunal she was [an occupation 1] and had commenced in her current role around 17 August 2021.  Ms Dowdesell said her salary had dropped slightly when she started her latest role but she expected it would increase quickly.  Ms Dowdesell said her salary was $91,092 per annum but her taxable income in 2020–21 would probably be a bit higher.

3. In response to directions Ms Dowdesell provided the Tribunal with recent payslips from her current employment.  These show her salary is $91,092 per annum.

4. Ms Dowdesell said she had previously worked at [Employer 1] for two years.  She said her taxable income in 2020–21 had been amended and was $101,324.  Ms Dowdesell provided the Tribunal with a copy of her amended tax assessment from the ATO for the year ended 30 June 2021.  It confirms a taxable income of $101,324.  Ms Dowdesell pointed out that in practical terms her current income was much the same as it had been in the past as her family tax benefit payments had increased when her salary decreased.

5. Ms Dowdesell also provided the Tribunal with a Statement of Financial Circumstances received on 23 July 2021.  It shows total average weekly income of approximately $2,178 including her salary, family tax benefit and child support.  Her total weekly household expenditure is approximately $1,535 including rent of $725 and education expenses of $620.  Ms Dowdesell explained she had the use of a car but did not require it often.  The Tribunal notes that Ms Dowdesell has no discretionary expenses such as entertainment, holidays, gifts or hairdressing.  Her total weekly personal expenditure is $786 with $461 of this being income tax.  Ms Dowdesell has total assets of approximately $3,150 and liabilities of $41,000 including a debt of $37,000 to Mr Wickens for court costs.  Her superannuation is valued at approximately $33,000.

6. Mr Wickens said Ms Dowdesell was understating her expenses and clearly spending considerably more than her stated income.  Mr Wickens said it was his view Ms Dowdesell was earning more than she declared and a higher income should be applied to the assessment.

7. Ms Dowdesell acknowledged her expenses exceeded her income and said managing this was a balancing act.  Ms Dowdesell said she made sacrifices and prioritised the education costs for [Child 1].  Ms Dowdesell reiterated she expected her salary would increase and believed she would be in a much stronger financial position in five years.

8. While Mr Wickens argues that Ms Dowdesell must be earning a higher income, in the absence of evidence to the contrary the Tribunal accepts her income consists of her taxable income of $101,324 in 2020–21 plus family tax benefit and child support.  Ms Dowdesell has explained that although her salary has fallen in the current financial year her overall income remains around the same as she has received an increase in family tax benefit payments.

9. The Tribunal is satisfied the amount of $101,324 fairly represents the income, property and financial resources available to Ms Dowdesell in 2020–21.  Family tax benefit is not considered a financial resource for the purposes of child support.

10. Ms Dowdesell applied for a departure from the administrative assessment on 15 December 2020.  Under the formula assessment in place at that time, Mr Wickens was required to pay an annual rate of child support of $13,310 based on a 2019–20 adjusted taxable income of $123,822 for Mr Wickens and a 2019–20 adjusted taxable income of $87,602 for Ms Dowdesell.

11. The Tribunal has found that both parents were in receipt of higher incomes in 2020–21 than the incomes used in the assessment.  When using the adjusted taxable income of $101,324 for Ms Dowdesell and the adjusted taxable income of $152,470 for Mr Wickens the annual rate of child support is $15,628.  This is an increase of $2,318.

12. In the ordinary course of events the formula assessment of child support uses the adjusted taxable income of each parent as one component used to calculate child support. This is equal to their taxable income and supplementary amounts for the financial year that ended before the start of the child support period.  In other words, the child support scheme usually relies on incomes that have been determined by the ATO for an income year that has ended.  To depart from this assessment special circumstances must exist and as previously noted the courts have held that such a situation must be out of the ordinary.

13. The Tribunal does not consider incremental changes in income from one year to the next to be special or unusual.  Such changes would ordinarily be accounted for in the usual operation of the child support formula.

14. In this case Mr Wickens is already being assessed using his higher 2020–21 income of $152,470 and this commenced from 1 August 2021.  The Tribunal notes that while he was initially assessed on a provisional adjusted taxable income for 2020–21 from 1 August 2021 this was replaced by his ATO determined adjusted taxable income once he filed his tax return for that financial year.

15. While an unexpected or significant change in income might be appropriate to use in the assessment in real time the Tribunal does not consider this to be the case in relation to Ms Dowdesell and Mr Wickens.  Ms Dowdesell has told the Tribunal that while her salary increased in 2020–21 it has since fallen slightly.  She expects it will increase again over time.  Mr Wickens has said that his salary also increased in 2020–21, primarily due to overtime, but will fall in the current financial year.  Based on his payslips Mr Wickens has a current income from employment of approximately $111,000 per annum and even with additional rental income his adjusted taxable income in 2021–22 is very unlikely to be as high as it was in 2020–21.

16. The Tribunal is not satisfied that the administrative assessment results in an unjust and inequitable determination of the level of child support to be provided because of the income, property and financial resources of either Ms Dowdesell or Mr Wickens in this case.

Earning capacity of the parents

1. A ground for departure exists where, in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the earning capacity of either parent (subparagraph 117(2)(c)(ib) of the Act).

2. In her initial application to the Child Support Agency Ms Dowdesell also raised the earning capacity of Mr Wickens.  Ms Dowdesell said that Mr Wickens had the capacity to earn a far greater income should he choose to fully participate in his employment and that he was deliberately avoiding deployment work.

3. In order to establish that Mr Wickens’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)). 

1. Mr Wickens has said he commenced working at [Agency 1] in 2008 and continues to work full-time.  Although currently based in [Country 1] Mr Wickens has explained that his role has not changed as he works remotely to Canberra.  Mr Wickens has also pointed out, however, there is no overtime available or allowances paid while he is working overseas in this capacity.

2. The Tribunal is of the view that by moving to [Country 1] and restricting his opportunities for overtime Mr Wickens has changed his working pattern.  There is no suggestion that his inability to undertake overtime is related to his caring responsibilities or his state of health.  The Tribunal finds the first two criterion are, therefore, met.  Mr Wickens has told the Tribunal he is in [Country 1] to support his wife and the Tribunal accepts this to be the case.  The Tribunal is not satisfied that a major purpose, or one of the most important factors, of his decision to move overseas was to affect the administrative assessment of child support.

3. 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 Wickens in this case.  The Tribunal is also satisfied that the earning capacity criteria are not met in relation to Ms Dowdesell.  A ground for departure on this basis does not exist.

High costs of caring for, educating or training the child

1. 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.

2. Ms Dowdesell told the Tribunal that [Child 1] was currently attending [College 1] after relocating to Sydney at the beginning of 2019 in accordance with court orders.  Ms Dowdesell said [Child 1] commenced at [College 1] in Year 7 in 2021 and the fees in that year were approximately $32,339.  Ms Dowdesell acknowledged that she was solely legally responsible for the fees at [College 1] but was seeking a contribution from Mr Wickens towards these fees.  Ms Dowdesell said she signed the enrolment forms for [Child 1] to attend [College 1] because she knew Mr Wickens would not sign them as well and so she had no choice.  Ms Dowdesell added that she had agreed not to pursue a property settlement when the parents separated on the understanding Mr Wickens would pay private school fees for [Child 1].

3. Ms Dowdesell said the parents had decided [Child 1] should have a private school education.  She said [Child 1] commenced her education at [College 2] in 2012 and Mr Wickens had signed the registration form as well as the enrolment form, however, the enrolment form was lost by the school.  Ms Dowdesell argued there was a single enrolment process to continue from entry at [College 2] to completion of high school.

4. Ms Dowdesell explained that Mr Wickens had then withdrawn [Child 1] from [College 2] and enrolled her in a private Catholic school from the commencement of primary school.  She said this was a unilateral decision made by Mr Wickens.  Ms Dowdesell said when [Child 1] moved to Sydney to live with her at short notice she attended a public school for Years 5 and 6 in 2019 and 2020 because waiting lists made enrolment at private schools in the area difficult.  Ms Dowdesell pointed out that Year 5 was a major intake year for many schools.

5. The Tribunal notes in evidence an application for registration form to place [Child 1] on the waiting list for entry to the [College 2] Early Learning Centre in 2012.  The application is signed by Mr Wickens on 21 June 2011 and Ms Dowdesell on 22 June 2011.  The registration fee of $150 has been paid by Mr Wickens using his credit card.

6. Ms Dowdesell said it was her view the issue of mutual intention in relation to [Child 1] receiving a private school education could be implied from the signed enrolment forms and all that should really be in dispute was the proportion of the fees Mr Wickens should pay.  Ms Dowdesell said, furthermore, as Mr Wickens had enrolled [Child 1] in a Catholic school it was clear he did not intend her to be educated in the public system.  Ms Dowdesell referred to the case of Hadden & Mansell[1] [2014] FamCA 927 in which the court found that as the children had always attended private schools, despite changes of location, this was consistent with a finding of mutual intention.

   [1] Hadden & Mansell [2014] FamCA 927 at [96]

7. Ms Dowdesell pointed out that as Mr Wickens had not provided evidence to the contrary in relation to the issue of private schooling, despite being put on notice, it was not open to the Tribunal to accept an argument there was no mutual intent.  Ms Dowdesell said this was in accordance with the principles of Sullivan & CASA[2] where an argument which is consistent with documentary evidence is the stronger argument.

   [2] Sullivan & Civil Aviation Safety Authority [2014] FCAFC 93 at [97]

8. In support of this contention Ms Dowdesell said, in addition to the [College 2] enrolment forms, she had provided evidence from a third-party which corroborated her view that the parents intended [Child 1] to have a private school education.  Ms Dowdesell said this evidence had not been taken into consideration by the Child Support Agency.

9. The Tribunal notes in evidence an extract from a statutory declaration from [Ms A], maternal grandmother to [Child 1], provided to the Child Support Agency on 27 January 2021.  The undated extract states, relevantly, that:

   [Child 1] had previously been enrolled at [College 2] and I understand that it was anticipated by me and her parents, my daughter [Ms Dowdesell] and [Mr Wickens] that she would be attending this secondary school.

10. Ms Dowdesell said that despite the matter of [Child 1’s] education being addressed in various court proceedings there had been no determination made in relation to payment of school fees.

11. Mr Wickens told the Tribunal he had never intended for [Child 1] to be educated at a private school and had informed Ms Dowdesell he did not agree to her enrolment at [College 1].

12. Mr Wickens said [Child 1] attended the early learning centre at [College 2] but he did not agree to her then going on to the same primary school or the same high school.  Mr Wickens said he had signed the registration form for [Child 1] at [College 2] as an expression of interest under pressure from Ms Dowdesell.  Mr Wickens said he had not signed the enrolment form for [Child 1] to attend [College 2] and Ms Dowdesell had enrolled her without his consent.

13. Mr Wickens told the Tribunal that even though [Child 1] did attend [College 2] this was pre-school only and he did not consider this an indication that he intended her to continue her education at that school.  Mr Wickens said many students went to [College 2] at pre-school level but then attended other primary schools.  Mr Wickens said when [Child 1] was in his care he enrolled her at [Catholic School 1] in Canberra which is a co-educational Catholic school.  Mr Wickens said [Child 1] attended [Catholic School 1] from kindergarten in 2014 until 2018.  Mr Wickens said Ms Dowdesell did not want [Child 1] to attend [Catholic School 1] because she did not consider it to be a private school.

14. Mr Wickens explained that when [Child 1] then went to live with Ms Dowdesell in Sydney it was Ms Dowdesell who enrolled [Child 1] at a public school.  Mr Wickens said he had assumed [Child 1] would continue in the public system as Ms Dowdesell had never mentioned otherwise until she enrolled [Child 1] at [College 1].  Mr Wickens said he had provided evidence to the Child Support Agency outlining his opposition to [Child 1] attending [College 1].

15. The Tribunal notes in evidence from the Child Support Agency an email exchange between Mr Wickens and Ms Dowdesell in relation to [Child 1’s] enrolment in high school.  The exchange commences on 8 September 2020 with Ms Dowdesell advising Mr Wickens that [Child 1] has a confirmed enrolment at [College 1] commencing in Year 7 in 2021.  Ms Dowdesell states, “I hope that [Child 1] will be able to attend [College 1] once I have finalised arrangements in relation to the fees.”  Mr Wickens responds on 8 September 2020 stating, “To the extent that you need any response from me (noting you have sole parental responsibility), I do not consent to enrolling [Child 1] at [College 1].”  Mr Wickens concludes, “If you go ahead with the enrolment, you will be responsible for full fees and associated costs.”

16. Mr Wickens said there was no agreement, verbal or otherwise, that he would pay private school fees if Ms Dowdesell did not pursue a property settlement.  Mr Wickens added that Ms Dowdesell had chosen to send [Child 1] to [College 1] knowing that she would be fully responsible for the fees.  He said it was unreasonable to now expect him to meet any of this cost.

17. In order to determine whether or not private school fees can be considered as a ground for departing from the administrative assessment of child support the Tribunal must be satisfied that the child is being educated in the manner expected by the parents.  The term “manner expected” in relation to the education of a child is not defined in the legislation. In Mee and Ferguson [1986] FamCA 3, the Full Court of the Family Court considering a similar provision in the Family Law Act 1975 said:

    It refers to the manner in which the child ‘is being’, and which the parties to the marriage ‘expected’ the child to be educated. That provision appears to have direct relevance to the issue of private school education, particularly its reference to the manner in which the parties ‘expected’ the child to be educated. The word ‘expected’ in the past tense presumably relates to some expectation of the parties at a point in time earlier than the hearing.’ (at [37])

18. Ms Dowdesell submits it was always the intention of the parents that [Child 1] would have a private education.  Ms Dowdesell has based her argument on the fact [Child 1] attended [College 2] in pre-school as well as discussions she said were had with Mr Wickens.  Ms Dowdesell points out it was Mr Wickens alone who decided [Child 1] should attend a Catholic primary school and this was a further indication that he never intended [Child 1] to be educated in the public system.  Ms Dowdesell has provided a registration form for [College 2] signed by both parents as well as an extract from a statutory declaration signed by her mother stating it was anticipated [Child 1] would continue through to secondary school at [College 2].

19. Mr Wickens disagrees with Ms Dowdesell and argues that he never intended [Child 1] to have a private education.  Mr Wickens has told the Tribunal he signed the registration form for [College 2] under duress and did not sign the enrolment form.  He argues that it was Ms Dowdesell who made the decision for [Child 1] to attend [College 2] just as it was Ms Dowdesell who made the decision for [Child 1] to attend [College 1].  Mr Wickens also points out that he chose for [Child 1] to attend a co-educational Catholic school in primary school until [Child 1] then moved to Sydney to live with Ms Dowdesell.  Mr Wickens has also said he was unaware Ms Dowdesell had enrolled [Child 1] at [College 1] and when he found out he advised Ms Dowdesell he did not agree to this choice of schooling.  The evidence confirms this to be the case.

20. It is the view of the Tribunal that the arguments put by the parents can be distilled down to two key issues.  The first is whether or not there was a mutual expectation established between the parents that [Child 1] was to have a private school education by attending [College 2].  The second is whether or not any such mutual expectation might then have changed at a later date.  Both parents have provided evidence in support of their respective positions and so the Tribunal is not persuaded by the position put by Ms Dowdesell with reference to Sullivan & CASA.  It is open to the Tribunal to make findings of fact based on a reasonable consideration of the evidence provided by each parent.

21. It is not in dispute that [Child 1] attended [College 2] at a pre-school level.  Mr Wickens signed the registration form for [Child 1] to attend, which he described as an expression of interest, but no evidence has been provided that he signed the enrolment form.  Ms Dowdesell has said this was lost by the school and Mr Wickens has said he never signed the form because he did not wish [Child 1] to attend [College 2].  While a signed registration form may indicate some future intention, it is the view of the Tribunal that a signed enrolment form then cements this intention.  The Tribunal is not satisfied that [Child 1] attending [College 2] at pre-school shows, in this case, any mutual expectation of a private school education for [Child 1].

22. Even if an enrolment form had been signed by both parents the Tribunal is not convinced this would indicate an expectation [Child 1] was to continue having such an education from pre-school through to the end of secondary school.  Expectations change.  Mr Wickens then made a decision for [Child 1] to attend a Catholic primary school.  Ms Dowdesell did not agree to [Child 1] attending [Catholic School 1] but nonetheless argues that it showed Mr Wickens maintained an intention to provide [Child 1] with a private education.  The Tribunal is not swayed by this argument.  It is possible for a parent to alter their expectation in relation to the manner of education a child might receive.  The matter of changing expectations was considered by the court in Dobbins and Devlin[3].  There is also a significant difference between the Catholic system and other private schools such as [College 1].

    [3] Dobbins and Devlin and Anor (SSAT Appeal) [2014] FCCA 1274 [43]

23. Ms Dowdesell has consistently disagreed with the views of Mr Wickens in relation to his choice of schooling for [Child 1] and Mr Wickens has consistently disagreed with the views of Ms Dowdesell in relation to her choice of schooling for [Child 1].  The Tribunal is not satisfied, based on the evidence before it, that a ground for departure exists under subparagraph 117(2)(b)(ii) of the Act.

CONCLUSION

1. The Tribunal has not found that a ground for departure exists.  The Tribunal therefore refuses to make a departure determination. 

2. This means the administrative assessment of child support will remain in place.

DECISION

The decision under review is affirmed.