Durbridge and Oliver (Child support)

[2023] AATA 1792

Durbridge and Oliver (Child support) [2023] AATA 1792 (18 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024576

APPLICANT:  Mr Durbridge

OTHER PARTIES:  Child Support Registrar

Ms Oliver

TRIBUNAL:Member J Thomson

DECISION DATE:  18 May 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – no ground for departure established – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been 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

1. Mr Durbridge and Ms Oliver are the parents of [Child 1], born [in] May 2005, who is recorded as being in the 100% care of Mr Durbridge and 0% care of Ms Oliver.

2. [In] May 2023, both parents acknowledged a terminating event occurred with respect to [Child 1] upon his attaining his 18th birthday.

3. On 16 November 2021, Mr Durbridge applied to Services Australia (Child Support) for a change of assessment on the following grounds:

   ·That the cost of the child’s, [Child 1]’s, special needs significantly affected the cost of maintaining him, making the assessment unfair (the ground commonly referred to as Reason 2);

   ·That the income, property or financial resources and the income earning capacity of Ms Oliver made the assessment unfair (the grounds commonly referred to as Reasons 8A and 8B).

4. On 11 January 2022, Ms Oliver cross-applied for change of assessment on the following grounds:

   ·That the assessment is unfair because of the income, property and financial resources of the child, [Child 1] (the ground commonly referred to as Reason 4);

   ·That her necessary expenses for self-support significantly reduced her capacity to support the child, [Child 1] (the ground commonly referred to as Reason 7);

   ·That Mr Durbridge’s income, property or financial resources made the assessment unfair (the ground commonly referred to as Reason 8A);

   ·That she had a legal duty to support her adult daughter, [Ms A], the cost of which significantly reduced her capacity to support the child in the assessment, [Child 1] (the ground commonly referred to as Reason 9); and

   ·That her capacity to support the child, [Child 1] was reduced because of her responsibility to maintain a resident child (the ground commonly referred to as Reason 10).

5. On 16 April 2022, a Child Support decision maker, DM Miller, found Reason 8A in Mr Durbridge’s application and Reason 7 in Ms Oliver’s cross-application established, and changed the assessment to provide as follows:

   ·For the period 1 December 2021 to 31 October 2022, Ms Oliver’s adjusted taxable income (ATI) is set at $55,000.

6. On 4 May 2022, Ms Oliver objected to DM Miller’s 16 April 2022 decision and on 23 August 2022, a Child Support objections officer allowed her objection, setting aside DM Miller’s 16 April 2022 decision, and in substitution deciding not to depart from the formula assessment pursuant to section 98F of the Child Support (Assessment) Act 1989 (the Act), as it would not be just and equitable to do so.

7. On 2 September 2022, Mr Durbridge applied to the Tribunal for review of the objections officer’s decision of 23 August 2022.

8. The Tribunal heard the matter over the course of 16 and 18 May 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. Mr Durbridge raised Reason 8A and Ms Oliver raised Reason 7 at the hearing. The Tribunal had before it documentation provided by Child Support (folios 1 to 499) and supplementary documentation provided shortly prior to the hearing which had not been received by the parents prior to the hearing (folios 500 to 536). Mr Durbridge provided documentation (folios A1 to A140) and Ms Oliver provided documentation (folios B1 to B37).

9. Following discussion with the Tribunal regarding the contents of the supplementary documentation (folios 500 to 536 referred to in the preceding paragraph), both parents acknowledged that they had received copies of the substantive documents contained in the supplementary documentation in the normal course of communications sent out by Child Support in September 2022, and were sufficiently familiar with the contents of the supplementary papers for the hearing to proceed, notwithstanding they did not have those papers with them.

10. Otherwise, the parents acknowledged they had copies of the Child Support documents (folios 1 to 499) and the documents each parent had provided (A1 to A140 and B1 to B37). The Child Support documents, including the supplementary documents, were admitted into evidence and marked Exhibit 1; Mr Durbridge’s documents and Ms Oliver’s documents were admitted into evidence and marked Exhibits A and B respectively.

ISSUES

1. The issues which arise in this case 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 determination.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1, A and B, before the Tribunal at the hearing.

2. The statutory provisions relevant to this review are contained in the Act. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. A formula is used. It takes into account variables including each parent’s ATI for the last relevant year of income, the number of children, and the level of care provided by each parent. Part 6A of the Act allows for a departure from the administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), the Registrar may make a departure determination if three matters are established:

   ·One, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(ii));

   ·A departure is just and equitable as regards the children and each parent (sub- subparagraph 98C(1)(b)(ii)(A)); and

   ·It is otherwise proper to make a departure decision (sub-subparagraph 98C(1)(b)(ii)(B)).

3. Subsection 98(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2) of the Act.

4. 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 Registrar may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the ATI or the cost percentage of the child.

Grounds for departure

1. Subparagraph 117(2)(c)(ia) provides as a ground for departure:

   (c) that, in the special circumstances of the case, the application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child…

   (ia) because of the income, property and financial resources of either parent; or...

2. Subparagraph 117(2)(a)(iii)(A) also provides as a ground for departure:

   (a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

   (iii) commitments of the parent necessary to enable the parent to support:

   (A) himself or herself, or…

3. The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislation in subsection 117(2) must be guided by the qualification that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman (1992) FLC 92-279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The Tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial positions.

4. Mr Durbridge identified the following as the issue he required the Tribunal to consider and the outcome he was seeking:

5. The application of Ms Oliver’s taxable income reflected in her amended 2021/22 Australian Taxation Office (ATO) Notice of assessment of $54,672 (see page B36, Exhibit B) applied in the administrative assessment of child support from 11 December 2021 to the date of Child Support’s acceptance of her income estimate of $27,244 on 9 September 2022 (see pages 516 to 520 of Exhibit 1).His submissions at the hearing related to the taxable incomes of the parents for the 2021/22 financial year which were not available until 19 September 2022 in Ms Oliver’s case, and 17 February 2023 in Mr Durbridge’s case (see page A139, Exhibit A).

6. Mr Durbridge did not challenge the objections officer’s findings that he had failed to establish grounds for departure based on Reasons 2 and 8B, and after some brief discussion with the Tribunal at the commencement of the hearing, he acknowledged and agreed that it was open to the objections officer and the Tribunal on review to entertain Ms Oliver’s objection to the original decision maker’s decision of 16 April 2022, based, in part, on the change in her income consequent upon her position as a [Occupation 1] being made redundant and the termination of her employment on 17 March 2022 (see her employer’s termination letter, page 308, Exhibit 1).

7. Mr Durbridge provided a copy of his 2021/22 ATO income tax assessment notice issued on 17 February 2023 (see page A139, Exhibit A) reflecting his taxable income for that year at $45,177, which he submitted should be applied in the assessment.

8. Ms Oliver identified her issue as her self-support costs increased, hence her Reason 7 claim for the additional costs she incurs for specialist physiotherapy massages arising from [a] motor vehicle accident as a consequence of which she was rendered a partial paraplegic. The original decision maker found the ground established but off-set against the decision to apply the change of assessment from 1 December 2021 and not to accede to Mr Durbridge’s submission that the change of assessment he was contending for should be applied in the assessment from 1July 2021, the period he asserted from which Ms Oliver commenced to earn her higher income determined by DM Miller of $55,000.

9. Her evidence in support of her claim about her additional expenses was limited to her twice-weekly specialist physiotherapy massage treatments for which she said she had to travel from her home in [City 1], Victoria to [Town 1], Victoria; a distance of approximately 72 km and approximately 50 minutes of travelling time, for which she had to take time off work because the physiotherapist’s services were only available during normal working hours, causing her to suffer loss of income.

10. She provided evidence of the cost of her treatment sessions (see pages 246 to 249, Exhibit 1) amounting to $85 per session which she claimed from 16 November 2021 to her last appointment on 6 April 2023 and which she said had increased to $90 from 3 December 2022. However, she was unable to provide any evidence of her travel costs or her lost wages, nor was she able to provide any evidence of many Medicare rebates for her physiotherapy massage treatment sessions.

11. Mr Durbridge did not challenge Ms Oliver’s evidence regarding her ongoing need for weekly massage treatment but submitted that Ms Oliver received regular compensation payments from the Transport Accident Commission (TAC) which he submitted covered the costs of her treatment and on that basis asserted there should be no increase in Ms Oliver’s self-support costs in the assessment formula.

12. In response to questioning by the Tribunal at the hearing, Ms Oliver acknowledged and agreed that she received regular fortnightly Commonwealth Government tax-free TAC payments of $343.74 during the course of the 2021/22 financial year, increased to $352.44 for the 2022/23 financial year. She provided a copy of her [Bank 1] account [number] reflecting her TAC payments of $352.44 per fortnight for October and November 2022 (see pages B17 to B22, Exhibit B) and confirmed she is continuing to receive those payments at the higher rate of $352.44 per fortnight.

13. Allowing for twice-weekly physiotherapy massage treatments at a cost of $85 for the period 16 November 2021 to 3 December 2022 (a period of approximately 55 weeks) equates to approximately $9,350. The cost of two-weekly treatment sessions for the period 4 December 2022 to 6 April 2023 (approximately 14 weeks) at $95 per treatment equates to a cost of approximately $1,710 – total out of pocket costs of $11,060, against which she receives a total of $11,920 in TAC compensation payments of $343.74 per fortnight over the 55 weeks from 17 November 2021 to 3 December 2022 and $352.44 per fortnight over the 14 weeks from 4 December 2022 to 6 April 2023.

14. The Tribunal finds that the TAC compensation payments, although tax free, are a financial resource available to Ms Oliver to meet the cost of her physiotherapy treatment sessions.

15. The Tribunal finds that the evidence, on balance, is that Ms Oliver’s specialist physiotherapy costs are adequately recompensed from her TAC Commonwealth-funded compensation payments. The Tribunal is not satisfied Ms Oliver’s capacity to provide financial support for the child is significantly reduced because of necessary commitments to support herself and accordingly, Reason 7 is not established.

16. At the hearing, Ms Oliver gave evidence that she and her daughter, [Ms A], were involved in a serious motor vehicle accident on or about 6 April 2023, as a consequence of which Ms Oliver said she has sustained further spinal injuries and her paraplegic condition has been exacerbated to the point where she is wheelchair bound and currently unable to work.

17. No direct medical evidence regarding this most recent accident was before the Tribunal at the hearing. However, Mr Durbridge did not challenge Ms Oliver’s evidence regarding her condition as a consequence of the accident, and the Tribunal accepts her evidence in that regard.

18. The administrative assessment in place at the time of Mr Durbridge’s application for change of assessment on 16 November 2021 required Ms Oliver to pay Mr Durbridge child support for the period 1 August 2021 to 31 October 2022 at the statutory minimum rate of $446 per annum, based on her 2020/21 ATI of $27,732, and Mr Durbridge’s 2020/21 ATI of $13,487. Both of these incomes were reflected in the income tax returns for each parent before the Tribunal at Exhibit A, page A1 (Mr Durbridge) and Exhibit B, page B37 (Ms Oliver).

19. Ms Oliver’s 2021/22 income tax assessment of $54,710 and amended assessment of $54,672 were not issued by the ATO until 19 September 2022 (see Exhibit B, pages B35 and B36). Mr Durbridge’s 2021/22 income tax assessment of $45,177 was not issued by the ATO until 17 February 2023.

20. Mr Durbridge gave evidence he was motivated to lodge his change of assessment application because he believed Ms Oliver’s 2021/22 income was higher than $27,232, the amount being applied in the assessment at the time he lodged his application on 16 November 2021.

21. As noted above, the additional documentation submitted to the Tribunal by Child Support shortly before the hearing (pages 500 to 536, Exhibit 1), reflect Child Support issuing new assessments on 7 September 2022 and 9 September 2022 (see Exhibit 1, pages 500 to 513) recording the parents’ 2020/21 incomes of $27,732 for Ms Oliver and $13,487 for Mr Durbridge being applied in the assessment for the period 18 November 2021 to 30 September 2022, and Ms Oliver’s 2021/22 income of $54,710, and subsequently $54,672, being applied in the assessment for the period 1 October 2022 to 15 May 2023.

22. On 9 September 2022, Child Support notified its acceptance of an income estimate lodged by Ms Oliver for the 2022/23 financial year, estimating her year-to-date income for the period 1 July 2022 to 30 September 2022 at $7,142, and her estimate for the balance of that financial year, 1 October 2022 to 30 June 2023 at $20,377.50; annualised to $27,244.

23. Mr Durbridge acknowledged and agreed at the hearing that he did not challenge Child Support’s 9 September 2022 notification of its acceptance of Ms Oliver’s income estimates for the 2022/23 financial year.

24. The Tribunal had details before it at the hearing of Ms Oliver’s payslips for income earned by her in the administrative role in which she was employed, following her redundancy on 7 March 2022, for the period 4 July 2022 to 6 November 2022 reflecting her year-to-date gross income at $8,731 (see Exhibit B, page B34), annualised to an income of approximately $24,704 for the 2022/23 financial year.

25. For the Tribunal to make a departure order pursuant to subparagraph 117(2)(c)(ia) of the Act, it has to be satisfied, in the special circumstances of the case, its application in relation to the child of the provisions of the Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, property and financial resources of either parent.

26. The Tribunal is satisfied the income, property and financial resources of the parents for the 2020/21 and 2021/22 financial years are accurately reflected in their income tax returns for those years as set out above and that the 2022/23 financial year estimate of $27,244 lodged by Ms Oliver and accepted by Child Support on 9 September 2022 is likely to be reconciled to her income for that year, based on the income reflected in her July 2022 to November 2022 payslips referred to earlier in these Reasons, when she lodges her 2022/23 income tax return with the ATO in the normal course of events and, particularly so, in light of the evidence she gave at the hearing with respect to the motor vehicle accident in which she was involved in April this year and the likely effect that will have on her income-earning capacity for the latter part of the 2022/23 financial year. Accordingly, Reason 8A is not established.

27. The Tribunal is therefore satisfied there are no special circumstances in this case as contemplated in subparagraph 117(2)(c)(ia) and sub-subparagraph 117(2)(a)(iii)(A) of the Act which would justify the making of a departure order and no ground is established. The further issues outlined in paragraph 11 do not need to be addressed.

28. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal therefore affirms that decision.

DECISION

The decision under review is affirmed.