Ferahan and Boland (Child support) - [2025] ARTA 511

Ferahan and Boland (Child support) [2025] ARTA 511 (10 March 2025)

Applicant: Ms Ferahan

Respondent: Child Support Registrar

Other Parties: Mr Boland

Tribunal Number: 2024/SC028104
Tribunal: General Member R Prasad
Place:Sydney
Date:10 March 2025

Decision:The Tribunal varies the decision under review so that for the period 1 January 2024 to 31 December 2024:
1. the mother’s adjusted taxable income is varied to $161,987; and
2. the father’s annual rate of child support is decreased by $4,660.

Statement made on 10 March 2025 at 3:10pm

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – adjusted taxable income – costs of educating child in manner expected by parents – enrolment of oldest child in private secondary college – large disparity in income – mother’s change of employment – disengagement scheme and payout – now self-employed professional – health and reduced hours of work – personal expenses paid by business – father’s commissions, bonuses and share scheme – unvested stock not part of income – decision under review varied

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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Ms Ferahan (the mother) and Mr Boland (the father) are the parents of three children, born 5 October 2010, 17 September 2012 and 13 October 2014. Since 17 June 2019, this case was registered with Services Australia – Child Support (Child Support). The existing percentages of care are that the mother has 71% care and the father has 28% care of the children from 7 July 2018.
The mother lodged an application to change the child support assessment (the departure application) on 28 August 2023. On 16 February 2024, Child Support determined that for the period 1 January 2024 to 31 December 2024, the mother’s adjusted taxable income would be set at $163,996 and that for that period, the father’s annual rate of child support would decrease by $5,437.
On 18 March 2024, the mother lodged an objection. An objections officer, on 25 April 2024, disallowed the objection.
On 27 May 2024, the mother sought review of the objection decision by the Administrative Appeals Tribunal (the AAT).
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
A directions hearing was held on 21 October 2024. Directions were issued on 25 October 2024 requiring compliance by 22 November 2024.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 511
Decision Date: 10 March 2025

CaseChat Overview and Summary

The case of Ferahan and Boland involves a dispute over child support assessments between Ms Ferahan, the mother, and Mr Boland, the father, of three children. Ms Ferahan challenged the administrative assessment of child support issued by the Child Support Registrar, arguing that it did not accurately reflect her income and that the father's substantial income warranted a higher contribution towards the children's education costs. The dispute was reviewed by the Administrative Review Tribunal (ART).

The primary legal issue was whether there existed a valid reason to depart from the administrative assessment of child support, and if so, whether such a departure would be just and equitable and otherwise proper. The Tribunal examined the parents' incomes, their financial resources, and the children's education costs as potential grounds for departure.

The Tribunal concluded that the costs of educating the children at a private school, which both parents had agreed upon, significantly affected the maintenance costs and thus constituted a valid reason for departure under subparagraph 117(2)(b)(ii). Additionally, the Tribunal found that Ms Ferahan's taxable income did not accurately reflect her financial resources, as she had received a substantial disengagement payout that was partially included in her 2023 taxable income but not in 2024. The Tribunal considered the full financial position of Ms Ferahan's business to determine her available income and resources. The Tribunal determined that Ms Ferahan's adjusted taxable income should be set at $161,987 for the 2024 financial year.

After evaluating the parents' incomes and resources, the Tribunal found it just and equitable for the mother to contribute towards the children's education costs for the 2024 school year, based on the income percentages of 12% to the mother and 88% to the father. The Tribunal decided that the mother should contribute $4,660 towards the education costs. This decision led to a decrease in the father's annual rate of child support by $4,660.

The Tribunal concluded that the departure from the administrative assessment was proper, as it did not impact welfare expenditure by the community, given that neither parent received government benefits. Therefore, the Tribunal varied the decision under review, setting the mother's adjusted taxable income at $161,987 and decreasing the father's annual rate of child support by $4,660 for the period from 1 January 2024 to 31 December 2024.

Orders