Fulbeck and Duneford (Child support) - [2024] AATA 2535

Fulbeck and Duneford (Child support) [2024] AATA 2535 (26 June 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC026937
APPLICANT:  Mr Fulbeck
OTHER PARTIES:  Child Support Registrar
Ms Duneford

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 26 June 2024
DECISION:

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

For the period 1 April 2023 to 30 June 2025, Mr Fulbeck’s adjusted taxable income is set at $111,000;
For the period 1 April 2023 to 30 September 2024, the child support assessment is increased by $3,840 to cover Ms Duneford’s contribution to half the costs of [Child 2]’s orthodontic treatment.

CATCHWORDS

CHILD SUPPORT – departure from administrative assessment – special needs of child – orthodontic treatment – father’s private health insurance reimbursement deducted from total costs of treatment – fees and ancillary costs for non-government school – father’s 100% care and decision to enrol children without mother’s consent – ‘educated in the manner expected’ – income, property and financial resources – father’s access to business finances – mother’s change from casual to permanent employment decreased income – 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

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Duneford and Mr Fulbeck are the parents of [Children 1 and 2]. Following a decision by the Administrative Appeals Tribunal (the Tribunal) on 4 January 2024 the care recorded for [Child 1] was 68% care to Mr Fulbeck and 32% to Ms Duneford, which is applied to the assessment of child support from 2 April 2023. [Child 2] is recorded as being in Mr Fulbeck’s 100% care from 6 October 2013. Child support has been collected from Services Australia (Child Support) from the start of the administrative assessment. Ms Duneford is the parent liable to pay child support.
The administrative assessments in place prior to the change of assessment applications were as follows:
·For the period 1 December 2022 to 16 January 2023 the annual rate of child support payable by Ms Duneford is $36,072. This is based on Ms Duneford’s adjusted taxable income (ATI) of $162,764 and Mr Fulbeck’s ATI for the same period of $0.
·For the period 17 January 2022 to 1 April 2022 the annual rate of child support payable by Ms Duneford is $26,748. This is based on the 2021/2022 estimate of income of $122,692 for Ms Duneford and an ATI of $0 for Mr Fulbeck.
·For the period 2 April 2023 to 30 June 2023, the annual rate of child support payable…

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: [2024] AATA 2535
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned an application by the father, Fulbeck, to depart from an administrative assessment of child support payable to the mother, Duneford. The dispute centred on the father's claim for reimbursement of expenses related to the children's orthodontic treatment and their attendance at a non-government school, which he had unilaterally enrolled them in. The father sought to deduct private health insurance reimbursements from the total orthodontic costs and argued that the school fees were necessary for the children to be "educated in the manner expected."

The court was required to determine whether the father was entitled to a departure from the administrative assessment to account for the orthodontic treatment costs, after the deduction of private health insurance reimbursements. It also had to consider whether the fees and ancillary costs for the non-government school should be included in the departure application, particularly given the father's sole decision to enrol the children in that school without the mother's consent. Furthermore, the court needed to assess the father's income, property, and financial resources, including his access to business finances, and the mother's financial circumstances, noting her change from casual to permanent employment which had decreased her income.

The Senior Member applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning departure from administrative assessments. The court reasoned that while orthodontic treatment could be considered a special need, the father's calculation of the costs was flawed by his failure to properly account for the private health insurance reimbursement. Regarding the school fees, the court found that the father's unilateral decision to enrol the children in a non-government school, without the mother's consent, meant that the costs were not incurred in a manner that would justify a departure from the assessment. The court also considered the parties' financial positions, noting the father's access to business finances and the mother's reduced income.

The Senior Member set aside the original decision under review and substituted a new decision. The application for departure in relation to the school fees was dismissed. The application for departure in relation to orthodontic treatment was granted, but the amount was adjusted to reflect a proper calculation of the net cost after insurance reimbursement.

Orders