GAP-AAL and GAP-AAM (Guidance and Appeals Panel)
[2025] ARTA 1731
•29 August 2025
GAP-AAL and GAP-AAM (Guidance and Appeals Panel) [2025] ARTA 1731 (29 August 2025)
Applicant: GAP-AAL
Respondent: Child Support Registrar
Other Party: GAP-AAM
GAP Reference Number: 2024-001-065
Tribunal:Senior Member J. Longo
Place:Melbourne
Date: 29 August 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides as follows:
·For the period 19 January 2023 to 31 December 2023, the annual rate of child support is increased by $14,182 in relation to the education costs of the children;
·For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $9,767 in relation to the education costs of the children;
·For the period 1 January 2025 to 31 December 2025, the annual rate of child support is increased by $14,500 in relation to the education costs of the children;
·For the period 1 January 2026 to 31 December 2028, the annual rate of child support is increased by $13,760 in relation to the education costs of the children;
·For the period 1 September 2023 to 30 April 2025, the annual rate of child support is increased by $2,186 in relation to the special needs of E.
Statement made on 29 August 2025 at 3:16pm
Catchwords
CHILD SUPPORT – Application for departure determination – education costs – just and equitable considerations – period of departure – decision set aside and substituted.
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)Child Support (Registration and Collection) Act 1988 (Cth)
Cases
AMO25 v Administrative Review Tribunal [2025] FCA 365
Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250
Beklar & Beklar [2013] FamCA 327
Carey and Carey (1994) FLC 92-489
Child Support Registrar & Ahern and Anor [2014] FamCAFC 105
Costa & Fairbank (SSAT Appeal) [2010] FMCAfam 39
Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275
DJM and JLM [1988] FamCA 97
Farthing & Robinson & Anor [2016] FCCA 2851
F & S [2003] FMCAfam 531
Frost and Frost (SSAT Appeal) [2011] FMCAfam 1311
Frugtniet v Australian Securities and Investment Commission [2019] HCA 16
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gyselman and Gyselman [1991] FamCA 93
Gyselman v Gyselman (1992) FLC 92-279
Holman & Child Support Registrar & Ors (SSAT Appeal) (No.2) [2014] FCCA 2382
In the Matter of Lightfoot and Hampson (1996) 20 Fam LR 69
Mee v Ferguson [1986] FamCA 3
Podmore & Pillai (SSAT Appeal) [2011] FMCAfam 952
Potter & Burbage (SSAT Appeal) [2010] FMCAfam 1009
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shearer & Benson (SSAT Appeal) [2011] FMCAfam
Shi v Migration Agents Registration Authority [2008] HCA 31
Scott and Scott (1994) FLC 92-457;
Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
Child Support Guide
Names used in this published decision 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.
Statement of Reasons
BACKGROUND TO THE APPLICATION
1. The mother, Ms GAP-AAL, and the father, Mr GAP-AAM, are the separated parents of four children in relation to whom this application relates, to whom I will refer to as E, J, L and S. An administrative assessment of child support in relation to the children was registered with Services Australia – Child Support (the Agency) on 19 January 2023.
2. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act1989 (Cth) (the Assessment Act).
3. On 12 July 2023, Ms GAP-AAL applied to the Child Support Registrar (the Registrar) seeking a departure from the administrative assessment on the basis of the special needs of the children (commonly referred to as Reason 2) and on the basis of the education costs of the children (commonly referred to as Reason 3).
4. On 3 November 2023, the Registrar decided that a ground to depart from the administrative assessment was established and made a departure determination on the following basis:
(a)For the period 1 July 2023 to 31 December 2023, the annual rate of child support is increased by $14,185;
(b)For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $8,273;
(c)For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $400; and
(d)For the period 1 July 2023 to 30 June 2026, the annual rate of child support is increased by $1,185.
5. On 27 November 2023, Ms GAP-AAL lodged an objection to the Registrar’s decision. On 26 March 2024 the Registrar’s delegate partly allowed the objection and made the following determination:
(a)For the period 19 January 2023 to 31 December 2023, the annual rate of child support is increased by $14,182 in relation to the education costs of E, L, and S;
(b)For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $9,767 in relation to the education costs of E, L, and S;
(c)For the period 1 January 2025 to 31 December 2025, the annual rate of child support is increased by $11,077 in relation to the education costs of E, L, and S;
(d)For the period 1 January 2026 to 31 December 2026, the annual rate of child support is increased by $11,940 in relation to the education costs of E, L, and S; and
(e)For the period 1 September 2023 to 30 April 2025, the annual rate of child support is further increased by $2,186 in relation to E’s orthodontic treatment.
6. On 16 April 2024, Ms GAP-AAL applied to the Administrative Appeals Tribunal (the AAT) for review of the objection decision. On 14 October 2024, under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, all matters on foot with the AAT transferred to the Administrative Review Tribunal (the Tribunal). Therefore, the application for review made by Ms GAP-AAL continued to be a reviewable decision under the Administrative Review Tribunal Act 2024 (the ART Act).
7. On 14 November 2024, the Tribunal (the ART review) set aside the decision under review and made the following departure determination:
(a)1 January 2023 to 31 December 2023, the annual rate of child support is increased by $14,182;
(b)1 January 2024 to 31 December 2024, the annual rate of child support is increased by $9,767;
(c)1 January 2025 to 31 December 2025, the annual rate of child support is increased by $14,500; and
(d)1 September 2023 to 30 April 2025, the annual rate of child support is increased by $2,186.[1]
[1] This departure determination varied the administrative assessment by increasing the amount of child support payable by Mr GAP-AAM for each of the above calendar years in recognition of the children’s education costs and E’s orthodontic costs.
8. On 30 December 2024, Ms GAP-AAL made a Guidance And Appeals Panel (GAP) referral application under section 123 of the ART Act in relation to the ART review decision. On 25 February 2025, the President of the Tribunal decided to refer the ART Review decision dated 14 November 2024 to the GAP in accordance with subsection 128(1) of the ART Act.
9. On 12 March 2025, the GAP Registrar made directions in relation to the provision of further evidence and material, including any written submissions, by Ms GAP-AAL, Mr GAP-AAM and the Registrar.
10. I conducted a hearing on 30 May 2025 and heard evidence from both Ms GAP-AAL and Mr GAP-AAM. Ms GAP-AAL’s legal representative also provided oral submissions at the hearing. The Registrar was represented at the hearing, and I am grateful for their assistance in the matter and note that they did not advance a particular position as to the findings of fact in this matter. Rather, the Registrar’s representative restricted their participation to assisting in the identification and the application of the relevant legislative provisions. I had regard to the documents lodged by Ms GAP-AAL, Mr GAP-AAM and by the Registrar, which were admitted into evidence as follows:
(a)Joint hearing bundle comprising of the following (Exhibit R1):
(i)Ms GAP-AAL’s documents, marked APP1 to APP12 (40 pages).
(ii)Mr GAP-AAM’s documents, marked OP1 to OP19 (66 pages).
(iii)Registrar’s documents, marked R1 to R2 (11 pages)
(iv)Agreed Statement of Facts
(v)Decision of the ART dated 14 November 2024
(vi)GAP referral application by Ms GAP-AAL dated 30 December 2024.
(vii)Notice of the decision to refer the decision to the GAP dated 25 February 2025.
(b)‘T’ documents initially submitted by the Registrar to the AAT numbered 1 to 742.
(c)Mr GAP-AAM’s documents provided in relation to the ART review, marked A1 to A119 (Exhibit OP20).
(d)Ms GAP-AAL’s documents provided in relation to the ART review, marked B1 to B53 (Exhibit A1).
11. For the following reasons, I have varied the decision under review. I have determined the issue of departure in respect of the children’s schooling expense; in particular the question regarding whether the departure determination should be extended beyond 2025 calendar year. I have considered the records and documents from the earlier Tribunal review of this matter in making my decision.[2] I have set aside the departure determination as outlined in these reasons.
[2] As per section 131 of the ART Act.
12. I have taken into account the oral submissions by the Registrar’s representative in relation to the start of the child support assessment period for child support being 19 January 2023 and amend the decision accordingly. The agreed statement of facts in this application states that as at the date of the objection decision, the children J, L and S were in Ms GAP-AAL’s primary care and in Mr GAP-AAM’s regular care. As at 3 May 2024, Ms GAP-AAL has had 100% care of all four children.
CONSIDERATION
Summary of the law and relevant policy
13. The jurisdiction and power to conduct this review is due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) as read with Division 3 of Part 5 of the ART Act.
14. In conducting this review, the Tribunal’s role is to ‘stand in the shoes’ of the original decision-maker, and determine, on the material before me, the decision to be made in this matter. The Tribunal exercises the same power or powers as the primary decision-maker under the Assessment Act and is subject to the same constraints.[3] As stated by the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31 in reference to the review of decisions by the AAT under the Administrative Appeals Tribunal Act 1975, it must redo what was done:
100. The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision-maker. As Brennan J rightly pointed out in an early decision of the Tribunal (citation omitted), not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:
"A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal's order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) requires the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require the Tribunal to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise."
But subject to that qualification, the Tribunal's task is "to do over again" what the original decision-maker did (citations omitted). [4]
[3] Section 54 of the ART Act; Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 at [51].
[4] Shi v Migration Agents Registration Authority [2008] HCA 31 at [100].
15. Section 53 of the ART Act also allows the Tribunal to determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers. In accordance with section 52 of the ART Act, the Tribunal is not bound by the rules of evidence and can inform itself on any matter in such manner as it considers appropriate. In making this decision I have also considered the Child Support Guide (the Guide) where relevant, although I am not bound to follow it.[5]
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229.
16. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Assessment Act. It involves the application of a statutory formula, taking into account factors such as the number of children, the age of each child, the level of care provided and the income of each parent. The income used in the calculation has a number of components making up the adjusted taxable income, which is worked out using section 43 of the Assessment Act and is the total of the following: (a) the parent’s taxable income for the last relevant year of income in relation to the child support period, disregarding the parent’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997(the Tax Act)) for that year of income; (b) the parent’s reportable fringe benefits total for that year of income; (c) the parent’s target foreign income for that year of income; (d) the parent’s total net investment loss (within the meaning of the Tax Act) for that year of income; (e) the total of the tax-free pensions or benefits received by that parent in that year of income; and (f) the parent’s reportable superannuation contributions (within the meaning of the Tax Act) for that year of income.
17. Part 6A of the Assessment Act allows the liable parent or a carer to apply for a determination departing from the administrative assessment. Section 98C establishes a three-step process to be satisfied prior to a departure determination being made: that there is a ground (or more than one ground) for a departure from the administrative assessment; that it is just and equitable to depart; and that it is otherwise proper. Once satisfied, a determination as prescribed in section 98S of the Assessment Act may be made.
18. The grounds for departure are set out in subsection 117(2) of the Assessment 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 Assessment Act. However, the courts have concluded that the expression relates to the facts peculiar to each case such that those facts are ‘out of the ordinary’ and set the case apart from the usual case (see Gyselman and Gyselman [1991] FamCA 93 (Gyselman) at [39]).
19. In these proceedings, consideration was given to departure from the administrative assessment on the basis of the education of the children, with reliance on subparagraph 117(2)(b)(ib) of the Assessment Act, which is commonly referred to as ‘Reason 3’.
20. Subparagraph 117(2)(b)(ib) of the Assessment Act states as follows:
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
…
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
21. Similarly to the term ‘special circumstances’, the term “manner expected” is not defined in the legislation. In Mee v Ferguson [1986] FamCA 3 (Mee and Ferguson), the Full Court of the Family Court in considering a similar provision in the Family Law Act 1975 said as follows (at [40]):
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.
22. In F & S [2003] FMCAfam 531, Brant CFM summarised (at [15]) the principles identified in Mee and Ferguson as applicable to a departure application that concerns costs associated with attendance at private fee paying schools. That court stated as follows:
15. The principles that emerged from the case in relation to school fees can be summarised as follows:
a) where the non-custodian has agreed to the child attending a private school, that person is liable to contribute to the fees so long and to the extent that he or she has a reasonable financial capacity to continue to do so;
b) where the non-custodian has not agreed to the child attending such a school, he or she is not liable to contribute to those expenses unless there are reasons relating to the child’s welfare which dictate attendance at the school rather than a non-private school. Then the non-custodian is required to contribute to the extent that he or she has a reasonable financial capacity to do so; and
c) the mere fact that a non-custodian can afford the fees or is a wealthy person is not in itself a reason for imposing that liability. Although Mee v Ferguson was decided prior to the introduction of the Child Support (Assessment) Act, the reasoning has been applied to child support cases [see Lightfoot v Hampson (1996) 20 FamLR 69 and Wild v Ballard (1997) 22 FamLR 291].
23. In Beklar & Beklar [2013] FamCA 327 (Beklar) (at [247]), the court stated:
The s 117(2)(b)(ii) issue centred upon whether the wife was able to establish that the children’s attendance at these private fee paying schools was a style of education “in the manner that was expected” by the parties. The words “in the manner that was expected” do not require that she establishes that the parties agreed that the children attend these particular schools. Rather, it is the type or style of education that is relevant. Type or style includes the costs associated with the provision of the children’s education.
24. In Farthing & Robinson & Anor [2016] FCCA 2851 (Farthing), the court held that in determining the question as to the manner of education expected by the parents, the type or style of education is relevant and that such a consideration requires a nuanced approach based on the particular facts of the case. As stated by Bender J (at [98]):
There will be matters where the parties’ expectations will be a question of private versus state education, a question of a religious school versus secular school, a question of a named particular school or a question of private schools at different ends of the fee scale.
25. The recent decision in AMO25 v Administrative Review Tribunal [2025] FCA 365 endorses the considerations taken in Beklar and Farthing. The court held that the correct approach is to determine the type or style of education rather than the particular school in question.
26. The term “significantly affected” is also not defined in the legislation. In respect of whether the costs of educating the children significantly affects the cost of maintaining the children, some assistance can be found in the Guide at chapter 5.2.3:
The costs of educating or training a child in accordance with the expectations of the parents are usually readily identifiable and verifiable.
Once the costs have been calculated, the Registrar will consider whether the additional amount is significant in relation to the assessed costs of the child (1.1.C.210). If the additional amount is small in comparison with the assessed costs, the Registrar may find that the costs of maintaining the child are not significantly affected and that there is no reason to change the assessment (CSA Act section 117(2)(b)(ii)).
27. In Potter & Burbage (SSAT Appeal) [2010] FMCAfam 1009, Riethmuller FM stated that when considering whether the costs of maintaining the child are “significantly affected”, it is necessary to take into account not only the rate of child support but also the income of the parents.
28. If a ground for departure from the administrative assessment of child support is established, the next step is to consider whether it is just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Assessment Act. This requires the decision-maker to have regard to a range of factors, including but not limited to those set out in subsections 117(4) and (6) to (8) of the Assessment Act - such as the needs of the children, the parents’ income, property, financial resources and commitments and any hardship that would be caused by departing or not departing from the formula. Only those matters pertinent to the application need to be explored.[6]
[6] See Gyselman and Gyselman [1991] FamCA 93 at [125].
29. 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 Assessment 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 as follows:
(5) In determining whether it would be otherwise proper 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, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Is there a ground to depart from the administrative assessment?
30. I have considered the ground for departure from the administrative assessment on the basis of the costs of maintaining the children being significantly affected because the children are being educated in the manner that was expected by their parents (subparagraph 117(2)(b)(ii) of the Assessment Act)
31. The following documents were provided in relation to the ART review:
·Enrolment of E (2010) and for S and L (2020) at [School 1][7]
·Catholic primary school enrolment for J[8]
·Catholic primary school enrolment for S and L[9]:
[7] Page 117 and page 155-158 of the T documents.
[8] Page 133-142 of the T documents.
[9] Page 184-199 and page 200-213 of the T documents.
Ms GAP-AAL’s evidence
32. At hearing before me, Ms GAP-AAL stated that they had always agreed as to where the children would be educated and that the children would attend private schools. She stated that she had no dispute with the ART review decision, except for the fact that it did not consider extending the departure to beyond 2025. Ms GAP-AAL stated that all the children went through [Childcare 1] at [School 1].
33. Ms GAP-AAL stated that the enrolment forms for E to attend [School 1] were signed on 3 June 2010. In 2014, E started 3-year-old kinder ([Childcare 1] at [School 1]). Ms GAP-AAL stated that they looked at schools with two streams, that is, two classrooms in each year level, and only looked at [School 1] and the catholic primary schools as these were the schools which offered opportunity for the children to mix and move between the streams. They didn’t look at any public schools because that was not the type of education that they wanted for the children. Ms GAP-AAL stated that as their intention was to send the children to private school, they did not consider any public schools.
34. They attended all three private schools in their town on school visits. While there are other public schools, they did not consider these schools. In respect of the second child, they looked at all the schools for the second child and then settled on [School 1]. Ms GAP-AAL stated that they intended that the two eldest children would attend [School 1] for both primary and secondary education but that when the eldest children were in secondary school, due to the cost, the two younger children would attend the catholic primary school and then they would go to [School 1] for their secondary education.
35. Ms GAP-AAL stated that J started at [School 1] (in 2016) until year 4 (2022) and then was enrolled at the catholic primary school (in 2023). She stated that J was diagnosed with ADHD and, further, due to the parents’ separation was struggling with mental health issues and not engaging at [School 1]. She confirmed that the parents separated in April 2022. J had been seeing a counsellor for most of 2022 and was still struggling at [School 1] school. It was suggested that it would be better to have J closer to her; as she is a [Occupation 1] at [a workplace]. Ms GAP-AAL stated that they spoke about changing the child’s enrolment and they both signed the enrolment forms for J for the catholic primary school.[10]
[10] Page 142 of the T documents.
36. She stated that the discussions for J commenced in August 2022, during handover of the children. She stated that Mr GAP-AAM wasn’t easy to talk to but was happy for the child to move from [School 1] to the catholic school. She stated that they signed the enrolment forms on 14 September 2022, but the fee payment form was taken out and resubmitted[11] by Mr GAP-AAM on the next day. Originally Mr GAP-AAM signed for 100% of the fees but the next day he went to the school and signed for 50/50 split of the fees.
[11] Page 139 of the T documents.
37. Ms GAP-AAL stated that there was an enrolment form for J at [School 1], but it was not in evidence in relation to the ART review previously. Subsequent to that hearing, a copy of J’s enrolment form at [School 1] was provided.[12] The enrolment form was signed by both parents in 2014.
[12] Page 100 of the additional documents provided by Ms GAP-AAL.
38. The two youngest children, L and S, started at [Childcare 1] at [School 1] in 2022[13] and then attended the catholic primary school from 2024. Ms GAP-AAL stated that Mr GAP-AAM signed the enrolment forms for [Childcare 1] at [School 1], which were signed in 2021. Mr GAP-AAM also signed for L and S to attend the catholic primary school but wouldn’t sign the school fee forms.[14] Ms GAP-AAL stated that the enrolment forms were left at the catholic school for Mr GAP-AAM who went to the school to sign the forms. As a consequence of Mr GAP-AAM not signing the school fee forms, Ms GAP-AAL put in a disclaimer at the bottom of the form that she was signing the fee payment but she would put in an application for a departure in relation to Mr GAP-AAM’s contribution so that they would each pay 50% of the fees.[15]
[13] Page 155-158 of the T documents.
[14] Page 196 and page 211 of the T documents.
[15] ibid.
39. Ms GAP-AAL referred to other communication between her and Mr GAP-AAM after separation about the children’s schooling. She referred to the parenting plan,[16] sent to her by Mr GAP-AAM but not signed by her because of other issues with the plan, which included at clause 5 that the education costs would be split equally. Ms GAP-AAL stated that this was sent to her on 31 July 2022 and was signed by Mr GAP-AAM.
[16] Page 150-154 of the T documents.
40. Ms GAP-AAL also referred to a verbal agreement on 1 June 2022, outside the venue for Mr GAP-AAM’s birthday dinner, at which he stated he would pay school fees and to let him know how much. She also referred to email correspondence on 2 November 2022[17] and 7 November 2022[18] stating they would split the school fees 50/50. In addition, Mr GAP-AAM’s legal representative sent correspondence to Ms GAP-AAL’s legal representative, in the context of the family law proceedings, stating that Mr GAP-AAM would contribute $10,000 toward private school fees.[19] Ms GAP-AAL stated that none of Mr GAP-AAM’s correspondence regarding the children’s school fees was never contingent on affordability.
Mr GAP-AAM’s evidence
[17] page 126 of the T documents.
[18] page 125 of the T documents.
[19] OP3 of Mr GAP-AAM ’s documents.
41. Mr GAP-AAM confirmed that they did agree to send the eldest child to [School 1] and that they looked at other private schools, including catholic schools, but did not look at any of the public schools. He observed that there was a significant cost difference between [School 1] and catholic schools.
42. Mr GAP-AAM also confirmed there were similar considerations for the second child and that they didn’t turn their mind to public schooling. He confirmed that they enrolled the second child at [School 1] because the eldest child was already at [School 1]. He stated that he did raise the issue of affordability, but this wasn’t considered by Ms GAP-AAL.
43. Mr GAP-AAM stated that he never signed any enrolment forms, and there was no consultation, for the second child to attend the catholic college. He stated that he found out about this enrolment at the ART Review hearing. He confirmed that the second child attended [School 1] until end of 2023 and then moved to the catholic primary school from 2024. He confirmed that he and Ms GAP-AAL spoke about the child going to the catholic primary school and that Ms GAP-AAL had messaged him about signing the forms. He wanted to take the forms away to sign them but Ms GAP-AAL would not allow him to take the forms, so he signed the forms when the handover occurred and then went to the school the next day, because he had missed a section in the form. This is when he made the notation that he would be paying 50% of the school fees.
44. Mr GAP-AAM confirmed that they did discuss S and L attending the catholic primary school towards the last year they were at [Childcare 1]. He agreed with Ms GAP-AAL’s statement that the forms were signed but not completed in relation to the school fees.
45. Mr GAP-AAM confirmed that he drafted and signed the parenting plan and emailed this to Ms GAP-AAL. He confirmed that clause 5 referred to the children’s education and stated that this was completed prior to the financial settlement and the application for child support. Mr GAP-AAM also confirmed the content of the letter from his legal representative to Ms GAP-AAL’s legal representative. He confirmed that the issue regarding the children’s education is the question of affordability.
Assessment of the evidence
46. I am satisfied on the evidence before me that the children are being educated in the manner expected by their parents. I base this conclusion on the numerous instances where both parents have exhibited this expectation both prior to separation and subsequent to separation. Ms GAP-AAL stated that they separated in April 2022, and this was not disputed by Mr GAP-AAM. I am satisfied that the parents’ conduct prior to separation shows a clear indication that they expected to educate the children in private schooling and looked at various private schooling options for the children. During these considerations, based on their evidence, they did not consider any public schooling options. I also find that both parents signed enrolment forms for the children to be educated in the private education system. These enrolment forms for the children were signed both prior to separation and subsequent to separation.
47. In addition to the enrolment forms, I note the parenting plan prepared and signed by Mr GAP-AAM references the schooling arrangements and the arrangements to contribute to 50% of these costs, to be reviewed annually. This parenting plan was not agreed to by Ms GAP-AAL, but on a difference basis other than the issue of the education costs. I find that this parenting plan supports a conclusion that the parents intended to educate the children in a particular manner. I infer, from the clause relating to the school fees and the manner in which the children were being educated at the time the parenting plan was completed, that the parenting plan was reflective of the children being educated in the manner expected by the parents, that is, in the private school system. I also note that Mr GAP-AAM stated in email correspondence to Ms GAP-AAL that he would pay a maximum of 50% of J’s school fees, when the child was moved from [School 1] to the catholic primary school.[20]
[20] Page 125 of the T documents.
48. While Mr GAP-AAM stated at the previous hearing that there was never an agreed plan for the children’s education, I do not accept this evidence. I also note the written statement before me provided by Mr GAP-AAM stating that he signed the forms under duress and intimidation. This was not his oral evidence at the hearing before me. I am not satisfied that there is any evidence that Mr GAP-AAM was in any way intimidated into agreeing on the manner of education of the children or that he agreed to the manner of education of the children under duress. There are enrolment forms signed by Mr GAP-AAM both before and after separation. There is also email communication regarding the sharing of these costs, both directly from Mr GAP-AAM and from his legal representatives. Nothing in these communications indicate any duress upon Mr GAP-AAM in agreeing to the manner in which the children were to be educated. I note the communication regarding child J, when transferred from [School 1] to the catholic primary school after separation, shows Ms GAP-AAL and Mr GAP-AAM both signed enrolment forms and communicated regarding the school fees for child J. There is nothing in this communication to indicate duress or intimidation.
49. I find that, as at the date the hearing before me, E is attending [School 1] and that the two youngest children are attending the catholic primary school. I also find that J commenced catholic secondary school in 2025 after having attended the catholic primary school. I am satisfied that the children are being educated in the manner that was expected by their parents in the private school system. I make these findings based on the evidence of their enrolment both prior to separation and the evidence maintaining these arrangements subsequent to separation.
50. In relation to whether the costs of educating the children in the manner expected by the parents significantly affects the costs of maintaining the children, the Guide at chapter 5.2.3 provides as follows:
Once the costs have been calculated, the Registrar will consider whether the additional amount is significant in relation to the assessed costs of the child (1.1.C.210). If the additional amount is small in comparison with the assessed costs, the Registrar may find that the costs of maintaining the child are not significantly affected and that there is no reason to change the assessment (CSA Act section 117(2)(b)(ii)).
51. In relation to the school fees for the children at the time of the application for a departure, the compulsory costs for tuition for 2023,[21] were $28,368. There was no dispute in relation to these costs. I also note that the agreed statement of facts in this application states that the parents agree that the tuition and compulsory school fees for the four children in 2024 totalled $22,525.
[21] Page 127 of the T documents.
52. The relevant costs of the children for 2023 and 2024 were $23,632 and $20,808 for each respective year. The education costs for the children in both 2023 and 2024 exceeds the formula costs for the children in each of the 2023 and 2024 calendar years.
53. In Potter & Burbage (SSAT Appeal) [2010] FMCAfam 1009, the court stated that when considering whether the costs of maintaining the child are “significantly affected” because the child is being educated in the manner that was expected by the parents, it is necessary to take into account not only the rate of child support but also the income of the parents. At the time of the application for the departure determination, Ms GAP-AAL’s income used in the administrative assessment was $44,761[22] and Mr GAP-AAM’s income used in the administrative assessment was $79,846.[23]
[22] Page 534 of the T documents.
[23] Page 530 of the T documents.
54. As found above, I am satisfied that the children are being educated in the manner that is expected by both parents. I am also satisfied that, in the special circumstances of this case, the compulsory school fees cost of the children for 2023 and 2024 significantly affects the costs of maintaining the children. On the basis of the above, I am satisfied that the ground is established. I consider, taking into account all of the above, that a ground for departure from the administrative assessment is established on the basis of the education of the children.
Is it “just and equitable” in relation to the parents and the children to make a particular departure determination?
55. As I am satisfied that there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable as regards the parents and the children to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Assessment Act. This in turn requires regard to a range of factors, including (but not limited to) those set out in subsections 117(4) and (6) to (8) of the Assessment Act, such as the needs of the children, the parents’ income, property, financial resources and commitments and any hardship that would be caused by departing or not departing from the formula.
56. I do not propose to explore every factor in detail but will discuss those pertinent to this application. In Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886 the court stated:
In considering whether a child support assessment is ‘just and equitable’ the Tribunal must have regard to the matters referred to in s.117(4). Whilst the section need not be slavishly followed, each of the relevant factors listed in s.117(4) should be considered.[24]
[24] At [16].
The needs of the child
57. Section 3 of the Assessment Act makes it clear that the parents of a child have the primary duty to maintain the child, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain.[25] In this case Ms GAP-AAL and Mr GAP-AAM have the primary duty to financially support the child and contributing to the child’s costs should take priority over all other costs other than their “necessary” costs of self-support.
[25] Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250 at [28].
58. In determining the proper needs of the child, paragraph 117(6)(b) of the Assessment Act also requires regard to any special needs of the child. Ms GAP-AAL gave evidence that E requires orthodontic treatment and consequently braces. While the term ‘special needs’ is not defined in the legislation, it has been determined that it relates to special needs of the child that that are out of the ordinary.[26] Orthodontic treatment has been considered as a special need where the treatment is essential rather than cosmetic.[27]
[26] In the Matter of Lightfoot and Hampson (1996) 20 Fam LR 69 at page 79.
[27] See Holman & Child Support Registrar & Ors (SSAT Appeal) (No.2) [2014] FCCA 2382 at [20].
59. In relation to the need for orthodontic treatment, Ms GAP-AAL provided a letter dated 22 September 2023[28] from the orthodontist stating the requirement for treatment to rectify a bite problem, crowding and the delayed eruption of a permanent tooth (molar) in the lower right corner of the mouth. The correspondence indicates that the active treatment will take 2 years with a further 2 years of follow-up treatment, with a removable retainer to be worn at night. It is stated that the treatment will align the teeth, improve bite and deal with the impacted lower right molar. Ms GAP-AAL provided cost information regarding the orthodontic treatment for E with the application for departure showing the total cost of required upper and lower fixed orthodontic appliances as $7,107.[29] A schedule for these costs includes an initial payment of $1,247 and monthly payments of $293 commencing 15 September 2023. Ms GAP-AAL stated that there was no rebate available from her health insurance for orthodontics due to the level of the cover and no rebate was available through medicare.
[28] Page 236 of the T documents.
[29] Page 143 of the T documents.
60. In written submissions after the hearing, Mr GAP-AAM stated that he was not consulted regarding the need for orthodontic treatment for E nor as regards the commencement of the treatment. However, Mr GAP-AAM also did not dispute the costs for the orthodontic treatment and that the treatment constitutes a special need. Mr GAP-AAM also conceded that this was a special need before the ART review hearing. I am satisfied of the special need for orthodontics for E and am also satisfied as to costs for these special needs totalling $7,107.
61. Ms GAP-AAL also submitted that E underwent hip surgery in March 2025 due to ongoing issues and to stabilise the hip. Ms GAP-AAL stated that E has had other surgery on his knee in relation to these alignment issues. Ms GAP-AAL stated that it is unlikely that further surgery is required, but this is dependent on whether the hip is stabilised. Ms GAP-AAL stated that there was an out-of-pocket expense of $1,500. Additionally, J has been diagnosed with ADHD and has six monthly reviews by a paediatrician. His medication costs are covered under the PBS scheme and cost around $38 per month. In addition, one of the younger children also had a tooth removed, which required a hospital admission, and also a graft on their ear drum. The out-of-pocket costs for these procedures were $800 and $1,700 respectively. Ms GAP-AAL stated that she was not seeking a variation to the administrative assessment on the basis of these additional costs.
62. Mr GAP-AAM submitted that he cannot afford to contribute to the children’s education costs. He stated that his circumstances were different at the time of the enrolment of the children, but moreover, that the intention was always that these costs would be reviewed on an annual basis to ensure that they remained affordable. I will discuss these matters further below.
The income, property, financial resources and earning capacity of the children.
63. In considering the income, property, financial resources and earning capacity of the children, I must disregard any entitlement of the children or the carer entitled to child support to an income-tested pension, allowance or benefit. Neither Ms GAP-AAL or Mr GAP-AAM indicated that the children had income, property or financial resources available to them.
The income, property, financial resources, earning capacity of each parent
Ms GAP-AAL’s income, property and financial resources
64. In respect of Ms GAP-AAL’s circumstances, her financial circumstances are, on her evidence, that she works as a part-time [Occupation 1] (4 days per week). Her statement of financial circumstances (SOFC) discloses income of $1,757 per week ($91,364 per annum).[30] Ms GAP-AAL stated that she also has a [business] that is run from her home, which includes [details deleted]. She stated that this business has not generated a profit, but she is hopeful that it will be profitable in the next 3-5 years. Ms GAP-AAL provided a profit and loss statement for 2023-24 which shows income of $20,505, expenses of $29,481 producing a net loss of $8,976. There is an immediate depreciation write-off of $5,790 and wages of $15,000. Ms GAP-AAL stated that the wages were for infrastructure and construction works for the business including pens, fencing, and tanks on the property and were paid to a contractor. Ms GAP-AAL also received an amount of family tax benefit. Ms GAP-AAL provided payslips[31] and her income tax returns for the 2023–24 financial period.[32] I am satisfied that Ms GAP-AAL’s income is predominately from her employment as a [Occupation 1] while operating a [business]. I find that the business did not make a profit in the 2023-24 financial year.
[30] Page B2 and also APP6 at page 10.
[31] Page APP10 of Ms GAP-AAL’s documents.
[32] Page B25 to B37 of Ms GAP-AAL’s documents.
65. I note the reference to depreciation in Chapter 5.2.8 of the Guide and the considerations of whether this amounts to a financial resource in the context of depreciation usually being a non-cash expense deductable for tax purposes. There is an instant write-off amount disclosed in the profit and loss statement provided by Ms GAP-AAL. I accept that these funds have been spent by Ms GAP-AAL. Ms GAP-AAL has chosen to depreciate the entirety of this expenditure in the 2023-24 financial year, rather than over the lifetime of the asset. I find that even if this amount were disregarded from the expenses, it would not impact the net income of this business and there would still be a loss for 2023-24. To add this amount to her income for the purpose of the administrative assessment would not make a significant impact to the child support payable. I am satisfied that Ms GAP-AAL’s relevant income and financial resources are as disclosed in her income tax return for 2023-24 as provided.
66. For completeness, I have considered Ms GAP-AAL’s earning capacity as it was raised in submissions for the ART Review. A parent’s earning capacity can only be taken into account in limited circumstances, as set out in subsection 117(7B) of the Assessment Act. This subsection requires the consideration of three compulsory criteria in determining whether the parent’s earning capacity is greater than is reflected in his or her income used in the administrative assessment as follows:
· Whether the parent:
o is not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
o has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
o has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and
· If the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and
· If the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).
67. The question to be answered is not regarding the potential earning capacity of a parent but rather an examination of whether there has been a reduction in a parent’s pattern of work or likewise to enliven the criteria under subsection 117(7B) of the Assessment Act. I find that in Ms GAP-AAL’s circumstances, she is working on a part-time basis, 4 days per week and has done so since 2011. Her oral evidence was that she has been [working] since this time and was previously employed 1 day per week (0.2 part-time) but has increased to be presently working 4 days per week (0.4 part-time). In addition, I also note that her income as recorded by the Registrar has increased annually to her most recent taxable income being $87,778 for 2023-24. I am therefore satisfied that while there has been a change in Ms GAP-AAL’s pattern of work, it has not been to reduce her work pattern but rather to increase her work pattern.
Mr GAP-AAM income, property and financial resources
68. Mr GAP-AAM confirmed at hearing that he is a [Occupation 2] and that he was previously self-employed, through a family trust, which ceased operating as of 30 June 2024. The evidence before me indicates that while self-employed, he employed one full-time employee as well a casual employee and subcontractors. His previous evidence states that he met personal expenses from the business account from time to time which he excluded from the trust expenses. This included the payment of his child support liability.[33] In relation to his period of self-employment, he stated that he did not draw a regular income from the business and his income tax return reflects distributions from the trust. He stated in the hearing before me that he ceased the business due to stress and mental health issues, which affected his concentration and led to errors costing ‘thousands of dollars.’ A letter from Mr GAP-AAM’s accountant states that the trust was finalised on 30 June 2024.[34]
[33] Page A59 of the T documents.
[34] Page A104.
69. Mr GAP-AAM’s income tax return for 2022-23 show total income of $191,533.[35] This included trust distributions of $42,985, net capital gains of $134,357, and net rent of $14,189. In 2022-23 he claimed personal income protection insurance deductions of $11,533 resulting in a taxable income was $180,000.
[35] Page 175 of the T documents.
70. Mr GAP-AAM’S income tax return for 2023-24 shows his total income as $93,755.[36] This included trust distributions of $89,553 and net rental income of $4,178. In 2023-24 he again claimed personal income protection insurance deductions of $12,088 resulting in taxable income was $81,655.
[36] Page A15.
71. I note the following in relation to the trust. In 2022-23, the income of the trust was $635,157 against expenses of $531,458 and expense reconciliation adjustments (-$2,584), resulting in a net income of $101,115. Of the net income, as stated above, Mr GAP-AAM received a distribution of $42,985. A further $58,130 was distributed to a secondary beneficiary. In 2023-24 the income of the trust was $566,261 against expenses of $476,471 and expense reconciliation adjustments (-$237), leaving net income of $89,553, which Mr GAP-AAM received as a distribution form the trust.
72. Following cessation of trading through the trust, Mr GAP-AAM stated that he commenced full-time employment with a [company] in his local area as [Occupation 3] from 1 July 2024. Payslips provided for the ART Review hearing show weekly income of $2,200.20 ($114,410 per annum).[37] Mr GAP-AAM confirmed at the hearing before me that this was his income while employed from 1 July 2024. He stated, during the ART Review hearing, that he had the use of a motor vehicle as part of his employment. A letter from the employer stated that there are no fringe benefits as it is not used for private purposes.[38] I note the SOFC completed on 29 April 2024 does not disclose motor vehicle costs for Mr GAP-AAM.[39]
[37] Page A100 – A102 of Mr GAP-AAM’s documents.
[38] Page A103 of Mr GAP-AAM’s documents.
[39] Page A8 of Mr GAP-AAM’s documents.
73. In relation to Mr GAP-AAM’s income from self-employment, I make the following findings. Firstly, I note that it is a well-established principle in previous Family Court matters that the taxable income of a person who is involved in their own business may not be an accurate reflection of their income, earning capacity, property and financial resources for child support purposes.[40] The Court has observed on numerous occasions that in reviewing a departure determination, the Tribunal is not required to undertake a “forensic audit” or major investigation of the financial circumstances of a party.[41] Rather, the Tribunal must be satisfied on the balance of probabilities as to the income, property and financial resources available to the parties for child support purposes, such that a fair decision can be made in respect of the child support liability.[42]
[40] DJM and JLM [1988] FamCA 97; Scott and Scott (1994) FLC 92-457; Carey and Carey (1994) FLC 92-489.
[41] Podmore & Pillai (SSAT Appeal) [2011] FMCAfam 952; and Frost and Frost (SSAT Appeal) [2011] FMCAfam 1311.
[42] Shearer & Benson (SSAT Appeal) [2011] FMCAfam 623.
74. In Costa & Fairbank (SSAT Appeal) [2010] FMCAfam 39, the Court said about the interpretation of the term ‘financial resource’:
20.The term financial resource is not defined in the Assessment Act.
21.A financial resource, in my consideration, refers to something which is not property but from which a financial benefit is or may be gained (citation omitted).
…
24.The term financial resource in the light of the objects of the Assessment Act should be broadly defined and would in my consideration refer to any financial benefit that would enhance the capacity of parents to provide a proper level of financial support for their children.[43]
[43] at [20]-[21] and [24].
75. I am satisfied that Mr GAP-AAM received a benefit from his business beyond the income as disclosed in his income tax returns. He was able, as was evidenced in the 2022-23 trust return, to distribute to a secondary beneficiary net profits for the financial year. In addition, Mr GAP-AAM was able to claim personal income protection insurance costs as a business expense (he has also claimed this as a personal expense). While these arrangements are legitimate for tax purposes, they do not fully reflect the financial resources that were available to Mr GAP-AAM at the time of operating the business.
76. In respect of the period of employment from 1 July 2024, I am satisfied that Mr GAP-AAM’s income from employment and from his investment property, was around $114,000. This figure was commensurate with, if not slightly higher than Mr GAP-AAM’s income generated from self-employment.
Mr GAP-AAM’s Earning Capacity
77. Mr GAP-AAM’s oral evidence at the hearing before me was that his position as [Occupation 3], was made redundant by his employer with effect from 18 January 2025. He gave evidence that he commenced a new position with the same employer as [a] manager from 19 January 2025. A letter from his employer confirms that he was made redundant.[44] Mr GAP-AAM’s new position’s gross weekly income is now $1,500 per week ($78,000 per annum), which is a salary reduction of $700 per week compared to the previous position.
[44] Page OP5 of Mr GAP-AAM’s documents.
78. Mr GAP-AAM stated that his previous role was made redundant because the company couldn’t afford this position. He confirmed that he didn’t receive a redundancy payment or other related payment of entitlements. Mr GAP-AAM stated that he remained with the employer, even though his income reduced by $700 per week, because he is no longer able to be ‘on the tools’ and believed that what he earns now is appropriate for his circumstances.
79. Mr GAP-AAM also stated that he didn’t feel like he had many options available but confirmed that he didn’t test whether this was the case, confirming that he didn’t apply for other jobs. He has based this opinion on his own experience, having been a business person in the area; he thought it was fair. He also stated that his employer supports his mental health and has been very supportive, stating that he has allowed him to take time off work for counselling appointments and when things are too much for him. Mr GAP-AAM believed that there are not many business owners who would want to take him on due to his circumstances. He stated that he has confidence issues and that his current employer supports him.
80. A parent’s earning capacity can only be taken into account in limited circumstances, as set out in subsection 117(7B) of the Assessment Act. As stated in paragraph 66 of these Reasons, this subsection requires the consideration of three compulsory criteria in determining whether the parent’s earning capacity is greater than is reflected in his or her income used in the administrative assessment. I reiterate the criteria to be considered here:
o Whether the parent:
§ is not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
§ has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
§ has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and
o the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and
o the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).
81. It was not in dispute, and I find accordingly, that Mr GAP-AAM has changed his pattern of work since 30 June 2024. He was previously self-employed but subsequently started work as an employee from 1 July 2024. Mr GAP-AAM stated that this change was due to stress and mental health issues, but no evidence, prior to or at hearing before me, was provided to substantiate these claims. I note that Mr GAP-AAM provided two letters in support of this submission,[45] after the hearing. The letters confirm Mr GAP-AAM attended therapy from 8 December 2023 to 16 April 2024 with a clinical psychologist. The second letter refers to sessions with a mental health social worker between 11 February 2025 and 16 June 2025. There is no other information contained in the letters. I find they do not support Mr GAP-AAM’s submissions as neither correspondence provides any diagnosis of a conditions, nor information as to the treatment received. The letters also do not refer to Mr GAP-AAM’s prognosis or the effect of any mental health conditions impacting his work capacity or functioning.
[45] OP24 and OP25 of Mr GAP-AAM’s documents.
82. Mr GAP-AAM also provided a report from his consultant rheumatologist dated 7 April 2025.[46] The report confirms a diagnosis of psoriatic arthritis, consistent with as previously stated in a letter from his skin specialist.[47] It states that there are multi-focal degenerative areas in his back, and the bottom of his feet and his pain is commensurate with this change. The report notes an improvement in his pain with the absence of heavy lifting and states that he did not think Mr GAP-AAM capable of ‘this line of work’ in the long-term. The letter seems to refer to Mr GAP-AAM working as a [Occupation 2] but it is unclear if this is the intent. This letter also seems to provide some basis for Mr GAP-AAM’s change in his pattern of work from self-employment to employee and the type of work he was undertaking. In any event, I am also not satisfied that the change in July 2024 was for the purpose of affecting his child support assessment as his income increased from his self-employment.
[46] OP26 of Mr GAP-AAM’s documents.
[47] OP4 of Mr GAP-AAM’s documents.
83. However, I have also considered Mr GAP-AAM’s earning capacity since his change in position from 19 January 2025. As stated above, Mr GAP-AAM was employed as a [Occupation 3] but was made redundant from this position and re-employed as [a] manager with a lower income. His income decreased from $2,200 per week to $1,500 per week.
84. In regard to Mr GAP-AAM’s circumstances from 19 January 2025, I am satisfied that there has been a change in his occupation and therefore the first criterion under subparagraph 117(7B)(a)(i) of the Assessment Act is met.
85. Mr GAP-AAM’s submissions suggest that the change in his occupation was based on the company no longer being able to afford his role. In respect of why Mr GAP-AAM did not consider other options, he stated that he felt that this level of income was appropriate, based on his knowledge of the area and other businesses. He confirmed he did not apply for any other positions. He stated that this was because his employer was supportive of his mental health issues and other pressures and allowed him time off for appointments and when things became too stressful. I am not persuaded by this submission and refer to the letter dated 18 March 2025 provided in this application which seems to indicate the opposite:
To whom it may concern
I can not afford for emplyees to take leave beyond statutory entitlements. If
[Mr GAP-AAM] cannont full fill his requirments his employment contract will be terminated.
Our business doesn't allow for it.[sic][48]
[48] OP7 of Mr GAP-AAM’s documents.
86. The letter provided by his employer does not seem to indicate a level of tolerance of Mr GAP-AAM’s circumstances and flexibility to take time off for appointments or other matters, as submitted by him at the hearing before me. However, Mr GAP-AAM maintained that his medical conditions preclude him from earning more than his current circumstances. I do not accept these submissions for the reasons canvassed earlier.
87. Subparagraphs 117(7B)(b)(i) and (ii) of the Assessment Act require that the change in occupation is not justified on the basis of caring responsibilities or health. I considered the health conditions outlined above in paragraphs 81 and 82 of these Reasons and relied upon by Mr GAP-AAM. I am not satisfied that this evidence supports Mr GAP-AAM’s change in occupation and is I find that the change was not justified on the basis of health. As previously addressed no specific information corroborating Mr GAP-AAM’s submissions as to his mental health issues was submitted for consideration. While I acknowledge he has attended appointments as supported by the correspondence provided and referred to earlier, there is no information as to a diagnosis or to the severity or impact of any conditions upon him.
88. I do not accept that Mr GAP-AAM’s health is the basis of the change in occupation. In regard to his psoriatic arthritis, while there is a diagnosis, there is nothing to indicate that he is unable to work or unable to work in a position commensurate with his previous position prior to 19 January 2025. Mr GAP-AAM has not submitted that the change is justified on the basis of caring responsibilities and so I have not considered this. Accordingly, I am not satisfied that Mr GAP-AAM’s change in occupation was justified by his health issues or caring responsibilities and consequently I am satisfied that the criterion under subparagraph 117(7B)(b)(ii) is met.
89. The final criterion requires consideration of whether the major purpose of the change was not to affect the administrative assessment of child support. Mr GAP-AAM stated at hearing before me that when made redundant from his position, he did not consider applying for other positions. He said he did not receive a redundancy payment. He thought the new role was appropriate for a person of his skill and experience. This was not based on any other information apart from his own view and he has not made any attempts to find alternative employment commensurate with his previous income prior to this current position. I have considered Mr GAP-AAM’s evidence and submissions in this regard however am not satisfied that Mr GAP-AAM has demonstrated that it was not a major purpose of his decision to change occupation to affect the administrative assessment of child support in accordance with paragraph 117(7B)(c) of the Assessment Act.
90. Mr GAP-AAM relies on his previous years’ income tax returns to compare with his current earnings. However, as discussed above, I am not persuaded by this evidence because, during that period, he was self-employed and his taxable income did not accurately reflect the income and financial resources available to him. The trust returns also show distributions to others, as well as significant instant write-offs of depreciable assets.[49]
The commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support himself or herself, or any other child or another person that the person has a duty to maintain
Ms GAP-AAL
[49] Page A15 of Mr GAP-AAM’s documents; and APP21 of Ms GAP-AAL’s documents.
91. Ms GAP-AAL’s revised SOFC,[50] consistent with the previous SOFC provided,[51] shows assets as follows:
·Principal residence valued at $940,000, which is encumbered by a mortgage of $168,000.
·Savings of $25,800.
·motor vehicle valued at $35,000.
·household contents of $25,000.
·Superannuation of $116,000.
[50] APP6 dated 4 April 2025 of Ms GAP-AAL’s documents.
[51] Page B1 to B9 dated 13 May 2024 of Ms GAP-AAL’s documents.
92. Ms GAP-AAL also disclosed a personal loan of $54,000 from her parents which she stated was for legal fees. While she stated that there is a written agreement for the loan, which was not provided, she confirmed that she is not currently repaying this loan. Ms GAP-AAL stated that she will most likely need to repay this loan at some stage as her parents have retired, but it is unlikely that the loan would be enforced if repayments were not commenced. I have not considered this loan in the context of Ms GAP-AAL’s necessary costs for self-support.
93. Ms GAP-AAL’s household expenditure is listed at $2,197 per week. This includes Ms GAP-AAL’s expenses for the children, and an amount for education costs of $650 per week. Ms GAP-AAL also has personal expenditure of $745 per week, which includes income tax, health and life insurance payments. Ms GAP-AAL has included superannuation payments in her personal expenditure, but I cannot see any personal contributions to her superannuation apart from employer contributions. I note the amount included in the SOFC is commensurate with the employer contributions. If I reduce the personal expenditure by $206 per week then her income would be just below her expenditure. I note that there are no mortgage costs disclosed.[52] I also note that Ms GAP-AAL also holds a life insurance policy towards which she pays $52 per week. I raised the issue of her income being less than her expenses at hearing and Ms GAP-AAL stated that she has used savings to meet any shortfall in expenses.
[52] Page 16 of APP6 of Ms GAP-AAL’s documents.
94. I note that the household expenditure includes amounts for children’s activities, holidays and entertainment, which amounts to $196 per week. Ms GAP-AAL acknowledged at hearing that while these costs were not necessary costs for her self-support or necessary costs for the children, they were important for the development and well-being of the children. I do not consider these expenses, in the context of the considerations under subsections 117(4) and (6) to (8) of the Assessment Act, as necessary for self-support nor as proper costs of the children for child support purposes and have not taken these into account. I accept that these costs do reflect provision of a benefit for the children, but they nonetheless present a financial impost which affects the overall household costs and means that Ms GAP-AAL has little room for any unaccounted expenditure.
Mr GAP-AAM
95. Mr GAP-AAM’s SOFC[53] dated 2 April 2025 is inconsistent with the previous SOFC provided,[54] The most recent SOFC shows assets as follows:
·Investment property valued at $260,000, which is encumbered by a mortgage of $55,000.
·Savings of $550 (approximately).
·motor vehicle valued at $7,000.
·household contents of $1,000
·Tools of $3,000.
·Superannuation of $100,000.
[53] Page OP10 of Mr GAP-AAM’s documents.
[54] Page A1 to A9 of Mr GAP-AAM’s documents.
96. Mr GAP-AAM’s earlier SOFC, dated 2 April 2024, indicated a 50% share in the investment property and the principal residence, which is held in wife’s name. The mortgage over the investment property listed as $35,000 was also lower. He also listed the mortgage over the principal residence. The SOFC also discloses that he owns a different vehicle (valued at $28,000). I have already discussed the differences in Mr GAP-AAM’s income above. In respect of his expenses, Mr GAP-AAM’s first SOFC[55] shows his personal and household expenditure at $2,044 per week. These expenses include employer superannuation contributions ($177 per week) and life insurance ($288 per week). There are no vehicle expenses listed.
[55] Page A1 to A9 of Mr GAP-AAM’s documents.
97. Mr GAP-AAM’s later SOFC states that the mortgage over the investment property has increased by $20,000. In respect of his expenses, Mr GAP-AAM’s later SOFC[56] shows his personal and household expenses at $2,093 per week. His life insurance expense has reduced to $35.50 per week but his child support amount is higher. His overall household expenses have increased from $840 per week to $1,010 per week. While no longer claiming to pay the mortgage on the principal residence, he states that he contributes $150 per week towards an investment mortgage of $55,000. In addition, he pays $475 per week for board, food and house supplies and is now paying motor vehicle expenses of $55 per week.
[56] Page OP10 of Mr GAP-AAM’s documents.
98. In examining his expenses, Mr GAP-AAM has claimed $50 per week in gifts, $25 per week in repairs for furnishing and appliances, $30 per week in entertainment costs, $50 per week in rates expenses and $25 per week in house repairs. I note in particular that the house repairs and rates, which Mr GAP-AAM would be required to pay would only relate to the investment property. The amounts in the household expenditure are not commensurate with the amounts claimed in his 2023-24 income tax return. In further submissions after the hearing, Mr GAP-AAM claimed that the investment property weekly rental was $184 (as opposed to $270 per week as disclosed in the later SOFC) and that the expense for the investment property was $350 per week. I do not accept these submissions. The income tax return for 2023-24 (and previous financial periods) shows that investment property is positively geared, in that it produces a net rental profit after expenses.
99. I do not accept Mr GAP-AAM’s personal and household expenses as provided. The figures in the SOFC and later submissions do not correlate with the net rental amounts in his most recent income tax return for 2023-24. Based on the limited bank account statements provided, Mr GAP-AAM does not seem to be accruing debt and he does not disclose any other loans or credit cards, apart from what has been discussed.
Other considerations
100. I have considered the issue of the school fees for the children in the context of determining whether there is a ground for departure. As stated at paragraph 51, the compulsory school fees costs for 2023,[57] were $28,368. There was no dispute in relation to the quantum of these costs. I also note that the agreed statement of facts states that the parents agree that the tuition and compulsory school fees for the four children in 2024 totalled $22,525.
[57] Page 127 of the T documents.
101. In relation to the 2025 academic year, the school fees for all four children total is around $31,485.[58] As indicated by Ms GAP-AAL at hearing before me, the current year level for E is the most expensive of the secondary education. In accordance with Ms GAP-AAL’s written and oral submissions, I have considered the education costs from 2026 onwards. I estimate the total cost for the compulsory school fees for all four of the children’s education from 2026 to 2028 as follows:
·2026 - $25,514.
·2027 - $27,502.
·2028 - $29,532.
[58] Page APP14
102. It was submitted by Ms GAP-AAL’s legal representative that the compulsory school fees component of the education costs should be split equally between the parents. It was also submitted that Mr GAP-AAM has not justified the change in his income and that he has a greater earning capacity. Ms GAP-AAL’s legal representative referred to Mr GAP-AAM’s arrears in child support but these are not matters that I can consider in this application, save as to the question of ongoing hardship.
103. I have also considered the Registrar’s supplementary submissions for which I am grateful. I accept as stated in those submissions that I am not limited by the terms of the application as to the determinations which I can make, and that my decision can cover different child support periods than those requested, as so clearly found by the Full Court of the Family Court in Child Support Registrar & Ahern and Anor [2014] FamCAFC 105.[59]
[59] At [72].
104. I have made findings in these reasons relating to Mr GAP-AAM’s earning capacity and have also made adverse inferences as to the reliability of Mr GAP-AAM’s evidence as to commitments for self-support. I have formed the view that Mr GAP-AAM has the capacity to contribute to the compulsory school fees component of the children’s education costs.
Conclusion
105. After consideration of the income, property and financial resources, together with the commitments and liabilities of Mr GAP-AAM and Ms GAP-AAL, and the needs of the children, I consider it is just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Assessment Act. Section 98S sets out a range of determinations, including varying the annual rate of child support payable, the adjusted taxable income of a parent or the costs of self-support.
106. I am satisfied that any departure determination should be from 19 January 2023, which is the date that the administrative assessment of child support was registered with the Agency. I am satisfied that a departure determination should be made with reference to the compulsory school fees component of the children’s education and the orthodontic costs of E.
107. I find that consideration of Mr GAP-AAM’s income, property and financial resources, as discussed above, shows that Mr GAP-AAM had both the income and financial resources from which to contribute to the compulsory school fees component of the education costs from 2023 until at least 18 January 2025. I consider the circumstances in relation to the decrease in Mr GAP-AAM’s income from 19 January 2025 is such that I determine that Mr GAP-AAM’s earning capacity is greater than is reflected in his current income and that earning capacity commensurate with his previous income is to be taken into account for child support purposes pursuant to subsection 117(7B) of the Assessment Act. I have determined the below amounts on the basis of the consideration of both parents’ circumstances. At the same time, I consider it appropriate for Mr GAP-AAM to contribute to the children’s school fees, based on the discussions above. Therefore, I propose a departure determination as follows:
·For the period 19 January 2023 to 31 December 2023, the annual rate of child support is increased by $14,182 in relation to the compulsory school fees component of the education costs of the children;
·For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $9,767 in relation to the compulsory school fees component of the education costs of the children;
·For the period 1 January 2025 to 31 December 2025, the annual rate of child support is increased by $14,500 in relation to the compulsory school fees component of the education costs of the children;
·For the period 1 January 2026 to 31 December 2028, the annual rate of child support is increased by $13,760 in relation to the compulsory school fees component of the education costs of the children;
·For the period 1 September 2023 to 30 April 2025, the annual rate of child support is increased by $2,186 in relation to the special needs of E.
108. Subsection 117(4) of the Assessment Act requires the consideration of whether any departure determination or failure to make a departure will cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support. I am satisfied that the above determination is reflective of Mr GAP-AAM’s capacity to pay child support based on his previous and current circumstances and his personal and household expenses and that hardship will not result to Mr GAP-AAM contributing on this basis. I am further satisfied, given that hardship may result to Ms GAP-AAL if she is required to fund 100% of these costs without contribution from Mr GAP-AAM.
109. The amounts specified above in paragraph 107 include amounts for the compulsory school fees component of the costs of the children’s education expenses from 2023 until 2028. I have not adjusted the amounts as assessed in the previous ART review decision for the calendar years from 2023 to 2025, as I find those assessed amounts of Mr GAP-AAM’s contributions towards the children’s education costs and E’s special needs just and equitable in the circumstances.
110. In relation to the period from 2026 onwards, I have fixed the same amount of the school fees payable by Mr GAP-AAM. The figure of $13,760 per annum is the average over the three calendar years, based on the projected amounts of the school fees at [School 1], the catholic secondary school and the catholic primary school.
111. The proposed departure will provide certainty for both Ms GAP-AAL and Mr GAP-AAM as to the contributions to these costs until E has finished secondary school at [School 1]. I did consider whether to extend the departure in relation to the compulsory school fees component of the education fees beyond 2028 but find that it is not reasonable to do so. The evidence before me provides some indication of increases in compulsory school fees from year to year. However, I consider projecting too far into future becomes too remote and too uncertain and I consider that extending the departure determination further than 2028 would not be just and equitable in the circumstances of this case.
112. I have found that Ms GAP-AAL’s necessary costs for self-support and meeting the proper needs of the children exceed her income. I have considered the financial hardship that would be caused to Ms GAP-AAL if no departure were made in this matter in relation to the school fees. While hardship would occur to Ms GAP-AAL if no departure were made, there would equally be hardship to Mr GAP-AAM if a higher amount of the school fees were to be assessed as payable. Based on my findings in relation to his earning capacity and the reliability of the evidence of his personal and household expenses, I do not accept that Mr GAP-AAM’s expenses are greater than his income to the extent he has submitted and find that he has the capacity to meet the departure determination proposed in these reasons.
113. The above proposed departure will result in an adjustment in the child support payable by Mr GAP-AAM in relation to the education costs as follows:
·From 19 January 2023 of approximately $270 per week.
·from 1 January 2024 of approximately $185 per week.
·from 1 January 2025 of approximately $275 per week.
114. The above amounts are in addition to administratively assessed child support based on Ms GAP-AAL’s and Mr GAP-AAM’s respective adjusted taxable income during these periods. The above proposed departure will also result in an adjustment in the child support payable by Mr GAP-AAM based upon contribution to the compulsory school fees component of the children’s education costs from 2026 until 31 December 2028 of $264 per week, in addition to the amount assessed based upon the parents’ respective adjusted taxable incomes.
115. In respect of Ms GAP-AAM, I find that the above determination will not result in hardship; rather it will alleviate hardship I have otherwise found will result. A departure determination to the end of 2028 will also provide certainty to the parents as to the level of child support payable.
116. I have proposed a departure from the administrative assessment based predominately on the compulsory school fee component of the children’s education costs, and am satisfied that there was a mutual expectation for the children to be educated in the manner discussed above. I find that to not depart would create an unjust and inequitable outcome and that these costs should be shared between the parents based on their capacity as I have addressed in the preceding paragraphs.
117. While it is open to me, as stated in the Registrar’s supplementary submissions, to find different determinations (Such as additional child support payable by Mr GAP-AAM or a change in the income used to determine the child support payable) to depart from the assessment for past periods, based on the evidence before me, I have determined not to do so. I find that, in the circumstances of the case it is not reasonable to do so and to make different departure determinations for past periods would cause hardship to Mr GAP-AAM.
Is it otherwise proper to make a particular departure determination?
118. 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 Assessment 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. In considering subsection 117(5) of the Assessment Act, I must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
119. As the court stated in Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275:
The clear intent of s117(5) is to ensure that parents rather than the community are primarily responsible for the financial support of their children and where necessary a proper balance can be met between the contribution of the parents and the financial contribution from the community.[60]
[60] At [56].
120. Based on the information before me, Ms GAP-AAL receives family tax benefit. Therefore, the above departure determination will reduce the impact on the public purse leading to a decrease in the amount of family tax benefit payable to Ms GAP-AAL, as there will been an increase in the child support payable. In this context, I consider that it is otherwise proper to make the particular proposed determination.
Other Matters
121. I note that the children’s and the parents’ circumstances may relevantly change in the future. If such relevant changes occur, it is open to either parent to lodge a further change of assessment application should those circumstances change their respective positions significantly from the circumstances upon which this decision is based.
DECISION
122. The Tribunal sets aside the decision under review and in substitution decides as follows:
·For the period 19 January 2023 to 31 December 2023, the annual rate of child support is increased by $14,182 in relation to the education costs of the children;
·For the period 1 January 2024 to 31 December 2024, the annual rate of child support is increased by $9,767 in relation to the education costs of the children;
·For the period 1 January 2025 to 31 December 2025, the annual rate of child support is increased by $14,500 in relation to the education costs of the children;
·For the period 1 January 2026 to 31 December 2028, the annual rate of child support is increased by $13,760 in relation to the education costs of the children;
·For the period 1 September 2023 to 30 April 2025, the annual rate of child support is increased by $2,186 in relation to the special needs of E.
Date of hearing:
30 May 2025
Date final submissions received:
28 June 2025
Representative for Applicant:
Mr Bacon
Representative for Respondent:
Other Party:
Ms G Gehrke
Self-represented
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