Greasley and Hunnisett (Child support)

[2021] AATA 4234

Greasley and Hunnisett (Child support) [2021] AATA 4234 (1 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020843

APPLICANT:  Mr Greasley

OTHER PARTIES:  Child Support Registrar

Ms Hunnisett

TRIBUNAL:Member Y Webb

DECISION DATE:  1 September 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the parents – cost of educating the child – no ground for departure established – refuse to make determination – s98F Child Support (Assessment) Act 1989 – decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1. This review relates to the issue of child support regarding the two children of Mr Greasley and Ms Hunnisett. The children are now aged 14 and 10. Services Australia (“Child Support Agency”) records state that since 8 October 2019 the children have been in the 63% care of Ms Hunnisett and 37% care of Mr Greasley.

2. The child support case commenced on 12 May 2014 and has been collectable by the Child Support Agency since 29 December 2017.

3. On 28 July 2020, Mr Greasley applied to the Child Support Agency for a change to the administrative assessment on the basis of Reasons 8A and 8B. At the time of the objection process Ms Hunnisett raised Reason 3.

4. At the time of Mr Greasley’s application for a change to the assessment a previous change of assessment decision was still in place; that was a decision of [Member 1] made on 2 October 2019. She decided that for the period 1 August 2018 to 31 October 2020 Ms Hunnisett’s adjusted taxable income would be varied to $33,761 per annum.

5. In relation to Mr Greasley’s new application for a change to the assessment on 28 July 2020 the original decision maker (Mr [A]) decided on 2 October 2020 that Reason 8A had been established but that no other grounds had been established. The original decision maker determined that the decision already in place should be ended on 30 June 2020 and that from 1 July 2020 to 31 December 2022 Ms Hunnisett’s adjusted taxable income should be varied to $104,823 per annum.

6. Ms Hunnisett objected to that decision and on 9 February 2021 an objections officer allowed her objection and set aside the original decision maker’s decision. The objections officer decided that upon the expiry of the decision of [Member 1] the child support assessment would revert to the administrative formula.

7. On 19 February 2021 Mr Greasley requested a review by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal issued written directions on 15 June 2021.

8. Mr Greasley and Ms Hunnisett attended the hearing by way of a telephone conference on 12 August 2021. Mr Greasley gave evidence on affirmation and Ms Hunnisett gave sworn evidence.

9. The Tribunal deferred making a decision pending Ms Hunnisett providing additional financial information.[1] Mr Greasley was then provided with an opportunity to respond to the additional information and he did so.[2]

   [1] B27 to B51

   [2] A59

10. On 1 September 2021 the Tribunal made its decision.

DOCUMENTARY EVIDENCE

1. The Tribunal had before it a number of documents, organised into exhibits as set out in the attached Schedule. The Tribunal had regard to all of this evidence, and refers specifically to particular items in this Statement of Reasons.

ISSUES

1. The central issues for the Tribunal to determine in this case are:

   · Whether one or more of the grounds for departure referred to in subsection 117(2) of the Child Support (Assessment) Act 1989 (the Assessment Act) exists; and if so,

   ·      Whether it would be:

   (a)   just and equitable as regards the children, the liable parent, and the carer entitled to child support; and

   (b)   otherwise proper

   to make a particular determination to depart from the administrative assessment of child support.

CONSIDERATION

The child support law

1. The legislation relevant to this review is contained in the Assessment Act and the Child Support (Registration and Collection) Act 1988.

2. The rate of child support payable by the liable parent is usually based on an administrative formula assessment under Part 5 of the Assessment Act. This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided and the income of each parent.

3. A parent may apply to the Child Support Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Assessment Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process as described in paragraph 12 above.

4. Section 98J of the Assessment Act is applicable in this case. This provides that a person who has made an application for a change of assessment is not precluded from making a subsequent application for a change of assessment if, because of circumstances existing at the time of the subsequent application, there are grounds for departing from the administrative assessment.

5. As observed by the Family Court in Ignacio v Ignacio [2016] FamCA 50 at [106]:

   The Assessment Act (s 98J) is not so broad as to enable parties to engage in child support assessment departure disputes whenever they feel inclined, irrespective of surrounding circumstances. Multiple departure applications are possible, but subsequent departure applications are only permitted when the circumstances at the time the subsequent application is made warrant it.

6. The question for the Tribunal, therefore, is whether the application is grounded by circumstances existing at the time the (subsequent) application was made. That point in time was 28 July 2020. If the ground is established by reference to the time the subsequent application was made the Tribunal will then have the usual discretion to take into account all the matters provided for in subsection 117(2) of the Assessment Act, including the discretion to apply any new determinations retrospectively up to 18 months prior to the date of the subsequent application and indefinitely into the future. Before the Tribunal can consider this, however, it must first be satisfied that a ground is established.

7. The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Assessment Act. Each ground for a departure from the administrative formula is prefaced by the words “in the special circumstances of the case”. Therefore, when considering whether a ground exists in this case, the Tribunal must be satisfied that there are “special circumstances” in the case. If satisfied that there are “special circumstances” and that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act. Section 98S sets out a range of determinations that may be made under the departure provisions.

8. The phrase “special circumstances of the case” is not defined in the Assessment Act. In the case of Gyselman and Gyselman (Gyselman),[3] the Full Court of the Family Court of Australia held that:

   Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words “in the special circumstances of the case”.

   Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

   [3] (1992) FLC 92-279

9. Subsection 98C(3) of the Assessment Act provides that subsections 117(4) to (9) of the Assessment Act apply to the Registrar and therefore the Tribunal must consider those provisions when deciding whether, if a ground is established, it would be just and equitable or otherwise proper to make the departure decision.

Is a ground established in respect of circumstances existing at the time of the subsequent application?

1. In considering whether a ground or grounds exist which justify departing from the administrative assessment currently in place, the Tribunal considered the evidence and submissions provided by the parents at the hearing in addition to the extensive information contained within the documentation provided by the Child Support Agency as well as the documentation provided by the parents.

Reason 8A

1. The legislative grounds corresponding to Mr Greasley’s application in relation to Reason 8A are set out in subparagraph 117(2)(c)(ia) of the Assessment Act. The test is whether:

   in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child: [paragraph 117(2)(c)]

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

2. To establish this ground it is necessary to show that either Mr Greasley’s or Ms Hunnisett’s income, property or financial resources used in the assessment make the child support assessment unfair.

Ms Hunnisett’s income, property and financial resources

1. Ms Hunnisett is employed by [COMPANY 1]. She was first employed with this employer in the 2019/2020 financial year and this was her only employment in that year.[4]

   [4] According to her income tax return for 2019/2020 C1–pages 262–268

2. Ms Hunnisett’s partner is the sole director, sole secretary and sole shareholder of [COMPANY 1]. The company was first registered with ASIC on 23 October 2019.[5] Prior to that Ms Hunnisett advised that her partner operated as a sole trader. Ms Hunnisett described her employment as a consultant within the sales team although she qualified that by advising that she is employed more as an administrative/personal assistant than a sales representative.[6] She advised that the advertisements online for [COMPANY 1] do not accurately portray the volume of sales of the company or her role in the sales. She stated that the way the information is presented is designed to make the company appear a larger organisation than is actually the case. Ms Hunnisett stated that in the 12-month period ending in October 2020 [COMPANY 1] had sold 62 [products] of which she had sold 11.[7] The Tribunal is satisfied that Ms Hunnisett does perform sales work even though it accepts that she also undertakes administrative work associated with the company. In her 2020/2021 and also in her 2019/2020 income tax returns Ms Hunnisett described her main occupation as “administration assistant”.[8] In relation to internet advertising the Tribunal’s view is that [certain industry] advertisements tend to focus more on promotion of the company rather than on detailed factual information and the Tribunal places limited weight on internet advertisements relating to the company. The Tribunal accepts that Ms Hunnisett is not paid by commission. There is no evidence that she receives commissions and the Tribunal accepts that her income from employment is by way of wages. She provided numerous recent payslips[9] from 2021 which show that her gross weekly wage is $960.

   [5] C1–page 327

   [6] C1–pages 198–199

   [7] C1–page 346

   [8] B34 and B45 and C1–page 263

   [9] B16 to B26

3. Ms Hunnisett stated that she considers that her employment with [COMPANY 1] is part time. She explained that even though her payslips state that she works 38 hours per week, she actually works flexibly: at times working fewer hours per week depending on the children’s needs and activities and at other times, such as when the children are in Mr Greasley’s care, working more hours per week. Overall, she was advised by her accountant that 38 hours per week was an approximation of her average hours of work. The Tribunal accepts that Ms Hunnisett works flexibly on a full-time basis and that, on average her hours of work are approximately 38 hours per week as her payslips show.

4. In the 2019/2020 year Ms Hunnisett stated that her income came from three sources: her wages, a distribution of profits given to her (as trust income) by her partner and a superannuation contribution from the leftover funds of the inheritance which she received in 2017. The Child Support Agency provided a copy of Ms Hunnisett’s income tax return for the 2019/2020 financial year.[10] This confirmed that her wages from [COMPANY 1] were $37,287 gross; that she received a trust distribution of $12,000 and that she had reportable employer superannuation contributions of $16,457. The income tax return showed that Ms Hunnisett’s adjusted taxable income therefore was the sum of these components: that is, $65,553 for the 2019/2020 financial year and the Tribunal so finds.

   [10] C1–pages 262–268

5. Ms Hunnisett told the Tribunal that although her tax return stated that she received a trust distribution of $12,000 in the 2019/2020 financial year she did not actually receive a trust distribution and she has subsequently lodged an amended tax return for the 2019/2020 year. After the hearing Ms Hunnisett provided a copy of the amended income tax return for the 2019/2020 financial year.[11] This showed that rather than an adjusted taxable income of $65,553 her actual adjusted taxable income was $53,553.[12] The Tribunal accepts that the amended income tax return has been lodged but that at the time of the hearing the Australian Taxation Office had not confirmed the revised taxable income.

   [11] B44 to B51

   [12] B46

6. Ms Hunnisett stated that she was not anticipating any distribution of profits in the 2020/2021 financial year. Following the hearing Ms Hunnisett provided a copy of her 2020/2021 income tax return[13] and this showed that she did not receive any trust income in that financial year. However, she did make a personal deductible contribution to her superannuation fund of $20,000.[14] Ms Hunnisett provided a letter from her accountant which explained that the $20,000 came from Ms Hunnisett’s personal account.[15] Ms Hunnisett also provided a letter from her superannuation fund confirming the personal contribution of $20,000 in the 2020/2021 financial year. Ms Hunnisett’s accountant confirmed that Ms Hunnisett’s gross income in the 2020/2021 financial year was $50,880 and that her taxable income was $30,620. Adjusted taxable income includes reportable superannuation contributions for child support purposes.[16] Therefore, adding back the personal deductible superannuation contribution of $20,000 and then deducting $300 in donations and work-related clothing the Tribunal finds that Ms Hunnisett’s adjusted taxable income for the 2020/2021 financial year was $50,620.

   [13] B30 to B39

   [14] B38

   [15] B41

   [16] Assessment Act s.43

7. Ms Hunnisett admitted that she did receive some minor fringe benefits from the company. She explained that [COMPANY 1] operates from one room in her and her partner’s home and that the company pays for the internet connection to the premises. She stated that the company also pays for her mobile phone which she also uses for business purposes. She stated that she used to pay a portion of the phone separately for private use but it was such a small amount that it was difficult to quantify and the company pays all of her phone costs now. The Tribunal accepts her statements about the fringe benefits she receives. It is satisfied that these are minor and have no significant effect on the costs of maintaining the children. She agreed that [COMPANY 1] purchased a [vehicle] but she only drives it on occasions. She emphasised that it was not her vehicle. She jointly owns a [vehicle] and she personally pays for costs associated with that vehicle. The Tribunal accepts her statements about the motor vehicles.

8. In relation to Ms Hunnisett’s financial resources Mr Greasley asserted that Ms Hunnisett’s home is income producing because [COMPANY 1] is operated from the premises. However, the Tribunal is satisfied that operating a business from the home premises does not transform the family home into an income-producing asset in circumstances where Ms Hunnisett, her partner and the children reside there on a permanent or indefinite basis. This is especially the case where the company does not pay rent as Ms Hunnisett advised and the Tribunal accepts.

9. Ms Hunnisett admitted that she received an inheritance as a result of her former partner passing away in 2017. She did not deny that it was approximately $1 million. She advised that she has, with her current partner, bought the family home, contributed to the purchase of the [vehicle] and purchased a caravan. She advised that she holds approximately $55,000 in a fixed term deposit and that she has other savings of approximately $20,000. Ms Hunnisett valued her household contents at $20,000 and her superannuation balance at approximately $75,000. Ms Hunnisett was open and credible in her statements regarding her financial resources and the Tribunal accepts that she was truthful about her financial circumstances. The Tribunal finds that none of Ms Hunnisett’s assets are income producing and that they are not directly relevant to Ms Hunnisett’s income for child support purposes.

10. Ms Hunnisett has no debts. Her household expenses total approximately $1,703 per week which annualises to approximately $88,556 per annum which is well in excess of her income which was $65,553 in the 2019/2020 financial year (subject to amendment if approved by the Australian Taxation Office) and $50,620 in the 2020/2021 financial year. However, she clarified that her partner contributes to the household expenses and she admitted that some of the expenses may be somewhat inflated on the basis of uncertainty in predicting expenses. The Tribunal accepts that some of the household expenses are met by her partner.

11. In relation to Ms Hunnisett’s income, property and financial resources Mr Greasley contended that Ms Hunnisett is part of a family business and that her income, property and financial resources are far greater than is reflected in the adjusted taxable income used for her in the child support assessment.[17] The Tribunal accepts that Ms Hunnisett works for [COMPANY 1] and that the business is operated from her family home. However, Ms Hunnisett’s partner is the sole director, sole secretary and sole shareholder of [COMPANY 1] and therefore has control of the business. No evidence has been provided to establish that Ms Hunnisett controls any part of the business. Mr Greasley referred to Ms Hunnisett’s partner’s income being higher (at $124,137) than Ms Hunnisett declared in her Statement of Financial Circumstances ($75,000). However, the Tribunal is mindful that the Statement of Financial Circumstances was completed prior to the end of the 2020/2021 financial year and therefore prior to the completion of income tax returns. In any event, Ms Hunnisett’s partner’s income is not relevant for child support purposes. However, Ms Hunnisett’s partner’s level of income does tend to support Ms Hunnisett’s claim that her partner contributes significantly to the household expenses.

    [17] A30

12. Mr Greasley contended that Ms Hunnisett had undertaken various home improvements for which he has estimated costs but Ms Hunnisett denied that the amounts spent were anywhere near the costs which Mr Greasley estimated. In any event, the Tribunal is not persuaded that expenditure on improvements to the family home necessarily is indicative of a higher than declared income for Ms Hunnisett.

13. In considering Ms Hunnisett’s income, the Tribunal notes that the decision of [Member 1] on 2 October 2019 varied Ms Hunnisett’s income to $33,761 for the period 1 August 2018 to 31 October 2020. This included a period when Ms Hunnisett was incapacitated and not working. The objections officer on 9 February 2021 noted that Ms Hunnisett’s adjusted taxable income of $65,553 would be used in the assessment from 1 November 2020 when the decision of [Member 1] expired. If an amended tax assessment for the 2019/2020 year is issued by the Australian Taxation Office this would normally apply prospectively for each later day in the relevant child support period and may also be amended retrospectively if certain criteria are met. In this case, while it appears that Ms Hunnisett lodged her original 2019/2020 income tax return on time (the Australian Taxation Office records of the lodgement of her return for that year shows that it was received by the Australian Taxation Office on 1 September 2020[18]) the Tribunal has no information regarding the lodgement date of the amended tax return and so cannot determine from which date the amended tax assessment (if issued) will apply.

    [18] C1–page 262

1. However, taking all of Ms Hunnisett’s financial circumstances into account, the Tribunal has no evidence to substantiate that Ms Hunnisett is receiving a higher income than is reflected in her adjusted taxable income. She owns substantial assets but these are not income producing. Any further reportable superannuation contributions and/or any future trust distributions will be included in her income tax return and assessed by the Australian Taxation Office. The Tribunal does not consider that there is anything “special” about Ms Hunnisett’s income, property and financial resources as at 28 July 2020 when Mr Greasley lodged his application for a change to the assessment. The Tribunal is satisfied that it would not be unfair to apply Ms Hunnisett’s 2019/2020 adjusted taxable income to the assessment from 1 November 2020 immediately following the expiry of [Member 1]’s decision and to revert to the administrative formula assessment.

2. The Tribunal finds that Reason 8A has not been established in relation to Ms Hunnisett’s income, property and financial resources.

Mr Greasley’s income, property and financial resources

1. In relation to Mr Greasley’s income, property and financial resources, his income is quite straightforward. He has been employed in his current position for four years and is a wage and salary earner. He provided recent payslips which confirm that his gross income per fortnight is $4,048.[19] He makes personal reportable superannuation contributions. In the 2019/2020 year his taxable income reported to the Australian Taxation Office was $99,779 and together with his reportable superannuation contribution of $5,004 his adjusted taxable income for child support purposes was $104,823. At the time of the hearing Mr Greasley had not yet completed his income tax return for the 2020/2021 financial year but the Tribunal presumes that his taxable income will be approximately similar to the previous year. He provided copies of his bank statements[20] and the Tribunal accepts that he has been open and transparent regarding his income, property and financial resources.

   [19] A55 to A57

   [20] A11 to A28

2. In relation to his financial resources Mr Greasley advised in his Statement of Financial Circumstances (updated verbally at the hearing) that he has approximately $18,000 of savings. He owns a [car] which he valued at $30,000 and household contents which he valued at $20,000. He advised that he holds superannuation totalling approximately $342,983. The Tribunal accepts all of Mr Greasley’s statements regarding his financial resources.

3. Mr Greasley advised that he has a personal loan with a balance outstanding of approximately $18,500. He has a credit card but he advised that he pays it off to zero each fortnight.

4. He pays income tax on his wages, approximately $100 per week in additional superannuation contributions and $30 per week for private health insurance. In relation to his household expenses he estimated that these total approximately $1,803 per week which annualises to approximately $93,756 per annum. Some of the household expenses such as entertainment/hobbies at $120 per week and food of $500 per week appear a little high but the Tribunal accepts that these are estimates and that the amounts expended fluctuate from week to week with many of the items. The Tribunal does not consider that there are any special circumstances in relation to Mr Greasley’s income, property or financial resources.

5. The Tribunal finds therefore that in relation to both parents Reason 8A has not been established.

Reason 8B

1. Mr Greasley contended that Ms Hunnisett has the capacity to earn far more than is reflected in her taxable income.

2. In order to establish Reason 8B the Tribunal must be satisfied that the child support assessment is unfair because of Ms Hunnisett’s earning capacity.

3. The Tribunal considered the earning capacity provisions in subsection 117(7B) of the Assessment Act. These provisions state that particular and strict conditions must be satisfied in order to determine that a parent’s earning capacity is greater than is reflected in their income. This subsection states:

   (7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a)one or more of the following applies:

   (i)the parent does not work despite ample opportunity to do so;

   (ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii)the parent has changed his or her occupation, industry or working pattern; and

   (b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i)the parent’s caring responsibilities; or

   (ii)the parent’s state of health; and

   (c)   the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

4. In relation to paragraph 117(7B)(a) there is no dispute that Ms Hunnisett has changed her occupation, industry or working pattern. She used to work as an [occupation] on a part-time, non-permanent basis. She now works for [COMPANY 1], a business owned by her partner on a full-time (flexible) basis. She therefore has changed her work pattern but in a way that has significantly increased her income. It cannot be said that Ms Hunnisett’s change of occupation was undertaken for the purpose of affecting the child support assessment in circumstances where her income has significantly increased. The Tribunal therefore finds that the earning capacity criteria have not been met.

5. In relation to Mr Greasley’s earning capacity he is employed on a full-time basis and has been working for his current employer for more than four years. The Tribunal finds that there are no grounds to suggest that he meets any of the earning capacity criteria and the Tribunal finds that he is exercising his full earning capacity.

6. Reason 8B is not established.

Reason 3

1. In relation to Ms Hunnisett’s claim that the costs of maintaining the elder child are significantly affected because of the mutual expectation of the parents that the child be educated at a private school, the legislative test is detailed in subparagraph 117(2)(b)(ii) of the Assessment Act. The test is whether:

   in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents.

2. This ground is commonly referred to as Reason 3.

3. It is common ground and appears to be agreed by both parents that the parents have shared the school fee costs of a Catholic primary school education for both children. The Catholic primary school which the children attended  –[caters] for students up to  the end of Year 6. The younger child still attends this school and in 2021 she is in Year 5. The Tribunal does not consider that there are any special circumstances regarding the children’s primary school education as both parents are contributing more or less equally to the costs. Ms Hunnisett stated that Mr Greasley was no longer paying for school book fees or school shoes or bags. However, these costs are generally payable by parents regardless of whether the child attends a private school or a government school and therefore they are expected to be covered by child support payments rather than being considered “special” and out of the ordinary. The Tribunal is satisfied that in relation to primary school education Reason 3 has not been established.

4. In relation to secondary school, Ms Hunnisett contended that both parents intended that the children would also attend a Catholic school. The eldest child commenced secondary school at the beginning of 2020 in Year 7. In 2021 she is in Year 8. Ms Hunnisett stated that if she and Mr Greasley had not separated, both children would attend a Catholic secondary school following the conclusion of their primary education. In addition she stated that if the children had been enrolled at a P to 12 Catholic school Mr Greasley would have signed an enrolment form for a Catholic P to 12 education for both children and he would be continuing to pay 50% of the school fees.[21]

   [21] C1 – page 236

5. Mr Greasley disagreed. He stated that prior to separation he and Ms Hunnisett never discussed or reached any agreement about high school. High school was six years away when they separated. He stated that Ms Hunnisett applied to [School 1] school (a Catholic school) for high school for the elder child beginning in 2020. He stated that he was unaware of the application or that the process was in train until the child told him that she was accepted to the school. He stated that he contacted Ms Hunnisett and asked why he was not informed or consulted about the elder child’s school and he stated that he was told by Ms Hunnisett that “it’s happened” and the decision had been made.[22]

   [22] A40

6. Mr Greasley stated that after he advised Ms Hunnisett that he did not agree with the choice of secondary school he was presented, by the child, with the enrolment form for [School 1] (secondary) school but he declined to sign it. He stated that he was contacted by [School 1] about payment of school fees but he advised the school that he would not be responsible for fees and the school has not contacted him about fees since then. He has never paid any school fees since the elder child commenced secondary school.

7. Mr Greasley stated that he suggested that the child attend [a] State High school. He stated that there were some issues which affected the elder child in her first year of secondary school and the child moved to [School 2] in term 4, 2020. She remains at that school. Mr Greasley contended that she was enrolled at [School 2] without his consent. Mr Greasley stated that while he supports his children’s schooling it was Ms Hunnisett’s choice to send the child to [School 2] despite his suggestion that [a] State High was his preference. He stated that he clearly expressed that if the child attended [School 2] the fees would be paid by Ms Hunnisett. Mr Greasley confirmed that he did not sign any enrolment forms for [School 2]. He emphasised that “higher rating public schools have been offered by me on several occasions…and private high school education has been the sole decision of Ms Hunnisett”.[23]

   [23] A40

8. Ms Hunnisett stated that Mr Greasley was given information in relation to [School 1] and [School 2] but he was only interested in discussions around a state high school. She agreed that Mr Greasley refused to sign any enrolment forms for [School 1] and [School 2]. Ms Hunnisett advised – and Mr Greasley did not disagree – that she has paid all of the school fees for the elder child’s secondary education. Ms Hunnisett stated that Mr Greasley has given his verbal acceptance for the elder child to attend [School 2] for the remainder of her secondary schooling.

9. The Tribunal has carefully considered the statements of the parents in relation to secondary education for the elder child. In the Tribunal’s view there is insufficient compelling evidence to support a conclusion that Mr Greasley intended the elder child to be educated at a private school. Although the children have both received a Catholic primary school education this does not necessarily indicate that Mr Greasley expected that, when the time came for the elder child to commence secondary school that she would continue to be educated at a Catholic secondary school as Ms Hunnisett asserted. Mr Greasley declined to sign any enrolment documentation for either of the two Catholic Colleges that the elder child has attended for her secondary education. Mr Greasley has consistently maintained his position regarding his preference for a state school education at secondary level since the issue of choice of secondary school arose. While the Tribunal accepts that the costs of a private school secondary education affect the costs of maintaining the elder child, the Tribunal finds that there are no special circumstances because it is not satisfied that a private school secondary education was expected by both parents.

10. Hence Reason 3 is not established in relation to the elder child’s secondary education.

11. The Tribunal therefore concludes that there are no special circumstances and that no grounds have been established.

Section 98F of the Assessment Act

1. In light of the Tribunal’s view that no grounds have been established to depart from the administrative formula assessment the Tribunal considered whether the application for review should be dealt with under section 98F of the Assessment Act. This states:

   98F Application disclosing no grounds etc. for making determination—how dealt with

   If the Registrar is satisfied, after considering the application, that:

   (a)there are no grounds for departing from the provisions of this Act relating to administrative assessment of child support in relation to the child concerned; or

   (b)that it would not be:

   (i)just or equitable as regards the child or either party to the application; or

   (ii)otherwise proper;

   to make the determination;

   the Registrar may refuse to make the determination without taking any further action under this Part.

2. In this type of case, the Tribunal is effectively required to consider what decision should have been made as a result of Mr Greasley’s application on 28 July 2020. This is usually expressed as seeking the correct or preferable decision at law.

3. In this matter, the Tribunal concludes that the correct and preferable decision which should have been made was that there were no grounds to change the assessment.

4. The departure application of 28 July 2020 is refused as the Tribunal concludes that there are no grounds to change the administrative assessment under section 98F of the Assessment Act.

5. The Tribunal’s decision affirms the decision of the objections officer. The assessment remains as it was prior to the decision of Mr [A] on 2 October 2020. [Member 1]’s decision of 2 October 2019 will apply until its expiry on 31 October 2020.

6. The effect of the Tribunal’s decision will be that immediately following the expiry of [Member 1]’s decision on 31 October 2020 the calculation of child support will revert to the administrative formula assessment from 1 November 2020.

DECISION

The decision under review is affirmed.

SCHEDULE

List of Exhibits

1. Services Australia – Child Support Agency marked as C exhibits:

   ·     CSA’s large bundle of 500 pages marked as exhibit C1

2. Mr Greasley has provided the following documents marked as A exhibits:

   ·     A1–A10                Statement of Financial Circumstances

   ·     A11–A28              Bank statements

   ·     A29  Monthly expenses and assets

   ·     A30–A43              Written submission

   ·     A44–A54              Superannuation statement

   ·     A55–A57              Payslips

   ·     A58  Q Super balance

   ·     A59  Response to Ms Hunnisett’s additional material

3. Ms Hunnisett has provided the following documents marked as B exhibits:

   ·     B1–B9                Statement of Financial Circumstances

   ·     B10–B12              Cover email

   ·     B13  Fee statement – [a named] Catholic school

   ·     B14   Family Transaction History – [School 2]

   ·     B15  Account history [School 1]

   ·     B16–B26              Payslips

   ·     B27  Cover email

   ·     B28  Letter to Ms Hunnisett from her accountant

   ·     B29–B39              Ms Hunnisett’s income tax return 2020/2021

   ·     B40  Letter from North re Ms Hunnisett’s superannuation contribution

   ·     B41  Letter re income and [superannuation]

   ·     B42–B51              Ms Hunnisett’s amended income tax return 2019/2020