Hoasley and Dafferty (Child support)
[2025] ARTA 938
•26 April 2025
Hoasley and Dafferty (Child support) [2025] ARTA 938 (26 April 2025)
Applicant/s: Ms Hoasley
Respondent: Child Support Registrar
Other Parties: Mr Dafferty
Tribunal Number: 2024/MC028499
Tribunal: General Member M King
Place:Brisbane
Date: 26 April 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides to vary the annual rate of child support payable by Mr Dafferty to $1,835 for the period 1 August 2024 to 31 December 2025.
Statement made on 16 April 2025 at 1:09pm
CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources – special needs of the child – additional school costs – earning capacity – mental health conditions – ground for departure – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Hoasley and Mr Dafferty are the parents of [Child 1], born 2008, and [Child 2], born 2015. Ms Hoasley is recorded as having 100% care of the children, and Mr Dafferty 0% care of the children, from 20 March 2023.
The administrative assessment for the period 1 December 2023 to 16 January 2024 is based on an adjusted taxable income of $115,139 for Mr Dafferty (based on his 2022/23 income) and an adjusted taxable income of $95,002 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $20,728 per annum.
The administrative assessment for the period 17 January 2024 to 31 January 2024 is based on an adjusted taxable income of $3,423 for Mr Dafferty (a reconciled estimate of income) and an adjusted taxable income of $95,002 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $3,264 per annum.
The administrative assessment for the period 1 February 2024 to 10 April 2024 is based on an adjusted taxable income of $47,450 for Mr Dafferty (a reconciled estimate of income) and an adjusted taxable income of $95,002 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $5,146 per annum.
The administrative assessment for the period 11 April 2024 to 25 April 2024 is based on an adjusted taxable income of $47,450 for Mr Dafferty (a reconciled estimate of income) and an adjusted taxable income of $142,822 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $4,852 per annum.
The administrative assessment for the period 26 April 2024 to 6 May 2024 is based on an adjusted taxable income of $67,355 for Mr Dafferty (a reconciled estimate of income) and an adjusted taxable income of $142,822 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $9,426 per annum.
The administrative assessment for the period 7 May 2024 to 30 June 2024 is based on an adjusted taxable income of $67,355 for Mr Dafferty (a reconciled estimate of income) and an adjusted taxable income of $142,822 for Ms Hoasley (an estimate of income). Mr Dafferty is assessed to pay child support at a rate of $9,286 per annum.
The administrative assessment for the period 1 July 2024 to 31 July 2024 is based on an adjusted taxable income of $19,892 for Mr Dafferty (an estimate of income) and an adjusted taxable income of $119,643 for Ms Hoasley (based on her 2022/23 income). Mr Dafferty is assessed to pay child support at a rate of $3,440 per annum.
The administrative assessment for the period 1 August 2024 to 30 June 2025 is based on an adjusted taxable income of $19,892 for Mr Dafferty (an estimate of income) and an adjusted taxable income of $124,429 for Hoasley (a default income for 2023/24). Mr Dafferty is assessed to pay child support at a rate of $519 per annum.
On 26 February 2024, Ms Hoasley applied for a departure from the administrative assessment of child support, under Part 6A of the Child Support (Assessment) Act 1989 (the Act).
On 31 May 2024, the Child Support Registrar (Child Support) made a decision not to vary the administrative assessment.
Ms Hoasley objected to that decision. On 29 August 2024, a Child Support objections officer disallowed the objection.
Ms Hoasley then applied for review of the decision by the Tribunal. The Tribunal hearing was conducted on 18 February 2025. Ms Hoasley and Mr Dafferty attended the hearing by telephone conference and gave sworn evidence. The Tribunal deferred making a decision to allow Ms Hoasley and Mr Dafferty an opportunity to provide further evidence for the Tribunal to consider.
The Tribunal took into account the relevant documents provided by Child Support to the Tribunal: pages 1 to 552, additional evidence provided by Ms Hoasley (marked A1 to A98 and an email sent by Ms Hoasley on 19 March 2025) and additional evidence provided by Mr Dafferty (marked B1 to B128).
CONSIDERATION
The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. A formula is used. It takes into account variables including each parent’s adjusted taxable income, the number of children, and the level of care provided by each parent.
Part 6A of the Act allows for a departure from an administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1) of the Act, the Registrar may make such a departure determination if three matters are established:
· one, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(i));
· a departure is just and equitable as regards the children and each parent (sub‑subparagraph 98C(1)(b)(ii)(A)); and
· it is otherwise proper to make a departure decision (sub‑subparagraph 98C(1)(b)(ii)(B)).
Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2).
If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.
Grounds for departure
Costs of educating the child
Subparagraph 117(2)(b)(ii) – commonly referred to as Reason 3 – provides as a ground for departure:
(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; …
The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman (1992) FLC 92–279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The Tribunal’s approach to the interpretation and application of the particular grounds in subsection 117(2) must be guided by that qualification.
Ms Hoasley sought consideration of the cost to her of educating the children at private schools. [Child 1] attends [School 1] and [Child 2] attends ([School 2]. Both parents signed the enrolment documents for those schools.
In relation to [Child 1], Mr Dafferty had an arrangement with [School 1] to pay his half of the 2024 fees. Mr Dafferty said he entered into a direct agreement with [School 1], which has continued this year. He said he paid his half of [Child 1’s] fees for 2024 and will do so for 2025.
Ms Hoasley said there are other expenses which she incurs, such as for books and uniforms, which Mr Dafferty does not contribute to. She also had to pay the re-enrolment fee for [Child 1] last year of $300 and she paid for school laptop repairs. She said the school charges a re-enrolment fee every year. She is seeking a contribution from Mr Dafferty for those additional costs.
Mr Dafferty said he accepts they are requirements of attending the school.
In relation to [Child 2], Mr Dafferty said he entered into a payment plan with [School 2] for 2024 and he has entered into another payment plan for this year. He provided bank statements evidencing that.
Ms Hoasley said there are some additional school costs for [Child 2], but they are not significant compared to the additional costs for [Child 1]. She pays for books, uniforms and a laptop fee of $150 per annum. She listed those costs at page A78.
Ms Hoasley has also provided evidence of the cost of [sport 1] ($1,200 per annum) and [music 1] ($1,300 per annum) for [Child 2]. Ms Hoasley said she is not seeking a contribution to these costs from Mr Dafferty.
There is no dispute that the children are being educated in a manner expected by both parents and the Tribunal so finds.
From page A77, Ms Hoasley has provided a summary of the school costs she has incurred for the children for 2024 and evidence that she has met those costs. For [Child 1] those costs are: $159.99 for school shoes; $131 for uniform; $623.74 for books and stationery; and $5,892.90 for school fees. For [Child 2] those costs are: $111.96 for school shoes; and $105.57 for books and stationery. The cost of books, stationery and uniforms for the children total $1,132.26.
The Tribunal finds that each parent has met half of [Child 1’s] school fees for 2024 and have committed to doing so for 2025. That does not establish special circumstances for a departure from the administrative assessment.
However, the Tribunal is satisfied that the additional school costs for [Child 1] and [Child 2] which Ms Hoasley has met, of $1,132 per annum, are costs of the children being educated in the particular manner they are being educated. The costs significantly affect the costs of maintaining the children, given Mr Dafferty has been assessed to pay a modest rate of child support during that period, and constitute special circumstances as the parents of most children do not incur such costs.
Therefore, a ground for departure has been established.
Just and equitable and otherwise proper: general observations
The requirement to consider whether a departure would be just and equitable and otherwise proper directs attention to what is fair to the parents, their children and the community. A decision maker must have regard to a variety of factors such as the needs of the children, the parents’ commitments, any hardship that would be caused by departing or not departing from the formula, and the effect on any income-tested benefits: subsections 117(4) to (9). Parents rather than the community have the primary duty to maintain a child: paragraph 117(5)(a). It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits: paragraph 117(5)(b). Relevantly, this requires consideration of the effect on either parent’s entitlement to FTB Part A, which is subject to a maintenance income test.
A decision maker must bear in mind the duties of parents and the objects of the Act, set out in sections 3, 4 and 114. These include:
· The duty of a parent to maintain his or her child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person that the parent has a duty to maintain.
· The level of support should be determined in accordance with the costs of the children, and according to the parent’s capacity to provide.
· Parents should share equitably in the support of the child, and the child should have his or her proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents.
Would departure from the formula assessment be just and equitable?
The Tribunal has found there is a ground to depart from the administrative assessment. The Tribunal must also consider, pursuant to subsection 117(4) of the Act, whether it would be just and equitable to make a particular order. The Tribunal has considered the matters set out in subsections 117(4) and (6) to (8). The Tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application.
Ms Hoasley
Ms Hoasley told the Tribunal that she has 2 employers. She has provided payslips for each employer.
At page A2 are copies of payment summaries for Ms Hoasley for 2023/24. They record that Ms Hoasley received income totalling $71,920.82.
At page A3 are copies of payment summaries for Ms Hoasley for the period 1 July 2024 to 6 January 2025. They record that Ms Hoasley received income totalling $47,700.24 in that period. That equates to income of about $91,600 per annum.
Ms Hoasley confirmed that she also has a salary packaging arrangement which incurs a reportable fringe benefit amount. Ms Hoasley’s payslips record pre-tax deductions of $570.37 per fortnight until November 2024 and $699.15 per fortnight from December 2024 for one employer and $645.36 per fortnight pre-tax deductions from a second employer.
Ms Hoasley’s pre-tax deductions total about $1,215 per fortnight, which equates to about $31,600 per annum.
If the pre-tax deductions are added to the income Ms Hoasley receives, her income for the current financial year would be about $123,000. That is consistent with the incomes which have been used in the administrative assessment for Ms Hoasley.
Ms Hoasley told the Tribunal that the estimate of income she made with Child Support was inflated as she did not want to incur a debt.
A copy of Ms Hoasley’s Statement of Financial Circumstances form is at page A86. Ms Hoasley told the Tribunal that her household consists of her and the children.
Mr Dafferty said he had nothing to add regarding Ms Hoasley’s financial circumstances.
The Tribunal finds that the incomes used in the administrative assessment for Ms Hoasley do not make the assessments unfair.
Mr Dafferty
Mr Dafferty agreed that he was employed with [Employer 1] until 16 January 2024, when he resigned. He received about $18,000 long service leave owed to him and a small payout. He said he has been on jobseeker payment since that time. He has not received any other income since he ceased employment.
Mr Dafferty lodged an estimate of income on 17 January 2024, which was later reconciled with his actual adjusted taxable income for the 2023/24 financial year. He lodged a further estimate of income from 1 July 2024.
Mr Dafferty said he has supplied a medical certificate from his general practitioner (GP), which was accepted by Centrelink. He said he did not wish to delve any further into his mental health issues. There are also ongoing criminal proceedings which have been brought against him and he has been advised by his legal representatives not to comment on that matter. He did confirm that it was his mental health conditions which led to him being unable to work.
Mr Dafferty told the Tribunal that he is still unable to work and his GP has provided a further medical certificate to that effect.
At page B16 is a copy of a letter, dated 11 July 2024, from [Nurse A], a mental health nurse from [Health Service 1]. The letter states that Mr Dafferty was referred to her in late 2023 and he has had ongoing sessions with her.
Mr Dafferty said those sessions have continued and he also had a psychiatric review in December 2024. He said the conclusion was that his condition has deteriorated, and he is unfit to work.
Mr Dafferty said he is continuing his sessions through [Health Service 1], which is a government assisted program. He said he cannot afford to attend a private program, psychologist or psychiatrist. Mr Dafferty said he would not speculate on his future ability to work.
At page B22 is a copy of Mr Dafferty’s Statement of Financial Circumstances form. In the form, he listed household expenses equivalent to his jobseeker payment. Mr Dafferty said he pays $100 per week to live in a home someone else owns.
Mr Dafferty said he is still repaying a personal loan of $6,000 and repaying [Agency 1].
Mr Dafferty said he relies on other people to feed him. The expenses he has disclosed are the expenses he is paying. He pays what he can afford and does without everything else. The education costs he listed are his school fee contributions. He said he does not have a car.
Mr Dafferty said he cannot afford to pay more than the minimum annual rate of child support. He said he cannot work because of his mental health conditions.
Ms Hoasley said Mr Dafferty has not provided the correct amount he is receiving from Centrelink. She believes he should be receiving $415 per week.
She said Mr Dafferty began seeing the mental health nurse in May 2023. He is still in that program. She noted that Mr Dafferty was able to work from May 2023 to December 2023. Ms Hoasley submitted that Mr Dafferty says his mental health deteriorated to a point where he could not work. However, he did not seek any additional mental health support at the time he ceased employment, despite his mental health having deteriorated.
Ms Hoasley submitted that Mr Dafferty has not provided any evidence that his mental health has deteriorated. She submitted that the mental health nurse believes that Mr Dafferty’s mental health is stable and said there is no evidence that the support being provided to Mr Dafferty has been increased.
Ms Hoasley submitted that Mr Dafferty could have taken his personal leave and long service leave entitlements from his employer whilst he worked on his mental health, before he ceased his employment.
Ms Hoasley believes that Mr Dafferty is not working so he can reduce the child support he has to pay. She said he has not taken any significant steps to address his mental health conditions.
Ms Hoasley said she is aware Mr Dafferty had some anxiety but he has never had anything significant or chronic.
She said at page 350 of the hearing papers are bank statements which record discretionary expenditure by Mr Dafferty, including meals out and [sport 2] fees, and cash deposits to his account. Ms Hoasley submitted that Mr Dafferty has undisclosed financial resources.
Ms Hoasley said she asked Child Support to start collecting the child support liability as Mr Dafferty was not paying the correct rate of child support.
Mr Dafferty said his income was correct when he submitted his Statement of Financial Circumstances form.
He said Ms Hoasley is only speculating about his mental health. He said the psychiatric review was to determine if he needed further treatment. He said that has not progressed any further at this time as he is dealing with other issues. Mr Dafferty said he is on bail regarding his criminal charges.
Ms Hoasley submitted that Mr Dafferty has not provided any evidence that he was unfit to work at the time he resigned his employment. She submitted that Mr Dafferty could also have accessed income protection insurance payments through his superannuation policy.
She submitted that Mr Dafferty must be seen as fit to deal with his criminal proceedings. She believes [Agency 1] has funded Mr Dafferty’s representation in that matter.
Ms Hoasley said she attends a psychologist every 2 to 3 weeks, which she has to pay for. However, she still has to work.
At page B59 is a copy of a letter dated 9 December 2024 from [Psychiatrist A], who is a Psychiatry Registrar with [Health Service 2]. The letter states that [Psychiatrist A] conducted a mental health assessment for Mr Dafferty on 9 December 2024.
The recommendations made by [Psychiatrist A] were to increase the dosage of Mr Dafferty’s fluoxetine medication and for Mr Dafferty to take Quetiapine at night to help with sleep and anxiety.
[Psychiatrist A] also recommended that Mr Dafferty see his GP to arrange for a mental health plan to see a psychologist. He suggested that Mr Dafferty should link with a counsellor and social worker at [Health Service 1].
At page B63 is a copy of a letter, dated 24 February 2025, from [Nurse A]. The letter states that [Nurse A] is a mental health nurse with the [Program 1] at [Health Service 1]. She states that her role is to provide short-term support for clients who have complex mental health conditions and who are at a higher clinical risk.
Ms [Nurse A] further states:
[Mr Dafferty] has re-linked with the [Program 1] following conclusion of previous episode ending Feb 2, 2025.
[Mr Dafferty] is currently on the wait-list for counselling within the [Program 1], as there is a long wait time frame expected, [Mr Dafferty] will contact his GP to use a mental health care plan for sessions with an external counsellor in the waiting time frame.
[Mr Dafferty] has been seen by [Health Service 2] pysch reg [Psychiatrist A] dated 9 December 2024, he has been provided a copy of report.
At page B105 is a copy of a medical certificate dated 31 January 2025, completed by [Doctor A]. The certificate states that Mr Dafferty is unfit for work from 29 January 2025 to 28 April 2025 due to adjustment disorder, social anxiety and major depressive disorder.
The hearing papers also contain medical certificates from [Doctor A] stating that Mr Dafferty has been unfit for work for the period 24 April 2024 to 28 January 2025.
From page B64 is a copy of bank statements for Mr Dafferty’s [Bank 1] account ending in 1886, for the period 1 January 2024 to 17 February 2025. Those statements record credits from [Employer 1] of $3,029.65 on 10 January 2025 and $1,056.24 on 16 January 2024; a credit of $12,540.91 on 1 February 2024 from [Agency 2]; a credit of $1,738 on 21 February 2024 from the [Agency 3]; credits of jobseeker payment from 26 April 2024 and a credit of $1,817.92 on 19 July 2024 from the Australian Taxation Office. The only other significant credits to the account came from Mr Dafferty’s other accounts.
The debits from the account are for Mr Dafferty’s living expenses, payment of school fees, legal costs and child support, and repayments of a personal loan and to [Agency 1].
From page B106 is a copy of bank statements for Mr Dafferty’s [Bank 1] account ending in 1969, for the period 19 October 2023 to 17 February 2025. The statements record the following amounts were transferred to the account from the account ending in 1886: $12,000 on 2 February 2024; $1,738 on 22 February 2024; and $2,100 on 19 July 2024. No other significant credits were received into the account.
The debits from the account are transfers to the account ending in 1886.
There is no evidence that Mr Dafferty has any income or financial resources which make the incomes used for him in the administrative assessment unfair. His bank statements reflect his employment income before he resigned, his long service leave payment and his jobseeker payments. There are other one-off credits from the [Agency 3] and the Australian Taxation Office.
The Tribunal also considered whether Mr Dafferty could be assessed on an income earning capacity higher than his actual income.
Paragraph 117(7B)(a) of the Act provides that, before a person can be assessed on an earning capacity, the following 3 criteria must be satisfied:
1. The parent is either:
·not working despite ample opportunity to do so;
·has reduced their weekly hours of work to below full-time work; or
·has changed their occupation, industry or working pattern.
2. The parent's decision about their work arrangements is not justified by either:
·their caring responsibilities; or
·their state of health.
3. The parent has failed to show that the decision about their work arrangements was not substantially motivated by the effect this would have on the child support assessment.
Mr Dafferty was employed with [Employer 1] for almost 10 years before he resigned his employment on 16 January 2024. Mr Dafferty told the Tribunal that he resigned his employment because of his mental health conditions.
Mr Dafferty has been attending sessions with [Nurse A] of the [Health Service 1] since late 2023.
Mr Dafferty’s GP, [Doctor A], has completed medical certificates stating that Mr Dafferty has been unfit to work from 24 April 2024 until 28 April 2025.
Whilst the medical certificates completed by [Doctor A] do not cover the date Mr Dafferty resigned from his employment, it is clear that Mr Dafferty had sought assistance with his mental health concerns at least from late 2023.
Given the medical certificates completed by [Doctor A], the assessment of [Psychiatrist A] and the evidence from [Nurse A], the Tribunal finds, on balance, that Mr Dafferty’s decision to cease employment and continue to be unemployed to date is justified by his state of health, in particular his mental health conditions.
Therefore, the requirements of paragraph 117(7B)(a) of the Act are not satisfied and Mr Dafferty cannot be assessed on a higher earning capacity.
The children
There is no evidence that the children have any income or resources which should affect the rate of child support otherwise payable.
At page 185 of the hearing papers is a letter from [Doctor B], dated 7 February 2024. The letter states that [Child 2] was diagnosed with attention deficit hyperactivity disorder (ADHD) in 2022. She is presently taking Ritalin and seeing [Doctor B] every 6 months.
Child Support determined that costs of managing [Child 2’s] ADHD is $628 per annum.
Ms Hoasley confirmed that [Child 2] still sees [Doctor B] twice per year. The cost is $180 per visit out-of-pocket. [Child 2] had been prescribed Ritalin. Ms Hoasley said there are two medications which [Child 2] has been prescribed. She swapped from Ritalin to Concerta, which is a longer acting drug. Artige is a shorter acting form of Ritalin. [Child 2] does not take artige every day. A box of 100 lasts a year. Ms Hoasley listed the costs as $727 per annum.
Ms Hoasley advised that she has also incurred the cost of glasses and an echocardiogram from [Child 2]. Ms Hoasley said that, at her regular appointment with [Doctor B], [Child 2] was found to have a new [medical condition 1]. She was referred to have an echocardiogram. She said [Child 2] also has another [health condition 2] which needs to be monitored.
At page A84, Ms Hoasley listed all of [Child 2’s] medical costs as totalling $1,548.57 for 2024.
Mr Dafferty said he does not accept that [Child 2] has a special need or that there is a need to incur costs in relation to those needs.
At page A22 is a quote for dental work for [Child 1]. Ms Hoasley said [Child 1] needs the treatment, which is time sensitive, but she is trying to save the money to have it done. It has not been booked at this stage. She said the cost will need to be paid upfront. She does not have private health insurance.
Mr Dafferty said he does not dispute the need for [Child 1’s] dental treatment.
Based upon the letter from [Doctor B], the Tribunal is satisfied that [Child 2] has a special need in relation to her ADHD diagnosis. Ms Hoasley incurs the cost of purchasing the medication prescribed for [Child 2] and attending appointments with [Doctor B]. The Tribunal also accepts that the cost of glasses and an echocardiogram for [Child 2] relate to special needs.
100.Whilst those costs will vary from year to year, the Tribunal finds the relevant costs total about $1,500 per annum.
101.As the dental work for [Child 1] has not been committed to or paid for at this time, there are no relevant costs for the Tribunal to consider.
102.At page A82, Ms Hoasley listed costs totalling $2,334.63 for outside school hours care for 2024. She provided evidence that she has incurred those costs.
103.Mr Dafferty said he had nothing to say about that matter.
104.Subsection 117(3B) of the Act provides that, for a parent’s childcare costs to be considered high (and therefore able to establish a ground for changing the administrative assessment), the costs have to be at least 5% of the income being used for the parent in the assessment for the relevant period.
105.Ms Hoasley’s childcare costs are $2,334.63 for a year. Therefore, for the costs to be considered high, the income being used in the assessment for Ms Hoasley would have to be less than $46,700 per annum. The incomes used for Ms Hoasley in the assessment for 2024 are $95,002; $142,822; $119,643; and $124,429.
106.Therefore, as Ms Hoasley’s out-of-pocket childcare costs do not total at least 5% of the income being used for her in the administrative assessment, her costs are not considered to be high.
Further consideration
107.The Tribunal is satisfied that the incomes used in the administrative assessments for both parents do not make the assessments unfair.
108.In addition to the usual costs of maintaining children, Ms Hoasley incurs costs of about $1,132 per annum for school costs (other than tuition fees) and $1,500 per annum in relation to [Child 2’s] special needs.
109.The current annual rate of child support is $519 being the minimum annual rate of child support. If Mr Dafferty is assessed to also contribute half of the additional school and special needs costs, he will be assessed to pay child support at a rate of $1,835 per annum.
110.The Tribunal is satisfied that Ms Hoasley requires as much financial assistance as Mr Dafferty can reasonably afford to meet the children’s needs. However, the Tribunal is also satisfied that Mr Dafferty’s financial capacity to contribute to the children’s needs is currently limited.
111.On balance, the Tribunal concludes that it would be fair to set the annual rate of child support payable by Mr Dafferty at $1,835. Whilst that may be difficult for Mr Dafferty to meet, it is also less than Ms Hoasley reasonably needs to support the children.
112.The Tribunal notes that Mr Dafferty was assessed to pay a higher rate of child support of $3,440 per annum for the period 1 July 2024 to 31 July 2024. He has then been assessed to pay at a rate of $519 per annum from 1 August 2024.
113.The Tribunal finds it fair to set the annual rate of child support at $1,835 from 1 August 2024. The Tribunal will continue the departure until 31 December 2025 to provide the parties with some certainty as to the assessment.
114.The effect is the decision should be to increase the arrears of child support owed by Mr Dafferty by about $877.
115.The Tribunal is satisfied such an outcome is just and equitable.
Is a departure otherwise proper?
116.In considering whether a departure is otherwise proper, the Tribunal must take into account subsection 117(5) of the Act, which provides 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.
117.The child support law recognises that each parent has a primary duty to maintain their children. For the reasons outlined above, the Tribunal is satisfied it is appropriate to depart from the administrative assessment.
118.The Tribunal is satisfied the decision appropriately reflects both parents’ capacities to support the children during the departure period and the decision is otherwise proper.
119.If either parent’s circumstances, or the costs of the children, change significantly while this decision is in force, the parent may make a further departure application with Child Support to have those changed circumstances considered.
DECISION
The Tribunal sets aside the decision under review and in substitution decides to vary the annual rate of child support payable by Mr Dafferty to $1,835 for the period 1 August 2024 to 31 December 2025.
| Date(s) of hearing: | Tuesday, 18 February 2025 |
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