Horton and Swaine (Child support) - [2025] ARTA 1599

Horton and Swaine (Child support) [2025] ARTA 1599 (3 July 2025)

Applicant/s: Mr Horton and Ms Swaine

Respondent: Child Support Registrar

Other Parties: Ms Swaine and Mr Horton
Tribunal Numbers: 2024/MC028618 and 2024/MC028631
Tribunal: General Member M King
Place:Brisbane
Date:3 July 2025

Decision:The Tribunal sets aside the decision under review and, in substitution, decides to:
·vary Ms Swaine’s adjusted taxable income to $70,192 for the period 23 October 2023 to 31 October 2024; and
·increase the annual rate of child support otherwise payable by Mr Horton by $4,213 for the period 1 January 2024 to 12 May 2024 and by $3,256 for the period 1 June 2025 to 31 May 2027.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – particulars of the administrative assessment – adjusted taxable income – injury – mental health – incarcerated – special needs of the children – 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

Mr Horton and Ms Swaine are the parents of [Child A], born 2015, and [Child B], born 2017. Ms Swaine is recorded as having 94% care of the children, and Mr Horton is recorded as having 16% care of children, from 1 March 2024.
The administrative assessment for the period 1 September 2023 to 12 May 2024 was based on an adjusted taxable income of $88,926 for Mr Horton (based on his 2022/23 income) and an adjusted taxable income of $57,429 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $9,148 per annum.
The administrative assessment for the period 13 May 2024 to 8 July 2024 was based on an adjusted taxable income of $17,728 for Mr Horton (an estimate of income) and an adjusted taxable income of $57,429 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $493 per annum (being the minimum annual rate of child support).
The administrative assessment for the period 9 July 2024 to 24 July 2024 was based on an adjusted taxable income of $18,667 for Mr Horton (an estimate of income) and an adjusted taxable income of $57,429 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $493 per annum.
The administrative assessment for the period 25 July 2024 to 1 August 2024 was based on an adjusted taxable income of $20,205 for Mr Horton (an estimate of income) and an adjusted taxable income of $57,429 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $493 per annum.
The administrative assessment for the period 2 August 2024 to 30 September 2024 was based on an adjusted taxable income of $20,283 for Mr Horton (an estimate of income) and an adjusted taxable income of $57,429 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $493 per annum.
The administrative assessment for the period 1 October 2024 to 30 June 2025 was based on an adjusted taxable income of $20,283 for Mr Horton (an estimate of income) and an adjusted taxable income of $64,630 for Ms Swaine (based on her 2022/23 income). Mr Horton was assessed to pay child support at a rate of $519 per annum (being the minimum annual rate of child support).
On 23 October 2023, Ms Swaine applied for a departure from the administrative assessment of child support, under Part 6A of the Child Support (Assessment) Act 1989 (the Act).
On 14 March 2024, the Child Support Registrar (Child Support) made a decision to vary Ms Swaine’s adjusted taxable income to $70,192 for the period 23 October 2023 to 31 October 2024 and to increase the annual rate of child support otherwise payable by Mr Horton by $4,123 for the period 1 January 2024 to 31 December 2025.
Mr Horton objected to the decision. On 19 September 2024, a Child Support objections officer partly allowed the objection and varied Ms Swaine’s adjusted taxable to $70,192 for the period 23 October 2023 to 31 October 2024 and increased the annual rate of child support otherwise payable by Mr Horton by $4,123 for the period 1 January 2024 to 12 May 2024.
Mr Horton and Ms Swaine both applied for review of the decision by the Tribunal. The Tribunal hearing was conducted on 6 May 2025. Mr Horton and Ms Swaine attended the hearing by telephone and gave sworn evidence. The Tribunal deferred making a decision to allow both parents to provide additional evidence.
The Tribunal took into account the relevant documents provided by Child Support to the Tribunal prior to hearing: pages 1 to 574 (the hearing papers), additional evidence provided by Mr Horton (marked 1 to 357) and additional evidence provided by Ms Swaine (marked 1 to 50).

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 3 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

Income, property and financial resources and earning capacity

Paragraph 117(2)(c) – commonly referred to as Reason 8 – provides as a ground for departure:
(c) that, 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: …
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; …
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 legislation 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.

Mr Horton

Mr Horton told the Tribunal that, in March 2023, he was convinced to end his employment with [Workplace 1], until he sorted out his personal issues regarding his separation from Ms Swaine and their property settlement, which was requiring a significant amount of time off work. He was also in and out of court.
He said his employment ceased due to his mental decline, which started in 2020. It declined to the point where he was unable to perform his work duties. That made it unsafe for himself and people around him.
Mr Horton said he had a number of court appearances between February 2023 and July 2023, and then from September 2023, when he was charged with [Crime 1]. He was incarcerated from [May] 2024 to [June] 2024.
Mr Horton said he had no income from the time his employment with [Workplace 1] ceased until he was incarcerated.
He said, whilst he was incarcerated, someone was supposed to be looking after his home. However, they had moved out and the home was left with substantial water damage. He then moved into another home, whilst he repaired his home. This escalated his mental health issues.
Mr Horton said, when he left incarceration, he was unemployed and in receipt of jobseeker payment (JSP) until he started his current employment. His mortgage ended up $7,000 in arrears and he was unable to repay the loans he owed his mortgage broker. He tried to make do with his Centrelink payments. He was underinsured but he did receive an insurance payment to repair the damage to his home. He tried to do things as cheaply as he could. He sold any assets which were not damaged. He had to borrow money from people. A lot of his friends fed him.
Mr Horton said he could not be reimbursed for the cost of criminal matters. He also spent funds on his family law proceedings.
Mr Horton said he started working again, from 11 April 2025, and he has updated his estimate of income with Child Support. He is employed on a part-time basis, as he has regular assessments with an orthopaedic surgeon in relation to [an injury]. He recently had an appointment with a physiologist to help with mobility and [movement].
He is currently on light duties, trying to build the strength [up]. He said his current income is $1,200 per week gross, working 4 days per week.
The Tribunal notes that Mr Horton’s estimate of income was updated from 17 April 2025 to an adjusted taxable income of $72,582.
Mr Horton said he thinks his 2024/25 adjusted taxable income will be about $57,000.
In discussing his Statement of Financial Circumstances form, Mr Horton said he has 2 personal loans from his mortgage broker, who lent him funds from the broker’s own superannuation fund to allow him to finalise the property settlement with Ms Swaine. Mr Horton also has a mortgage. He owns his home and his car.
Mr Horton said he is paying $633 per week on his mortgage now. He has been negotiating with the broker’s family about repayment of the loans. The broker’s family has held off on requiring extra repayments until after the Tribunal decision has been made.
Ms Swaine said Mr Horton is [Occupation 1] qualified. He had threatened, in text messages, that he would go on the dole and do undeclared contract work to skirt his property settlement responsibilities. She submitted that Mr Horton may have undeclared financial resources.
She said, between 20 July 2023 (when Mr Horton moved out of their home) and 27 October 2010, she transferred $5,870 to Mr Horton, which equates to about $420 per week. She did not invite Mr Horton back into the home to sell it. Mr Horton moved backed into the home as he said he had nowhere else to go and he told her she was moving to her mother’s home. She quickly had to pack up and vacate the premises with the children.
Ms Swaine said Mr Horton drew down his loan on 9 May 2024, although he claimed he was unemployed from March 2024. Therefore, he may have been employed in May 2024. Ms Swaine submitted that Mr Horton was regularly making loan repayments in June 2024, based on his bank statements.
Mr Horton said his broker organised the loan. He knew he was going to be incarcerated, and the loan was to ensure his family had financial security. His broker arranged an interest only loan from the broker’s private superannuation fund.
Mr Horton submitted that a statement at page 62 of his evidence shows that, on 9 May 2024, all of the funds went into the parents’ property settlement. Mr Horton said his broker arranged 2 loans through [Business 1] – one for $27,000 in December 2023 and the other in May 2024 to help cover property settlement. The broker also managed to have his mortgage application assessed, the process for which started before he ceased employment.
Mr Horton said repayments of the loans were made weekly from the account. He said that was part of the insurance claim. The funds went to [Insurance company 1], and [Insurance company 1] then paid the subcontractors, as necessary. Mr Horton was paid a cash settlement of $42,000. He said he could do some of the repair work himself, as it was not structural damage. He could also do some jobs himself, such as vinyl floor planking. He transferred funds as he needed to.
At page 290 of Mr Horton’s evidence is a copy of a loan agreement between [Business 2] and Mr Horton, dated 12 December 2023. The purpose of the loan was for “Family Law settlement process”. The loan amount was $30,240 repayable over 7 years with 9.99% annual interest.
At page 312 of Mr Horton’s evidence is a copy of a schedule to an agreement, dated 12 March 2024. Mr Horton is the borrower, and the lender is [Lender 1] as trustee for [Business 1]. The loan amount is $21,320 repayable over 5 years with 9.99% annual interest.
From page 236 of Mr Horton’s evidence is a copy of a bank statement for Mr Horton’s [Bank Account 1] ending in 0459, for the period 16 July 2024 (when the account was opened) to 20 April 2025. The statement records the following credits to the account from [Insurance company 2]: $800 on 24 July 2024; $37,049.78 on 26 July 2024; and $5,338.01 on 15 August 2024.
From page 256 of Mr Horton’s evidence is a copy of a bank statement for Mr Horton’s [Bank Account 1] ending in 9462, for the period 1 March 2024 to 20 April 2025.
The Tribunal noted that Mr Horton’s [Bank 1] account had received transfers from a different [Bank 1] account. Mr Horton said the other account was the account the house insurance payout was paid into.
Ms Swaine noted that, in his victims of crime compensation claim, Mr Horton claimed lost wages for the period 9 October 2023 to 5 March 2024. Yet Mr Horton was working during that time.
Mr Horton said he was not working fulltime during the period claimed. They are not fulltime hours he claimed.
Ms Swaine submitted that, in his bank statements, it can be seen that Mr Horton has another [Bank 1] account, where he may have funds. There are also no mortgage repayments coming from that account. There are alcohol purchases and expenditure for iPhone screen and phone repairs and Uber. She asked how Mr Horton was paying for that?
Ms Swaine said that, on 13 December 2023, Mr Horton registered an ABN. In September 2024, he posted on [Social media 1] how good working for himself was.
At page 46 of Ms Swaine’s evidence is a copy of a social media post made by Mr Horton on 9 May 2024. In the post, Mr Horton states:
Why did I not start my own business years ago.
This is much better.
Pay your own tax.
Reduce utilities.
Training every day.
Mid day naps.
Find clients tomorrow. lol
Ms Swaine said, in late February 2025, Mr Horton was seen by an associate of Ms Swaine wearing dirty work clothes. In March 2025, Mr Horton’s son told someone that he was back at work.
Ms Swaine said that [Workplace 1] paid for Mr Horton’s legal fees in the initial stages of their separation. She questioned whether [Workplace 1] would pay Mr Horton in cash.
Mr Horton said his boss lent him the money for a lawyer, as he was already under great financial pressure. His parents also lent him money for a lawyer. He had to send his phone away for data extraction.
Mr Horton said he was unable to work a consistent job. He did not even realise he still had an ABN.
At page 232 of Mr Horton’s evidence is a copy of an Employment Separation Certificate dated 6 March 2024. The certificate states that Mr Horton was employed by [Workplace 1] from 22 March 2021 until 6 March 2024. He ceased work voluntarily because of personal problems. His final gross pay was $1,638.
At page 82 of Mr Horton’s evidence is a copy of a payment summary from [Workplace 1] which records that, for the period 1 July 2023 to 6 March 2024, Mr Horton was paid $64,679.95.
At page 123 of Mr Horton’s evidence is a copy of a JSP rate notice dated 6 April 2025.
The Tribunal accepts that, for the period 1 July 2023 to 6 March 2024, Mr Horton’s income was his salary and wage from [Workplace 1]. The income of $64,679.95 he received during that period equates to income of about $94,500 per annum.
That is higher than the adjusted taxable income of $88,926 being used in the assessment for Mr Horton for the period 1 September 2023 to 6 March 2024.
On balance, the Tribunal finds that Mr Horton had no income from 7 March 2024 until he commenced receiving JSP. He was incarcerated from [May] 2024 until [June] 2024. His only income was then from JSP, until he commenced employment recently.
Therefore, his actual income was less than the adjusted taxable income of $88,926 being used in the assessment for him for the period 7 March 2024 to 12 May 2024. His actual income was consistent with the income being used for him in the assessment from 13 May 2024.
Child Support has provided evidence that, for the period 17 April 2025 to 30 June 2025, Mr Horton is now assessed on an adjusted taxable income of $72,582, which is an updated estimate of income. The annual rate of child support payable for that period is $10,382.
At page 231 of Mr Horton’s evidence is a copy of a payslip for Mr Horton from [Workplace 2], dated 17 April 2025. The payslip records a gross pay of $1,392.76 for the week. That equates to an income of about $72,000 per annum.
The Tribunal finds that Mr Horton’s income is different from the incomes used for him in the administrative assessment. That constitutes special circumstances and makes the administrative assessment unfair.
A ground for departure is 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.

Mr Horton

Mr Horton’s financial circumstances have been considered above.
The Tribunal also considered whether Mr Horton can be assessed on an earning capacity. 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 Horton told the Tribunal that his boss at [Workplace 1] told him he could seek employment back with the company once he had his family issues sorted.
Mr Horton said he had extreme anxiety and depression, and he was under duress. His mental health rapidly declined. His boss had a chat with him and said he could not continue his employment. He suggested he should take some time to sort out his issues.
He sought psychological help and undertook [a Medical condition 1] assessment. When he was released from incarceration, his boss would not agree to employ him again until he had a finalised parenting plan, which he does not have.
Mr Horton said he is now injured, so he cannot return to employment with [Workplace 1], as his boss will not put him on a waiver from WorkCover. He said his current employer, who he has worked for before, was willing to put him on with a WorkCover waiver, if he worked part-time until he could get a full medical clearance. That is what he has been doing.
At page 76 of Mr Horton’s evidence is a copy of a letter from [Workplace 1], dated 9 May 2024. The letter states that Mr Horton ceased employment voluntarily due to personal and family issues. The letter states that Mr Horton’s relationship breakdown had a significant impact on his work performance.
Ms Swaine said she cannot speak to Mr Horton’s mental health. She has text messages from Mr Horton where he threatened to cease employment.
At page 153 of Mr Horton’s evidence is a letter, dated 30 August 2023, from Dr [A]. The letter is a referral for Mr Horton to [Psychological Services 1] to treat his anxiety, depression and stress. [Dr A] recommended Mr Horton attend 8 sessions with the service.
At page 158 of Mr Horton’s evidence is a letter, dated 27 February 2024, from [Dr A]. The letter is a referral for Mr Horton to [Psychiatry Services 1] for suspected [Medical condition 1].
At page 168 of Mr Horton’s evidence is a copy of a psychological assessment report from Dr [B], a psychologist, dated 3 April 2024. The letter states that Mr Horton has been diagnosed with generalised anxiety disorder, which impairs his day-to-day functioning. The report states that Mr Horton suffered an assault in late 2023.
At page 222 of Mr Horton’s evidence is a copy of a letter from [Dr A], dated 14 May 2024. [Dr A] states they first saw Mr Horton on 23 August 2023, regarding his mental health. He had seen Mr Horton 6 times since then. Mr Horton was under a mental health care plan and had been referred to a psychologist and a psychiatrist. He had also been prescribed medication.
At 212 of Mr Horton’s evidence is a copy of letter, dated 28 January 2025, from [Dr A] referring Mr Horton to a chiropractor to treat his [injury], as well as for anxiety and depression.
At pages 151, 224 and 225 of Mr Horton’s evidence are copies of medical certificates provided by [Dr A] which state that Mr Horton was unfit to work for the periods 24 June 2024 to 10 September 2024 and 17 January 2025 to 17 March 2025 due to anxiety and depression.
At page 226 of Mr Horton’s evidence is a copy of a medical certificate signed by [Dr A] which states that Mr Horton was unfit to work for the period 25 March 2024 to 9 April 2024 due to [an injury].
At page 324 of Mr Horton’s evidence is a copy of an invoice for Mr Horton from [Psychiatry Services 1]. The invoice shows $179.15 out-of-pocket was paid on 4 March 2025.
There is no dispute that Mr Horton ceased his employment on 6 March 2024. He was then unemployed for more than 12 months.
On balance, the Tribunal is satisfied that Mr Horton’s decision to cease employment, and remain unemployed for an extended period, was justified by his state of health, in particular his mental health issues.
The evidence of [Dr A] and Dr [B] supports that conclusion. [Dr A] had referred Mr Horton to a psychologist and psychiatrist, as well as prescribing him medication. That is consistent with [Dr A] being of the belief that Mr Horton was suffering from significant mental health conditions. [Dr A] has provided medical certificates verifying Mr Horton’s inability to work through much of the period he was unemployed.
The Tribunal further accepts that, more recently, Mr Horton has suffered from an [injury] which affected his ability to work.
Therefore, the Tribunal cannot make a decision based on Mr Horton’s capacity to work.

Ms Swaine

Ms Swaine’s 2023/24 adjusted taxable income was $64,630.
From page 25 of Ms Swaine’s evidence are copies of Ms Swaine’s payslips for the pay dates 12 March 2025, 26 March 2025 and 9 April 2025. As at 6 April 2025, Ms Swaine’s year-to-date income was $46,802.87, which equates to an annual income of about $61,000.
At page 1 of Ms Swaine’s evidence is a copy of the Statement of Financial Circumstances form completed by Ms Swaine, dated 14 October 2024. Ms Swaine told the Tribunal that her rent has increased to $410 per week. She said the funds she has in the bank have reduced by about $5,000. They are the funds she received from the parents’ property settlement.
Ms Swaine told the Tribunal that both children suffer from anxiety. Ms Swaine said she spent a lot of time last year having to collect the children from school. She said [Child A’s Medical condition 1] also impacts her ability to remain at school. Last year [Child A] was suicidal. She needs a lot of time to take [Child A] to appointments. She said she has no greater capacity to work.
The Tribunal finds that Ms Swaine’s income and financial means are fairly represented in the administrative assessment.

The children

There is no suggestion that the children have income or financial resources which should affect the administrative assessment.
Ms Swaine also sought consideration of the costs she has incurred in relation to dental and orthodontic costs for [Child A] and [Child B].
Ms Swaine told the Tribunal that she applied to change the assessment as, when she and Mr Horton discussed [Child B’s] special needs, they discussed various methods of funding the costs. In the end, she decided it was best for her to take out a loan to cover the dental surgery and orthodontic costs and Mr Horton would then pay her back half of the cost.
Ms Swaine told the Tribunal that she paid for the surgery costs with the loan she obtained. That included the costs of the surgeon, hospital and anaesthetist. Ms Swaine said Mr Horton attended the appointment with the orthodontist and the dental surgeon.
She received some private health insurance rebates. She could not get the full rebate as she paid the dental loan out in full rather than paying all of the monthly repayments. She said she has provided all of the evidence about the rebates she received. She agreed that her out-of-pocket costs were just less than $8,000.
Mr Horton told the Tribunal that he contributed to these special needs costs through an extra $10,000 in superannuation he paid Ms Swaine as part of their property settlement. He accepted that the settlement agreement does not explicitly state that though.
Mr Horton said the costs were well out of his means before Ms Swaine obtained the personal loan. That is why he tried to make it up with the extra superannuation contribution. He said he advised there needed to be more quotes for more affordable options, for example, paid by Medicare.
Ms Swaine said there was no mention of the dental and orthodontic costs in the parents’ property settlement document. Ms Swaine said, in February 2024, Mr Horton sent her a text message offering to pay for the dental costs. That was well after the property settlement had been finalised.

100.Ms Swaine said she has text messages from Mr Horton saying he has the money for their property settlement but not for [Child A’s] dental treatment and advising he can pay $25 per week towards those costs, or he could ask his nan to help. She said the superannuation amount had nothing to do with meeting the children’s special needs costs.
101.At page 41 of Ms Swaine’s evidence is a copy of a message from Mr Horton on 29 February 2024 which states:
I have your settlement amount sorted but couldn’t get the extra for [Child A’s] dental at late notice. Could you send me all the statements and the Medicare rebate. I’m looking at Nan and pop helping.
102.A further message from Mr Horton of 2 March 2024, at page 42 of Ms Swaine’s evidence, states:
Well without you trying to work with me on the numbers the min I can pay is an extra 25 a week until I do my tax.
103.Ms Swaine said, in the past, Mr Horton had threatened to cease work and, when he did so, he has now not been assessed to contribute 50% of the orthodontic cost. He has not been assessed to contribute to the cost from 13 May 2024.
104.Ms Swaine told the Tribunal that she has also incurred orthodontic costs for [Child B] from mid-2024, totalling $3,900. She is still paying those costs until mid-2025. She said she has received all of the private health insurance rebates she can, as it has reached the lifetime limit. Her out-of-pocket costs are about $1,700.
105.Ms Swaine also sought consideration of the psychology costs for [Child A] at [Psychology centre 1] which she met, with rebates. Ms Swaine said [Child A] continued with sessions until late 2024 but she is currently receiving sessions through the public system through her school.
106.Ms Swaine said that [Child A’s] psychologist has also recommended that [Child A] attend art therapy. The sessions have been funded to date. Ms Swaine said the costs set out at page 22 of her evidence, for the period 28 November 2024 to 7 April 2025, relate to art therapy for [Child A].
107.She said she also provided evidence of other costs she is meeting for the children, such as swimming and violin lessons. She is not seeking a contribution to those costs from Mr Horton, but she thinks he should contribute to the children’s medical costs.
108.Mr Horton said he cannot afford to contribute any more to meeting the children’s special needs. He has no spare money. He has been attending drug and alcohol therapy, so he does not have those expenses anymore. He said he has only been employed for the last 6 weeks. His outgoings are $1,086 per week.
109.He said his creditors have allowed him some time to sort this all out. He said people have loaned him money, when needed, to meet expenses. He also needed to repair his phone to do a parenting course.
110.At page 146 of the hearing papers is a copy of a statement from Dr [C] in relation to [Child A]. The statement records that Ms Swaine paid a total of $725 between 20 January 2023 and 18 March 2023. A further amount of $500 was debited to the account on 8 May 2023.
111.At page 147 of the hearing papers is a copy of a further statement from Dr [C] for [Child A], which records that the total cost of the treatment was $9,995. An amount of $3,000 was paid on 23 June 2023, with $6,495 outstanding.
112.At page 148 of the hearing papers is a copy of a [Dentist 1] plan for Ms Swaine. The plan provides for Ms Swaine to make 18 monthly payments of $360.85 from 15 July 2023 to pay off the balance of the account.
113.At page 32 of Ms Swaine’s evidence is a copy of a statement in relation to [Child A’s] psychology sessions with [Psychology centre 1], evidencing amounts paid during the period 21 August 2022 to 10 December 2024. The costs total $3,742 for 2023 and $2,800 for 2024.
114.A Medicare statement for the period 26 February 2022 to 26 February 2024, from page 225 of the hearing papers, records that Ms Swaine received Medicare rebates totalling $1,386.60 for those costs in 2024. Private health insurance claim summaries, from page 234 of the hearing papers, evidence that Ms Swaine also received private health rebates totalling $485 in relation to those costs. Therefore, Ms Swaine’s out-of-pocket costs were $1,870.40.
115.For 2024, Ms Swaine received rebates of $93.35 on each of the 3 payments of $225 she made up until 26 February 2024. That provides an out-of-pocket cost of $131.65 for each session. The Tribunal finds the out-of-pocket cost for 2024 for Ms Swaine was about $1,500.
116.At page 142 of the hearing papers is a copy of a letter from Mr [A], ENT Surgeon, to Dr [C], dated 7 June 2023. The letter states that [Child A] had been referred to him for ENT assessment due to ongoing dental alignment issues. The letter states, “An adenoid clearance and lingual frenuloplasty would certainly be a useful adjunct and removing the tonsils would further optimize the matter. It is more invasive but given she’s at an age where she should recuperate well, I think it would be worthwhile maximising the airway all round.”
117.At page 143 of the hearing papers is a copy of an invoice from Mr [A] to Ms Swaine which records that $1,954.60 (after Medicare rebates) was paid on 29 June 2023.
118.At page 144 of the hearing papers is a copy of an invoice from [Hospital 1] to Ms Swaine for [Child A]. The invoice records that $2,496 was paid on 28 June 2023, with $112.30 still owed.
119.At page 145 of the hearing papers is a copy of an invoice from Dr [D], Special Anaesthetist, to Ms Swaine for [Child A]. The account for $840 was paid on 3 July 2023. A Medicare statement, at page 225 of the hearing papers, records that Ms Swaine received a Medicare rebate on that amount of $223.45. Her out-of-pocket cost was therefore $616.75.

At page 44 of Ms Swaine’s evidence is a copy of a [Dentist 1] plan for Ms Swaine, for the period 3 July 2023 to 6 May 2025, in relation to [Child A’s] treatment by Dr [C]. The plan records that the amount was paid off on 15 February 2024. An amount of $3,967.95 was paid on 31 January 2024.

121.At page 48 of Ms Swaine’s evidence is a copy of a letter from [Ms A], Senior Mental Health Clinician with [Health service 1], dated 8 May 2025. The letter states that Ms [A] confirms her recommendation for [Child A’s] engagement with art therapy. A referral was completed in November 2024.
122.At page 49 of Ms Swaine’s evidence is a copy of an account from Dr [E], orthodontist. The account relates to treatment for [Child B]. The account states that the contract amount was $3,900, with the final payment to be made on 6 July 2025.
123.At page 47 of Ms Swaine’s evidence is a copy of an account from Dr [E] which relates to treatment for [Child B]. The account states that the contract amount was $1,800, with the final payment to be made on 6 January 2026. An amount of $500 was paid on 13 May 2025, as evidenced at page A50.
124.At pages 437 and 438 of the hearing papers, are copies of private health insurance claims which record that the following full payment amounts were rebated in relation to [Child B’s] orthodontic costs: $1,900 paid on 6 June 2024 and $300 paid on 8 July 2024.
125.Based upon the letter from Mr [A], the Tribunal is satisfied that [Child A’s] dental surgery was a special need. The total cost to Ms Swaine was $5,179.65 ($1,954.60 for Mr [A], $2,608.30 for [Hospital 1] and $616.75 for Dr [D]).
126.The Tribunal is also satisfied that the cost of orthodontic treatment for [Child A] by Dr [C] was a special need. The cost of that was $9,995. Copies of private health insurance claims, from page 234 of the hearing papers, record that Ms Swaine received $800 in rebates for 2023 in relation to [Child A’s] orthodontic costs. The Tribunal accepts Ms Swaine’s evidence that her out-of-pocket costs were just less than $8,000.
127.The Tribunal is not satisfied that Mr Horton made any contribution to these costs by way of an adjustment in the parents’ property settlement. The terms of the property settlement do not support Mr Horton’s contention in that regard.
128.The Tribunal is satisfied that [Child A’s] psychology costs related to a special need. The costs total $1,870.40 for 2023 and $1,500 for 2024.
129.The Tribunal is further satisfied that the orthodontic costs incurred for [Child B] related to a special need. Those costs total $3,500 ($1,700 + $1,800).
130.At page 22 of Ms Swaine’s evidence, [Child A’s] art therapy costs total $1,390.40 for the period 28 November 2024 to 7 April 2025. However, Ms Swaine told the Tribunal the costs had been funded to date.
131.The total costs of the children’s special needs, which the Tribunal will consider, are therefore $5,179.65 for [Child A’s] dental surgery, $8,000 for [Child A’s] orthodontic treatment, $3,370.40 for [Child A’s] psychology costs and $3,500 for [Child B’s] orthodontic costs. This totals $20,050.45.

Further consideration

132.The Tribunal finds it fair to use adjusted taxable incomes for Mr Horton of $94,500 for the period 1 September 2023 to 6 March 2024. From 7 March 2024 until 16 April 2025 his income was below the self-support amount used in the administrative assessment. From 17 April 2025, it is fair to use an adjusted taxable income of $72,852, which is the current estimate of income used in the administrative assessment.
133.Using those incomes for Mr Horton would reduce his liability for the period 1 September 2023 to 12 May 2024 by about $2,000.
134.If Mr Horton was assessed to contribute half of the costs, he would have to contribute about $10,025.
135.Pursuant to the current assessments, Mr Horton has been assessed to contribute about $1,513 towards those costs (being $4,132 per annum for the period 1 January 2024 to 12 May 2024). As mentioned above, the incomes currently used in the assessment provide a $2,000 less favourable liability for Mr Horton, compared to using the incomes determined by the Tribunal.
136.The Tribunal therefore finds it would be fair to leave the current assessment in place up until 31 May 2025. From 1 June 2025 to 31 May 2027, the Tribunal will increase the rate of child support otherwise payable by Mr Horton by $3,256 per annum as Mr Horton’s remaining contribution to the children’s special needs costs.
137.The ongoing assessment will be at a rate of about $13,638 per annum (about $262 per week).
138.The Tribunal is satisfied the above outcome is just and equitable. The Tribunal is also satisfied that Mr Horton can pay the ongoing rate of child support given his current employment income.

Is a departure otherwise proper?

139.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.

140.The child support law recognises that each parent has a primary duty to maintain their child. For the reasons outlined above, the Tribunal is satisfied it is appropriate to depart from the administrative assessment.
141.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.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides to:

vary Ms Swaine’s adjusted taxable income to $70,192 for the period 23 October 2023 to 31 October 2024; and
increase the annual rate of child support otherwise payable by Mr Horton by $4,213 for the period 1 January 2024 to 12 May 2024 and by $3,256 for the period 1 June 2025 to 31 May 2027.

Date(s) of hearing:

Tuesday, 6 May 2025