Hubane and Hubane (Child support)

[2022] AATA 2378

Hubane and Hubane (Child support) [2022] AATA 2378 (12 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022249 & 2021/PC022294

APPLICANT:  Ms Hubane & Mr Hubane

OTHER PARTIES:  Child Support Registrar

Mr Hubane & Ms Hubane

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  12 June 2022

DECISION:

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

• for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $1,026 being his half contribution towards the costs associated with [Child 1]’s foot injury and wrist injury;

• for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $539 being his half contribution towards the costs associated with [Child 2]’s wrist injury; and

• for the period from 1 April 2021 to 28 February 2023 the annual rate payable by Mr Hubane is increased by $1,245 being his half contribution towards [Child 2]’s orthodontic costs.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure - costs of special needs significantly affect the cost of maintaining the child – decision to depart - decision under review set aside and substituted

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

REASONS FOR DECISION

BACKGROUND

1. This review is about whether or not there should be a departure from the administrative assessment of child support.

2. Ms Hubane and Mr Hubane are the parents of [Child 1] (born February 2005) and [Child 2] (born June 2008).  There has been a child support assessment in place since 5 March 2019 with collection by the Child Support Agency from 7 May 2019.  Mr Hubane is the parent liable to pay child support under the assessment.

3. The following administrative assessments are under consideration:

   ·     for the period from 9 October 2020 to 24 June 2021 Mr Hubane was assessed to pay an annual rate of $24,202 based on a 2019-20 adjusted taxable income of $126,732 for Mr Hubane and a 2020-21 estimated adjusted taxable income of $60,792 for Ms Hubane;

   ·     for the period from 25 June 2021 to 30 June 2021 Mr Hubane was assessed to pay an annual rate of $26,494 based on a 2019-20 adjusted taxable income of $126,732 for Mr Hubane and a 2020-21 estimated adjusted taxable income of $60,792 for Ms Hubane (the increase in the annual rate was due to [Child 2] turning 13 years of age); and

   ·     for the period from 1 July 2021 to 30 November 2021 Mr Hubane was assessed to pay an annual rate of $21,252 based on a 2019-20 adjusted taxable income of $126,732 for Mr Hubane and a 2019-20 adjusted taxable income of $134,409 for Ms Hubane

4. On 21 February 2021 Ms Hubane applied to the Child Support Agency for a change to the assessment on the basis of the special needs of the child (the ground more commonly known as Reason 2) and the high costs of caring for, educating or training the child (Reason 3).

5. On 29 May 2021 the Child Support Agency made the decision to change the assessment so that for the period from 1 March 2021 to 31 October 2022 the annual rate of child support payable by Mr Hubane is increased by $2,109 to reflect his share of [Child 2]’s orthodontic costs plus anaesthesia and occupational therapy costs for both children (the original decision).

6. On 27 June 2021 Ms Hubane objected to this decision and on 7 September 2021 the Child Support Agency allowed the objection in part and made the decision (the objection decision) that:

   ·     for the period from 1 March 2021 to 31 October 2022 the annual rate of child support payable by Mr Hubane is increased by $2,415 to reflect his share of [Child 2]’s orthodontic costs and [Child 1]’s podiatry costs plus anaesthesia and occupational therapy costs for both children; and

   ·     for the period from 1 July 2021 to 31 October 2022 Ms Hubane’s adjusted taxable income is set at $109,527.

7. On 8 September 2021 Ms Hubane applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal) and on 13 September 2021 Mr Hubane also applied for a review of the objection decision.

8. A directions hearing was held on 13 January 2022. Ms Hubane and Mr Hubane attended by conference telephone. Prior to the directions hearing the Child Support Agency provided the Tribunal and the parties with a bundle of documents in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (486 pages).

9. Ms Hubane was directed to provide further information and complied to the satisfaction of the Tribunal.

10. A hearing was held on 5 May 2022.  Ms Hubane and Mr Hubane gave evidence on affirmation by Microsoft Teams audio.  The Tribunal received documents folioed A1 to A31 from Ms Hubane and B1 to B11 from Mr Hubane.  Ms Hubane informed the Tribunal at hearing she had not received the documents B1 to B11.  The Tribunal agreed to give Ms Hubane additional time following the hearing to review these documents and provide written comments.  These were received on 9 May 2022 (A32–A33).

11. At the directions hearing and at the commencement of the hearing the Tribunal sought clarification from Ms Hubane and Mr Hubane as to the reasons for their applications. 

12. Ms Hubane said she did not agree with the manner in which the Child Support Agency had dealt with her income in the objection decision.  Ms Hubane confirmed she wanted the Tribunal to review the special needs of the children as she had additional expenses.  Ms Hubane said she was satisfied with the decision relating to the education costs of the children and did not wish the Tribunal to review this matter.  Mr Hubane said he was generally satisfied with the outcome of the objection decision and agreed there was no need for review of the education costs.  Mr Hubane said he was concerned Ms Hubane had introduced new matters relating to dental and psychological treatment for [Child 1].

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.

3. Under Part 6A of the Act, the liable parent or the carer of the child or children may apply to the Child Support Registrar for a determination to depart from the administrative assessment (section 98B).

4. Section 98C provides that the Registrar may make a determination to depart from the administrative assessment and establishes a three-step process such that the issues for determination by this Tribunal are:

   ·     whether a ground is established to depart from the administrative assessment of child support; and if so,

   ·     whether it is just and equitable to make a particular departure determination; and if so,

   ·     whether it is otherwise proper to make a particular departure determination.

5. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.

6. Each ground is prefaced by the words “in the special circumstances of the case”.  The meaning of this expression is not defined in the Act, but the Family Court in Gyselman and Gyselman [1991] FamCA 93 has held that:

   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 formula in the ordinary run of cases.

7. In Philippe and Philippe (1978) FLC 90-433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”.

8. If the Tribunal is satisfied that a ground exists 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.

9. The range of determinations which can be made includes variations to the annual rate of child support payable; or to the adjusted taxable incomes of the parents and/or carer; or to other components of the statutory formula used to calculate child support.

CONSIDERATION

Issue 1 – Is there a ground for departure?

1. There may be a reason for changing an assessment if, in the special circumstances of the case, the costs of maintaining the child are significantly affected because of the special needs of the child (subparagraph 117(2)(b)(ia) of the Act).

2. The term “special needs” is not defined in the legislation and the Tribunal requires some evidence that the needs of the child relate to a condition or disability that is out of the ordinary.  The special needs must involve a cost that is additional to the normal needs of a child that are expected to be met from the child support assessment.  Only net costs are considered - those after health insurance refunds or other rebates are taken into account - and these costs must also significantly impact the costs of maintaining the child overall.

3. Ms Hubane told the Tribunal both [Child 1] and [Child 2] had special needs for which she had incurred significant medical costs.  Ms Hubane said [Child 1] was required to wear a moon boot after fracturing her foot on a school camp in late 2020 and then attended a podiatrist for ongoing treatment.  She said [Child 1] recently had specialist dental work undertaken for the removal of her four wisdom teeth and also required psychological assessment arising from a previous diagnosis of dyslexia.  Ms Hubane said [Child 2] had been referred for orthodontic treatment in early 2021.  She said both children required surgery in 2020 following wrist problems associated with ganglion cysts.  Ms Hubane said she was seeking to have Mr Hubane pay half the costs of these treatments and believed this was fair.

4. The Tribunal notes in evidence a letter from [Podiatry] dated 18 February 2021 relating to a treatment program for [Child 1] and the need for ongoing review on a three-monthly basis as she progresses through increased running loads.  The standard consultation is listed as $80.

5. Ms Hubane explained that [Child 1] had been required to see a podiatrist from a young age and had already been wearing professional orthotics.  Ms Hubane said [Child 1] would normally be required to visit the podiatrist every three months and she only wanted Mr Hubane to contribute to the additional costs associated with her injury.  In a submission to the Child Support Agency Ms Hubane states the total costs associated with the foot injury include a visit to [Medical centre], a moon boot, three visits to the podiatrist and shoes specified by the podiatrist.  Ms Hubane told the Tribunal that [Child 1] had subsequently seen the podiatrist on one further occasion which had been a follow-up appointment delayed by the COVID-19 pandemic.  The Tribunal accepts this to be the case.

6. The Tribunal notes either in evidence from the Child Support Agency or provided by Ms Hubane the following receipts for costs associated with [Child 1]’s fractured foot:

   ·     7/11/2020     [Medical centre] – fee of $100.55 with net cost of $50.00 after rebate

   ·     7/11/2020     [Medical centre] – moon boot cost of $60.00

   ·     17/12/2020   [Podiatry] – fee of $80.00 with net cost of $57.00 after rebate

   ·     7/1/2021      [Podiatry] – fee of $32.00 with net cost of $0 after rebate

   ·     21/1/2021     [Shop] – shoes (two pairs) at $489.98 and $139.99

   ·     18/2/2021     [Podiatry] – fee of $80.00 with net cost of $57.00 after rebate

   ·     15/6/2021     [Podiatry] – fee of $80.00 with net cost of $57.00 after rebate.

7. Mr Hubane told the Tribunal he did not dispute the need for treatment and the costs associated with [Child 1]’s foot injury.

8. Ms Hubane told the Tribunal that [Child 1] had required surgery for removal of all four of her wisdom teeth in late 2021.  She said anaesthesia was needed for the procedure.  Ms Hubane said, more recently, [Child 1] had seen a psychologist for assessment associated with her previously diagnosed dyslexia.  Ms Hubane explained this was needed in order for [Child 1] to qualify for additional time to complete her WACE exams. The Tribunal notes in evidence provided by Ms Hubane a receipt from [Dental] dated 3 December 2021 for a total of $1,349.40 for surgical tooth removal as well as a receipt from [Dr A] for $850 for anaesthesia.  The Tribunal also notes a receipt from [Psychology] dated 31 January 2022 for $2,550 for a psychological assessment.

9. Mr Hubane said he was not aware of the dental work for [Child 1] or the assessment undertaken by a psychologist.  He expressed a preference for the costs associated with both matters to be appropriately reviewed by the Child Support Agency in the first instance.

10. In relation to the orthodontic work for [Child 2] the Tribunal notes in evidence from the Child Support Agency a treatment report from [Orthodontics] dated 16 February 2021.  The report recommends upper and lower braces “for reasons of long term function as opposed to just appearance” with a cost of either $8,400 or $8,100 depending upon the treatment option.  The Tribunal also notes an invoice in the name of Ms Hubane from [Orthodontics] dated 24 March 2021 for an initial contract charge of $8,100 and a remaining balance of $6,900.  A further receipt shows a payment made by Ms Hubane of $1,200 while a PayWay payment schedule shows an additional 23 payments due of $300 each totalling $6,900.  A receipt for orthodontic examination and x-rays dated 16 February 2021 shows a total cost of $230 and a gap payment after rebates of $90.60.

11. Ms Hubane told the Tribunal she paid an initial deposit of $1,200 to the orthodontist and provided the receipt to Mr Hubane who then claimed the cost of the treatment for [Child 2] on his private health insurance.  Ms Hubane said Mr Hubane had not passed on the rebate to her but instead used it to make his own payment to the orthodontist.  Ms Hubane said this had not been taken into account by the Child Support Agency as the rebate had been removed from his portion of the payment.  Mr Hubane agreed and said he had received the rebate as the claim had been made on his private health insurance. Mr Hubane said he had paid the orthodontist $2,800 in total which included the rebate of approximately $2,180.

12. The Tribunal notes in evidence a receipt from [Orthodontics] for the payment of $2,800 made by Mr Hubane on 14 April 2021.  The Tribunal also notes a remittance advice from [Health insurer] for $2,179.65 paid to Mr Hubane following a claim for [Child 2]’s orthodontics.  The total fee charged, according to the insurer, was $8,100.

13. Ms Hubane told the Tribunal that both children had required wrist surgery on 7 December 2020 to address ganglion cysts.

14. The Tribunal notes that both parents made a contribution to the costs of wrist surgery for [Child 1] and [Child 2].  Ms Hubane covered the anaesthesia expense, however, as well as occupational therapy for both children at [Hand therapy services].  Receipts in evidence from the Child Support Agency show the net anaesthesia costs for each child to be $272.30.  Receipts for hand therapy for [Child 1] show consultations on 17 December 2020, 21 December 2020, 31 December 2020, 8 January 2021, 15 January 2021, 21 January 2021 and 8 February 2021 for a total cost of $869.  Receipts for hand therapy for [Child 2] show consultations on 17 December 2020, 21 December 2020, 31 December 2020, 8 January 2021 and 21 January 2021 for a total cost of $636.  Ms Hubane said [Child 2] had a further review with a new specialist plastic surgeon, [Dr B], on 6 December 2021.  A further receipt dated 6 December 2021 for $170 was provided by Ms Hubane.  None of the costs for either child were disputed by Ms Hubane or Ms Hubane.

15. In considering what costs can be taken into account by the Tribunal it is important to reiterate it is only those costs that are associated with special needs in accordance with the Act.  Such costs must also be significant enough to affect the costs of maintaining the child.  Ordinary costs are accounted for in the usual formula assessment of child support.

16. The Tribunal is satisfied that [Child 1] has special needs in relation to her foot injury and her wrist surgery.  The out-of-pocket costs to Ms Hubane for the foot injury total approximately $911 and for the wrist surgery total approximately $1,141.  The cost of child amount (found in the Cost of the Children table) for [Child 1] in the assessment at the time Ms Hubane made her application for a change was $16,313.  The Tribunal finds, in the special circumstances of the case, the costs of maintaining [Child 1] are significantly affected by her special needs.  A ground for departure therefore exists with regard to [Child 1].

1. The Tribunal is satisfied that [Child 2] has special needs in relation to her orthodontic treatment and her wrist surgery.  The out-of-pocket costs for the orthodontics total approximately $6,011 and for the wrist surgery total approximately $1,078.  The cost of child amount for [Child 2] in the assessment at the time Ms Hubane made her application for a change was $16,313.  The Tribunal finds, in the special circumstances of the case, the costs of maintaining [Child 2] are significantly affected by her special needs.  A ground for departure therefore exists with regard to [Child 2].

2. Ms Hubane has also incurred additional costs for [Child 1] in relation to removal of wisdom teeth and psychological assessment.  These are new costs incurred after the objection decision made by the Child Support Agency and have not been previously reviewed.  It is the view of the Tribunal these costs should form part of a fresh application for a change of assessment.  Ms Hubane and Mr Hubane told the Tribunal they were comfortable with such an approach.

3. The Tribunal notes that in her original change of assessment application made on 21 February 2021 Ms Hubane sought consideration of other costs including optometry, periodic dental examination and cleaning, pharmaceutical as well as extra-curricular activities such as [Activity 1] and [Activity 2].  The Tribunal does not consider these costs to be out of the ordinary.  Mr Hubane contributes to these costs through the usual formula assessment and the Tribunal will not consider them further.

Issue 2 – Is it just and equitable to make a particular determination?

1. As the Tribunal finds there is a ground to depart from the administrative assessment of child support, the next step is to consider whether or not it is just and equitable as regards the children, the liable parent, and the carer entitled to child support to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the Tribunal to consider the matters discussed below,[1] which are as set out in subsection 117(4) of the Act:

   [1] The Tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886.

   (4)    In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent 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

   (b)the proper needs of the child; and

   (c)the income, earning capacity, property and financial resources of the child; and

   (d)the income, property and financial resources of each parent who is a party to the proceeding; and

   (da)    the earning capacity of each parent who is a party to the proceeding; and

   (e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)himself or herself; or

   (ii)any other child or another person that the person has a duty to maintain; and

   (f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g)any hardship that would be caused:

   (i)to:

   (A)the child; or

   (B)the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii)to:

   (A)the liable parent; or

   (B)any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

   (iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

The nature of the duty of a parent to maintain a child (as stated in section 3 of the Act)

1. Section 3 of the Act states that it is the primary duty of a parent to maintain the child and this duty has priority over nearly all other commitments.

2. In this case the parents have the primary duty to financially support [Child 1] and [Child 2].  The Tribunal was not made aware that either parent has a responsibility to any other child or person.

The proper needs of the child

1. In relation to the proper needs of the child, regard must be had to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained, and any special needs of the child (subsection 117(6) of the Act).

2. The Tribunal has found there are extra costs to be taken into account in relation to the special needs of both children.

3. In her original application for a change of assessment Ms Hubane also raised costs associated with educating the children at [School].  Ms Hubane and Mr Hubane advised the Tribunal at hearing they were contributing equally to the cost of private education for [Child 1] and [Child 2].  The parents also confirmed these costs are no longer a concern and so the Tribunal will not consider this matter further.

The income, earning capacity, property and financial resources of the child

1. The Tribunal is satisfied the children have no income, earning capacity, property and financial resources which should be taken into account for the purposes of child support.

The income, property, financial resources and earning capacity of each parent

1. Ms Hubane told the Tribunal she was currently employed at [Employer 1] as an [Occupation 1] and [Occupation 2].  Ms Hubane said she commenced in the role on 8 February 2021 and her salary was approximately $105,000 per annum but this varied depending upon the need to go onsite.

2. The Tribunal notes in records from the Child Support Agency that Ms Hubane had an adjusted taxable income of $77,841 in 2020-21.  According to the Child Support Agency this amount includes net rental losses which, for child support purposes, are added back to a parent’s taxable income.

3. Ms Hubane said her salary was lower than usual in the 2020-21 financial year due to a change in roles.   Ms Hubane explained that she had previously been working for [Employer 2] in a fly-in fly-out position but had been forced to find alternative employment due to her caring responsibilities.  Ms Hubane said after leaving [Employer 2] she found work as [an Occupation 3] with [Employer 3] and was employed there from September 2020 until February 2021.  Ms Hubane said her income dropped significantly during this period and she had submitted an estimate to the Child Support Agency not long after starting at [Employer 3].

4. The Tribunal notes that on 9 October 2020 Ms Hubane submitted an estimate of income of $60,792 (annualised) which was later amended to $112,864 (annualised).  Ms Hubane said this second estimate was to reflect her employment at [Employer 1].  According to the Child Support Agency both estimates included her net rental losses.

5. The Statement of Financial Circumstances provided to the Tribunal by Ms Hubane on 28 September 2021 shows her income from employment of $105,000 per annum, child support of approximately $25,998 per annum and rental income.  Ms Hubane declares total weekly household expenditure of approximately $2,183 including $390 for rent which she said had since increased slightly and $144 for education expenses.  Her weekly personal expenditure is approximately $284, however, the Tribunal notes this does not include income tax.  Ms Hubane lists the total value of her assets at approximately $6,013.  Ms Hubane said she also owned a 2017 [Motor vehicle 1] which was not included in her assets.  Her liabilities total approximately $148,000 including a house mortgage and car loan.  Ms Hubane has total superannuation of approximately $187,394.

6. The Tribunal finds that in 2020-21 Ms Hubane had an adjusted taxable income of $77,841.  At the time Ms Hubane made her application for a departure from the administrative assessment on 21 February 2021 she was being assessed on her estimated adjusted taxable income of $60,792.  Estimates made by Ms Hubane in 2020-21 will be reconciled against her actual income during the estimate period.  If her actual adjusted taxable income is higher than her estimated income the assessment will be amended.  This automatic reconciliation process will address any possible unfairness arising from the period covered by her estimates of income in 2020-21.  Ms Hubane is currently earning a higher salary and has been since commencing at [Employer 1] on 8 February 2021.  In the ordinary course of events her 2021-22 adjusted taxable income will be reflected in the assessment once Ms Hubane has filed her tax return for that financial year.

7. The Tribunal is satisfied that for the purposes of child support Ms Hubane’s income, property and financial resources are fairly assessed under the administrative assessment.

8. Mr Hubane told the Tribunal he was employed as [an Occupation 4] at [Employer 4] but was currently on alternative duties following an injury and subsequent surgery in December 2021.  He said this would be reflected in a lower income for the 2021-22 financial year.

9. The Tribunal notes in records from the Child Support Agency that Mr Hubane had an adjusted taxable income of $125,731 in 2020-21.

10. The Statement of Financial Circumstances provided to the Tribunal by Mr Hubane on 22 September 2022 shows a total average weekly income of $1,622.  Mr Hubane explained he received a fringe benefit from his employer under a salary sacrificing arrangement which explains his higher adjusted taxable income.[2] His total weekly household expenditure is $1,755, however, Mr Hubane said this included expenses for his partner.  Mr Hubane listed his own expenses at $937 per week but said his rent had also increased slightly.  Mr Hubane states his total personal expenditure is $1,331 per week including child support of $500 per week and income tax of $500 per week.  Mr Hubane lists the total value of his assets at approximately $66,788 including a 2013 [Motor vehicle 2].  Mr Hubane has no liabilities, and superannuation totalling $108,700.

    [2] Reportable fringe benefits are included in a parent’s adjusted taxable income for child support purposes.

11. The Tribunal finds that in 2020-21 Mr Hubane had an adjusted taxable income of $125,731.  The Tribunal is satisfied this is an accurate reflection of his income, property and financial resources for the purposes of child support.  The Tribunal notes this amount is not significantly different to the 2019-20 adjusted taxable income amount used in the assessment for Mr Hubane at the time Ms Hubane submitted her application for a change.   

12. The Tribunal is satisfied the income used for Ms Hubane is appropriately reflected in the administrative assessment.

13. The Tribunal finds that the earning capacity criteria (set out in subsection 117(7B) of the Act) are not met for either Ms Hubane or Mr Hubane in this case.

The necessary commitments of self-support or to support any other child or person

1. The Tribunal was not made aware that either parent had commitments to any other child or person.

Any hardship that would be caused

1. The Tribunal has established that at the time she made her application for a change of assessment Ms Hubane was being assessed on her estimated adjusted taxable income of $60,792.  Her estimates for 2020-21 will be reconciled against her adjusted taxable income for that financial year.  Ms Hubane is currently earning a salary of approximately $105,000 per annum but is also receiving rental income.  Ms Hubane has also indicated her salary may be higher depending upon the need for her to undertake site visits.

2. Ms Hubane has estimated her household expenditure at approximately $113,516 and the Tribunal notes this includes some discretionary expenditure.  She has personal expenditure of approximately $14,768 per annum.  Ms Hubane told the Tribunal that by being exceedingly careful she was able to meet her expenses on her salary and the child support she received.  Ms Hubane added that she also put her tax refund towards paying off her credit card which she used for any extra expenses.

3. Mr Hubane has an income for the purposes of child support of $125,731.  His household expenditure is approximately $48,724 per annum and his total personal expenditure is estimated at $69,212 per annum which includes child support of approximately $26,000 per annum.  Mr Hubane said that while his income was currently lower due to his alternative duties he was surviving with the assistance of his partner.

4. The Tribunal is limited to making a determination in respect of a day in a period that is not more than 18 months prior to the date the change of assessment application was made (paragraph 98S(3B)(a) of the Act).  Ms Hubane made her application for a departure on 21 February 2021 and the Tribunal must decide whether or not it is just and equitable to backdate the determination (prior to the change of assessment application date).

5. The Tribunal is of the broad view that retrospectively changing entitlements should be avoided without compelling reasons.  The Tribunal has established, however, that both children have special needs and Ms Hubane was meeting the costs associated with these special needs from late 2020.  The Tribunal considers it fair to include in its determination some of the expenses Ms Hubane has already incurred.  Given the similarities in the income of Ms Hubane and Mr Hubane the Tribunal is satisfied it is just and equitable to split these costs equally between the parents.  This approach is consistent with the view expressed by Ms Hubane.

6. The out-of-pocket costs to Ms Hubane associated with [Child 1]’s foot injury and wrist injury total $2,052.  The out-of-pocket costs associated with [Child 2]’s wrist surgery were $1,078.  The out-of-pocket cost of the orthodontics for [Child 2] was $6,011.  Mr Hubane made a contribution towards these orthodontic costs of $2,800, however, this included the full rebate he received from the health insurer of $2,180 which was not shared with Ms Hubane.  As a consequence, the Tribunal will reduce the share of out-of-pocket orthodontic costs to be paid by Mr Hubane, being $3,005, by only $620 to $2,385 (the difference between his payment to the orthodontist of $2,800 and the rebate he received of $2,180).  In this way the parents meet an equal share of these out-of-pocket costs.

7. Having considered the interests of both parents the Tribunal proposes to make the following determination:

   ·     for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $1,026 being his half contribution towards the costs associated with [Child 1]’s foot injury and wrist injury;

   ·     for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $539 being his half contribution towards the costs associated with [Child 2]’s wrist injury; and

   ·     for the period from 1 April 2021 to 28 February 2023 the annual rate payable by Mr Hubane is increased by $1,245 being his half contribution towards [Child 2]’s orthodontic costs.

1. Ms Hubane was meeting the costs associated with [Child 1]’s foot injury and wrist injury as well as [Child 2]’s wrist injury from late 2020.  It is for this reason the Tribunal has determined that Mr Hubane should meet these costs over a 12-month period commencing from 1 January 2021.  Costs associated with [Child 2]’s orthodontics commenced from around the beginning of April 2021.  The Tribunal has allocated Mr Hubane’s share of these costs over a period of 23 months commencing from 1 April 2021 and increased the annual rate accordingly ($2,385 divided by 23 months times 12 months).  This is in keeping with the payment schedule Ms Hubane is meeting for the orthodontic costs.

2. Applying the incomes for Ms Hubane and Mr Hubane in the administrative assessment to the child support formula sees the level of child support alone payable by Mr Hubane being approximately $24,202 from 1 January 2021.  This increased to approximately $26,494 when [Child 2] turned 13 years of age on 25 June 2021.  The annual rate of child support, including the costs associated with the children’s special needs, will be approximately $25,767 from 1 January 2021.  This will increase by a further $1,245 from 1 April 2021 when the cost of [Child 2]’s orthodontics is included (which continues until 28 February 2023).

3. The Tribunal is satisfied the proposed determination will not cause hardship to Mr Hubane, Ms Hubane or the children and is just and equitable.

Issue 3 – Is it otherwise proper to make a particular determination?

1. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be otherwise proper to make a departure determination. It focuses on the balance of support carried between the parents on one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. The Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the children may be affected by the level of child support.

2. As neither parent is in receipt of family tax benefit in respect of [Child 1] and [Child 2] it is unlikely this decision will have any direct financial impact on the community.  The Tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and would otherwise be proper.

DECISION

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

• for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $1,026 being his half contribution towards the costs associated with [Child 1]’s foot injury and wrist injury;

• for the period from 1 January 2021 to 31 December 2021 the annual rate payable by Mr Hubane is increased by $539 being his half contribution towards the costs associated with [Child 2]’s wrist injury; and

• for the period from 1 April 2021 to 28 February 2023 the annual rate payable by Mr Hubane is increased by $1,245 being his half contribution towards [Child 2]’s orthodontic costs.