Kabat and Naff (Child support)

This matter concerned a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal of a decision by the Child Support Registrar. The applicant, Ms Kabat, sought a departure from the administrative assessment of child support payable by the respondent, Mr Naff, in respect of their nine-year-old child. Ms Kabat had applied for a change of assessment based on the child's special needs, specifically the costs of therapy. An initial departure determination was made increasing Mr Naff's child support liability, but this was subsequently overturned by an objections officer who refused to make a departure from the administrative assessment. Ms Kabat sought a review of this objection decision.

The tribunal was required to determine whether a ground existed to depart from the administrative assessment, and if so, whether it would be just and equitable to make a departure determination. The relevant ground for departure, as provided by subparagraph 117(2)(b)(ia) of the Child Support (Assessment) Act 1989, required the tribunal to find that, in the special circumstances of the case, the costs of maintaining the child were significantly affected due to the child's special needs. If a ground was established, the tribunal then had to consider the matters set out in subsection 117(4) of the Act to determine if a departure would be just and equitable, having regard to the interests of the child, the liable parent, and the carer.

The tribunal found that the child had been diagnosed with autism and that Ms Kabat had incurred out-of-pocket therapy costs of approximately $10,800 in the 12 months prior to the commencement of the child support assessment period. It concluded that these costs significantly increased the overall cost of maintaining the child, thereby establishing a ground for departure under section 117(2)(b)(ia). However, when considering whether it was just and equitable to make a departure determination, the tribunal noted that Ms Kabat had delayed lodging her application despite being aware of the process and the costs. The tribunal also considered the parties' financial circumstances, including Mr Naff's income and the imminent property settlement, and Ms Kabat's relatively high income. The tribunal concluded that it was not just and equitable to make a departure determination in respect of a period that had already passed when the application was made, particularly given Ms Kabat's delay in lodging the application and the fact that she would not suffer hardship.

Consequently, the tribunal refused to make a determination to depart from the administrative assessment of child support and affirmed the objection decision.