Knowlton and Scofield (Child support)
[2024] AATA 2536
•14 June 2024
Knowlton and Scofield (Child support) [2024] AATA 2536 (14 June 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2023/MC026552
APPLICANT: Mr Knowlton
OTHER PARTIES: Child Support Registrar
Ms Scofield
TRIBUNAL:Member H Moreland
DECISION DATE: 14 June 2024
DECISION:
The decision under review is set aside and the Tribunal substitutes its own decision that:
· for the period from 4 December 2022 until 27 August 2023, Mr Knowlton’s income is increased by $23,940 per annum;
· for the period from 28 August 2023 to 27 October 2023, Mr Knowlton’s income is increased by $98,340 per annum;
· for the period from 28 October 2023 to 31 December 2024, Mr Knowlton’s annual rate of child support is increased by $74,400; and
· for the period from 4 December 2022 to 3 December 2023, $5,903 is to be added to the annual rate of child support payable by Mr Knowlton.
CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – income, property and financial resources – just and equitable – special needs of the child – costs of maintaining the child – high costs of child care – earning capacity – 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 removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.
Mr Knowlton and Ms Scofield are the parents of [Child 1], [Child 2] and [Child 3]. Mr Knowlton is the parent liable to pay child support. The application for child support has been registered with Services Australia – Child Support (Child Support) since 9 February 2022,[1] and has been subject to collection since 9 February 2022.[2] According to Child Support’s records, from 14 October 2022, Mr Knowlton had a care percentage of 28% of all three children and Ms Scofield had 72% care of all three children, and from 1 January 2023, Mr Knowlton had a care percentage of 35% for all three children and Ms Scofield had a care percentage of 65% for all three children.[3]
[1] Child Support papers, p 1529.
[2] Child Support papers, p 1529.
[3] Child Support papers, pp 1544-1555.
Under an administrative assessment, Child Support decided that:
· from 9 February 2022 to 5 May 2022, Mr Knowlton was to pay an annual rate of $12,861 in child support, based on Mr Knowlton’s 2020-21 taxable income of $74,972 and Ms Scofield’s taxable income of $6,452;
· from 6 May 2022 to 30 September 2022, Mr Knowlton was to pay an annual rate of $9,744, when the care of the children changed from Mr Knowlton having a care percentage of 0% and Ms Scofield having a care percentage of 100%, to Mr Knowlton having a care percentage of 14% and Ms Scofield having a care percentage of 86%;
· from 1 October 2022 to 31 December 2022, Mr Knowlton was to pay an annual rate of $4,506, based on Mr Knowlton’s 2021-22 taxable income of $60,841 and Ms Scofield’s 2021/22 taxable income of $63,379 (noting that from 14 October 2022, Mr Knowlton’s care was assessed as increasing to 28%of nights but this was within the “regular care” band, so it did not affect the child support assessment); and
· from 1 January 2023 to 31 December 2023, Mr Knowlton was to pay an annual rate of $4,320, when Mr Knowlton’s care percentage for all three children became 35% and Ms Scofield’s care percentage became 65%.[4]
[4] >
On 4 December 2022, Ms Scofield applied to Child Support for a departure from the administrative assessment on the bases that in the special circumstances of the case: the child support assessment was unfair because: of the high costs of caring for, educating or training the child in the manner expected by the parents (Reason 3); the high costs of child care (Reason 6); it did not correctly reflect one or both parents’ income, property and/or financial resources (Reason 8A); it did not correctly reflect one or both parents’ earning capacity (Reason 8B); and the responsibility of the parent to maintain a resident child (Reason 10).[5] A further ground, the special needs of the child (Reason 2) was added to the application on 22 February 2023.[6]
[5] Child Support papers, pp 156-173.
[6] Child Support papers, pp 217-218.
On 21 April 2023, Child Support decided that Reasons 2, 6 and 8A were established but that Reasons 3 and 8B were not established. The original decision-maker decided that from 4 December 2022 until the case ends, Mr Knowlton’s adjusted taxable income was to be set at $125,000 per year and increased by the child support inflation factor each year, and that the annual rate payable by Mr Knowlton was to be increased by $7,907 from 8 December 2022 until 31 December 2023, to account for special circumstances involving the special needs of [Child 1] and [Child 2] and the high costs of child care in relation to [Child 3].[7]
[7] Child Support papers, p 829.
On 15 May 2023, Ms Scofield objected to the decision.[8] The Tribunal notes that Child Support stated that Mr Knowlton also objected to the decision, on 29 April 2023, but the Tribunal observes that Mr Knowlton objected on an earlier date, 26 April 2023.[9]
[8] Child Support papers, p 868.
[9] Child Support papers, pp 859 and 1181.
On 21 July 2023, an objections officer part-allowed the objection, set aside the original decision and decided that:
from 4 December 2022 to 31 July 2025, Mr Knowlton’s adjusted taxable income was to be set at $164,952; and
for the period from 4 December 2022 to 31 December 2023, the annual rate of child support payable by Mr Knowlton was increased by $6,853 to account for special circumstances involving the special needs of [Child 1] and [Child 2] and the high costs of child care in relation to [Child 3].[10]
[10] Child Support papers, p 12.
On 8 August 2023, Mr Knowlton lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of the objections officer’s decision.[11]
[11] Child Support papers, p 1.
A hearing regarding this matter was held on 6 May 2024. Mr Knowlton and Ms Scofield participated in the hearing via teleconference and both of them gave evidence on affirmation.
The Tribunal considered the documents and information provided to the parties prior to the hearing as well as the documentary and oral evidence of Mr Knowlton and Ms Scofield.[12]
CONSIDERATION
[12] Administrative Appeals Tribunal Act 1975 subsection 37(1) and section 38AA Statement and Documents provided by Child Support numbered 1 to 1574; Mr Knowlton’s documents numbered A1 to A941 (A documents); and Ms Scofield’s documents numbered B1 to B354 (B documents).
The legislative framework
The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act1989 (the Assessment Act). The liable parent or carer entitled to child support may apply for a determination departing from the administrative assessment under Part 6A of the Assessment Act.
Section 98C establishes a three‑step process to be satisfied in order for there to be such a departure determination. The three steps are:
(i)that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and
(ii) that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part…
Once satisfied, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act.
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[13] In the case of G v MIBP,[14] the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
[13] (1979) 2 ALD 634.
[14] [2018] FCA 1229.
Grounds for departure
As noted above, Ms Scofield’s 4 December 2022 application for a departure from the administrative assessment was made on the following grounds:
· Reason 2: That in the special circumstances of the case, the child support assessment is unfair because the costs of maintaining the child are significantly affected because of the special needs of the child.
· Reason 6: That in the special circumstances of the case, the child support assessment is unfair because the costs of maintaining the child are significantly affected because of the high costs of child care.
· Reason 8A: That in the special circumstances of the case, the child support assessment is unfair because it does not correctly reflect one or both parents’ income, property and/or financial resources.
· Reason 8B: That in the special circumstances of the case, the child support assessment is unfair because it does not correctly reflect one or both parents’ earning capacity.
Reason 8A – A parent’s income, property and financial resources
Subparagraph 117(2)(c)(ia) of the Assessment Act, commonly referred to as Reason 8A, provides that a ground for departure from an administrative assessment exists if:
(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.
The Tribunal notes that the term “in the special circumstances of the case” is not defined in the Assessment Act but that it was established in Gyselman and Gyselman,[15] where it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.
[15] (1992) FLC 92-279.
In considering the above, the Tribunal is mindful of the requirement of satisfying subsection 117(7A) of the Assessment Act having regard to the capacity of the parent to derive an income, but disregarding the capacity of anyone who does not have a legal duty to maintain the child. To this end, the Tribunal has considered Mr Knowlton’s and Ms Scofield’s circumstances as the parents of [Child 1], [Child 2] and [Child 3].
The discretion provided for under section 117 of the Assessment Act provides that the Tribunal can depart from the administrative assessment and this means that the Tribunal can determine that an income amount other than a parent’s adjusted taxable income (ATI) is to be used for the purpose of calculating the parent’s child support obligation. Where Child Support has referred to ATI for the purpose of making the administrative assessment, the Tribunal accepts its calculations.
Ms Scofield’s submissions
Ms Scofield submitted that Mr Knowlton’s adjusted taxable income is not an accurate indication of Mr Knowlton’s actual income because, she said, Mr Knowlton receives significant support from his parents. This, Ms Scofield said, was provided in the form of cash, a credit card that was provided to Mr Knowlton for his personal use, and a brand new motor vehicle that Ms Scofield said she had been told had been purchased for Mr Knowlton and was being secretly stored at Mr Knowlton’s parents’ home.
In her application for a change of assessment, dated 4 December 2022, Ms Scofield said:
[Mr Knowlton] and I were receiving rental income from a rental property in [Suburb 1] for 3 years (approximately $3300 per month) and this stopped coming into our shared account as soon as we separated. [Mr Knowlton] will continue to receive this money from his parents but it may be given to him in cash as this is what they did with [Mr Knowlton]’s younger brother when he separated.[16]
[16] Child Support papers, p 158.
Ms Scofield also provided a statement from [Ms A], who had been married to Mr Knowlton’s brother, in which [Ms A] said that Mr Knowlton’s parents were providing support to Mr Knowlton which, due to the way it was being provided, was not being assessed for child support purposes.[17]
Mr Knowlton’s submissions
[17] B documents, pp B210-B212.
Mr Knowlton disputed Ms Scofield’s submissions regarding his income and said that his income is limited to his work as a [Occupation 1] at [Employer 1] and rental income from an investment property he owns.
According to a Statement of Financial Circumstances submitted to the Tribunal by Mr Knowlton, Mr Knowlton’s average weekly income is $1,423 per week, comprising: $673 (gross) in employment income and $750 (gross) in rental income. The Statement of Financial Circumstances shows that Mr Knowlton has assets of $786,000, comprising real estate valued at $760,000 (being funds in the bank of $1,000; two motor vehicles valued at a total of $15,000; and household contents valued at $10,000). The Statement of Financial Circumstances also shows that Mr Knowlton has around $55,476 in superannuation.[18]
[18] A documents, pp A3-A12.
Mr Knowlton’s Statement of Financial Circumstances shows that Mr Knowlton has total liabilities of $1,450,000, comprising: $50,000 in credit card debts and a mortgage of $1,400,000.[19] Mr Knowlton told the Tribunal that this mortgage was taken out by him with his parents. The Tribunal directed Mr Knowlton to provide it with documentation regarding the mortgage. The Loan Agreement and Mortgage Deed was provided to the Tribunal by Mr Knowlton.[20] According to the deed, which was dated 28 August 2023, [Mr Knowlton’s parents] lent the principal sum of $1,400,000 to Mr Knowlton until 3 September 2028 (the “repayment date”) and the interest rate is 6%. Further, there is an encumbrance on the real property owned by Mr Knowlton, at [Address 1], Victoria, as a result of the deed. The Tribunal asked Mr Knowlton about the valuation of the property in relation to the property being security for the loan. Mr Knowlton told the Tribunal that an independent valuation had been varied out which showed the value as being $1,500,000 as of 13 May 2022. A copy of this valuation was subsequently provided to the Tribunal.[21] The Tribunal notes that this is in contrast to the valuation of $750,000 provided by Mr Knowlton in his Statement of Financial Circumstances.
[19] A documents, pp A3-A12.
[20] A documents, pp A700-A711.
[21] A documents, p A856.
The Tribunal notes that according to the deed, Mr Knowlton’s repayments on the mortgage are $800 per month and Mr Knowlton’s bank statements show payments of $800 being made on a monthly basis to Mr Knowlton’s parents.[22]
[22] A documents, pp A436, A437
Mr Knowlton told the Tribunal that the loan was an accumulated amount, comprising the prior loan for the property in [Address 1], as well as other mortgages, legal fees and other ancillary costs. The Tribunal asked Mr Knowlton how he could expect to repay the $1,400,000 in principal to his parents by 3 September 2028 and why his repayments appear to be so low. The Tribunal notes that 6% of $1,400,000 is $84,000. Mr Knowlton told the Tribunal that the $800 per month repayment rate is based on what he can afford and that he was not sure what will happen if he is unable to pay the loan in full by 3 September 2028.
The Tribunal also notes that according to the Statement of Financial Circumstances, Mr Knowlton’s personal expenditure is about $410 per week and his household expenditure is about $1,871 per week.[23] This means that Mr Knowlton’s weekly expenses exceed his income by about $849 per week. The Tribunal asked Mr Knowlton how he meets his weekly expenses, given his Statement of Financial Circumstances shows there is such a shortfall. Mr Knowlton told the Tribunal that his wages vary dramatically and that he works as much overtime as he can, in order to cover his living expenses.
The Tribunal’s assessment of Mr Knowlton’s income, property and financial resources
[23] A documents, pp A3-A12.
According to subparagraph 117(7A)(b)(i) of the Assessment Act, in having regard to the income, property and financial resources of a parent of the child, the court must disregard the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them.
According to Mr Knowlton’s income tax returns, Mr Knowlton’s adjusted taxable income for 2020/21 was $74,972, for 2021/22 it was $60,841 and for 2022/23 it was $69,417.[24]
[24] Child Support documents, p 1530.
According to Mr Knowlton’s 2020/21 individual income tax return, his total income was $75,308: comprising $66,437 in salary and wages; $33 in allowances, earnings, tips, directors’ fees, etc; $5,000 in dividends and $1,756 in franking credits via a company called [Company 1]; and $2,082 in net rental income. Mr Knowlton’s deductions comprised laundry and home office expenses of $144 and $192 respectively, resulting in an adjusted taxable income of $74,972.[25]
[25] A documents, p A151-A164.
According to Mr Knowlton’s 2021/22 individual income tax return, his total income was $61,232: comprising $25,812 in salary and wages; $2 in interest; $22,500 in dividends and $7,500 in franking credits via a company called [Company 1]; and $5,418 in net rental income. Mr Knowlton’s deductions comprised laundry and cost of managing tax affairs expenses of $144 and $247.50 respectively, resulting in an adjusted taxable income of $60,481.[26]
[26] A documents, p A168-A181.
According to Mr Knowlton’s 2022/23 individual income tax return, his total income was $71,438: comprising $31,541 in salary and wages; $102 in allowances, earnings, tips, directors’ fees, etc; $92 in interest; $12,830 in dividends and $4,276 in franking credits via a company called [Company 1]; and $22,597 in net rental income. Mr Knowlton’s deductions comprised: work-related car expenses, work-related clothing and laundry expenses, work-related self-education expenses, other work-related expenses and cost of managing tax affairs expenses of: $102, $161, $101, $1,261 and $396 respectively, resulting in an adjusted taxable income of $69,417.[27]
[27] A documents, p A182-A195.
With regard to [Company 1], Mr Knowlton told the Tribunal that the company had been established for Mr Knowlton to operate as a sub-contractor. Mr Knowlton told the Tribunal that he had not used the entity for the purpose of sub-contracting for some years and that it was in the process of being wound-down. A complication of this, Mr Knowlton said, was that [Company 1] pays fringe benefits tax for Ms Scofield’s use of a motor vehicle. A letter from Mr Knowlton’s accountants confirms that a shareholder loan to [Company 1] by Mr Knowlton was being debited to pay for fringe benefits tax contributions towards more than one private use vehicle.
Ms Scofield told Child Support and the Tribunal that Mr Knowlton was deriving benefits from a company called [Company 2], including the use of a credit card. According to a [Mr B], of [Firm 1]:
We have acted as External Accountants for [Company 2] for several decades
Concerning [Mr Knowlton], his employment terminated on 5/ 10/2018 including any access to benefits such as Company Car , Company Credit Card(s) etc.
There are NO loans or similar commitments on the Company financial accounts.[28]
[28] Child Support documents, p 1104.
The Tribunal accepts this evidence from [Mr B] and concludes that Mr Knowlton has not received any financial benefits from [Company 2] resources since 2018.
As shown in the Child Support papers, after Mr Knowlton and Ms Scofield separated, Mr Knowlton’s parents assisted him with rental expenses of $1,992 per month, which equated to $23,940 per annum. Mr Knowlton told the Tribunal that this arrangement ceased in October 2023. According to the Child Support documents, the end date for this agreement was 28 October 2023.[29]
[29] Child Support papers, p 1496.
The Tribunal finds that terms of the loan agreement between Mr Knowlton and his parents are such that the Tribunal is not persuaded that it is a genuine agreement that would be legally enforced should Mr Knowlton not perform his obligations under the contract. This is because the loan repayment date is 3 September 2028 and Mr Knowlton could not provide a coherent explanation as to how he would be able to repay a $1,400,000 loan at his income level by 3 September 2028. Further, the repayment rate of $800 per month, even as interest only, is far below what the repayments would be under a standard loan agreement.
Consequently, the Tribunal concludes that Mr Knowlton is receiving a financial benefit from this loan agreement that should be considered a financial resource for the purpose of determining his child support obligation. With regard to determining Mr Knowlton’s current benefit from the loan agreement, for the purpose of determining his child support obligation, the Tribunal concludes that Mr Knowlton is receiving the benefit of the difference between the amount of interest defined in the loan agreement (that being $84,000, as noted in paragraph 27) and the amount he is actually paying ($800 per month, as noted in paragraph 27, or $9,600 per annum). This means the Tribunal finds that Mr Knowlton has received a benefit of $74,400 per annum since entering into the loan agreement with his parents on 28 August 2023.
Based on the support provided to Mr Knowlton by his parents, the Tribunal concludes that the child support assessment, based on the administrative assessment, was unfair because it did not correctly reflect the financial resources of Mr Knowlton.
This means the Tribunal finds that special circumstances exist, such that the administrative assessment resulted in an unjust and inequitable outcome. Therefore, the Tribunal finds that a ground for departure is established in relation to subparagraph 117(2)(c)(ia) (Reason 8A) of the Assessment Act.
Other grounds
The Tribunal also notes that Ms Scofield sought a departure from the administrative assessment in the special circumstances of the case, due to other reasons, as outlined at paragraph 15 of these Reasons. As the Tribunal has already determined that there is a ground to depart from the administrative assessment based on the considerations above, the Tribunal will consider the submissions on these issues in the context of whether it is just and equitable to depart from the administrative assessment.
Would departure from the administrative assessment be just and equitable?
Having found that special circumstances exist, such that the administrative assessment resulted in an unjust and inequitable result, so a ground for departure is established in relation to subparagraph 117(2)(c)(ia) (Reason 8A) of the Assessment Act, the next step for the Tribunal is to consider whether it is just and equitable to depart from the administrative assessment.
In deciding whether it is just and equitable, the Tribunal had regard to the matters set out in subsection 117(4) of the Assessment Act. Section 3 of the Assessment Act makes it clear that the parents of a child have the primary duty to maintain the child over all commitments of the parents other than commitments necessary for self-support or the support of another person to which they have a duty.
The Tribunal also notes that objects of the Assessment Act, set out in sections 3, 4 and 114, include that:
·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 children, and according to the parent’s capacity to provide; and
·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.
Ms Scofield’s income, property and financial resources
According to Ms Scofield’s updated Statement of Financial Circumstances,[30] dated 1 May 2024, Ms Scofield works part-time as an [Occupation 2]. The Statement of Financial Circumstances shows that Ms Scofield has an average weekly income of $1,764, comprising: $1,400 (gross) in salary and wages; family tax benefit of $274; and child support of $90 actually received from Mr Knowlton. According to the Statement of Financial Circumstances, Ms Scofield has $1,500,000 in assets, comprising: a home valued at $1,500,000 and a motor vehicle valued at $25,000. At the hearing, the Tribunal asked Ms Scofield about funds she has in bank accounts and she confirmed she had around $6,000 in an offset account. The Statement of Financial Circumstances also states that Ms Scofield has liabilities of $160,235, comprising: a mortgage of $147,235; outstanding legal bills of $8,000; and $5,000 which had been expended on home repairs. The Statement of Financial Circumstances shows that Ms Scofield has $95,000 in superannuation.
[30] Second party documents, pp B231–B239.
The Tribunal also notes that according to the Statement of Financial Circumstances, Ms Scofield’s personal expenditure is around $518 per week and her household expenses are around $2,473 per week. This means that Ms Scofield’s weekly expenses exceed her income by $1,227 per week. The Tribunal asked Ms Scofield how she meets her weekly expenses, given her Statement of Financial Circumstances shows there is such a shortfall. Ms Scofield told the Tribunal that she had resorted to using funds from accounts she held for the children which, she said, had dwindled from around $30,000 in total to $5-6,000.
Ms Scofield told the Tribunal that she does not have a legal duty to support any another person.
The Tribunal concludes that Ms Scofield’s taxable income is a reflection of her earning capacity, income, benefits and financial resources for child support purposes.
Mr Knowlton’s income, property and financial resources
The Tribunal notes that it has considered Mr Knowlton’s income, property and financial resources as set out above at paragraphs 20–39.
Mr Knowlton told the Tribunal that he does not have a legal duty to support any another person.
The proper needs of the children
In determining the proper needs of a child, it is necessary to have regard 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 Assessment Act).
Ms Scofield told the Tribunal that all three children have special needs (Reason 2); that she and Mr Knowlton had had a mutual intention that [Child 1] attend a private secondary school (Reason 3); and she incurs significant child care expenses (Reason 6). For the reasons outlined below, at paragraphs 93-94, the Tribunal finds that this departure determination should commence on 4 December 2022 and end on 31 December 2024. By 31 December 2024, [Child 1] (who is the eldest of the three children) will not have reached secondary school, so it is of no benefit to the parties for the Tribunal to consider whether Reason 3 applies in the case of [Child 1]. The Tribunal notes that it is open to the parties to apply for a departure determination on the basis of Reason 3, or any other special circumstance that might arise, at a later date.
Mr Knowlton told the Tribunal that he disputes that the children have special needs. Mr Knowlton also made numerous submissions regarding his view that Ms Scofield had breached family court orders between the parties by obtaining medical opinions without his consent. The Tribunal notes that it does not have jurisdiction to determine whether family court orders have been breached or not. Further, it is noteworthy that under paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. The Tribunal does acknowledge however, that Mr Knowlton submits that some of the medical evidence provided by Ms Scofield in relation to his family’s medical background is inaccurate.[31]
Does [Child 1] have special needs and if so, are the costs of maintaining her significantly affected because of those special needs?
[31] Child Support papers, p 19.
Ms Scofield told the Tribunal that [Child 1] has behavioural issues and is not learning at the level for her IQ. Ms Scofield said that [Child 1] struggles with friendships and socialisation and that school refusal has been a problem with [Child 1]. Ms Scofield told the Tribunal that a paediatrician, [Dr C] recommended occupational therapy for [Child 1] and that the occupational therapy to held address these behavioural issues; and that [Dr D] had recommended [Child 1] for an autism assessment, based on a psychological assessment that was carried out in 2022.
The Tribunal notes the following evidence in the documents before it that relates to the documented diagnosis of any medical condition or disability [Child 1] might have and corresponding referral:
·A psychological report by [Dr E], based on assessments carried out on 14 February and 14 July 2020, in which [Dr E] states that [Child 1] was referred by her GP to “investigate behavioural difficulties, chiefly emotional dysregulation”. In the report, [Dr E] states that:
[Child 1]’s emotional distress, difficulty remaining calm and poor social interaction with peers is better explained by developmental trauma, which has increased her propensity to anxiety.
[Dr E] stated that [Child 1]:
requires focussed training through clear and consistent boundaries at home and at school, and calm scaffolding of her emotional responses to recalibrate her internal arousal
…and recommended: reading for [Child 1] with her parents; audio books; guided relaxation recordings; conflict resolution through modelling by [Child 1]’s parents and teacher; and identifying with [Child 1] when she is becoming worked up and using de-arousal strategies.[32]
[32] Chid Support papers, pp 431-437.
·A letter from [Dr C], dated 26 July 2021, which states that [Child 1] has “a number of difficulties”. [Dr C] stated that [Child 1] “has an IQ mismatch with a much better verbal and spatial ability than processing and memory”. [Dr C] recommended “occupational therapy to look at a sensory modality intervention”. [Dr C] also noted that [Child 1]:
…showed evidence of executive function disorder with her difficulty with patience, poor organisation and being very loud. She struggles to wait her turn, is very active and again these are signs of executive function deficit.
This is in the ADD type category and it would be worth looking at strategies for behavioural management on the Royal Children’s Hospital website to relate to how to handle her difficulties.
There is no neurological concerns nor physical disability in this young lady, but these are very important aspects which will nature over 10 years, it will be our job to maintain her through this.
I would be keen to remain involved, but at this time we will look at natural strategies, not pure medical and she does not require any blood tests.[33]
[33] Child Support papers, p 358.
·A referral from [Dr F], a GP, dated 30 July 2021, to “[Named OT service provider]” regarding [Child 1] for:
…an opinion and management of her Emotional Dysregulation.[34]
[34] Child Support papers, pp 228-230.
·A referral from [Dr F], dated 13 July 2022, to [Ms G], of [named mental health service provider], regarding [Child 1] for seeing [Child 1] under a mental health care plan. The mental health care plan refers to [Child 1] experiencing behavioural dysregulation and requiring “…counselling for exploration of underlying mental status and development coping strategies”. A diagnosis of “lowered mood/anxiety” was also referred to.[35]
[35] Child Support papers, pp 231-233.
·A referral letter to [Dr H] of [named psychology practice] and GP Mental Health Care Plan by [Dr D], dated 22 December 2022, which refers to a consultation regarding [Child 1] experiencing an “emotional upset”. The document notes there is “possible queried autism or ADHD”.[36]
[36] Child Support papers, pp 451-456.
·A psychological assessment by [Dr H] based on assessments on 29 April 2022, 6 May 2022, 13 May 2022 and 2 August 2022, which found:
At this time. [Child 1] Is a nearly 10-year-old girl who attends [School 1] in Year 4. According to the current assessment, she presents with significant anxiety. executive functioning difficulties and deficiencies In reciprocal social behaviour based on parental and teacher report. [Child 1] also has a history of coping with parental conflict and separation.
While [Child 1] tends to be quite perfectionistic, self-critical, and anxious when it comes to her learning, her cognitive abilities are within the High Average range and her academic skills based on recent reading, written exp1ession, and mathematic assessment, are overall within the Average range. [Child 1]’s teacher reports concerns around her poor executive functioning skills and at times. social skills, which impact on her schoolwork and peer relationships.
While [Child 1] has a history of coping with parental conflict and separation. II ls hypothesised that her above-mentioned difficulties are better explained by a neurodevelopmental disorder such as autism and/or ADHD. This current assessment has not been completed and the following is recommended before any diagnoses can be considered -
oFurther exploration of [Child 1]’s developmental history
oAutism assessment
The following are also recommended to support [Child 1]
oSupport for [Child 1]’s parents in their on-going care of her mental health
oWhile counselling with a psychologist is something that might be recommended for [Child 1] down the track, it is the opinion of the examiner that she is not ready for it. Alternative therapies that may be more successful for [Child 1] in the interim include occupational therapy, equine-assisted therapy (with a suitably qualified professional) or art therapy (with a suitably qualified professional).[37]
[37] Child Support papers, pp 477-485.
·An email from the Director of [named psychology practice], dated 15 February 2023, which states that the [Child 1] and [Child 2] would no longer be able to access services from [named psychology practice].[38]
[38] Child Support papers, p 459.
·A letter from [Dr F], dated 22 May 2023, which states:
I have consulted today with [Mr Knowlton] in relation to the medical history of [Child 1] and [Child 2].
I understand both children have been listed as ‘special needs’ on a parenting order.
I have told [Mr Knowlton] I am not sure what this term means as it is not medical. I can confirm, after receiving both medical histories (including psychologist assessments) that no formal developmental nor mood disorder have been diagnosed for either child.
With consideration of the above, I cannot see an immediate indication for additional allied health involvement. I understand there is a disagreement amongst Parents for the necessity of allied health involvement. I will leave it to the Parents and their respective lawyers to resolve this. From my perspective, I have no medical indication for allied health referral currently for either [Child 2] or [Child 1].[39]
[39] Child Support papers, p 1105.
·A second letter from [Dr F], dated 22 May 2023, which is addressed to “Occupational Therapist” and states:
I write in regards to my referral dated 30/07/2021. I understand an appointment has become available.
[Child 1] is the eldest child of separated Parents. The Parents appear to have a difference of opinion as to the health of the children. This letter is to act as a summary of diagnoses given to [Child 1] in the past.
- Other than anxiety being informally mentioned in the [named psychology practice] developmental assessment I am not aware of any formal diagnosis.
- [Child 1] has seen multiple Health Practitioners in the past which includes but not limited to - [Dr C], [Dr E] (psychologist), [Ms G] (psychologist), [Ms H] (psychologist). Upon review of the documents made available to me I cannot see any formal diagnoses made.
In my consultations with the children they have presented well. They are attentive, appropriately interactive and interact appropriate with their Father. (Their Mother has been banned from this Medical Clinic due to repeated breaching of clinic policy).[40]
[40] Child Support papers, p 1138.
·Another letter by [Dr F], dated 22 May 2023 which states:
I have consulted today with [Child 1] in regards to an upcoming Occupational Therapy appointment.
[Child 1] does not wish to attend the appointment as she cannot see any reason for it. She has explained this appropriately today.
We have discussed her schooling, her friendship groups, her extra-curricular activities, her home life, her relationships with her family and her general well being. Thankfully, [Child 1] reports to be well and appears as a healthy 10 year old.
I have reviewed the psychological assessments available to me. I note no formal developmental nor mood disorder has been diagnosed.
With consideration of the above, I cannot see an immediate indication for Occupational therapy. I understand there is a disagreement amongst the parents for the necessity of occupational therapy . Considering [Child 1] appears well and does not want to attend, I do not have any reason to contradict her decision.[41]
[41] Child Support papers, p 1412.
·A letter and consultation notes by [Dr I], dated 23 May 2023, which recommend further assessment with an occupational therapist ([Named OT service provider]) and assessment for possible autism spectrum disorder and/or ADHD. The notes state that [Child 1] was no longer seeing a psychologist as Mr Knowlton objected.[42]
[42] Child Support papers, pp 1407-1408.
·A letter from [Dr C], dated 4 September 2023, noting:
There are some definite impulsive behaviours, difficulties with social and emotional situations and organisations and concerns within the school setting.
Obviously we have executive function issues raised by psychology and I have taken the approach of asking the school for Vanderbilt questionnaires and then comparing to the parent’s as to the intensity of these executive functions/ADHD symptoms. ASD is on the agenda if we could get it assessed and [named psychology clinic] would be a good avenue to research this.[43]
[43] B documents, p 178.
·A letter from [Dr C], recommending counselling with [Mrs J], a psychologist, and [Ms K]/OT ([Named OT service provider]) for [Child 1], as an ongoing anxiety support.[44]
[44] B documents, p B179.
·An email exchange between [Dr C], Ms Scofield, Mr Knowlton and educators involved in [Child 1]’s schooling in which [Dr C] states, on 3 November 2023:
Hi All
Just to let you all know [name] and I had a discussion and we are both in agreement of our current plan.
ADHD is not evident in school and we do not wish to therefore medicate.
She has a lot to say and is quite insightful so I do not see her as ASD.
I feel the task of finding someone she is comfortable to talk to is paramount and the first priority, as difficult as it can be to find at times!!
Thanks
[Dr C][45]
·An email from [Mrs J], dated 23 December 2023, in which she notes that she supports [Dr C]’s recommendation for an ASD assessment for [Child 1].[46]
·A referral by [Dr L], a GP, dated 20 March 2024, for [Child 1] to see [Mrs J] again, regarding ongoing psychological opinion and management of [Child 1]’s anxiety, executive functioning difficulties, difficulties coping with complex family dynamic/parental conflict, and a note that she was referring [Child 1] for an ASD assessment, as recommended by [Dr C].[47]
[45] A documents, p A719.
[46] B documents, p B180.
[47] B documents, p B257.
Based on the evidence before it, the Tribunal concludes that while recommendations have been made for further investigation and assessment of autism spectrum disorder and/or ADHD, there has been no such diagnosis for [Child 1].
There has, however, been recommendations that [Child 1] access occupational therapy through [named OT service provider] and psychological support to assist her in managing “emotional dysregulation”.
The Tribunal considered what expenses were incurred in relation to occupational therapy and psychological counselling for [Child 1] and whether the costs of maintaining [Child 1] were significantly affected because of those special needs.
The Tribunal notes that Mr Knowlton and Ms Scofield each submitted numerous invoices demonstrating expenses they have incurred in relation to medical expenses for [Child 1]. These included various expenses, including GP visits. The Tribunal, however, concludes that GP expenses are ordinary medical expenses and are not relevant to the increased costs of maintaining [Child 1] due to a special need. The Tribunal finds that the expenses that do relate to [Child 1]’s special needs include: fees from paediatricians; psychology expenses; and occupational therapy. For the period from 4 December 2022, these expenses included the following:
Incurred by Mr Knowlton
Description
Cost
Page reference
[Named OT service provider] on 7 June 2023
$242.48
A906
[Named OT service provider] on 19 September 2023
$96.99
A905
[Dr C] – Review consultation on 16 October 2023
With annotation: Medicare $71.70
$200.00
A778
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 31 October 2023
With annotation: Medicare $136.35
$205.00
A774
[Named] Family Clinic – Mental Health Care Plan by [Dr M]
With annotation: Medicare $99.70
$187.00
A775
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 14 November 2023
$180.00
A776
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 21 November 2023
With annotation: Medicare $137.05
$205.00
A777
[Dr C] – Review consultation on 13 February 2024
With annotation: Medicare $71.70
$200.00
A790
[Named OT service provider] on 1 May 2024
$270.00
A789
Incurred by Ms Scofield
Description
Cost
Page reference
[Named OT service provider] on 16 May 2023
$290.00
B172
[Named OT service provider] on 6 June 2023
$48.50
B172
[Named OT service provider] on 14 June 2023
$290.00
B172
[Named OT service provider] on 12 July 2023
$270.00
B172
[Named OT service provider] on 9 August 2023
$70.00
B172
[Dr C] – Review consultation on 1 September 2023
$200.00
B246
[Named OT service provider] on 4 October 2023
$270.00
B172
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 5 December 2023
$205.00
B308
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 23 December 2023
$180.00
B308
[Named OT service provider] on 29 November 2023
$270.00
B173
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 22 March 2024
Medicare rebate of $137.04
$180.00
B307
A Medicare statement shows the “Medicare claims history” for [Child 1] from 9 April 2021 to 9 April 2023. It shows a number of expenses and rebates, predominantly undefined but a handwritten note specifies that these expenses did not relate to private psychological assessments, nor speech pathology.[48]
[48] Child Support papers, pp 1031-1034.
It appears from a further Medicare statement for the period from 15 May 2023 to 15 May 2024, that most, if not all of [Child 1]’s [named OT service provider] sessions are subsidised by Medicare, with the rebate on sessions which are charged at a fee of $270.00 being $237.15, so the out of pocket for these appointments is $32.75. The consultations with [Mrs J] are also subsidised by Medicare, so that the sessions which are charged out at $205.00 are subsidised at the rate of $137.05, so the out of pocket expense is $42.99.[49]
[49] B documents, pp B260-B263.
The Tribunal notes that there was an expense incurred at [named OT service provider] on 1 November 2023 for non-attendance/late cancellation. Further, according to an email from [named OT service provider], [Child 1] has been booked in for fortnightly appointments for Term 2, 2024, from 17 April 2024.[50]
[50] B documents, p B174.
The Tribunal also notes that submissions were made regarding private health insurance but it does not consider this to be an expense in relation to special need.
Considering all the evidence before it, the Tribunal finds that [Child 1] does have special needs but is not persuaded that the net costs of [Child 1]’s special needs after Medicare rebates are applied, significantly affect the costs of maintaining [Child 1].
Does [Child 2] have special needs and if so, are the costs of maintaining him significantly affected because of those special needs?
Ms Scofield told the Tribunal that [Child 2] also has behavioural problems.
The Tribunal notes the following evidence in the documents before it that relates to the documented diagnosis of any medical condition or disability [Child 2] might have and corresponding referral:
·A referral from [Dr N], a GP, dated 16 February 2021 to [Dr O], a paediatrician, asking [Dr O] for opinion and further management. It notes that [Child 2] was “…travelling well with his psychology sessions” but there were some concerns about his speech, so [Dr N] was looking to refer him for further speech assessment and management. It notes that the medical history of [Child 2] included: mild concerns regarding “developmental stutter and articulation prob”; eczema; microscopic haematuria; and ADHD (provisional).[51]
[51] Child Support papers, p 400.
·Referral from [Dr O], a paediatrician, dated 1 March 2021, referring [Child 2] to [Ms P], for a cognitive assessment and an educational assessment for “a possible specific learning disorder”. It notes that [Child 2] has the following diagnoses:
oSlow progress with school work
oMicroscopic haematuria, left-sided hydronephrosis
oPast history of mesenteric lymphadenitis
oEczema
oPast history of closed head injury age 2
oNegative investigation for ADHD.[52]
[52] Child Support papers, pp 225-226.
·An email from [Ms Q], a psychologist, dated 21 December 2021, confirming that [Child 2] had completed six sessions under a mental health care plan, so would require a GP consultation for approval of additional Medicare-rebated sessions.[53]
[53] Child Support papers, p 390.
·A “Chronic Disease Management – GP Management Plan & Team Care Arrangements” documents, completed by [Dr N], dated 10 March 2021. According to the document, [Child 2] had an active: expressive speech issue with “mild concerns re: developmental stutter and articulation prob”; and eczema. The document also notes that there was a provisional diagnosis of ADHD made on 24 November 2020, in relation to [Child 2] under paediatrician [Dr O]. The GP management plan section of the document refers to referrals to [Dr N], [Dr O], [Ms Q] (a psychologist) and speech pathology at [named] Speech Pathology Services.[54]
[54] Child Support papers, pp 394-399.
·A referral from [Dr F], dated 28 July 2022, to [Dr O] for:
oCoordination of behavioural assessments (noting that “…[Ms R] at [named psychology practice] is the psychologist undertaking the assessment”).
oAcute on chronic abdominal pains
oSensory processing disorder (“also mentioned by [Ms R] at [named psychology practice]”).[55]
[55] Child Support papers, p 227.
·A psychological assessment report, by [Ms R] of [named psychology practice], dated 5 August 2022. [Ms R] found that:
[Child 2]’s performance on the academic tests indicated that he has significant weaknesses in his spelling and reading comprehension. While he demonstrates age-appropriate phonetic decoding and mathematical problem-solving skills. [Child 2] demonstrates symptoms associated with a Specific Learning Disorder {SLD) with impairment in reading, however he does not currently meet the DSM-5 criteria. [Child 2] requires at least 6 months of an intervention program, targeting his specific areas of weakness in reading for a diagnosis of SLD to be considered.
…
The behavioural assessment indicated significant difficulties In internalising and externalising behaviours, including depression, rule-breaking behaviour, aggression, and social difficulties. However, these difficulties were not observed in the school environment. The executive functioning assessment indicated that [Child 2] has behavioural, emotional, and cognitive regulation difficulties in the home environment. Significant executive functioning difficulties were not observed In the school environment. [Child 2] presents with some features of attention deficit hyperactivity disorder, but these symptoms are not reported to be a significant concern in the school environment and as a result a diagnosis cannot be made at this time.
[Child 2]’s social responsiveness scores were In the Mild range, Indicating significant difficulties in reciprocal social behaviour that are impacting his everyday social interactions. Examination of [Child 2]’s social responsiveness scores indicated difficulties with social communication in both the home and school environment. These difficulties may be better explained currently by [Child 2]’s low self-confidence and symptoms of depression rather than an autism spectrum disorder. It will be important that [Child 2] continues to access psychological support focusing on his socioemotional difficulties.
[Ms R] recommended: psychological support targeting [Child 2]’s socioemotional difficulties; referral to an occupational therapist for assessment and treatment of [Child 2]’s fine motor skills and reading difficulties; a reassessment of [Child 2]’s learning, around the time of his transition to secondary school, to determine whether he meets criteria for a specific learning disorder with impairment in reading; engagement in a social skills group; an Individual Education Plan for his classroom; support for [Child 2]’s reading skills at school and in the home; and games and sports to support [Child 2]’s executive functioning skills.[56]
[56] Child Support papers, pp 414-430.
·Documents from [named speech pathology service] showing that [Child 2] attended appointments from 30 August 2022 to 7 October 2022.[57]
[57] Child Support papers, pp 401-413.
·An email from [Ms Q], dated 11 October 2022, advising that [Child 2] would need to be referred to another psychologist.[58]
[58] Child Support papers, p 392.
·An email from the Director of [named psychology practice], dated 15 February 2023, which states that the [Child 1] and [Child 2] would no longer be able to access services from [named psychology practice].[59]
[59] Child Support papers, p 459.
·A letter from [Dr F], dated 22 May 2023, which states:
I have consulted today with [Mr Knowlton] in relation to the medical history of [Child 1] and [Child 2].
I understand both children have been listed as ‘special needs’ on a parenting order.
I have told [Mr Knowlton] I am not sure what this term means as it is not medical. I can confirm, after receiving both medical histories (including psychologist assessments) that no formal developmental nor mood disorder have been diagnosed for either child.
With consideration of the above, I cannot see an immediate indication for additional allied health involvement. I understand there is a disagreement amongst Parents for the necessity of allied health involvement. I will leave it to the Parents and their respective lawyers to resolve this. From my perspective, I have no medical indication for allied health referral currently for either [Child 2] or [Child 1].[60]
[60] Child Support papers, p 1105.
·A referral from [Dr M], a GP, dated 17 October 2023, to [Mrs J], a psychologist, for six sessions for opinion and management of [Child 2]’s behavioural issues under a mental health care plan.[61]
[61] A documents, p A723.
·A letter from [Dr O], dated 1 November 2023, which states that she reviewed [Child 2] on 1 November 2023, his diagnoses were as follows:
1. Problems with focus and attention: teacher’s questionnaire positive for ADHD mixed type.
2. FSIQ high average, negative for ASD, investigation for specific learning disorder (reading/ writing)
3.Behavioural dysregulation
4. Previously microscopic haematuria
5. Mild left sided hydronephrosis and mild left distal hydroureter
6. Past history of mesenteric lymphadenitis
7. Eczema.
8. Past history of closed head injury age 2.
…
Impression:
1.Ongoing mild left sided hydronephrosis, now also noted mild left sided hydronephrosis, normal urine analysis I will discuss him with paediatric urology to work out a follow up plan for him.
2) Moderate symptoms of mixed ADHD at school when rated by school teacher with problematic writing and functional impairment, specifically disturbing class, issues with following directions, organisational skills and assignment completion. The maternal questionnaire provided evidence of inattention as well whereas the paternal questionnaire did not identify any symptoms of ADHD and no issues with performance at school.
Recommendations: I will discuss him with paediatric urology to work out a follow up plan for him.
As there is discrepant information about his ability to focus and concentrate at school and discrepant information about whether he is above or behind schoolwork I have requested further information, specifically his Naplan testing result. Interestingly [Child 2] himself said he cannot concentrate at school and would like help with that. I have provided basic information on how to foster focus and attention in school. I have also provided [Ms Scofield] with information if a treatment trial with stimulants for possible ADHD is considerer. A review in 3-6 months was suggested.[62]
[62] A documents, pp A724-726.
·A letter from [Dr O], dated 4 December 2023, which lists the following diagnoses for [Child 2]:
1. Mild left sided hydronephrosis and mild left distal hydroureter
2. ADHD mixed type.
3. FSIQ high average, negative for ASD, investigation for specific learning disorder (reading/ writing)
4.Behavioural dysregulation
5. Previously microscopic haematuria
6. Mild left sided hydronephrosis and mild left distal hydroureter
7. Past history of mesenteric lymphadenitis
8 Eczema.[63]
[63] A documents, pp A727-728.
Based on the evidence before it, the Tribunal concludes that while specialists have determined that [Child 2] may have ADHD, it is yet to be formally diagnosed.
There has, however, been recommendations that [Child 2] access counselling to address his behavioural problems. As with [Child 1], Mr Knowlton and Ms Scofield submitted evidence relating to GP expenses for [Child 2] but the Tribunal concludes that GP expenses are ordinary medical expenses and are not relevant to the increased costs of maintaining [Child 2] due to a special need. The Tribunal finds that the expenses that do relate to [Child 2]’s special needs include: fees from paediatricians; and psychology expenses. For the period from 4 December 2022, these expenses included the following:
Incurred by Mr Knowlton
Description
Cost
Page reference
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 3 October 2023
$185.00
A781
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 17 October 2023
With annotation: Medicare $136.35
$205.00
A783
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 31 October 2023
$205.00
A785
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 14 November 2023
$180.00
A786
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 20 February 2024
With annotation: Medicare $137.05
$205.00
A810
[Dr O] on 24 July 2023
With Medicare benefit of $249.40
$370.00
B249
[Dr O] on 1 November 2023
With Medicare benefit of $245.15
$275.00
B251
[Dr O] on 4 December 2023
With Medicare benefit of $71.10
$200.00
B252
Incurred by Ms Scofield
Description
Cost
Page reference
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 9 December 2023
$180.00
B319
[Named] Family Clinic – Clinical psychologist consultation with [Mrs J] on 23 December 2023
$180.00
B320
A Medicare statement shows the “Medicare claims history” for [Child 2] from 9 April 2021 to 9 April 2023. It shows a number of expenses and rebates, predominantly undefined.[64]
[64] Child Support papers, pp 1035-1038.
Considering all the evidence before it, the Tribunal finds that [Child 2] does have a special need, that being his behavioural challenges, but is not persuaded that the net expenses associated with his behavioural challenges after Medicare rebates are applied significantly affect the costs of maintaining [Child 2].
Does [Child 3] have special needs and if so, are the costs of maintaining him significantly affected because of those special needs?
Ms Scofield told the Tribunal that [Child 3] also has behavioural problems.
The Tribunal notes the following evidence in the documents before it that relates to the documented diagnosis of any medical condition or disability [Child 3] might have and corresponding referral:
·An email from [Ms S], from [an early learning centre], to Ms Scofield, dated 16 August 2022, which refers to [Child 3] having problems with emotional regulation and referring Ms Scofield to resources from [the public health service] and other resources to assist [Child 3] with emotional regulation.[65]
[65] Child Support papers, pp 361-375.
·A report from a Preschool Field Officer regarding some behavioural problems, including with emotional regulation, with [Child 3] at [an early learning centre], dated 3 April 2023. It recommends occupational therapy and access to a children’s psychologist for [Child 3], which, the report stated, [Child 3] could access through [the public health service].[66]
[66] Child Support papers, pp 804-809.
·A Medicare statement showing the “Medicare claims history” for [Child 3] from 9 April 2021 to 9 April 2023. It shows a number of expenses, predominantly undefined.[67]
[67] Child Support papers, pp 1039-1043.
·A discharge summary from Children’s Services at [the public health service] which states that [Child 3] was referred to psychology for “concerns surrounding significant emotional dysregulation and challenging behaviours” but that his needs were beyond the scope of the service and that he should be referred to other services and the NDIS.[68]
[68] B documents, pp B183-184.
·A letter from [Dr C], dated 5 December 2023, which states that he saw [Child 3] on 27 November 2023 and to him [Child 3]:
seemed to be borderline for ADHD, but the reports did not indicate this strongly at this time, but also that he was developing appropriately.
[Dr C] stated:
Given he is going to [School 1] with good input and support, I think, other than for OT intervention and his play therapy, I think we should move on to school and see how he progresses in the mainstream situation. Obviously if there is need to repeat, that can be done later, but for the moment, I think we should observe again in term 1, 2024 to consider ADHD and if there are any other such issues arising.[69]
·A letter from [Dr O], dated 24 April 2024, which states:
[Child 3] presents with significant behavioural issues, including aggression towards myself and his mother in the consultation setting.
…
[Child 3] requires a full developmental assessment including an assessment of his cognitive skills and an assessment for ASD. He obviously requires a lot of support from school as he is aggressive to staff and students, hence it seems that he requires a full time aide for him to support him in the school setting.
…
I have encouraged [Ms Scofield] to go ahead with an application for NDIS services on the grounds of severe behavioural exacerbation and delays in learning, toileting, sleeping and eating. He would benefit from regular OT and regular work with a child psychologist, at the least.[70]
[69] A documents, p A718.
[70] A documents, p A939-A941 and B352-B354.
Based on the evidence before it, the Tribunal concludes that while specialists have determined that [Child 3] may have autism spectrum disorder, it is yet to be formally diagnosed.
There has, however, been recommendations that [Child 3] access counselling to address his behavioural problems. The Tribunal finds that the expenses that relate to [Child 3]’s special needs include fees from paediatricians. For the period from 4 December 2022, these expenses included the following:
Incurred by Mr Knowlton
Description
Cost
Page reference
Consultation with [Dr C] on 12 December 2023
With annotation: Medicare $71.70
$200.00
A768
Consultation with [Dr C] on 13 February 2024
With annotation: Medicare $71.70
$200.00
A770
Consultation with [Dr C] on 25 March 2024
With annotation: Medicare $174.35
$200.00
A767
Incurred by Ms Scofield
Description
Cost
Page reference
Consultation with [Dr C] on 27 November 2023
$495.00
B241
[Dr O] on 24 February 2024
With Medicare benefit of $250.65
$400.00
B253
Consultation with [Dr C] on 1 March 2024
$200.00
B242
Considering all the evidence before it, the Tribunal finds that [Child 3] does have a special need, that being his behavioural challenges, but is not persuaded that the net expenses after Medicare rebates are applied, associated with [Child 3]’s behavioural challenges significantly affect the costs of maintaining him. With regard to a potential autism diagnosis, the Tribunal notes that [Dr O] has referred Ms Scofield to the NDIA for potential support from the NDIS.
Reason 6 – High costs of child care
Subparagraph 117(2)(b)(ib) of the Assessment Act provides that a ground for departure from an administrative assessment exists if the costs of maintaining the child are significantly affected because of high child care costs in relation to the child. In this case, Ms Scofield referred to child care for all three children. Criteria specific to this ground for departure are set out in paragraphs 117(3A) and (3B) of the Act.
Subsection 117(3A) provides that the costs must be incurred by a parent or non-parent carer and the child in care must be under 12 years of age at the start of the child support period.
The Tribunal notes that [Child 1] turns 12 years of age [in] September 2024, [Child 2] will turn 12 years of age [in] January on 2026 and [Child 3] will turn 12 years of age [in] November 2030.
The Tribunal considered whether the child care costs are “high”. Subsection 117(3B) of the Act provides that child care costs are only “high” if, during a child support period, they total more than 5% of the amount worked out by dividing the payee’s ATI for the period by 365 and multiplying the quotient by the number of days in the period.
Noting the calculations of the objections officer and accepting those, the Tribunal is satisfied that the conditions for Reason 2 are met for the child support periods from 9 February 2022 to 30 September 2022 and from 1 October 2022 to 31 December 2023.[71]
[71] Child Support papers, pp 25-26.
The Tribunal notes that Ms Scofield’s net expenditure on child care for [Child 1] and [Child 2] for the period from 22 December 2022 to 31 December 2023 at [child care service] was in the order of $1,461 (based on the net payments Ms Scofield made).[72]
[72] Child Support papers, pp 794-796 and pp B296-B301.
With regard to [Child 3]’s attendance at [an early learning centre], the documents provided by Ms Scofield show the final date of any payment being due to [an early learning centre] was 24 December 2023. For the period from 4 December 2022 to 24 December 2023, the cost of [Child 3] attending [an early learning centre] was $12,144 (after child care subsidy). The Tribunal notes, however, that from April 2023, the Victorian Government’s free kindergarten subsidy of $2,563 per annum was applied to [Child 3]’s account at a rate of $50 per week. Over 36 weeks, the Tribunal concludes, this is in the order of $1,800. So, the net cost of [Child 3] attending [an early learning centre] from 4 December 2022 to 24 December 2023 was in the order of $10,344.[73]
[73] Child Support papers, pp 821 to 822 and pp B224 to B226.
This means that for the period from 4 December 2022 to 31 December 2023, the Tribunal concludes that Ms Scofield’s net child care expenses were $11,805. The Tribunal finds that in the circumstances of the case, it is reasonable that Mr Knowlton contribute 50% of these expenses ($5,903).
For the child support period from 1 January 2024, however, the relevant ATI for Ms Scofield is deemed to be $65,661, 5% of which is $3,283 and the Tribunal concludes, based on the evidence before it, that Ms Scofield’s child care fees will not exceed that for the period from 1 January 2024 to 31 December 2024 because [Child 3] appears to be attending the school’s before, after and school holiday programs and this is unlikely to double Ms Scofield’s expenditure at [child care service].[74]
[74] B documents, pp B303-B305.
Reason 8B – The earning capacity of Mr Knowlton
Ms Scofield also sought a change of assessment on the basis of Reason 8B. Such a determination can only be made if the relevant requirements, set out in the legislation are satisfied. According to subsection 117(7B) of the Assessment Act, the Tribunal must be satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
87.The Tribunal considered the first leg of the test (as set out in paragraph 117(7B)(a) of the Assessment Act).
88.The Tribunal is satisfied, based on the evidence before it, that Mr Knowlton ceased working outside the home in May 2021 and secured permanent part-time work in mid-2022, after he and Ms Scofield separated in December 2021.
89.This means the Tribunal finds that the first limb of the test has been met, so Reason 8B is not established.
The income, earning capacity, property and financial resources of the children
There is no dispute that none of the children have income, earning capacity, property or financial resources.
Conclusion
The Tribunal concludes that it would be just and equitable to make a departure determination from the administrative assessment.
As above the Tribunal notes that this is not a forensic accounting exercise, nor a major investigation and the Tribunal is required to make a decision based on the evidence before it.
Ms Scofield made submissions that should a departure determination be made, it should commence prior to 4 December 2022 because she was struggling to manage legal proceedings, caring for her children and changing jobs multiple times in 2022, with minimal support, against a backdrop of family violence. The Tribunal acknowledges Ms Scofield’s submissions but finds that the start date for the departure from the assessment should be 4 December 2022, the date Ms Scofield applied for a departure determination because Ms Scofield, as shown in the Child Support papers, was advised of the ability for her to apply for a departure determination on 29 April 2022 and it was again discussed with her on 23 May 2022. Further, Ms Scofield lodged an application on 2 November 2022 that was incomplete and she was advised of this on 17 November 2022 before she lodged her application on 4 December 2022.[75]
[75] Child Support papers, p 33.
The Tribunal finds that this departure determination should end on 31 December 2024. This is because it is possible that one or more of the children will have a formal diagnosis of a disability, such as autism spectrum disorder or ADHD, by the end of the 2024 calendar year which might significantly affect the costs of maintaining them.
The Tribunal also acknowledges Ms Scofield’s and [Ms A’s] submissions regarding the financial resources of Mr Knowlton’s parents but the evidence before the Tribunal is that the support provided to Mr Knowlton by his parents was limited to assistance with rent, and the benefit he receives from the loan agreement with his parents.
Considering these factors, the Tribunal has determined that it is just and equitable that:
· for the period from 4 December 2022 until 27 August 2023, Mr Knowlton’s income is increased by $23,940 per annum;
· for the period from 28 August 2023 to 27 October 2023, Mr Knowlton’s income is increased by $98,340 per annum ($23,940 for rental support from his parents plus $74,400 from the benefit from the loan);
· for the period from 28 October 2023 to 31 December 2024, Mr Knowlton’s annual rate of child support is increased by $74,400; and
· for the period from 4 December 2022 to 3 December 2023, $5,903 is to be added to the annual rate of child support payable by Mr Knowlton.
Potential for resulting hardship
Would there be resulting hardship from a departure from the administrative assessment?
Subsection 117(4) of the Assessment Act requires the Tribunal to take into account whether any departure determination or failure to make a departure will cause any hardship to the child, the carer, the liable parent or any other person the liable parent has a duty to support.
Ms Scofield told the Tribunal that she is struggling with the costs of meeting the needs of her children.
Mr Knowlton told the Tribunal that he cannot pay more child support than he has been paying. He said that he does not have the capacity to work any more hours than he does, particularly due to his caring responsibilities.
100.The above determination by the Tribunal will result in an increase in the child support payable from the administrative assessment which was in place prior to the departure application.
101.The Tribunal has carefully considered all of the income, resources, benefits and assets together with the commitments and liabilities of both parties to determine the above departure determination. In considering all of these factors, the Tribunal has taken the view that neither party will experience hardship as a consequence of this departure determination.
Is it otherwise proper to make a particular departure determination?
102.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 Assessment Act. Subsection 117(5) of the Assessment Act sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination. Subsection 117(5) focuses on the balance of support carried between the parents on the one hand and the taxpayer on the other. It is appropriate for children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Assessment Act means that the Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the child may be affected by the level of child support. The Tribunal has concluded that it is otherwise proper in the circumstances to depart from the administrative assessment.
103.Ms Scofield is in receipt of family assistance. The increase in child support entitlements as set out in this decision when compared to the administrative assessment may decrease the extent to which the community will be supporting the children. The Tribunal is satisfied this is otherwise proper as its determination will result in an appropriate apportionment of financial responsibility between the parents and the taxpayer.
DECISION
The decision under review is set aside and the Tribunal substitutes its own decision that:
· for the period from 4 December 2022 until 27 August 2023, Mr Knowlton’s income is increased by $23,940 per annum;
· for the period from 28 August 2023 to 27 October 2023, Mr Knowlton’s income is increased by $98,340 per annum;
· for the period from 28 October 2023 to 31 December 2024, Mr Knowlton’s annual rate of child support is increased by $74,400; and
· for the period from 4 December 2022 to 3 December 2023, $5,903 is to be added to the annual rate of child support payable by Mr Knowlton.
Key Legal Topics
Areas of Law
-
Family Law
-
Administrative Law
0
1
0