Marsh and Lineker (Child support)

[2024] AATA 802

Marsh and Lineker (Child support) [2024] AATA 802 (26 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026165

APPLICANT:  Mr Marsh

OTHER PARTIES:  Child Support Registrar

Ms Lineker

TRIBUNAL:Member J Thomson

DECISION DATE:  26 February 2024

DECISION:

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

• For the period 1 July 2022 to 31 October 2024, Mr Marsh’s adjusted taxable income is varied to $88,515; and

• For the period 1 July 2022 to 2 October 2023, his annual rate of child support is increased by $1,153 by way of contribution to the special needs of [the child].

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – special needs of the child - ground for departure established – 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. Mr Marsh and Ms Lineker are the parents of [the child], born 2019, and in the 93% primary care of Ms Lineker and the 7% care of Mr Marsh.

2. On 19 September 2022, Ms Lineker applied to Services Australia (Child Support) for a change of assessment on the ground that Mr Marsh’s income, property and financial resources available to him for child support purposes were not accurately reflected in the administrative assessment of child support, making the assessment unfair, (the ground commonly referred to as Reason 8A).

3. The administrative assessment in place at the time of Ms Lineker’s change of assessment application required Mr Marsh to pay child support to Ms Lineker for the period 1 August 2022 to 14 December 2022 at the annual rate of $2,586, based on his 2021/22 adjusted taxable income (ATI) of $48,609 and Ms Lineker’s 2021/22 amended taxable income of $82,825, and for the period 15 December 2022 to 30 June 2023, he was required to pay child support to Ms Lineker at the same annual rate based on his 2021/22 ATI of $48,609 and Ms Lineker’s 2022/23 income estimate of $53,977.

4. On 6 January 2023, a Child Support Decision Maker, DM [A], found Reason 8A established and changed the assessment to provide as follows:

   ·For the period 19 September 2022 until 30 June 2024, the administrative assessment be departed from by setting the adjusted taxable income of Mr Marsh at $62,000.

5. On 5 February 2023, Ms Lineker objected to DM [A]’s decision. On 6 February 2023, Mr Marsh lodged his objection to DM [A]’s decision.

1. On 26 April 2023, a child support objections officer partially allowed Ms Lineker’s objection, setting aside DM [A]’s decision, and, in substitution, deciding that for the period 19 September 2022 until 31 December 2024, Mr Marsh’s ATI should be set at $70,421.

1. During the course of the objection process, Ms Lineker agitated a claim for contribution by Mr Marsh to the special needs costs relating to [the child]’s [Physical function] and associated psychological condition on the basis that the costs of treating his condition significantly impacted her costs of maintaining the child (the ground commonly referred to as Reason 2). The objections officer was not satisfied there was sufficient evidence the costs associated with the child’s special needs were significant and made no finding regarding [the child]’s special needs.

2. On 25 May 2023, Mr Marsh sought review of the objections officer’s decision by the Tribunal.

1. The Tribunal heard the matter on 10 October 2023. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documentation provided by Child Support (folios 1 to 624), admitted into evidence and marked Exhibit 1, documentation provided by Mr Marsh (folios A1 to A314), admitted into evidence and marked Exhibit A, and documentation provided by Ms Lineker (folios B1 to B143). Both parents had copies of these documents with them at the hearing.

1. At the conclusion of the hearing, the Tribunal directed the parents to provide further documents. Both parents have complied with the Tribunal’s directions in that respect and their additional documents have been added to their Exhibits A and B.

1. The Tribunal also obtained, on its own initiative, Australian Security and Investment Commission (ASIC) searches of the corporate entities [Company] and [Investments], referred to in the documentation provided by Child Support and the parents for the purposes of the hearing. These search results have been admitted into evidence as Exhibit C before the Tribunal.

1. The Tribunal granted leave to Ms Lineker to provide further documents of costs incurred by her for treating [the child]’s special needs condition. These documents have been added to her Exhibit B documents. Copies of the additional documents provided by the parents have been circulated to the parents for their consideration and comment, and their comments taken into consideration by the Tribunal in its decision-making process.

ISSUES

1. The issues which arise in this case are:

   ·      Whether a ground or grounds are 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 determination.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1, A and B provided to the Tribunal at the hearing and subsequently, and Exhibit C.

2. The statutory provisions relevant to this matter are contained in the Child Support (Assessment) Act 1989 (the Act). The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. A formula is used. It takes into account variables including each parent’s ATI for the last relevant year of income, the number of children, and the level of care provided by each parent. Part 6A of the Act allows for a departure from the administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), the Registrar may make a departure determination if three matters are established:

   ·One, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(ii));

   ·A departure is just and equitable as regards the children and each parent (sub-subparagraph 98C(1)(b)(ii)(A)); and

   ·It is otherwise proper to make a departure decision (sub-subparagraph 98C(1)(b)(ii)(B)).

3. Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2) of the Act.

4. If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Registrar may make it one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage of the child.

Grounds for departure

1. Subparagraph 117(2)(c)(ia) provides as a ground for departure:

   (c) that, in the special circumstances of the case, the application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child…

   (ia) because of the income, property and financial resources of either parent; or…

2. At the hearing, both parents indicated their intentions to agitate claims, in Mr Marsh’s case, for contribution to his costs of enabling him to spend time with, or communicate with [the child], which he said were high and significantly affected his costs of maintaining the child, and in Ms Lineker’s case, for the costs she said she had incurred for the treatment of the child, [the child]’s special needs relating to his [Physical function], dietary and psychological/autism spectrum disorder (ASD) conditions.

3. Subsection 117(2) of the Act provides as further grounds for departure:

   (b)  that in the special circumstances of the case, the costs of maintaining the child are          affected:

   (i) because of the high costs involved in enabling a parent to spend time with, or communicate with, the child; or

   (ia) because of special needs of the child; or…               

4. The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislation in subsection 117(2) must be guided by the qualification that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman (1992) FLC 92-279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The Tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial positions and whether it would be just and equitable and otherwise proper to make particular orders regarding the costs associated with Mr Marsh spending time with or communicating with [the child], and Ms Lineker’s costs associated with the treatment of [the child]’s special needs.

5. Mr Marsh’s evidence at the hearing was focused on the objections officer’s determination of his income for child support purposes for the period 19 September 2022 to 31 December 2024 at $70,421, an increase of his taxable income of $48,609 applied in the administrative assessment for the  period 1 August 2022 to 30 June 2023 which equates to the
   wages/salary income he derives from his [Occupation 1]’s business, [Company] by determining his income from his business in terms of an Australian Taxation Office (ATO) benchmark formula as an average percentage of the turnover of his business reflected in its 2021/22 financial year business records.

6. The Tribunal will therefore consider Mr Marsh’s income and financial resources available to him for child support purposes as reflected in the financial records of his [Company] business and the income tax returns for that business and Mr Marsh prepared by his professional accounts, [Accountants] of [Address 1], copies of which were before the Tribunal for the financial years 2020/21, 2021/22 and 2022/23 in the Child Support documents, Exhibits 1 and Mr Marsh’s Exhibit A documentation.

7. As these financial documents were prepared by professional accountants, the Tribunal accepts they are an accurate and reliable source of evidence as to the financial operations of [Company] over the 2020/21, 2021/22 and 2022/23 financial year periods.

8. As noted above, the Tribunal has also obtained, on its own initiative, copies of searches of the ASIC records reflecting the structure of [Company] and its shareholder, [Investments] as at 11 October 2023 (see Exhibit C).

9. Mr Marsh gave evidence at the hearing that his sole source of income over the 2020/21 year to date of hearing on 10 October 2023 was from his [Company] business, trading as [Trading name]. He gave evidence of a franchise agreement he entered into with [Franchisor] for the provision of website and branding facilities for which [Company] pays a monthly royalty fee of $2,000, (annualised to $24,000).

10. The ASIC records (Exhibit C) obtained by the Tribunal and current to 11 October 2023, record Mr Marsh as the sole director and secretary of [Company] since registration on 20 April 2018. The sole shareholder of that company’s 100 issued shares is recorded as [Investments]. The ASIC Exhibit C search of [Investments] records Mr Marsh and Ms Lineker as the directors of the company since registration on 19 April 2018, and Mr Marsh as secretary. The shareholders are recorded as Mr Marsh and Ms Lineker, each holding one of the two issued shares in the company.

11. Mr Marsh gave evidence that [Company] pays him a weekly wage of $838, reflected in  his personal bank account with the [Bank 1] account [number] (see Exhibit A pages A123 to A164), which appears to be a net income amount because the financial records of [Company] record the company paying him wages of $49,000 for each of the financial years 2020/21, 2021/22 and 2022/23.

12. The 2020/21 profit and loss statement for [Company] at pages 224 to 225, Exhibit 1 reflects, relevantly, gross income of $143,641, expenses totalling $98,165 and a profit of $45,476.

13. The Tribunal has scrutinised the expenses items reflecting, among other items, the royalty payment of $2,000 mentioned earlier herein, depreciation of $13,023 claimed on the four motor vehicles registered to the business and corresponding motor vehicle expenses of $26,335. The Tribunal accepts those expenses as reasonable.

14. The [Company] 2020/21 income tax return at pages 234 to 243, Exhibit 1 records, relevantly, in its costs of sales summary, payments to associated persons $49,000, identified at page 243, Exhibit 1 as “WAGES – Mr Marsh”. There is no reference in these financial records of any employee fringe benefits contribution by Mr Marsh nor is there any record of any apportionment of the company’s motor vehicle expenses to reflect personal use of its motor vehicles by Mr Marsh.

15. Mr Marsh’s personal income tax return for the 2020/21 financial year appears at pages 256 to 263, Exhibit 1 reflects his [Company] income of $49,000, reasonable work-related deductions (clothing and working from home) of $691, resulting in his taxable income for that year of $48,309, reflected in his ATO assessment notice for that year at page 270 Exhibit 1.

16. The profit and loss statement for the 2021/22 financial year prepared in terms similar to the 2020/21 statement reflected reduced gross income of $50,954, reasonable expenses of $83,694, including reduced motor vehicle depreciation of $7,333 and motor vehicle expenses of $15,339, and a resulting loss of $32,740. The corresponding company income tax return (see pages 246 to 254, Exhibit 1) reflects, relevantly, wages of $49,300 paid to Mr Marsh (see pages 251 and 254, Exhibit 1).

17. No employee fringe benefits contributions from Mr Marsh are recorded in the company’s financial reports for the 2021/22 financial year and there is no apportionment of the motor vehicle expenses for that year to suggest any personal use by Mr Marsh of any of the company’s four motor vehicles listed in its balance sheet at page 276, Exhibit 1.

18. Mr Marsh’s personal income tax return for the 2021/22 financial year at pages 264 to 267 reflects his [Company] income for that year at $49,000 (not $49,300 as recorded in the company’s records), deductions similar to the 2021/22 year and a resultant taxable income of $48,309, consistent with his ATO assessment notice at pages 270 to 271, Exhibit 1.

19. The 2022/23 financial reports profit and loss statement for [Company] appear at pages A99 to A102 of Exhibit A. Mr Marsh provided a copy of the company’s 2022/23 income tax return post hearing (see pages A324 to A333, Exhibit A).

20. The profit and loss statement reports total income of $264,320, less cost of sales, including $48,000 in field wages paid to Mr Marsh, resulting in a gross profit of $121,018, reasonable expenses, similar to the previous year’s expenses detailed above, totalled $81,921, including motor vehicle related expenses for the two motor vehicles registered to the company for that financial year and recorded in the company balance sheet (see page A101, Exhibit A) with ascribed values totalling $16,158, resulting in a profit of $40,293.

21. There was no record of any employee fringe benefit contributions attributable to Mr Marsh reflected in the company’s 2023 financial reports, nor was there any apportionment of the motor vehicle expenses claimed by the company against its income for that year attributed to personal use of the company motor vehicles by Mr Marsh.

22. The [Company] 2023 income tax return at pages A324 to A333 appears to be at variance with the profit and loss statement provided by Mr Marsh referred to in the preceding paragraphs in that it reports a total income for the company for the 2023 financial year of $267,515 and expenses totalling $228,393, with a taxable profit of $39,122, at variance with the profit reflected in the profit and loss statement at pages A99 to A100 referred to above.

23. Mr Marsh’s wages/salary is reflected as $48,000 as part of the costs of sales allowance as are the motor vehicle expenses claimed in the amount of $17,520, both of which accord with the amounts for those items in the profit and loss statement above.

24. Nevertheless, the variations are minor, and, as with the earlier financial reports for the 2020/21 and 2021/22 financial years, the 2023 income tax return does not reflect any employee fringe benefits contribution attributable to Mr Marsh, nor is there any apportionment of the motor vehicle expenses in recognition of any personal use apportionment attributable to Mr Marsh.

25. This is not surprising, because Mr Marsh acknowledged in his evidence at the hearing that although he did have personal use of both of the company motor vehicles, the total amount of the costs associated with the running and maintenance of those vehicles, including fuel costs, was paid by [Company], and he made no fringe benefits contribution to those costs.

26. There was no evidence before the Tribunal to suggest that Ms Lineker has been involved in any way in the business operation of [Company] for at least the past two years and to that extent, the Tribunal considers it reasonable and appropriate to attribute the income of the business wholly to Mr Marsh’s activities as a qualified [Occupation 1]. The Tribunal therefore considers it appropriate to apportion the $39,122 profit in [Company] reflected in the company’s income tax return and the $40,293 reflected in its profit and loss statement for the 2023 financial year, averaged to $39.707, to Mr Marsh as a financial resource available to him for child support purposes, in addition to the wages income paid to him by the company in the 2023 financial year of $48,000.

27. The Tribunal is conscious the ASIC searches, Exhibit C, record the shareholding in [Company] as wholly vested in [Investments], and that Ms Lineker, as a 50% shareholder in that company with Mr Marsh, would be entitled to share in [Company]’s 2023 financial year profit. However, there is no evidence before the Tribunal to suggest that was intended by Mr Marsh, or that Ms Lineker was intending to prosecute a claim to a share in those profits.

28. As Mr Marsh has acknowledged in his evidence at the hearing that he has some personal use of the two vehicles owned by the company, and the Tribunal has found there is no fringe benefits contribution from him in recognition of his personal use of those vehicles, the Tribunal considers it appropriate to attribute 5% of the combined depreciated value of those vehicles, reflected in the [Company] balance sheet at page A101 of Exhibit A of $16,158 ($15,149 + $1,009 = $16,158) as his fringe benefits contribution, an amount of $808 ($16,158 x 5 / 100 = $807.91, rounded up to $808) should be added to his income and financial resources apportionment the Tribunal has determined above.

29. Accordingly, the Tribunal finds Mr Marsh’s income and financial resources for 2022/23 financial year to be $88,515 ($808 + $39,707 + $48,000 = $88,515).

30. The administrative assessment in place at the time of Ms Lineker’s change of assessment application required Mr Marsh to pay her child support at the annual rate of $2,586 for the period 1 August 2022 to 30 June 2023, based on his ATI of $48,609. The Tribunal has found his income and financial resources for the 2022/23 financial year to be $88,515, making the administrative assessment unfair and a ground for departure established, on the basis that the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child, because of Mr Marsh’s income, pursuant to subparagraph 117(2)(c)(ia).

Just and equitable considerations

1. The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and the children. Regard must be had to a variety of factors such as the needs of the children, the parents’ requirements and any hardship that would be caused by departing or not departing from the formula. The Tribunal has had regard to all the factors in subsection117(4) but will only address issues below that are pertinent to this application.

Ms Lineker’s Statement of Financial Circumstances (SOFC)

1. Ms Lineker provided a SOFC dated 9 June 2023, the contents of which she affirmed at the hearing. She also gave evidence at the hearing of special needs for [the child] arising from serious complications with his [Physical function], necessitating surgery to remove and replace his [Function aids] and the removal of his [Body part 1] in February 2023.  She gave evidence that [the child] was also diagnosed with a serious [Body part 2] condition from early childhood which she said has contributed to an ongoing eating disorder, with consequential associated anxiety, necessitating the engagement of a clinical psychologist and occupational therapist to assist the child in coping with his various medical conditions.

2. At the hearing, Mr Marsh acknowledged and agreed that [the child] had required surgical intervention in February 2023 for the removal and replacement of his [Function aids] and the removal of his [Body part 1] and agreed to contribute to Ms Lineker’s costs associated with that surgical procedure.

3. Mr Marsh also gave evidence of an application he made to the Federal Circuit and Family Court of Australia (the FCC) regarding [the child]’s medical and other related conditions and provided a copy, post hearing, of orders (the Court Orders) made by Judge [B] at [City], Queensland, on 3 October 2023 (see pages A316 to A319, Exhibit A) . Paragraphs 5, 6 and 7 of the Court Orders, significantly and relevantly provided as follows:

   5.     Pending receipt of the ASD assessment:

   (a)The child will continue to engage in appointments with [Ms C, Psychologist] at [Occupation therapy/psychology provider] at such duration and frequency recommended by [Ms C], with such attendances to be non-reportable/confidential and the parents will equally share the costs associated with those appointments.

   (b)That the child will continue to engage in appointments with [Dieticians] at such duration and frequency recommended for the child and the parents will equally share the costs associated with those appointments.

   6.     For the purpose of orders 5(a) and 5(b), the mother will be responsible for payment of any psychology or dietician appointments for the child and the father will reimburse the mother for 50% of the invoice within 7 days of being provided with a copy of the relevant invoice and receipt by the mother.

   7.     The parents do all acts and things necessary for an Autism Spectrum Disorder (ASD) assessment to be undertaken for [the child] born July 2019 and, for the purpose of same…

   (c)Within fourteen days the parents must agree on a professional to be jointly appointed to undertake an ASD assessment for [the child] subject to confirmation of their preparedness to undertake the assessment in accordance with these orders ….

4. The Tribunal will comment further on these orders later in these Reasons.

5. Returning to Ms Lineker’s SOFC, she reports her current occupation as [an Occupation 2] in the employ of [Company 2] for the past five years and more at a gross weekly salary of $1,172.79, annualised to $60,985. She also listed her parents, [Mrs D] and her father, [Mr E], in whose house she is currently residing with [the child], both of whom are in receipt of weekly aged care pensions of approximately $433 and $365 respectively.

6. Ms Lineker lists no real property. However, she notes the proceeds of sale of the former matrimonial home at [Address 2], amounting to approximately $406,789, are held in the trust account of the parents’ [solicitors], pending the finalisation of family law property settlement orders in court proceedings currently on foot. A trust account statement from [Solicitors] at page176 of Exhibit 1 corroborates her evidence in that respect.

7. Otherwise, she lists modest bank savings totalling $722.96 with [Bank 2], [Property Group] shares valued at $65.76 and a 2021 model [motor vehicle] valued at $37,000; total assets: $37,788.72.

8. Her liabilities totalling $42,208.63 comprise the debt on her motor vehicle with [Finance] of $33,758.08, her HELP debt of $5,732.85 and credit card debt with [Bank 3] of $2,717. She also reports superannuation savings of $121,488 with [Superannuation provider].

9. She lists total personal weekly expenditure of $463.25 comprising income tax instalments of $250.15, superannuation contributions of $122.90, credit card repayments of $30.00 and health insurance premiums of $60.20. Her weekly household expenses totalling $987.90 (annualised to $51,370.80) included rent paid to her parents of $150.00, [the child]’s day care fees of $92.10 net of government rebate, and repayments on her [motor vehicle] of $123.30.

10. Ms Lineker provided detailed evidence of [the child]’s special needs arising from his early childhood [Body part 2] condition and the consequential effect on his [Physical function], necessitating his treatment by his local GPs, [Drs F, G and H] of [Medical Centre] and his ultimate referral to [Dr I], [Physical function specialisation] surgeon, in November 2022 (see pages B33 and B34, Exhibit B), who subsequently removed and replaced his [Function aids] and removed his [Body part 1] (see [Dr I]’s post operative report at page B43, Exhibit B) . The audiology report by [Ms J] at pages B35 and B36, Exhibit B, identifies the connection between [the child]’s [Body part 2] condition and his ‘significant [description of Physical function]’.

11. The Tribunal is satisfied Ms Lineker’s medical evidence makes the case special and finds [the child]’s [Body part 2 condition] and related [Physical function specialisation] treatment by his GPs and [Dr I] amount to special needs.

12. Ms Lineker provided copies of invoices and receipts for her out-of-pocket costs for treatment and prescribed medication relating to [the child]’s [Body part 2 condition] and consequential [Physical function] and [Physical function specialisation] surgical intervention totalling $1,326.35.

13. Ms Lineker provided evidence of [the child]’s referral, in January 2023, to [Occupational therapy/psychology provider] by his then treating GP, [Dr K] at [Medical Centre], for opinion and management of unspecified behavioural and emotional disorders diagnosed by [Dr K], the onset of which the doctor noted were symptoms usually occurring in childhood and adolescence, and in [the child]’s case, occurring after visits to Mr Marsh’s residence. [Dr K]’s referral letter is at pages B61 and B62, Exhibit B.

14. [Dr K] included a GP Mental Health Care Treatment Plan (GPMHCP) prepared and activated on 13 January 2023 with her referral in which she summarises [the child]’s mental health history in the following terms:

    parents separated for over 1 year – going through family court

    previous DV relationship – DVA against father

    somatic symptoms after seeing father – abdo pain, diarrhoea

    handovers done through contact centre

    spends 1 night fortnight with father since September

15. [Dr K]’s GPMHCP recommends commencement of psychology strategies with regular reviews with GP, (and) tools for parents to support, nominating [Occupational therapy/psychology provider] as the specialist treatment provider.

16. Ms Lineker provided copies of [Dr K]’s further medical report following her review of [the child]’s mental health condition in which she recommends [the child] be referred to a psychologist for treatment of [Dr K]’s diagnosis of strong signs of anxiety consequent upon his symptomology following visits to his father’s residence (see pages B73 to B75, Exhibit B).

17. Ms Lineker gave evidence of [the child]’s subsequent treatment at [Occupational therapy/psychology provider] by [Ms  L] and later, following [Ms L]’s departure from [Occupational therapy/psychology provider] on 1 July 2023, by [Ms C], both of whom are professional occupational therapists and health clinicians.

18. In August 2023, [the child]’s treating psychologist, [Ms C] recommended the engagement of a specialist dietician at [Dieticians] for treatment with respect to [the child]’s diagnosed dietary condition. Ms Lineker provided copies of specialist reports from [Ms C] (see pages B88 to B91, Exhibit B).

19. [Dr K]’s referral letter of 11 September 2023 at page B140, Exhibit B diagnoses, amongst other conditions, strong sensory processing concerns, food intolerances and limitations and ultimately suggests [the child] would benefit from formal assessment for the condition mentioned in Judge [B]’s orders of 3 October referred to above. In the event, [the child] was referred to [Dieticians] by [Dr K] (see her letter of referral dated 21 July 2023 at pages B82 to B86, Exhibit B).

20. Ms Lineker attended with [the child] for his first appointment with [Ms L], a qualified dietician and the proprietor of [Dieticians], in August 2023 for assessment in response to [Dr K]’s referral letter expressing concerns regarding her diagnosis of [the child]’s ‘oral aversion, struggle with eating and low iron as a result of poor diet’. [Ms L]’s report concluding [the child] would benefit from ongoing food exposure therapy and the recommended course of that therapy appears at pages B141 to B143, Exhibit B.

21. Ms Lineker provided a summary of her out-of-pocket costs totalling $978.47 (see pages B20 to B22, Exhibit B) comprising $160.95,(net of Medicare rebates, for [Dr K]’s fees for the period 13 January 2023 to 19 February 2023 relating to the doctor’s referrals for specialist treatment mentioned above, a summary of the costs she incurred for the [occupational therapy and clinical psychologists services] provided by [Ms L] and [Ms C] for period 8 February 2023 to 1 September 2023, (net of applicable Medicare and other health insurance rebates) totalling $550.35, the [dietician], [Ms L] for the period 16 August 2023 to 29 August 2022 (net of Medicare rebates) totalling $27.80, and a further summary of additional travel expenses, calculated at the ATO prescribed per kilometre rate of $0.85 for attending [the child]’s dietician appointments with [Ms L] in [Town 1], totalling $45.90 and the costs of  occupational therapists and dietician specialists recommended training aids totalling $193.47.

22. The Tribunal has cited invoices and receipts together with Medicare and health insurance rebate summaries supporting Ms Lineker’s costings referred to above as part of the detailed written submissions she provided and adopted in her evidence at the hearing (see pages B12 to B143, Exhibit B) and accepts the accuracy of her calculations as set out in those documents.

23. Mr Marsh did not challenge Ms Lineker’s evidence other than to request he be provided with a copy of the invoice and receipt for payment of the anaesthetist, [Dr M]’s fees relating to [Dr I]’s surgical procedure to remove and replace [the child]’s [Function aids] and the removal of his [Body part 1]. Ms Lineker provided, post hearing, copies of [Dr M]’s invoice and evidence of her payment of [Dr M]’s fee of $100.80 (see pages B146 to B149, Exhibit B).

24. The Tribunal is satisfied, based on the evidence provided by Ms Lineker referred to above, that [the child]’s needs are special, that Ms Lineker’s cost of meeting those needs up to the date of the hearing, amounting to $2,304.82, significantly affected her costs of maintaining [the child].

25. Ms Lineker said in her evidence at the hearing that in spite of her repeated requests for contribution to [the child]’s special needs costs referred to above, Mr Marsh has refused and continues to refuse to make any contribution to those costs.

26. Mr Marsh did not challenge Ms Lineker’s SOFC other than to suggest she derived additional income from her parents’ [Service] activities, but acknowledged he had no cogent evidence to support his challenge. Ms Lineker denies receiving any such additional income.

Mr Marsh’s SOFC

1. Mr Marsh provided an SOFC dated 12 June 2023.

2. He reports his only source of income from his [Occupation 1]’s business, [Company], as $935 per week, annualised to $48,620, approximately equivalent to the annual wages reflected in the company’s financial statements discussed above.

3. He gave evidence that he resides in rented premises with his brother and a friend but is not currently contributing to the rental on those premises; the Tribunal will comment further on that issue later in these Reasons.

4. He lists no real property assets, although, as noted above he has an interest in the proceeds of sale of the former matrimonial home at [Address 2] ($406,789) held in the trust account of [Solicitors] pending conclusion of a family law property settlement. His listed assets totalling $273,700 are comprised of his half share in the former matrimonial home which he estimates at $203,000, bank savings he estimates at $3,700, his interest in [Company] valued at $65,000 and household contents at an estimated value of $2,000.

5. His liabilities totalling an estimated $64,000 comprise of a [Bank 1] loan of $2,000 and borrowings from family members estimated at $62,000.

6. At the direction of the Tribunal, he provided, post hearing, statements from his mother, [Mrs N] dated 17 October 2023, his brother, [Mr O] and his flat mate, [Mr P] dated 15 October 2023, recording, in [Mrs N]’s case, loans by her  totalling $58,548 made between 16 June 2022 and 10 October 2023 to assist Mr Marsh with his living and legal expenses, repayable from the anticipated proceeds of his family law property settlement or at such earlier time as he has access to adequate financial resources; in [Mr O]’s case, loans totalling $25,000 made between 1 January 2022 and 10 October 2023 for similar purposes and repayable on similar terms to [Mrs N]’s loan, and in the case of both [Mr O] and [Mr P], a record of a moratorium on Mr Marsh’s outstanding rental commitments of $15,600 on the premises rented by Mr Marsh, his brother and [Mr P], also repayable on terms similar to the two previously mentioned loans.

7. He reports superannuation savings of $139,997.36.

8. Mr Marsh lists personal weekly expenditure totalling approximately $457 comprising tax and superannuation contributions, life insurance premiums, credit card repayments and health insurance premiums.

9. His summary of his weekly household expenses, totalling an estimated $596, reflects rental of $200 which he acknowledged in his evidence at the hearing and as reflected in his flatmate’s statement referred to above, he is not currently paying, and no motor vehicle expenses, consistent with the evidence that although he has personal use of the motor vehicles owned by his business, [Company], the running costs are met by the business and not Mr Marsh personally.

10. Turning to Mr Marsh’s ground for departure pursuant to subparagraph 117(2)(b)(i) and subsection 117(2B) of the Act, Mr Marsh provided written submissions at pages A310 to A311 of his papers, Exhibit A in which he contends for an order recognising his high costs of enabling him to spend time with [the child] or communicating with him.

11. In that regard, he submits he has significant travel costs and the added cost of spending time with [the child] in a supervised environment at [Contact facility] in [Town 1].

12. The relevant legislation, subsection 117(2B) requires him to establish that the costs he has or will incur during the relevant child support period, total more than 5% of the amount worked out by dividing his ATI for the relevant child support period by 365 and multiplying the quotient by the number of days in the relevant child support period. As he has less than regular care of [the child] (7%) he is entitled to claim his travel costs to enable him to spend time or otherwise communicate with [the child].

13. In his submissions to the Tribunal at hearing, summarised at pages A310 and A311 of Exhibit A, he contends for travel costs for fuel based on a recognised ATO formula for the 2022/23 and 2023/24 financial years of $0.78 and $0.85 per kilometre respectively, travelling from his residence at [Address 2] to [Contact facility] at [Town 1] and return, a round trip of 194 kilometres, resulting in costs for the  2022/23 financial year of $13,618 and the 2023/24 financial year of $14,838. He also notes his costs of spending supervised time with [the child] at the [Contact facility] facility for two parents at $10 per parent for an estimated 61 visits per year at a total cost of $1,220.

14. However, as his evidence to the Tribunal at the hearing and as reflected in the financial records of his business together with his SOFC, was that he does not own any motor vehicle, and the vehicles he uses to travel between his residence at [Town 2] and the [Contact facility] facility at [Town 1] for contact with [the child] are owned by his business which pays for all of the running costs, including the fuel for the vehicles, the Tribunal finds he does not personally incur the travel costs for which he contends.

15. As regards his submissions regarding the [Contact facility] change-over costs of $1,220 for which he contends, the Tribunal is not satisfied those costs exceed 5% of his ATI for the relevant child support period for which he is claiming, 1 August 2022 to 31 August 2023: his ATI applied in the formula during that period for the 2022/23 financial year and the period up to 31 October 2023 was $48,609. Applying the formula set out in subparagraphs 117(2B)(a) and (b) of the Act over a period of 396 days from 1 August 2022 to 31 August 2023 results in an amount of $2,637 ($48,609 divided by 396 multiplied by 365 = $2,637) as the 5% threshold level of costs Mr Marsh would need to exceed, spending time with or communication with [the child]. The Tribunal considers his [Contact facility] change-over costs for the relevant child support period 1 August 2022 to 31 August 2023 would be approximately a little more than $1,220. Consequently, the Tribunal finds his costs of spending time with [the child] do not exceed the $2,637 threshold.

Conclusion

1. As the Tribunal has found a ground for departure from the formula assessment of child support payable by Mr Marsh because his income and financial resources available to him for child support purposes for the 2022/23 amounted to $85.515 and not the $48,609 ATI used in the assessment for the period 1 August 2022 to 31 October 2023, the Tribunal sets aside the objection decision and, in substitution, decides that his ATI is varied to $85,515.

2. The Tribunal considers it appropriate to backdate the application of this variation to his ATI to be applied in the assessment from 1 July 2022 because that was his income from the start of the 2022/23 financial year. In the interests of certainty for the parents, the Tribunal will apply the variation to Mr Marsh’s income to 31 October 2024.

3. Applying his income at $88,515 in the child support calculator results in an annual rate of child support of approximately $8,503, inclusive of his contribution to [the child]’s special needs of $1,152.50, rounded up to $1,153, payable by Mr Marsh.

4. The Tribunal has also found the child, [the child], has special needs, the costs of which at $2,304.82 (rounded up $2,305) significantly affect Ms Lineker’s cost of maintaining the child.  

5. Although Ms Lineker provided details of additional costs she expects to incur in meeting [the child]’s ongoing special needs with respect to his [psychology] and [dietician]’s treatment discussed above, the Tribunal notes that Judge B] of the FCC has determined in the orders of 3 October 2023 referred to above that the parents share those costs equally from the date of those orders and that Mr Marsh is to reimburse Ms Lineker for 50% of those costs within 7 days of being provided with a copy of the relevant invoice and receipt by Ms Lineker (see paragraphs 5 and 6 of the orders at page A317, Exhibit A).

1. Consistent with the terms of Judge [B]’s orders regarding the sharing of [the child]’s ongoing special needs costs the Tribunal decides that Mr Marsh should contribute 50% to [the child]’s special needs costs determined by the Tribunal up to the date of the hearing at $2,305 and will therefore increase his annual rate of child support for the period 1 July 2022 to 2 October 2023 by $1,152.50, rounded up to $1,153. As Judge [B] has already made orders effectively dealing with the sharing of [the child]’s ongoing special needs costs from
   3 October 2023, the Tribunal will not make any determination regarding those costs.

2. The Tribunal considers varying Mr Marsh’s ATI to $88,515 and increasing his annual rate of child support by $1,153.00 by way of contribution to [the child]’s special needs will not cause financial hardship to either parent or the child.

Otherwise proper

1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effects of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents rather than the community have the primary duty to maintain a child. Increasing the annual rate of child support payable by Mr Marsh to more accurately reflect his income and financial resources available to him for child support purposes and his contribution to the special needs of [the child], as set out above, will result in an appropriate apportionment of the financial responsibility between the parents and the community. Such a result would be otherwise proper.

DECISION

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

·      For the period 1 July 2022 to 31 October 2024, Mr Marsh’s adjusted taxable income is varied to $88,515; and

·      For the period 1 July 2022 to 2 October 2023, his annual rate of child support is increased by $1,153.00 by way of contribution to the special needs of [the child].