McKague and McKague (Child support)

McKague and McKague (Child support) [2024] AATA 2531 (24 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027044
APPLICANT:  Mr McKague
OTHER PARTIES:  Child Support Registrar
Ms McKague

TRIBUNAL:Senior Member K Dordevic
DECISION DATE: 24 May 2024
DECISION:

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

1.Mr McKague’s annual rate of child support is increased by:
·$2,940 from 1 July 2023 to 30 June 2024; and
·$815 from 1 July 2024 to 31 December 2025.

2.Mr McKague’s adjusted taxable income is varied to $139,650 per annum from 23 May 2023 to 31 December 2025.

CATCHWORDS
CHILD SUPPORT – departure determination – ground for departure – special needs of the child – Autism Spectrum Disorder Level 2 – ongoing psychological therapy – just and equitable – 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 Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms McKague (the mother) and Mr McKague (the father) are the parents of two children, [Child 1], born [in] May 2014 (the elder child), and [Child 2], born [in] December 2015 (the younger child).
This case was first registered with Services Australia – Child Support (Child Support) on 5 February 2022 and has been collected by Child Support from that date. Upon registration of the case the children were recorded as being in the mother’s 61% care and the father’s 39% care. From 7 June 2023 the children’s care is recorded as 50% to each parent.
The mother lodged a departure application on 13 April 2023 seeking a contribution from the father in respect of the children’s special needs and that the father’s earning capacity be reflected in the administrative assessment.
On 14 July 2023 a senior case officer determined that for the period 7 June 2023 to 6 June 2024 the father’s annual rate was increased by $6,221.
The father lodged a timely objection to that decision and the objection was partly allowed on 18 October 2023. The objections officer determined that for the period 7 June 2023 to 6 June 2024 the father’s annual rate was increased by $6,221 and for the period 1 July 2023 to 31 October 2024 the mother’s adjusted taxable income was varied to $70,916.
On 13 November 2023 the father sought further review of the objection decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). A telephone directions hearing was held on 25 March 2024, with directions issued requiring compliance by 24 April 2024.
The Tribunal heard the matter on 15 May 2024. The father and mother appeared by MS Teams audio. The Child Support Registrar was not represented at the hearing. The Tribunal also considered the documentation provided by Child Support (folios 1 to 579), the father (marked folios A1 to A125) and the mother (marked folios B1 to B54).
On 20 May 2024 additional evidence was provided by the father (marked folios A126 to A135) and the mother (marked folios B55 to B76).
The Tribunal reached its decision on 24 May 2024.

ISSUES

The statutory provisions relevant to this review are outlined in section 98C of the Act, which states that a decision to depart from the administrative assessment may be made if the following three requirements are met:
(i)that one, or more than one, of the grounds for departure referred to in subsection 117(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.
Therefore, the issues which arise in this case are:
· Does a ground exist for departure from the administrative assessment of child support? And, if so,
· Would it be just and equitable and otherwise proper to make a particular determination?

CONSIDERATION

A ground for departure

Subparagraph 117(2)(b)(ia) of the Act provides a ground for departure if, in the special circumstances of the case, the cost of maintaining the child is significantly affected because of the child’s special needs. The term ‘special needs’ is not defined in the Act. In the matter of Lightfoot and Hampson (1996) 20 Fam LR 69, the Full Family Court stated that needs are special if they are necessary or desirable for that child’s welfare and outside the normal needs of a child that is catered for within the formula. In Gyselman and Gyselman (1992) FLC 92‑279 the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.
This matter turns on whether the costs of maintaining the children are significantly affected because of their special needs.
The Tribunal finds on the basis of the parents’ testimony that the older child was recently diagnosed with Autism Spectrum Disorder Level 2, generalised anxiety and dyslexia. The paediatrician is also investigating the possibility of attention deficit hyperactivity disorder (ADHD). [Dr A] certified on that on 6 April 2023 the older child required ongoing psychological and occupational therapy in addition to regular paediatric reviews and dietician support.[1] The mother reports that the older child has sensory issues around food which has resulted in significant weight loss necessitating limited consultations with a dietician. On the same date [Dr A] recommended that the younger child engage in ongoing psychological therapy.[2]
[1] Folio 146.
[2] Folio 147.
The mother states that she approached the father to contribute to the children’s special needs some time ago with no success. The Tribunal notes that that correspondence between the parents suggests that she sought a contribution to the older child’s special needs from at least 16 September 2022.[3] She went on to state that when the father did meet a cost associated with the children’s special needs he would then have it credited to his child support liability by way of a prescribed non-Agency payment. The mother agreed that the father met four of the older child’s psychological expenses from 21 June to 23 November 2023,[4] and that she has agreed that he should be reimbursed 50% of these costs, as non-Agency payments.[5] She is of the view that otherwise, the total cost of those payments would be shifted to her.[6]
[3] Folio 137.
[4] Folio A42.
[5] Pursuant to section 71A of the Child Support (Registration and Collection) Act 1988.
[6] Folio 524.
The mother submits that the younger child also requires psychological intervention as he was exhibiting symptoms of anxiety and adjustment but is prohibited because of his age from attending the same counsellor as the older child. Therefore, the younger child’s costs in attending the psychologist are significantly more than the older child’s counselling expense. The mother stated that she has sought a contribution from the father towards these costs but he wanted other conditions satisfied before he would make a contribution to this cost.[7]
[7] Folios 137 to 144, B49 to B54.
The mother testified that from November 2023 she asked the children’s health providers to start invoicing her directly for all appointments to avoid the situation where the father seeks to be reimbursed for 100% of all costs he meets. It was she who also met the cost associated with the older child undergoing a comprehensive psychological assessment, with her out-of-pocket costs being $1,307.10.[8]
[8] Folios B60 to B75.
The mother states that there have been at least two occasions where she has brought the children to medical appointments and the father has received the Medicare reimbursement. Therefore, when the father brought the children to a medical appointment and she received the Medicare rebate, she did not see it necessary to reimburse him. She also contends that there was a shared calendar where the children’s medical appointments were scheduled and the father made a unilateral decision to attend two sessions with the older child’s dietician;[9] she is not even sure that the child attended these sessions.
[9] Folios A50 to A51.
In his written application to this Tribunal the father states that his reasons for seeking review are twofold. The first is that NDIS funding should have been secured by this time and further, as he no longer has below regular care, he cannot have the special needs expenses credited as a prescribed non-Agency payment and so is in effect contributing to three quarters of all the children’s special needs if the decision under review remains undisturbed.
In written correspondence dated 26 August 2023 the father alleges that the children’s attendance at counselling is “overservicing”, apparently because the mother sees this as a means to receive more money from him.[10] He also alleges that private health rebates are available to the mother, which she has failed to disclose.[11] The Tribunal finds that there are no private health refunds available through the mother’s private health insurance provider for the children’s mental health, dietician, occupational therapy or speech therapy.[12]
[10] Folio 357.
[11] Ibid.
[12] Folio 388.
The father’s evidence at hearing can be summarised as follows. He is willing to contribute to the children’s special needs but he must be part of the decision-making. He has been excluded from the process. He also wants the mother to put in writing that she is going to pre-pay appointments, which will take away the burden of him contributing to this cost through Child Support and also when attending appointments. He is firmly of the view that there should be no backdating of his contribution to the children’s special needs as the mother denied him a way to contribute to these costs. Furthermore, he thought that it would be appropriate to contribute to these costs equally, despite the differences in their respective adjusted taxable incomes as they are on “reasonably similar income with the way payments are at the moment”.
The father does not dispute that the older child did not attend the dietician appointments on 2 August and 25 September 2023. In his written submissions to the Tribunal the father states that the solo appointments were necessary due to the mother’s “refusal to attend joint appointments”.[13] At hearing he testified that he was required to attend these appointments as the dietician did not know what the child was eating in his home. It was also an opportunity for the dietician to advise him of the treatment and recommendations made to date. His submissions on this point were consistent to his written submissions to Child Support on 26 August 2023.[14]
[13] Folio A41.
[14] Folio 357.
The Tribunal understands that the older child first commenced counselling in June 2022[15] and occupational therapy in April 2023.[16] Prior to December 2023 sessions with the occupational therapist were sporadic and from December 2023 these occurred monthly. The mother testified that there will be 12 appointments per annum, as missed appointments will be made up. The older child currently attends psychological therapy on a fortnightly basis.
[15] Folio A47.
[16] Folio 214.
The father testified that NDIS advised that the older child’s package was $11,394.36, excluding consumables. This funding includes an allowance for 26 occupational therapy appointments per annum and four progress reports, as well as ad hoc speech therapy and dietician appointments. He understands that the start date for the funding is 13 May 2024, and the mother will be reimbursed any therapy costs incurred from that date.
On 27 August 2023 the younger child’s treating clinical psychologist, [Ms B], advised that the younger child would benefit from further therapy to address his significant anxiety symptoms.[17] At hearing the father submitted that this was not necessary as [Ms B] told him that it was not required at all. The mother refuted his evidence on this point, stating that the younger child’s psychologist has never raised this as a possibility and it would be unlikely in a context where the child continues to experience nightmares and rigidity in his thinking.
[17] Folios 391 to 392.
The Tribunal considered the correspondence between the father and [Ms B], dated 20 March 2024; it is clear the father sought written confirmation of the imminent termination of this service, which was not forthcoming.[18] The Tribunal preferred the evidence from the younger child’s psychologist regarding the frequency of ongoing psychological intervention, silent as to the possibility that ongoing sessions would not be required in the near future, over the father’s mere assertion to the contrary.
[18] Folio A74 to A75.
As outlined above, the case of Lightfoot established the principle that if costs are necessary or desirable for the child’s welfare, and they impact significantly on the cost of raising the child, a change to the child support assessment may be required.
In light of the testimony of the parents and the children’s previous and current involvement with specialist and allied health providers the Tribunal is satisfied that the older child’s neurological and mental health conditions and the younger child’s mental health condition constitute special needs. The children’s special needs justify their attendance with specialist and allied health service providers and so are necessary for the children’s health and welfare.
After collating all the medical evidence before it, the Tribunal is satisfied that the total out‑of‑pocket costs incurred in meeting the children’s special needs from 8 June 2022 to 23 April 2024 were $6,112.67 (685 days, which converts to about $3,102 per annum).[19]
[19] Folios 149, 152, 154 to 155, 160 to 161, 163, 208, 210 to 211, 214 to 215, 223, 225 to 229, 233, 394–395, 397, 399, A43 to A46, A48 to A51, B26, B28, B32, B34 to B35, B39 to B44, B46.
The Tribunal was not persuaded that the two sessions that the father attended alone with the dietician on 1 August 2023 and 12 September 2023 were necessary in a context where the Our Family Wizard messages indicate that the mother was providing updates on the children’s attendance at the specialist and allied health providers and feedback from such sessions. As an aside, in a context of a protracted family court dispute and the tone of the written communication between the parents, the Tribunal is of the view that it would be neither appropriate nor in the best interests of either child that the parents attend their therapy sessions together, though it is not necessary to make a finding on this point.
Though the father states that there are two psychology sessions that he paid for from which the mother received a Medicare rebate of $136.35, the Tribunal was only able to identify one on 19 July 2023[20] and has taken this into account when calculating the mother’s out-of-pocket costs. The Tribunal has also taken into account that, in effect, the mother contributed $230 to the psychology costs incurred by the father on 21 June and 19 July 2023 after these were credited to the father’s child support liability.[21]
[20] Folio A44.
[21] Folios 316 and 320.
The Tribunal is satisfied the mother’s out-of-pocket expenses in relation to the children’s special needs during the same period was $5,141.69 (taking into account her $230 contribution to the two psychologist appointments via the crediting of the non‑Agency payments and the Medicare rebate she received for a payment made by the father).[22]
[22] Folio A44.
The total costs of the children at the time the mother lodged her departure application were assessed as $35,501 per annum.[23] The actual annualised cost[24] to the mother arising from the children’s special needs is more than 7.7% of the assessed costs of the children. The mother’s 2023 adjusted taxable income was $64,541, so the children’s special needs alone required her to apply over 4% of her total income to the children’s special needs.
[23] Folio 570.
[24] $5,141.69/685 days = $7.51 per day x 365 = $2,740 per annum.
The Tribunal is satisfied that the father’s total contribution to the children’s special needs during the same period was $773.65. This cost represents about 0.2% of the total costs of the children and 0.06% of the father’s 2023 adjusted taxable income. It is on this basis that the Tribunal is not persuaded that the father’s costs in association with the children’s special needs significantly impact on his capacity to provide for the children.
The Tribunal is satisfied that, in the special circumstances of the case, the mother’s costs in maintaining the children are significantly affected because of the children’s special needs. The Tribunal is satisfied that the children’s special needs reduced the capacity of the mother to provide financial support to the children.
The Tribunal concludes that the ground provided for in subparagraph 117(2)(b)(ia) of the Act is established.

Just and equitable

The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the parties’ respective earning capacities, the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula assessment. The Tribunal has considered all the factors outlined in subsection 117(4) of the Act but will only refer to those considerations pertinent to the application.
The mother’s 2021 to 2023 adjusted taxable incomes are $44,373, $70,805 and $64,541 respectively. The mother completed a Statement of Financial Circumstances form on 20 April 2024,[25] where she declared gross weekly income of $1,486 from her full‑time role and family tax benefit of $66. She is the sole adult in her household. She owns a home valued at $520,000, savings of $2,066, a motor vehicle valued at $23,000, household contents with an estimated value of $30,000 and superannuation of $137,528. Her liabilities include a mortgage of $329,942, a HECS-HELP debt of $43,847, credit card liability of $3,100 and a private loan of $200,000. The mother explained that this was a loan from her parents, used for the deposit for her home which she is repaying monthly. She declares personal expenditure of $471 per week, made up of income tax of $389, minimum credit card repayments of $30 and private health insurance of $52. Her average household expenditure is $1,751 per week, of which about $789 relates to her care of the children. In addition, she also reports monthly legal expenses of between $1,000 to $3,000 regarding the ongoing parenting dispute. At hearing she confirmed that the interim parenting arrangements are in dispute and are set down for hearing on 18 November 2024. The mother reported that she attends a psychologist fortnightly to monthly and her out‑of‑pocket expense is currently $130 per session but will increase once she has exhausted her mental health plan. She reports that her before and after school care expenses are minimal, being about $10 per week.
[25] Folios B8 to B17.
At hearing the mother reported that she returned to full-time work about 18 months ago. Prior to that she was working on a 0.8 basis, or about 27 hours per week. In addition to her full-time work she is undertaking further studies. The father did not challenge her evidence on this point. The Tribunal is satisfied that the mother does not have an unused earning capacity.

A payslip for the fortnight ending 24 September 2023 indicates that the mother’s annual salary was $75,000. Her most recent payslip in evidence is dated 8 April 2024 and indicates that her annual salary is $77,250.[26] Unhelpfully, her payslips do not indicate her year-to-date earnings, which prohibits the Tribunal determining her likely 2024 adjusted taxable income or when the pay rise occurred. Post-hearing the mother provided an estimate of her 2024 deductions totalling $4,165, which indicates that her 2024 adjusted taxable income will be no more than $73,085. She has raised no objection to the variation to the administrative assessment in respect of her adjusted taxable income.
[26] Folio B25.
In circumstances where the mother has lodged timely income tax returns[27] the Tribunal is of the view that it is appropriate for the administrative assessment to reflect the mother’s adjusted taxable income in the usual manner. That is, that it is not just and equitable to depart from the administrative assessment on this basis. Given the Tribunal’s other findings, this aspect of the decision will increase the father’s liability by about $670.
[27] Folio 537.
There is no evidence that the children have income or financial resources that would render the administrative assessment unjust or unfair and the Tribunal finds accordingly. The children attend a public school; the older child is in Year 4 and the younger child is in Year 3. From June 2023 the mother asked the children’s school to issue separate invoices to each parent. Before then she was meeting that cost and still meets the costs associated with the purchasing of school books. The father disputed the mother’s evidence on this point, stating that if an invoice was given to him he would pay it. The Tribunal notes that the correspondence between the parents suggests that the father refused to meet the costs of the children’s books for the 2024 year.[28]
[28] Folios B53 and B54.
The father’s 2021 to 2023 adjusted taxable incomes were $175,216, $155,642 and $134,498 respectively. The father provided a Statement of Financial Circumstances dated 28 November 2023. He declared that he works on a part-time basis with his only source of income being gross weekly income of $2,146. He has savings of $21,110, investments of $475, two motor vehicles valued at $34,050, household contents valued at $30,000 and superannuation of $118,348. His liabilities include a credit card liability of $3,278, a car lease of $56,882 and a personal loan to his parents of $42,515, which he repays at a rate of $200 per fortnight since at least 21 April 2022.[29] He declares personal expenditure of $651 (noting he does not make an additional payment of superannuation; he noted his employer’s contribution), including his weekly child support liability of $182, income tax of $421 and minimum credit card payments of $48. He reported average weekly expenses of $957 and did not specify what, if any, portion of this costs was associated with his care of the children except for $30 in respect of their activities. He declares that his rent expense is for the two properties owned by family members that he lives at: $180 per week for nights spent at his brother’s home in Brisbane since 5 October 2023[30] and $130 per week since at least 13 July 2023 when he lives with his parents and partner.[31] This evidence contradicts his declaration that there are no other income earners in his household.[32] At hearing he confirmed that he has no costs associated with child care, they are generally cared for by his parents when he is unavailable.
[29] Folio A28 to A30.
[30] Folio A27.
[31] Folios A25 to A26.
[32] Folio A3.
At hearing the father stated that his circumstances have changed somewhat since the above declaration. He sold the motor vehicle valued at $7,050, he has savings of $22,473, but stressed he owes legal fees of $10,000. He did not contest the mother’s evidence that his and the children’s living expenses are subsidised by his parents, in whose home they live. The Tribunal notes that his Statement of Financial Circumstances indicates that he has no utilities, rates or internet expenses. The father emphasised that any funds he has remaining at the end of a week is “money into the kitty”. Therefore, his main concern is that without an ability to work on a part‑time basis he would not have equal care of the children and if he must contribute to the children’s cost on the basis of his earning capacity he will simply not have sufficient funds to meet the children’s costs. He is “maxed out”. The father confirmed that he is in good health and has no out of the ordinary expenses.
The most recent payslip in evidence for the period ending 17 March 2024[33] indicates that the father has received gross salary and leave entitlements of $81,265 ($4,291 per fortnight) which annualises to $114,084, some $2,500 more than the annual salary declaration of $111,575 on the same payslip. He has also received allowance totalling $12,355 (excluding travel allowance), which annualises to about $17,345. This suggests that the father’s annual income will be in the vicinity of $124,500 (allowing for $7,019 in declared allowable deductions).[34] The father initially lodged an income estimate of $128,572 for the 2024 financial year, and then amended this to $100,257 on 9 October 2023.[35] The payslips in evidence do not corroborate the father’s declaration that his gross fortnightly income is $3,501.[36] In a context where the father has insisted that the mother’s actual 2024 financial year income be applied to the assessment from 1 July 2023 rather than let the administrative assessment run its course, it is curious that he appears to have significantly underdeclared his 2024 income.
[33] Folio A20.
[34] Folio 429.
[35] Folio 526.
[36] Folio 457.
The mother’s position is that the assessment should be varied to reflect the father’s earning capacity. She states that the parenting orders were drafted to accommodate his work arrangements and so he should juggle full-time work and care like she and other parents do. Each month the father nominates the days that he will care for the children. She knows his work calendar and that he has many days when he is not working when the children are not in his care. She is convinced that his motivation was to reduce his child support liability as he is unhappy that he must contribute to the children’s costs when they are in her care.
In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of child support only if the court is satisfied, pursuant to 117(7B) of the Act, 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.
The father’s evidence is that the parents separated in December 2019 and continued to live under the one roof until mid‑2021.[37] At that time they were living in [Town 1] and he was working on a full-time basis (14 shifts per month). He would also undertake extra shifts, about four or five per month. The mother and children relocated to [City 1], where both their extended families live, some four hours away from the [Town 1] base. On 1 August 2022 the father commenced working from the Brisbane base, where he continued to work on a full-time basis though additional shifts were no longer available. From 22 May 2023[38] the father commenced part‑time work, working in an alternating monthly pattern of 10 and 11 shifts per month.
[37] Folio A98.
[38] Folio 165.
The father has reduced the number of hours per week of his employment below work that constitutes full-time work. Subparagraph 117(7B)(a)(ii) of the Act is satisfied.
The Tribunal had regard to the interim parenting orders in place dated 7 June 2023. They dictate that, failing agreement, the father can have up to 14 days care every 28 days. One month prior to the commencement of a care month the mother is to elect no more than five nights per 28-day cycle, with a minimum of two consecutive nights, that she will care for the children. Not less than seven days prior to the commencement of the care cycle the father is to provide the mother a list of fourteen days that he will care for the children; he too is not to have less than two nights each care event and is also prohibited from having three weekends of care in a row during school terms. If either parent is unable to care for the children for more than 24 hours, the other parent is to be given the first opportunity to care for them. School holiday care and other special occasions are shared equally between the parents.
The father gave the following evidence to establish that it was necessary to reduce his work hours due to his caring responsibilities. A family report was obtained which suggested that if he reduced his shifts to 10 or 11 per month then it would be recommended that his care increase from 11 to 14 nights every 28 days.[39] Further, when working full‑time he could not always physically take or collect the children from school, which was a “sore point” with the mother where he was “consistently criticised”. In an effort to “smooth things over” he reduced his shifts for the “sake of three mornings a week” so it was “easier to attempt to be off on days with the boys”. Whilst he stated that the mother put forward other options it was “easier” to attempt to not work on the days that he had care of the children; he was concerned that otherwise he would be “copping flack”.
[39] Folio A64.
The father confirmed that despite his part-time workload and that he can nominate his days of care each month he does not take the children to and from school each day that they are in his care. On such occasions his partner or parents usually care for the children, though he is there “as much as I can”. In fact, if he had not reduced his work the time the children spent with other carers would have been significantly higher. He also noted that the amount of personal care he has been required to take to care for the children “is insane” and so he is not convinced that he could even increase his work to a full-time load. Anyway, such an increase would decrease the actual time he could spend with the children and so is not possible.
The father reported that he has been negotiating with his workplace to “try to smooth out the roster”. He cannot be given single shifts on days either side of his care of the children as he would be required to have someone else care for them in his absence. It is “more logical” for him to care for the children rather than calling on others to do so. It is complicated by the fact that he must travel to Brisbane for his work from [City 1] where he and the boys live as well as the requirement to have mandatory rest days. He refutes the mother’s position which is that the current parenting orders accommodate his work schedule and therefore he should be able to care for the children and work on a full-time basis.
Post-hearing the father provided additional evidence in support of his contention that his work arrangements align with his care of the children. In this submissions he stated that if he is away from the children for more than 24 hours “they are to be returned to their mother”.[40] The Tribunal finds that this misrepresents the terms of the order, which states that either parent will be given the “first opportunity” to care for the children.[41] The father also stressed that there are legal requirements due to fatigue management that prevent him from working more shifts when the children are not in his care. The father’s submissions also seem to misrepresent the statement from his workplace, which he states indicates he is “working to my maximum legal amount with the current work arrangements”. As a matter of fact, the statement from his workplace confirms he is restricted to working five shifts in seven days and this is the legal maximum while he is engaged on a part-time basis.[42]
[40] Folio A130.
[41] Folio 265.
[42] Folio A133.
At its highest, the father does not work full-time because the mother might complain and this may put at risk the shared care arrangement. The Tribunal did not find these arguments sufficiently compelling to justify his decision not to work on a fulltime basis. The father also refers to the family report that would only recommend increased care if he decreased his work. The Tribunal accepts that the family report may well have included such a statement. However, following this report, the parents entered into orders by consent which are silent to any requirement that the father work on a part-time basis in order to have shared care. Thus, the Tribunal is not persuaded that the father being granted shared care was contingent on him working on a part-time basis.
The statement from the father’s employer confirms that the father can work no more than 10 shifts per fortnight. Assuming that he undertakes these 10 shifts in the 14 days he does not have care of the children, a full-time load would only require him to work a further four shifts in the 14 days per month that he does care for the children. Even taking into account his travel requirements, the Tribunal does not consider this particularly onerous. In any event, his evidence is that even working part-time means that he must work on days that the children are in his care. This is despite the fact that he largely dictates what days he cares for the children, as he can nominate his care days from 23 days out of each 28-day period.
The Tribunal concludes that the reduction in the father’s work hours is not justified on the basis of his caring responsibilities. Subparagraph 117(7B)(b)(i) of the Act is satisfied.
The father reports that he is generally in good health and his state of health does not justify the reduction in his work hours. The Tribunal finds accordingly. Subparagraph 117(7B)(b)(ii) of the Act is satisfied.
The Tribunal next considered the third limb of the test outlined in subsection 117(7B) of the Act.
The father is adamant that the “main reason for the change” was to secure equal care of the children. He denied that his decision to reduce his work hours was motivated by a desire to decrease his child support liability; it was “the last thing on my mind”. The Tribunal is not persuaded that the father did not turn his mind to the impact that the change to his work arrangements would have on his child support liability. Certainly, as soon as he made a decision to reduce his work hours, and before the care change occurred, he lodged an income estimate in line with his reduced work hours. Furthermore, since then the father has lodged further estimates that are considerably lower than his likely actual income.
The Tribunal is not persuaded that the change to the father’s work arrangements were justified because of his caring responsibilities. The father has not established that decreasing his child support liability was not a major purpose of the decision to reduce his working hours. That is not to say the effect on his child support liability was the only reason he reduced to part-time work, but rather that he has not demonstrated to the Tribunal’s satisfaction that it was not a major reason.
The Tribunal has already calculated that the father’s actual 2024 income will be in the vicinity of $124,500. The evidence before the Tribunal suggests that if he were to work on a full‑time basis his income would be about $139,650. This was calculated by adding to his 2023 adjusted taxable income six additional shifts at $71.52[43] per hour (with no allowances) to convert his part-time hours from 23 May to 30 June 2023 to full time hours, noting that there is no evidence that he undertook additional shifts (over and above his full-time hours) in the period 1 to 31 July 2023.
[43] Folio A17.
The Tribunal is persuaded that the father’s income, financial resources and earning capacity are unlikely to be reflected in the administrative assessment into the future. The Tribunal finds that it is just and equitable to depart from the administrative assessment on the basis of the father’s earning capacity from the date that he reported his work arrangements changed, being 23 May 2023. To provide certainty to the parties, and to minimise the need for repeat proceedings, the Tribunal will amend the administrative assessment on this basis until 31 December 2025.
This aspect of the decision, together with the Tribunal’s decision not to amend the mother’s adjusted taxable income, will create arrears of about $3,100. Given the father’s necessary expenses the Tribunal is certain this will not cause him undue hardship.
The Tribunal is satisfied that it would be both just and equitable that the father contributes to the costs associated with the children’s special needs.
As already outlined above, interim consent orders were entered into on 7 June 2023.[44] Notation D to those interim orders state that the parties agree to pay in equal portions the out-of-pocket medical expenses for the children. The father relies on this notation when it was put to him that in considering whether or not it is just and equitable to depart from the assessment, whether he and the mother should contribute to these costs in portions consistent with their income and financial resources. At hearing, the father was adamant that the costs should be shared equally. The Tribunal notes that this was not always the case. It is clear from the Our Family Wizard evidence provided by both parents that the father was not willing to contribute to these costs equally prior to the notation. Instead, he sought to impose other conditions on meeting an equal share of these expenses including that the mother cancel the child support case.[45]
[44] Folios 262 to 274.
[45] For example at folios 141 to 144.
As is usual in such circumstances, the Tribunal finds this notation persuasive in determining the respective contributions to the children’s out-of-pocket costs associated with the children’s special needs. The orders indicate that both parents were represented in the parenting proceedings and entered into the orders by consent. If not for this notation, the Tribunal would consider it appropriate that the parents contribute to the children’s special needs costs commensurate with their income.
The father testified that the older child is eligible for NDIS funding from 13 May 2024, but did not provide any documentary evidence in support of this contention. Without corroborating evidence, the Tribunal is reluctant to accept his evidence on this point. However, the Tribunal finds it likely that the older child will receive NDIS funding from 1 July 2024.
Thus, the Tribunal will make allowance for two more occupational therapy sessions and three more psychology sessions for the older child and two more psychology sessions for the younger child in calculating the special needs costs to 30 June 2024. The Tribunal calculates that the net out-of-pocket costs for these therapies is $738 from 23 April 2024. The Tribunal has already determined that the father should contribute to half of the mother’s out-of-pocket costs, being $2,571, incurred during the period 8 June 2022 to 23 April 2024.

The Tribunal finds that it is appropriate to increase the father’s annual liability by $2,940 from 1 July 2023, even though these costs are associated with the children’s special needs from 8 June 2022. Thus, the Tribunal increases the father’s annual rate of child support by $2,940 from 1 July to 30 June 2024. This aspect of the decision will cause a situation of overpayment of about $3,271.
The Tribunal is satisfied that in a context of significant discord between the parents it is appropriate to depart from the assessment on the basis of the younger child’s special needs costs. Allowing for 12 sessions per annum, with 10 of those attracting a Medicare rebate, the Tribunal finds that the mother’s out-of-pocket costs associated with this therapy will be about $1,630.
Therefore, the Tribunal will increase the father’s annual rate of child support by $815 per annum from 1 July 2024 to until 31 December 2025. Of course, should there be any changes to the younger child’s therapy needs, either parent is at liberty to notify Child Support accordingly.
The Tribunal has reached the requisite level of satisfaction that the father has capacity to meet his ongoing necessary expenses, his child support liability on the basis of his earning capacity and the children’s special needs, particularly given his modest self-support needs. Certain hardship would be caused to the mother and the children were the father not to contribute to the children’s special needs to the extent that his income and financial resources allowed.
The Tribunal is satisfied that the administrative assessment is unfair given the children’s special needs and the father’s income and earning capacity. This results in an unjust and inequitable level of child support given the circumstances of each parent. For all these reasons, it is just and equitable to depart from the administrative assessment.

Otherwise proper

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 effect 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. The mother is in receipt of income-tested benefits.
Amending the child support payable by the father may affect the mother’s rate of family tax benefit, depending on how Centrelink treats the increase in the administratively assessed rate of child support.
As there has been an increase to the annual rate on the basis of the children’s special needs, Centrelink may determine that this increase in the child support payable should be excluded from the maintenance income amount. It is open to the mother to provide a copy of this decision to Centrelink so it may determine if the increase in the rate of child support payable should be excluded from the maintenance income amount used to calculate her entitlement to family tax benefit.
The determination is otherwise proper.

DECISION

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

3.Mr McKague’s annual rate of child support is increased by:
·$2,940 from 1 July 2023 to 30 June 2024; and
·$815 from 1 July 2024 to 31 December 2025.

4.Mr McKague’s adjusted taxable income is varied to $139,650 per annum from 23 May 2023 to 31 December 2025.

[2024] AATA 2531

24 May 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Remedies

Statutory Construction

Judicial Review