Moreno and Hargreave (Child support)

Moreno and Hargreave (Child support) [2023] AATA 2671 (13 July 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC025030
APPLICANT:  Ms Moreno
OTHER PARTIES:  Child Support Registrar
Mr Hargreave

TRIBUNAL:Senior Member S Trotter
DECISION DATE: 13 July 2023
DECISION:

The decision under review is set aside and a decision substituted that:

Mr Hargreave’s adjusted taxable income is varied to $133,971 from 18 March 2022 until 11 May 2022;
Mr Hargreave’s adjusted taxable income is varied to $28,971 from 12 May 2022 until 30 June 2022; and
The annual rate of child support payable by Mr Hargreave is increased by $1,600.80 for the period 24 March 2022 to 30 June 2022.

As a result of this decision the change of assessment decision dated 30 November 2021 ceases on 17 March 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – special needs – a 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

Ms Moreno and Mr Hargreave are the parents of [Child 1] (born 2010), [Child 2] (born 2012), [Child 3] (born 2015), [Child 4] (born 2017) and [Child 5] (born 2020) (the children). A child support case was registered with the Services Australia – Child Support (Child Support) in relation to the children on 2 December 2020. The children are currently recorded as being in the 100% care of Ms Moreno.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of 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 (commonly termed a change of assessment) in certain circumstances. Departure determinations can include varying components of the child support formula such as a parent’s child support income (which incorporates a parent’s adjusted taxable income) or varying the annual rate of child support.
At issue is whether there should be a departure from the administrative assessment in relation to an application lodged by Ms Moreno on 24 March 2022 seeking a change on the basis of the costs of the children’s special needs.[1]
[1] The application also sought a change on the basis that Ms Moreno had provided money, goods or property for the benefit of the children. This ground was not pursued including because it is a ground relevant to a payer parent not a payee parent (with Ms Moreno being a payee parent)
On 5 July 2022, Child Support decided that based on it being accepted that there were additional costs not recognised in the current child support assessment on account of the children’s special needs, a previous change of assessment decision of 30 November 2021 ceased to have effect from 18 March 2022 and that:

for the period 18 March 2022 until 31 December 2022, Mr Hargreave’s adjusted taxable income was set at $105,000; and
for the period 24 March 2022 until 31 March 2024, the annual assessment of child support otherwise payable by Mr Hargreave was increased by $1,286 representing Mr Hargreave’s contribution to costs of the special needs of [Child 2], [Child 3] and [Child 4].

Mr Hargreave objected to this decision and, on 9 November 2022, a Child Support objections officer reconsidered the matter, partly allowed the objection and decided that the previous change of assessment decision of 30 November 2021 ceased to have effect from 18 March 2022 and that:

for the period 18 March 2022 until 11 May 2022, Mr Hargreave’s adjusted taxable income was set at $105,000; and
for the period 24 March 2022 until 11 May 2022, the annual assessment of child support otherwise payable by Mr Hargreave was assessed to be increased by $1,503 representing Mr Hargreave’s contribution to costs of the special needs of [Child 2], [Child 3] and [Child 4].

Ms Moreno applied to the Tribunal on 15 November 2022 seeking independent review of Child Support’s decision.
At a directions hearing on 9 February 2023, directions were made by the Tribunal in relation to the conduct of the matter and the provision of further documents from Ms Moreno and Mr Hargreave.
A hearing took place on 29 March 2023 with Ms Moreno and Mr Hargreave each participating by conference telephone. Both gave evidence on affirmation at the hearing. Prior to hearing Ms Moreno sought that she be permitted to have a support person, Ms [A], with her at the hearing. Mr Hargreave did not object to Ms Moreno’s request, Ms Moreno’s request was granted and Ms [A] was issued with a direction not to disclose personal information about the parties or the review, or about any other person, acquired by her through attendance at the hearing. Ms [A] attended the hearing for approximately two thirds of the approximate three hours of this hearing.
The Child Support Registrar did not seek leave to participate in the hearing and did not attend but provided relevant documents from Child Support’s file.
Further directions were made at hearing for provision of additional documents identified at hearing as being relevant to the Tribunal’s consideration. Further documents, and further written submissions in response, were subsequently provided by Ms Moreno and Mr Hargreave.
A further hearing took place on 23 June 2023 following receipt of the further documents from Ms Moreno and Mr Hargreave after the first hearing. Ms [A] again attended the hearing as a support person for Ms Moreno.
In considering the application, the Tribunal took into account the sworn oral evidence and submissions of Ms Moreno and Mr Hargreave and the following documents (copies of which had been provided to each party by Child Support or the Tribunal):

(a)the documentary material provided by Child Support (Exhibit 1, pages 1 to 545);
(b)documents and written submissions received from Ms Moreno (Exhibit A, pages A1 to 163); and
(c)documents and written submissions received from Mr Hargreave (Exhibit B, pages B1 to B214).

The documents taken into account included three letters dated 27 June 2023 from Dr [B] forwarded by Ms Moreno after the second hearing and responsive to earlier directions of the Tribunal in relation to medical evidence supporting the need for compounded medication. Those letters were forwarded to Mr Hargreave and he was given an opportunity to provide any further evidence or submissions in response. Nothing further was received from Mr Hargreave.

14. The Tribunal makes a general observation that neither parent has fully complied with their obligation to make full and frank disclosure of their financial circumstances to the Tribunal and to comply with all directions made by the Tribunal, as will be canvassed in further detail in these Reasons. The Tribunal’s statutory objective includes to provide a mechanism of review that is quick. The Tribunal has delayed the finalisation of this matter to allow further time for both parties to fully comply with their obligations, which neither have yet fully done. In the circumstances, the Tribunal has proceeded to finalise the review based on the best evidence now before it for the Reasons set out.

There are a number of background and other circumstances of understandable importance to both Ms Moreno and Mr Hargreave which were raised in evidence which are not relevant to the issues before the Tribunal but rather relate to historical matters not the subject of this application or which more properly relate to other matters between Ms Moreno and Mr Hargreave not within the Tribunal’s jurisdiction. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

ISSUES

16. The statutory provisions relevant to this review are contained in the Act. A parent can apply to the Child Support Registrar for a determination to depart from the administrative assessment of child support (a process known as a change of assessment). Such an application is made under Part 6A of the Act. Under section 98C, a decision-maker can make a change of assessment only if satisfied that:

(a)a ground for a change of assessment has been established;
(b)a change of assessment would be just and equitable as regards the children and each parent; and
(c)a change of assessment would be otherwise proper.

17. There are 10 possible grounds for a change of assessment set out in subsection 117(2) of the Act. Each ground for departure is prefaced by the words “in the special circumstances of the case”. The meaning of this expression is not defined in the Act but the Family Court in Gyselman v Gyselman (1992) FLC 92-279 (Gyselman) held that:

as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the formula in the ordinary run of cases.

18. The Tribunal’s approach to the interpretation and application of the particular grounds in subsection 117(2) must be guided by that qualification.

19. 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 Tribunal may make 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 of a parent or the cost percentage for a child.

20. It follows that the issues to be determined by the Tribunal are as follows:

(a)Does a ground, specified in subsection 117(2), exist to depart from the administrative assessment?
(b)Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support? And
(c)Would it be otherwise proper to make a particular departure determination?

CONSIDERATION

Issue 1 – Does a ground exist to depart from the administrative assessment?

21. Subparagraph 117(2)(b)(ia) of the Act provides as a ground for departure:

(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(ia) because of the special needs of the child…

22. The term “special needs” is not defined in the legislation. There must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential or desirable for the child’s welfare that are outside the ordinary costs of a child that can be met from an administrative assessment (Lightfoot v Hampson (1996) FLC 92-663).

23. Ms Moreno submitted that there should be an increase to the child support payable taking into account the out-of-pocket costs associated with the special needs of the children, that the increase should extend beyond 11 May 2022 and that the quantum of the increased child support should be more than the additional $1,503 per annum (as is the current decision of Child Support).

Ms Moreno submitted, and Mr Hargreave does not dispute, that there are diagnosed medical conditions impacting [Child 1], [Child 2], [Child 3] and [Child 4] for which they each receive NDIS benefits, including for speech therapy, occupational therapy and psychological therapy. The medical reports in evidence show diagnoses as follows:
[Child 1] – ASD Level 2 and generalised anxiety disorder
[Child 2] – ADHD and ASD Level 2
[Child 3] – ADHD and ASD Level 3 and generalised anxiety disorder
[Child 4] – ASD Level 3, ADHD and generalised anxiety disorder
[Child 5] – not yet diagnosed but showing signs of ASD

25. Ms Moreno submitted that she incurs out-of-pocket expenses on top of the NDIS funding in relation to the diagnosed conditions. She stated that the medications that the children take is in relation to the diagnosed conditions in combination. A paediatrician prescribed the medications initially and the general practitioner deals with the repeat prescriptions.

Additionally it was agreed between Ms Moreno and Mr Hargreave that [Child 2] is also impacted by the condition of [Medical condition 1].

27. The Tribunal is satisfied that on account of these diagnosed conditions, ASD, ADHD, generalised anxiety disorder, and [Medical condition 1], that there are needs of the children that can be categorised as special by virtue of being different from those attributable to most other children.

Ms Moreno’s further evidence was that all of the boys have had past surgeries for [medical] issues, with the costs of the surgeries covered under the public health system, however with her incurring out-of-pocket petrol costs for travel to their local hospital and parking costs at the hospital. She confirmed that those surgeries were not related to the diagnosed ASD, ADHD or anxiety conditions. As discussed with Ms Moreno, the Tribunal considers that those costs, including for parking and petrol expenses to travel to her local hospital for the surgeries, would not be considered different to the usual sorts of costs that would be incurred for children separate to special needs.
Ms Moreno had previously provided Child Support with receipts in relation to out-of-pocket costs referable to the children’s special needs. In response to the Tribunal’s directions, Ms Moreno set out details of out-of-pocket costs and future anticipated costs in table format. Those tables are annexed at Attachment 1 to these Reasons.

30. Ms Moreno also provided pharmacy receipts to the Tribunal showing medication expenses for [Child 2], [Child 3] and [Child 4]. A table setting out details of those receipts is annexed as at Attachment 2 to these Reasons.

Ms Moreno’s evidence was that compounded medication, at an increased cost, is required for the children for various reasons, including [Child 4]’s inability to take medication in tablet form. When queried as to the difference in price, Ms Moreno stated that, by way of example, she expects if the [Medication 1] was not compounded it would be $6.30 instead of $50 per month. Mr Hargreave disputed the need for the medication to be in compounded form.
At hearing Mr Hargreave indicated that he does not dispute that there are of out-of-pocket expenses associated with the special needs of the children. However, he queries the quantum of the costs (including as to the need for compounded medication). Mr Hargreave also queried the extent of pain medication for [Child 2] for the [Medical condition 1] expressing concern about a child receiving [Medication 2] twice a day. He does not necessarily agree with the medication that [Child 2] takes ([Medication 3] and [Medication 1]). He believes in some self-management.
As discussed at hearing, the Tribunal acknowledges that Ms Moreno and Mr Hargreave may have different views as to the actual treatment for the conditions impacting the children. It is not the role of the Tribunal to determine what the treatment should be but rather to consider the cost of reasonable treatment that is being undertaken. It is not suggested that the treatment currently being availed for the conditions impacting the children is other than in accordance with medical recommendations. The Tribunal therefore confined its consideration to the quantum of the actual treatments/medications.
The Tribunal made directions at the first hearing for Ms Moreno to provide medical evidence supporting the need for compounded medication. Letters from doctors provided after the first hearing confirmed the use of compounded medication but not the necessity of medication in that form. Following the second hearing Ms Moreno provided three letters from Dr [B], general practitioner, dated 27 June 2023 confirming the need for [Child 2]’s [Medication 1] to be compounded in liquid form noting that it has a quicker onset and that [Child 2] has found it works better for his symptoms having tried the non-compounded medication without benefit. As regards [Child 4], Dr [B] stated that the [Medication 3] and [Medication 1] medications need to be compounded as [Child 4] is unable to swallow tablets and his medications do not come in a non-compounded liquid form. As regards [Child 3], Dr [B] stated that [Medication 1] needs to be compounded in liquid form as it works better for his symptoms having tried the non-compounded form without benefit and, as regards [Medication 4], the equivalent tablet form is too large for him to swallow. The Tribunal accepts the necessity for the relevant mediations to be compounded based upon the undisputed medical evidence now before it.

35. As regards the cost of [Medication 2] for [Child 2], Ms Moreno’s evidence was this was for the diagnosed condition of [Medical condition 1] affecting [Child 2]’s [body part]. Appointments are required in Brisbane approximately every three months for [Child 2] in relation to this condition. He is currently having to take [Medication 2] morning and night because of the [pain]. [Child 2] has already had three [injections] and the doctors do not recommend more than that and in those circumstances have said that ongoing [Medication 2] is reasonable. This condition is not classified as a disability for [Child 2] for NDIS and is not covered but is an ongoing expense.

Ms Moreno’s evidence was that the costs of medication alone of the children’s special needs was $200 per month, without even taking into account the costs of petrol and parking for attending appointments. With reference to Ms Moreno’s estimated $100 per week chemist expenses in her 23 November 2022 Statement of Financial Circumstances, Ms Moreno said that the $100 per week estimate includes a small amount for her (maybe $5 per month) and also includes medication etc for the normal sorts of illnesses children have such as colds, etc.
Ms Moreno’s evidence was that [Child 2] has appointments approximately every 12 weeks for check-ups in relation to the [Medical condition 1] condition. His last [injection] was in November 2022. Ms Moreno said that [Child 2] has previously had surgeries in relation to the [Medical condition 1] however was not able to pinpoint when the last surgery was other than at some time in the past three years. Ms Moreno stated that she incurs approximately $81.16 per trip for expenses for parking, petrol and tolls approximately every 12 weeks for regular checks ups in Brisbane and additionally possibly on other trips each year to Brisbane for other treatment for this condition. The Tribunal discussed whether an estimate of $80 per trip five times per year would be a reasonable estimate of the costs of trips to Brisbane for check-ups and treatment for [Child 2] for the [Medical condition 1] condition. Ms Moreno agreed that would be a fair estimate of that cost and the regularity of incurring that cost. Mr Hargreave said previously he had been aware that trips to Brisbane were only required once a year but that he accepted the estimates based upon five trips per year to Brisbane now in relation to [Child 2]’s [Medical condition 1] condition.
Child Support in its 5 July 2022 original decision concluded that the annualised costs of the children’s special needs was $2,573 (with Mr Hargreave to contribute 50% of those costs per annum ($1,286.50 from 24 March 2022 until 31 March 2024). The $2,573 annual total was calculated on the following basis:

-pharmacy receipts for [Medication 4] for [Child 3] totalling $252 over the period 16 August 2021 to 18 May 2022 annualising at $333.26.

-pharmacy receipts for [Medication 1] for [Child 2] totalling $1,090 over the period 2 July 2021 to 9 June 2022 annualising at $1,159.91.
-pharmacy receipts for [Medication 3] for [Child 2] totalling $73.80 over the period 13 July 2021 to 2 May 2022 annualising at $91.62.
-pharmacy receipts for [Medication 5] for [Child 4] totalling $280.00 over the period 18 August 2021 to 18 May 2022 annualising at $372.99.
-pharmacy receipts for compounded medication totalling $467 over a period of 277 days annualising to $615.36.

Child Support in its 9 November 2022 objection decision then varied the decision, specifically in that it concluded that the annualised costs of the children’s special needs was $3,005 rather than $2,573 (with Mr Hargreave to contribute 50% of $3,005 from 24 March 2022 until 11 May 2022, that is $1,503). The $3,005 total was calculated on the following basis:

-pharmacy receipts for [Medication 4] for [Child 3] totalling $252 over the period 16 August 2021 to 18 May 2022 annualising at $333.26.
-pharmacy receipts for [Child 2]’s combined medications of approximately $61 per two prescriptions annualised to $1,684.
-pharmacy receipts for [Medication 5] for [Child 4] totalling $280.00 over the period 18 August 2021 to 18 May 2022 annualising at $372.99.
-pharmacy receipts for compounded medication totalling $467 for the period of 277 days annualising to $615.36.

The Tribunal considered the out-of-pocket costs referable to the children’s special needs for the 2022 calendar year based on the evidence before it, including the evidence previously provided to Child Support. The Tribunal has not included the costs of parking for appointments at the local hospital including for [Child 5]’s ENT/audiologist appointments on the basis that these costs are referable to the usual types of medical expenses that arise for children. However, the Tribunal is satisfied that the trips to Brisbane for [Child 2]’s quarterly check-ups and other appointments are referable to the condition of [Medical condition 1] impacting [Child 2], which the Tribunal has found is not a disease normally impacting children. Further, the Tribunal is satisfied that each of these trips incur petrol, toll and parking costs that Ms Moreno would not otherwise occur. The Tribunal accepts that [Child 2] is also required to take [Medication 2] from time to time for the pain caused by this condition, however, failing supporting evidence of the regularity of use of [Medication 2], the Tribunal considers this expense minimal and akin to medication that is provided to children from time to time for usual ailments. However, the Tribunal has included the prescribed medications for [Child 2] ([Medication 3] and [Medication 1]), and [Child 3] ([Medication 4] and [Medication 1]) and [Child 4] ([Medication 3] and [Medication 1]), including where indicated the compounded form of the medications based upon the letters now received from Dr [B] dated 27 June 2023 confirming the need for compounded medication. Noting that Ms Moreno and Mr Hargreave both agreed at hearing that five trips to Brisbane per year at an approximate cost of $80 per trip was a reasonable estimate of that out-of-pocket expense referable to the [Medical condition 1] impacting [Child 2], the Tribunal calculated the approximate out-of-pocket expense for the 2022 calendar year referable to the special needs of the children as follows:

Child Name	Activity	Out of Pocket Expense	Total
[Child 2]	Trips to Brisbane – [Hospital 2] for check-ups, [injections[ or otherwise	$80 x 5	$ 400.00
[Child 2]	Compounded medication [Medication 1]	$35.00 x 2 (January & February) + $55.00 x 8 (March to December)	$ 620.00
[Child 2]	[Medication 3]	$ 5.80 x 12	$ 69.60
[Child 3]	Compounded medication [Medication 4]	$36.00 x 12	$ 432.00
[Child 3]	Compounded medication [Medication 1]	$50.00 x 12	$ 600.00
[Child 4]	Compounded medication [Medication 3] [Medication 5]	$40.00 x 12	$ 480.00
[Child 4]	Compounded medication [Medication 1]	$50.00 x 12	$ 600.00
Total estimated out-of-pocket expenses referable to the children’s special needs for the 2022 calendar year			$3,201.60

41. The Tribunal is satisfied on the evidence that Ms Moreno had out-of-pocket costs of meeting the children’s special needs of approximately $3,200 in the 2022 calendar year. The Costs of the Children Table,[2] which is based on independent research into the cost of children in Australia, informs the usual administrative assessment of the rate of child support. The Costs of the Children Table 2022 shows the costs of five children in the 0–12-year age group starting at $10,960 per annum and increasing depending upon the parents’ respective incomes. In that context, the Tribunal is satisfied that approximately $3,200 in additional costs referable to special needs is such that there are special circumstances in the case because the costs of maintaining the children are significantly affected by the out-of-pocket expenses of meeting the children’s special needs, which costs are not provided for in the administrative assessment.

[2] The costs table is updated annually to recognise changes in MTAWE (Male Total Average Weekly Earnings). A new table is published for each calendar year, to be used in making assessments for child support periods that start in that year. The costs are indexed to the MTAWE figure. The table is located at Clause 1 of Schedule 1 to the Act

42. It follows that the Tribunal considers there is a ground for a departure from the administrative assessment of child support pursuant to subparagraph 117(2)(b)(ia) of the Act.

Issue 2 – Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support?

43. The Tribunal has found that there is a ground to depart from the administrative assessment.

44. Subsection 117(4) of the Act requires that regard must be had to the following in determining whether it would be just and equitable to make a particular determination pursuant to sub-subparagraph 98C(1)(b)(ii)(A) of the Act as follows:

(a)      the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)      the proper needs of the child; and
(c)      the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and

(da)    the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)     himself or herself; or
(ii)    any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

(g)      any hardship that would be caused:
(i)        to:
(A)      the child; or
(B)      the carer entitled to child support;

by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;

by the making of, or the refusal to make, the order.

45. The Tribunal is not limited by the matters listed in subsection 117(4) and may consider any other relevant matters (subsection 117(9) of the Act). The Full Family Court, in the case of Gyselman, stated that:

However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section [117](2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).

46. The Tribunal has considered each of these factors and does not propose to provide detailed reasons about each of the considerations, but will discuss those it regards pertinent to this review.

As regards paragraph 117(4)(a) of the Act, the Tribunal recognises that Ms Moreno and Mr Hargreave have a duty to maintain the children. Further, the Tribunal notes the statements contained in sections 3 and 4 of the Act to the following effect:

(a)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.
(b)The level of support should be determined in accordance with the costs of children, and according to the parents’ capacity to provide financial support.

48. In determining the proper needs of the child for the purposes of paragraph 117(4)(b) of the Act, subsection 117(6) of the Act requires the Tribunal to have regard to the manner in which the child is being, and in which the parents expect them to be, cared for, educated or trained and any other special needs they may have.

As regards the costs of Ms Moreno’s self-support and the costs of the children, in her 23 November 2022 Statement of Financial Circumstances, Ms Moreno has estimated total income of $1,180.48 per week from Centrelink, family assistance benefits and child support. Against this income, Ms Moreno estimates personal expenses of $45.50 per week and total household expenditure of $1,237.25 per week for her and the five children. The expenses estimated are modest and consistent with the expenses expected for a household of one adult and five children.

50. Other than the out-of-pocket costs referable to special needs, the Tribunal is satisfied that the costs of providing for the proper needs of the children are not other than the usual costs of providing for children of their respective ages.

As regards the costs of Mr Hargreave’s self-support, in his 28 February 2023 Statement of Financial Circumstances, Mr Hargreave has estimated total income of $315 per week from Centrelink benefits. Against this income, Mr Hargreave estimates personal expenses of $26 per week and total household expenditure of $1,085 for him, including mortgage payments of $730 per week. The expenses estimated, other than the mortgage expense, are modest and consistent with the expenses expected for a household of one adult.
As regards paragraphs 117(4)(d) and (da) of the Act and the income, property, financial resources and earning capacity of Ms Moreno, Ms Moreno’s evidence to the Tribunal, supported by her completed Statement of Financial Circumstances dated 23 November 2022, was that her income is limited to social services and family tax benefits and whatever child support she receives from Mr Hargreave. When queried at the first hearing as to when she last received income from any other source, Ms Moreno said it was when she was pregnant with [Child 4] when she was working in retail. She also said that she did get a little bit of cash from selling some stuff online. Ms Moreno said she has otherwise had no other source of income.
The Tribunal questioned Ms Moreno further in relation to documents in the Child Support papers (Exhibit 1, page 234) showing [Business 1] income to Ms Moreno of $271.16 on 24 November 2021, $264.70 on 10 November 2021, $263.38 on 21 October 2021 and $264.98 on 19 October 2021. Ms Moreno said that was the stuff she was selling online that she had referred to in response to the Tribunal’s query about income, that is she was selling [stuff]. Ms Moreno said that those payments, in 2021, were the last payments she received for these sorts of transactions. When queried as to why these payments were not claimed as part of her taxable income, Ms Moreno stated that it did not cross her mind that this was taxable income. Child Support calculated an annualised income of $10,498 based on these [Business 1] payments in October and November 2021 and concluded that given Ms Moreno’s other income being limited to Centrelink benefits the [Business 1] income would make a difference of only $5 per annum to child support and as such were not of such a significance to amount to special circumstances. The Tribunal has no evidence before it to suggest that $10,498 income was received, as opposed to just $1,064.22. There is no evidence of any current [Business 1] income of Ms Moreno and the Tribunal is satisfied, as was Child Support, that even if Ms Moreno was in receipt of income from [Business 1] for 12 months at the same rate as in October/November 2021, there would be minimal impact on the child support assessment and therefore no reason for changing the assessment on that basis.
Ms Moreno was directed, on 10 February 2023, to provide copies of her bank statements from 1 July 2021 not already contained in the Child Support documents. Those bank statements had not been provided as directed at the time of the first hearing on 29 March 2023. Following the first hearing, Ms Moreno provided some but not all of her bank account statements, with numerous pages missing, including statements in relation to sub-accounts. She was not able to offer any reason for not providing all of the bank statements other than the general busyness of life and her reliance on the bank printing out everything when she had requested the statements. As discussed with Ms Moreno at hearing, it is her obligation to provide the documents directed and failing compliance the Tribunal may draw adverse inferences based upon the information not being provided. The Tribunal does not accept that Ms Moreno had a valid reason for not fully complying with the directions of the Tribunal. It is of some concern to the Tribunal that Ms Moreno has not fully complied with her obligation to make full and frank disclosure of her financial circumstances to the Tribunal and her attempt to attribute the reason for that failure to a third party (her bank) in circumstances where it is information in relation to her personal circumstances and it is she who has the obligation to comply with the directions.
At the first hearing on 29 March 2023, Mr Hargreave told the Tribunal that prior to separation he and Ms Moreno [did specified work] together. He said that just prior to separation Ms Moreno started [working as Occupation 1]. He submitted that Ms Moreno [earns income as Occupation 1].
Ms Moreno said that during settlement, she [worked in this field] to help her pay for legal fees but that she has not [worked] since then. She currently has [number of pets] herself, one of which she is trying to rehome. When queried as to whether she has any plans to again [work as Occupation 1], Ms Moreno said she has no plans to do that again unless there are further child custody proceedings because she cannot afford the legal fees otherwise. [details deleted].
At the second hearing on 23 June 2023, the Tribunal queried Ms Moreno in relation to some transactions in her partially disclosed bank statements provided between the first and second hearing, raising queries as to whether Ms Moreno is still [working]. In particular the Tribunal noted the following transactions suggestive of [Occupation 1 related costs]:

24 February 2023 $210.00 [cost] (Exhibit A, page 32)

26 July 2022 $149.83 [cost] (Exhibit A, page 32)

16 May 2022 $180.00 [cost] (Exhibit A, page 123)

and the following transaction suggestive of the purchase of [items]:

30 April 2022 $2,500.00 [items] (Exhibit A, page 69)

18 June 2022 $500.00 [items] (Exhibit A, page 73)

22 June 2022 $1,500.00 [items] (Exhibit A, page 73)

22 June 2022 $2,453.75 [items] (Exhibit A, page 73)

and the following deposits to Moreno’s account seemingly transferred from the same unidentified account:

14 September 2022 $ 100.00 Medication (Exhibit A, page 124)

16 September 2022 $3,851.83 (Exhibit A, page 144)

19 August 2022 $4,500.00 (Exhibit A, page 129)

In relation to the 24 February 2023 DNA test for $210, Ms Moreno stated that that was done for a friend and the bank account statement also shows a transfer of the exact amount to her three days beforehand, on 21 February 2023. Her friend was working full time so she arranged the testing for them. Ms Moreno said that the DNA testing was for her friend’s [dog] and that her friend wanted her to get the test because she herself had bought a test to check genetic diseases in her dogs and he wanted her to do the same for his dog. The May 2022 and July 2022 transactions were for one of her own dogs and the second test was because the first purchased DNA test did not turn up and she had to buy another test. Ms Moreno said that she was getting the DNA testing done to show up any genetic conditions for which she would have to save towards treatment.

59. Ms Moreno said the $3,851.83, $4,500 and $100 deposit amounts were transfers from her own sub-account bank account statements. She said she assumed all of those transactions would have been included because she asked the bank to provide all her statements and she is not sure why the bank did not put those statements in with what she provided.

The Tribunal suggested to Ms Moreno that the identified transactions were not inconsistent with a suggestion that she is still [working in Occupation 1 field]. Ms Moreno said that was not correct and that was not on her mind at all. She said that [reasons deleted]. The Tribunal discussed with Ms Moreno its concern that where a party does not comply with directions nor provide documents within their power to produce, with no valid reason not to comply, the Tribunal might be forced to conclude that the documents might show evidence adverse to the person. Ms Moreno said she had no excuse other than that she had an obscene amount of things going on with hospital visits and sickness in the family and also dealing with the police.
The Tribunal has concerns as to the true extent of Ms Moreno’s income with the evidence suggesting that she may be in receipt of additional income from sources such as [Business 1] and/or [working as Occupation 1]. However, the Tribunal is not satisfied that there is sufficient evidence before the Tribunal to conclude that Ms Moreno has income from sources other than social services or family assistance benefits. As regards financial resources and property, Ms Moreno has disclosed bank account balances of approximately $314,000 as at November 2022 with those monies referable to her share following property settlement between her and Mr Hargreave. Ms Moreno’s evidence at the first hearing was that those funds had now decreased slightly to $311,000, including because of covering the children’s medication costs.
Additionally, Mr Hargreave’s evidence at the second hearing was that Ms Moreno has recently accessed just $6,000, of his money via an insurance payment to him that was accidentally deposited in to their daughter’s bank account from a third-party source. Ms Moreno rejected that she accessed $6,000 stating that it was only $5,800 and told the Tribunal that the circumstances relating to that issue are currently under investigation by the police and she sees that as money to offset against child support arrears (which she approximates as $3,800 currently) and the other costs such as camp fees, etc that she is currently incurring for the children.

63. The Tribunal does not propose to make any findings in relation to this additional $5,800 currently available to Ms Moreno as regards child support. It is clear that other authorities are investigating those monies and in the circumstances the Tribunal makes no findings in relation to those monies.

As regards paragraphs 117(4)(d) and (da) of the Act and the income, property, financial resources and earning capacity of Mr Hargreave, Mr Hargreave’s evidence was that his previous occupation was as a [Occupation 2]. He operated his own business, [Business 2], for approximately the last two years he was able to work. The business commenced in approximately September 2019, prior to separation. He operated the business for about two years before he stopped in early 2021 for medical reasons.

65. Mr Hargreave said that he has nerve damage [and] along with that came the onset of depression. The cause of the nerve damage is unknown. He had income protection through [INSURANCE 1] ([INSURANCE 1]). [INSURANCE 1] initially approved an income protection claim, however, as is shown by the letter dated 19 May 2023,[3] [INSURANCE 1] then determined to void the policy based upon his pre-existing medical history. When queried as to whether there was any continuing claim with [INSURANCE 1], Mr Hargreave responded that there was not. He confirmed that there was no review sought of [INSURANCE 1]’s decision, that repayments or previously payments have not been sought to be refunded by [INSURANCE 1] notwithstanding their decision and that the last payments received from [INSURANCE 1] were in May 2022. Mr Hargreave confirmed that all payments received from [INSURANCE 1] were paid into his bank account and were as follows:

(a) 13 August 2021 - $13,884;[4]
(b) 10 September 2021 - $6,942[5]
(c) 14 October 2021 - $6,942[6]
(d) 16 February 2022 - $6.942[7]
(e) 14 March 2022 - $6,942
(f) 6 April 2022 - $6,942[8]
(g) 11 May 2022 - $6,942[9]
[3] Exhibit B, pages 81 to 87
[4] Exhibit B, page 64
[5] Exhibit B, page 64
[6] Exhibit B, page 99
[7] Exhibit B, page 92
[8] Exhibit B, page 105
[9] Exhibit B, page 107

The Tribunal queried whether the payments from [INSURANCE 1] were included in Mr Hargreave’s tax returns. The Tribunal noted that Mr Hargreave’s 2021/2022 tax return[10] included income of $20,000. Mr Hargreave stated that the $20,000 was, according to his accountant, a director’s fee but he did not receive it. The Tribunal noted that it would not seem that the income from [INSURANCE 1] was included in his tax return. Mr Hargreave stated that his understanding was that the income was included in the business income of [Business 2]. Despite a Direction of the Tribunal issued to Mr Hargreave, only the Profit & Loss Statement for the year ended 30 June 2021 for [Business 2] (and not also the statement for the year ended 30 June 2022) was in evidence before the Tribunal.
[10] Exhibit B, page 160 to 162
Mr Hargreave’s evidence was that he owns two real properties following property settlement with Ms Moreno, properties at [City 1] and [Town 1]. In order to facilitate property settlement his current partner, [Ms C], provided funds and became a part owner of both properties. Mr Hargreave said that he resides in one of the properties and his partner resides in the other property and has done since May 2022. He said he and his partner do not live together and have not ever done so. Mr Hargreave’s evidence was that he did previously rent the grannie flat at the [Town 1] property where he resides but has not received any rent since 2022. He said that the state of the property is such that he is no longer able to rent it out. It requires significant repairs, as is evidenced by the [valuation] report provided to the Tribunal. Mr Hargreave denied, as contended by Ms Moreno based on what she has been told by others, that he currently has any rental income. He repeated that he has not received any rental income since 2022.

68. Mr Hargreave said that as shown in the statements provided, the total mortgages on the two properties are approximately $400,000 and $800,000. Valuation reports obtained for property settlement show that the [City 1] property is valued at approximately $750,000 to $800,000 and the [Town 1] property is valued at approximately $620,000.

A [Statement] provided to the Tribunal as directed after the first hearing shows rental income to Mr Hargreave in relation to the [Town 1] property totalling $9,570 gross for the 2021/2022 financial year. The Tribunal noted at hearing that Mr Hargreave’s rental income, like the [INSURANCE 1] income insurance payments, was not declared in his tax return and queried why that would be. Mr Hargreave was not able to provide a response to that question other than to state that his accountant deals with all his tax stuff. The Tribunal discussed with Mr Hargreave that his accountant only deals with his tax affairs based on his instructions and his advice as to his sources of income and that he is ultimately responsible for his tax return and is the one privy to the information the Tribunal is seeking. The Tribunal expressed a concern that if not all income is declared in the tax return, it cannot be satisfied that the tax return is accurate, noting again the absence of the [INSURANCE 1] income or rental income being included in his 2021/2022 tax return (and the continued failure to produce the 2021/2022 tax return of the business). The Tribunal noted that any rental income would be able to be offset by expenses for tax purposes and noted that it was not clear why his rental income would not have been included in his 2021/2022 tax return by his accountants, properly instructed by him as to his financial circumstances.
The Tribunal queried Mr Hargreave in relation to documents provided by Ms Moreno subsequent to the first hearing suggesting that Mr Hargreave had received a $137,825.69 insurance payment in May 2023. Mr Hargreave said the monies were for house insurance for repairs and that the monies were incorrectly paid in to his daughter’s account. Mr Hargreave noted that Ms Moreno has accessed some of those monies and that there are unrelated other proceedings in relation to that issue. Mr Hargreave said that the insurance monies were in relation to an insurance claim for repairs to the [Town 1] property related to water and other damage, with such damage being noted in the valuation report.
Mr Hargreave’s further evidence was that he has not worked since 2021. In response to the suggestion that he has worked since that time, Mr Hargreave said that he assumes that what is being referred to is when the police had called him when he was up North. He said he was in [a city] in September 2022; he was up there with his partner [Ms C] for a month or two. [Ms C] went to [a city] for work and he went with her. He denies taking on any work when he was there. He is unable to work. He is not doing any work for cash in hand. He has not, as suggested by Ms Moreno, transferred his business into [Ms C]’s name so that he can restart his business at a later time. He is seeking disability support pension and is currently in receipt of jobseeker payment. He is waiting to hear back from Centrelink about his claim. When queried as to whether he has to participate in job search activities, Mr Hargreave said he has never been asked to by Centrelink. When further queried as to whether he has therefore been granted a medical exemption from participating in job search activities, Mr Hargreave said he has never been asked for anything from Centrelink but Centrelink has all of his medical information in relation to his disability support pension claim.
Mr Hargreave’s 28 February 2023 Statement of Financial Circumstances discloses an income tax liability of $57,000. Mr Hargreave said that there is no current repayment arrangement in relation to that liability. He is currently sorting it out with the Australian Taxation Office. It is in relation to the [Business 2] business. The business name was cancelled in September 2022. He has other personal liabilities of $100,000 which is a court ordered debt from when his parents sued him in relation to their extended tenancy, and then claimed for ownership, for one of the properties. He is currently paying the debt at $100 per week to his mother. He otherwise owes $20,000 to a lawyer but is not presently being pursued for that debt.

73. Mr Hargreave’s evidence was that his expenses currently outweigh his income and he cannot meet his mortgage payments. Those payments are currently paused on the basis that he is in financial hardship and he is looking at selling both properties to [Ms C] and moving to live elsewhere because he cannot afford to keep going. It is only [Ms C] who is making payments towards the loan. The $730 per week mortgage expense in his Statement of Financial Circumstances is what he is meant to be paying but he is not able to pay it.

At the time of Ms Moreno’s application, child support was payable pursuant to a decision made following a previous departure application, namely a decision of 30 November 2021. Therefore failing a change of assessment pursuant to Ms Moreno’s 24 March 2022 application child support would be payable as follows:

for the period 1 June 2021 until 30 June 2022, the annual rate payable by Mr Hargreave was set at $10,400 (pursuant to Child Support’s decision of 30 November 2021 responsive to a previous change of assessment application dated 20 August 2021).
for the period 1 July 2022 to 31 October 2022, the annual rate payable by Mr Hargreave was assessed as $2,600 based upon a 2020/2021 adjusted taxable income of $35,940 for Mr Hargreave and a 2021/2022 adjusted taxable income of $28,880 for Ms Moreno.
for the period 1 November 2022 to 31 November 2022, the annual rate payable by Mr Hargreave was assessed as the fixed annual rate (FAR) of $4,565 based upon a 2021/2022 adjusted taxable income of $20,772 for Mr Hargreave and a 2021/2022 adjusted taxable income of $22,464 for Ms Moreno
resulting in a liability of $10,400 for the period 1 June 2021 to 30 June 2022.

The previous 30 November 2021 change of assessment decision was made, reducing the child support otherwise payable by Mr Hargreave, having regard to Mr Hargreave meeting the mortgage and rates expenses for the marital property in which Ms Moreno and the children were then residing. For the period 1 June 2021 until 30 June 2022, the annual rate payable by Mr Hargreave was set by that decision at $10,400 per annum. Section 98J of the Act permits new matters to be considered which had not been considered in the previous change of assessment process. Following the 30 November 2021 decision, Court orders were made in the Federal Circuit and Family Court of Australia (Division 2) on 18 March 2022 including that pending property settlement, Mr Hargreave was responsible for paying the mortgage, rates and amenities expenses of that property up to and including the date of settlement and that he indemnify Ms Moreno in relation to those expenses. It follows that with that change of circumstances it is appropriate that the decrease in child support payable based on the previous 30 November 2021 decision should cease from 18 March 2022.
As to the assessment of child support from 18 March 2022, the evidence is that Mr Hargreave was in receipt of income insurance payments of $6,942 net per month until May 2022. Those payments have not been included in Mr Hargreave’s 2021/2022 tax return. Mr Hargreave suggested that those payments were claimed in his business tax return. However despite being directed by the Tribunal to provide the Profit & Loss Statement for the business and the tax return for the business for the 2021/2022 financial year on numerous occasions, Mr Hargreave has not provided that evidence. Further, when again raised at hearing on 23 June 2023, Mr Hargreave was unable to provide an explanation for still not providing those documents. Mr Hargreave suggested that he left all of that to his accountant and his accountant had all of those documents. An accountant acts on a client’s instructions and it is the client tax payer themselves who is responsible for their own financial circumstances and complying with their tax obligations.
As discussed with Mr Hargreave at hearing, it is his obligation to provide the documents directed and failing compliance the Tribunal may draw adverse inferences based upon the information not being provided. The Tribunal does not accept that Mr Hargreave has a valid reason for not fully complying with the directions of the Tribunal. It is of some concern to the Tribunal that Mr Hargreave has not fully complied with his obligation to make full and frank disclosure of his financial circumstances to the Tribunal and his attempt to attribute the reason for that failure to a third party (his accountant) in circumstances where it is information in relation to his personal circumstances and it he who has the obligation to comply with the directions and to provide instructions to his accountants.
Ms Moreno contends that Mr Hargreave additionally works for cash in hand. Mr Hargreave denies that he does. In the absence of supporting evidence in relation to this contention, the Tribunal is unable to conclude that Mr Hargreave has any cash in hand income.
Ms Moreno further contends that Mr Hargreave has the capacity to go back to work, that is that Mr Hargreave should be assessed on having an earning capacity similar to what he had in the past. Ms Moreno said that she has evidence from a third party that Mr Hargreave was able to throw the children around in the air, using his arms, 12 months ago such that she queries Mr Hargreave’s position that he has nerve damage to his hands/arms preventing him from working.

80. The Tribunal can only determine that a person’s earning capacity is greater than is reflected in his or her income if the requirements of subsection 117(7B) of the Act are satisfied. That subsection states as follows:

(7B)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 this Act only if the court is 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.

81. All three subparagraphs of subsection 117(7B) are required to be satisfied for there to be a determination that a parent’s earning capacity is greater than is reflected in their income.

82. A medical certificate from Mr Hargreave’s general practitioner, Dr [D], dated 1 March 2023 is in evidence before the Tribunal. It states that:

Mr Hargreave has a medical condition and was unfit for employment since 01/05/2021. He has applied for unemployment benefits.

Mr Hargreave was invited to provide further medical evidence to the Tribunal as to his capacity to work noting that he had stated that he had provided full medical information to Centrelink to support his claim for disability support pension. Mr Hargreave raised concerns about providing further evidence because of the personal nature of the information. Mr Hargreave was invited and directed to provide all relevant medical evidence, noting that personal information could be redacted. Mr Hargreave has provided no medical evidence other than the 1 March 2023 certificate. The Tribunal has some concerns that additional medical evidence has not been provided as to Mr Hargreave’s capacity to work in circumstances where additional medical evidence is apparently available. Notwithstanding the Tribunal’s concerns there is medical evidence before the Tribunal, from Dr [D], that Mr Hargreave is incapacitated and cannot work. Further, until the [INSURANCE 1] income insurance policy was voided, apparently for non-disclosure of previous medical history, [INSURANCE 1] was paying income insurance payments on the basis that Mr Hargreave was not able to work. Taking both of these matters into account the Tribunal concludes that Mr Hargreave’s decision to work is justified based upon his state of health. It follows that subsection 117(7B) of the Act has no application and no earning capacity decision can be made in relation to Mr Hargreave.
Turning then to Mr Hargreave’s income to be taken into account for child support purposes, the evidence is that Mr Hargreave was in receipt of income from two sources in the 2021/2022 financial year which is not disclosed in his personal tax return, namely the [INSURANCE 1] income insurance income and the rental income. Mr Hargreave’s 2021/2022 tax return (Exhibit B pages 160 to 162) discloses income of $20,000 from [Business 2], resulting in adjusted taxable income of $20,772 for the 2021/2022 financial year. In addition to that income the Tribunal is satisfied that in the 2021/2022 financial year, Mr Hargreave had net income of $6,492 per month from [INSURANCE 1] until 19 May 2022 when [INSURANCE 1] voided the policy. Further the statement from [a real estate company] (Exhibit B, page 168) shows that he had gross rental income of $9,570 in the 2021/2022 financial year. Neither of these income amounts have been disclosed in Mr Hargreave’s 2021/2022 tax return however should be included as income available to him for child support purposes. Notably, whilst rental income would ordinarily be able to be offset by expenses relating to earning that income for tax purposes, any net rental loss is added back to a person’s taxable income for the purposes of ascertaining their adjusted taxable income for child support purposes.
Notably, Mr Hargreave had rental income for the 2021/2022 financial year that does not seem to have been taken into account for the purposes of the 30 November 2021 change of assessment decision. However, the Tribunal in considering this application is not reviewing the 30 November 2021 decision, and rather is addressing any change in circumstances since that time. The identified change in circumstance, in relation to the marital property, occurred on 18 March 2022 and the Tribunal in relation to this change of application will limit its consideration to Mr Hargreave’s income to be taken into account from that date, which it has determined should be as follows:
18 March 2022 to 11 May 2022
2021/2022 taxable income  $20,772.00
$6,942 gross per month annualised[11] to           $105,000.00
Rental income less direct expenses                $ 8,199.74
$133,971.74
12 May 2022 to 30 June 2022
2021/2022 taxable income  $ 20,772.00
Rental income less direct expenses                $ 8,199.74
$ 28,971.74
[11] $6,952 net equates to approximately $9,390 per month gross $112,680 less allowance for tax deductions including income insurance premiums, say $105,000
The Tribunal proposes to make a departure from the administrative assessment reflecting the above calculated amounts (in whole dollars as required by section 156 of the Act) from 18 March 2022 to 11 May 2022 and from 12 May 2022 to 30 June 2022. In addition to the assessed child support utilising these incomes for Mr Hargreave, the Tribunal proposes to add $1,600 per annum to the assessed child support referable to 50% of the out-of-pocket costs on account of the special needs of the children, from the date of the change of assessment application on 24 March 2022. It is not clear on the evidence exactly what date Mr Hargreave ceased receiving rental income. However, the [statement] shows Mr Hargreave had rental income for the 2021/2022 financial year which would have increased his adjusted taxable income properly assessed that year. The Tribunal therefore considers it appropriate that his income for child support purposes to 30 June 2022 include that income and that he therefore contribute to the costs of the special needs of the children until 30 June 2022.

However, from 1 July 2022, the Tribunal is satisfied that Mr Hargreave’s income is limited to Centrelink benefits and from that time his income is less than is allowed by the child support formula for self-support such that from that time Mr Hargreave has no additional capacity to contribute to the special needs’ costs.

88. The proposed departure of the Tribunal will result in child support liability for Mr Hargreave of approximately $12,500 between 1 July 2021 and 30 June 2022 and is approximately $2,100 per annum more child support liability than would otherwise be payable ($10,400) pursuant to the administrative assessment and in the context of the needs of the children is significant.

In considering the hardship that would result in the proposed departure, the Tribunal considered the proposed liability compared to the current assessed liability and current arrears position. The currently assessed child support liability based on Child Support’s objection decision of 9 November 2022 resulted in child support liability for Mr Hargreave of approximately $11,465 between 1 July 2021 and 30 June 2022. The liability that would result for that period from the Tribunal’s proposed departure, approximately $12,500, is approximately $1,000 more child support liability. The current child support arrears of approximately $3,800 would therefore increase to approximately $4,800.
Ms Moreno has approximately $310,000 in cash which is available to her to support the children. That is a financial resource resulting from property settlement. Likewise Mr Hargreave has an interest in two real properties, resulting from property settlement. He likely has some equity represented in his share of the two real properties, and additionally has monies from the insurance payment in May 2023, with his stated intention to be to effect repairs from the insurance payment and to sell his interest in the properties to [Ms C]. In the meantime he has limited income and significant liabilities.
Ms Moreno stated that she had accessed $5,800 of Mr Hargreave’s house insurance payment via her daughter’s bank account, with current police investigations in relation to that issue. Ms Moreno suggested that those monies could be offset against child support. That is not a matter for the Tribunal to consider or determine. It is uncertain what will transpire in that regard. If those monies, or part thereof, are offset against Mr Hargreave’s child support liability there would be no ongoing child support arrears. However, if those monies are not offset against arrears, Mr Hargreave would carry considerable arrears with little current ability to cover those arrears. However, the Tribunal nonetheless, in the context of Mr Hargreave’s income, property and financial resources, is satisfied that hardship will not result and considers it appropriate that Mr Hargreave contribute to the costs of his five children based upon the income the Tribunal has assessed him as having at the relevant time. Further, child support arrears should take priority over any other liabilities such that the Tribunal considers that even if those arrears take some time to clear, Mr Hargreave should nonetheless be assessed as proposed.

Issue 3 – Would it be otherwise proper to make a particular departure determination?

Otherwise proper

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

Ms Moreno is in receipt of family tax benefit. A change to the assessment so that Mr Hargreave is assessed on actual income will reduce the cost to the community. The addition to the child support liability referable to the special needs costs will not impact the family tax benefit entitlement of Ms Moreno. The Tribunal therefore considers that it is otherwise proper to make the particular determination proposed.

DECISION

The decision under review is set aside and a decision substituted that:

Mr Hargreave’s adjusted taxable income is varied to $133,971 from 18 March 2022 until 11 May 2022;
Mr Hargreave’s adjusted taxable income is varied to $28,971 from 12 May 2022 until 30 June 2022; and
The annual rate of child support payable by Mr Hargreave is increased by $1,600.80 for the period 24 March 2022 to 30 June 2022.

As a result of this decision the change of assessment decision dated 30 November 2021 ceases on 17 March 2022.

ATTACHMENT 1

Summary of incurred costs

Child Name	Date	Activity	Out of Pocket Expense	Supporting Documents Provided – Yes/No
[Child 2]	29/06/2022	Brisbane – [Hospital 2] check-up, Parking fee Petrol Tolls	$12.00 $60.00 $19.16	Yes No yes
[Child 5]	29/09/2022	[HOSPITAL 1][12] Audiology parking fee	$ 5.40	Yes
[Child 2]	06/10/2022	Brisbane [Hospital 2] check up, Parking fee Petrol Tolls	$12.00 $60.00 $19.16	Yes Yes yes
[Child 5]	27/10/2022	[HOSPITAL 1] ENT surgery	$12.80
[Child 2]	09/11/2022	Brisbane [Hospital 2] surgery Parking fee Petrol Tolls	$12.00 $60.00 $19.16	Yes Yes yes
[Child 5]	01/12/2022	[HOSPITAL 1] ENT follow up	$13.60	yes

[12] [Hospital 1]

Anticipated future costs

Child Name	Activity	Frequency	Out of Pocket Expense	Duration
[Child 2]	Brisbane [Hospital 2] check- ups	Approx. every 12 weeks	Parking $12.00 Petrol $50.00 Tolls $19.16	Unsure. This is pending how the disease progresses
[Child 2]	[Hospital 2] surgeries	Unsure. [injections] once a year + VDRO + pins and plates out + follow ups	Parking $12.00 and up pending how many days admitted Petrol $50.00 Tolls $19.16	Unsure. This is pending how the disease progresses
[Child 2]	Compounded medication [Medication 1]	One bottle per month	$50.00 per bottle	Indefinitely
[Child 2]	[Medication 3]	One bottle per month	$ 6.30	Indefinitely
[Child 2]	[Medication 2] for pain	Weekly	$9.49 for a packet of 12	While in pain for [body parts]
[Child 3]	Compounded medication [Medication 4]	One bottle a month	$36.00 per bottle	Indefinitely
[Child 3]	Compounded medication [Medication 1]	One bottle per month	$50.00 per bottle	Indefinitely
[Child 4]	Compounded medication [Medication 3] [Medication 5]	One bottle a month	$40.00 per bottle	Indefinitely
[Child 4]	Compounded medication [Medication 1]	One bottle a month	$50.00 per bottle	Indefinitely
[Child 1] is waiting for paediatrician referral	Compounded medication	Indefinitely
[Child 5] is waiting for paediatrician referral	Compounded medication	Indefinitely

ATTACHMENT 2

Pharmacy receipts

Child Name	Date	Medication	Out of Pocket Expense
[Child 2]	11/01/2022	[Medication 1]	$35.00
18/01/2022	[Medication 1]	$35.00
18/01/2022	[Medication 1]	$35.00
03/02/2022	[Medication 1]	$35.00
16/02/2022	[Medication 1]	$35.00
17/02/2022	[Medication 1]	$35.00
02/03/2022	[Medication 1]	$55.00
15/03/2022	[Medication 1]	$55.00
28/03/2022	[Medication 1]	$55.00
12/04/2022	[Medication 1]	$55.00
27/04/2023	[Medication 1]	$55.00
16/05/2022	[Medication 1]	$55.00
29/05/2022	[Medication 3]	$ 5.80
30/05/2022	[Medication 1]	$55.00
09/06/2022	[Medication 1]	$55.00
09/06/2022	[Medication 1]	$55.00
27/06/2022	[Medication 3]	$ 5.80
13/07/2022	[Medication 1]	$55.00
13/07/2022	[Medication 1]	$55.00
17/07/2022	[Medication 3]	$ 5.80
07/08/2022	[Medication 3]	$ 5.80
15/08/2022	[Medication 1]	$55.00
08/09/2022	[Medication 3]	$ 5.80
27/09/2022	[Medication 3]	$ 5.80
18/10/2022	[Medication 3]	$ 5.80
02/12/2022	[Medication 3]	$ 5.80
23/12/2022	[Medication 3]	$ 5.80
13/01/2023	[Medication 3]	$ 6.30
11/02/2023	[Medication 3]	$ 6.30
[Child 3]	03/02/2022	[Medication 4]	$36.00
28/03/2022	[Medication 4]	$36.00
18/05/2022	[Medication 4]	$36.00
15/07/2022	[Medication 4]	$36.00
15/08/2022	[Medication 4]	$36.00
03/10/2022	[Medication 4]	$36.00
15/11/2022	[Medication 4]	$36.00
13/12/2022	[Medication 4]	$36.00
10/01/2023	[Medication 4]	$36.00
14/02/2023	[Medication 4]	$36.00
[Child 4]	03/02/22	([Medication 3])	$40.00
28/03/22	([Medication 3])	$40.00
18/05/22	([Medication 3])	$40.00
15/07/2022	([Medication 3])	$40.00
15/08/2022	([Medication 3])	$40.00
08/09/2022	[Medication 1]	$100.00
03/10/2022	([Medication 3])	$40.00
19/10/2022	[Medication 1]	$100.00
15/11/2022	[Medication 1]	$100.00
15/11/2022	([Medication 3])	$40.00
13/12/2022	[Medication 1]	$100.00
13/12/2022	([Medication 3])	$40.00
10/01/2023	[Medication 1]	$100.00
10/01/2023	([Medication 3])	$40.00
01/02/2023	[Medication 1]	$100.00
14/02/23	([Medication 3])	$40.00

Key Legal Topics

Areas of Law

Family Law
Administrative Law

Legal Concepts

Jurisdiction
Judicial Review
Remedies
Procedural Fairness

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Citations

Moreno and Hargreave (Child support) [2023] AATA 2671

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[2023] AATA 2671

13 July 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Remedies

Procedural Fairness