Nunez and Bentley (Child support)

Nunez and Bentley (Child support) [2023] AATA 2669 (21 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC025470
APPLICANT:  Ms Nunez
OTHER PARTIES:  Child Support Registrar
Mr Bentley

TRIBUNAL:Member M Baulch
DECISION DATE: 21 June 2023
DECISION:

The decision under review is varied to the extent that from 1 January 2022 to 31 December 2022, the annual rate of child support otherwise payable by Mr Bentley is increased by $1,179 as Mr Bentley’s contribution to the costs of meeting [Child 1]’s special needs.

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 varied

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

This application for review concerns the amount of child support to be paid by Mr Bentley to Ms Nunez in respect of [Child 1], who was born in 2012.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ incomes, the number of children, their ages and their percentages of care.
Since 7 April 2014, Mr Bentley has been assessed as liable, by Services Australia – Child Support (Child Support), to pay child support to Ms Nunez in respect of [Child 1]. Since 1 November 2021 Mr Bentley has been assessed to pay the statutory minimum amount of child support, being $446 per annum.
A parent can make an application to Child Support for a change to the administrative assessment based on the statutory formula in the special circumstances of their case – referred to in the Act as a departure determination. Ms Nunez made such an application on 4 January 2022. The grounds relied upon by Ms Nunez in her application were:
·      the child had special needs;
·      there are extra costs in caring for, educating or training the child in the way both parents intended;
·      the administrative assessment did not correctly reflect one or both of the parents’ income, property or financial resources; and
·      the administrative assessment did not correctly reflect one or both of the parents’ capacity to earn.
The application was considered by a Child Support decision maker who decided, on 15 June 2022, that there was to be a determination departing from the administrative assessment of child support such that for the period 4 January 2022 to 31 December 2024, Mr Bentley’s adjusted taxable income was set at $89,300.
Mr Bentley objected to that decision and, on 19 January 2023, that objection was partly allowed. The objections officer decided to set aside the decision of 15 June 2022, and instead decided that there was to be a departure determination such that:
· for the period 4 January 2022 to 31 December 2022, Mr Bentley’s adjusted taxable income was set at $54,125; and
· from 1 January 2023 to 30 June 2024, Mr Bentley’s adjusted taxable income was set at $55,016, and this amount was to be increased by the Child Support inflation factor on 1 January 2024;
(the decision under review).
On 21 January 2023, Ms Nunez applied to this tribunal seeking an independent review of Child Support’s decision.
A hearing into the application for review was held by the tribunal on 21 June 2023. Ms Nunez and Mr Bentley both participated in the hearing by telephone and both gave evidence during the hearing. The tribunal was assisted in the conduct of the hearing by a Vietnamese interpreter. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.
The tribunal had before it relevant documents provided by the Registrar pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (478 pages). The tribunal also had regard to additional material provided by Ms Nunez (labelled folios A1 to A122) and Mr Bentley (labelled folios B1 to B109).

ISSUES

The statutory provisions relevant to this review application are found within the child support legislation, in particular, the Act.
Pursuant to paragraph 98C(1)(b) of the Act, a determination to depart from the administrative assessment of child support 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) of the Act] 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; …

CONSIDERATION

At the time Ms Nunez made her application for a departure determination, Mr Bentley was assessed to pay the statutory minimum amount of child support of $446 per annum, based upon Ms Nunez’s adjusted taxable income of $27,970 (an amount determined by the Registrar) and Mr Bentley’s adjusted taxable income of $19,943 (determined by reference to his 2020–21 taxable income).
On 5 April 2022, Ms Nunez advised Child Support that her 2020–21 taxable income would be $25,000. Her income tax return for 2020–21 was later lodged and disclosed that her taxable income was $27,974. The child support liability remained at the statutory minimum of $446 per annum.
On 1 October 2022, a new child support period commenced and currently applies until 31 December 2023. I estimated that, had the decision now being reviewed not been made, the administrative assessment of child support would have required Mr Bentley to pay the statutory minimum of $459 per annum, based upon Ms Nunez’s adjusted taxable income of $30,857 and Mr Bentley’s adjusted taxable income of $17,015, determined by reference to the parents’ 2021–22 taxable incomes.
These, therefore, are the administrative assessments of child support from which I am considering departing.

Is there a ground, or grounds, for departure?

All the grounds for departing from the administrative assessment of child support are prefaced by the term “in the special circumstances of the case”. As noted by the Full Court of the Family Court:[1]
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize 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 administrative formula result in the ordinary run of cases. In Savery's case (p 77-897), Kay J., adopting the view in Philippe (1978) FLC 90-433 at p 77202 in a different context, said that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
My consideration will be guided by this principle.
[1] See Gyselman and Gyselman [1991] FamCA 93 at [39].

Special needs of the child

Ms Nunez’s application for a departure determination relied upon the ground for departure set out in subparagraph 117(2)(b)(ia) of the Act. This provision – commonly referred to as “Reason 2” by Child Support – provides that, in the special circumstances of the case, a ground for a departure from the statutory formula may be established if the costs of maintaining the child are significantly affected “because of the special needs of the child”.
The term special needs is not defined in the Act. In the matter of Lightfoot and Hampson,[2] the Full Court of the Family Court of Australia stated that:
“special needs of the child” - encompasses a wide range of needs of a child which are seen as “special” in the sense of necessary or at least desirable for that child’s welfare but outside the “normal” needs of a child which would be catered for within the formula. This would include such things as unusual medical expenditure, facilities for a handicapped child, etc. If necessary it could include “special needs” in education.
[2] [1996] FamCA 8.
A letter written by paediatrician, [Doctor A], dated 3 October 2020 indicated that [Child 1]’s presentation meets the diagnostic criteria for autism spectrum disorder (ASD). As part of a request to access the National Disability Insurance Scheme (NDIS), [Doctor A] also noted on 3 October 2020 that [Child 1] has attention deficit hyperactivity disorder (ADHD), although no particulars of the diagnostic details are provided.
Having regard to the report and letter completed by [Doctor A] on 3 October 2020, I was satisfied that [Child 1] has ASD and ADHD and thus has special needs.
Ms Nunez has provided evidence of the costs she incurs for [Child 1] to engage in [sport 1] lessons which, she says, are beneficial for [Child 1]’s social development and skills. Many children benefit from engaging in sport or other extracurricular activities. In the absence of any evidence that a health professional has recommended [Child 1]’s participation in [sport 1] as part of the management of ASD and ADHD, I was not persuaded that the costs being incurred by Ms Nunez for [sport 1] lessons are necessary or even desirable in terms of [Child 1]’s special needs.
Ms Nunez has also provided evidence that she is incurring costs for [Child 1] to see a psychologist. A psychological assessment report dated 10 October 2021 did not identify that [Child 1] has any psychological issues that cannot be explained by the ASD and ADHD diagnoses. I was not satisfied that the evidence demonstrates a connection between [Child 1]’s ASD and ADHD and his need for psychological treatment. I noted Ms Nunez’s evidence that a request for funding for psychological treatment was not granted in respect of [Child 1]’s first NDIS plan.
[Child 1] was approved for NDIS funding from 12 November 2021, with funding approved for speech therapy and occupational therapy. I was satisfied that the costs incurred for speech therapy and occupational therapy are necessary costs in terms of addressing [Child 1]’s special needs.
Ms Nunez has provided evidence that she incurred costs totalling $1,309.49 for [Child 1] to undertake speech therapy between 20 July 2021 and 7 October 2021 and $1,047.56 for occupational therapy between 24 June 2021 and 23 July 2021. Ms Nunez’s evidence was that these were the costs she incurred for treatment before [Child 1] was granted NDIS funding.
The administrative assessment of child support was based upon the costs of the child of $0 per annum. I was satisfied that during that period Ms Nunez incurred costs of $2,357.05 on speech pathology and occupational therapy services that were necessary to address the effects of [Child 1]’s ASD and ADHD. I therefore accept that the costs of the child were significantly affected by [Child 1]’s special needs for the period prior to NDIS funding being granted.
Not all children require therapies to address the effects of ASD and ADHD. I therefore found that this case is out of the ordinary and consequently the requirement of special circumstances has been made out.
I therefore found the ground for departure set out in subparagraph 117(2)(b)(ia) of the Act, which is referred to as “Reason 2” by Child Support, has been established in this case.

Educating the children in the manner expected by their parents

Subparagraph 117(2)(b)(ii) of the Act provides a ground for departure, referred to as “Reason 3” by Child Support, where “in the special circumstances of the case, the costs of maintaining the child are significantly affected … because the child is being cared for, educated or trained in the manner that was expected by his or her parents”.
[Child 1] commenced attending [School 1] at the start of the 2022 school year. A letter from the school to Ms Nunez dated 29 November 2021, which confirmed [Child 1]’s enrolment, specifies that the compulsory fees and levies for 2022 were $2,620.
Ms Nunez’s evidence was that [Child 1] will be better supported at a private school, when compared to a public school, because of his ASD and ADHD. However, there is no evidence that any health professional has suggested that [Child 1]’s needs cannot be met through the public school system, so I did not view [Child 1]’s attendance at [School 1] as being relevant in the context of “Reason 2” or special needs.
In relation to “Reason 3”, I noted that there is no evidence that Mr Bentley was consulted or in any way consented to [Child 1]’s attendance at [School 1]. When he was asked via text message if he could contribute to the costs, he sought more information, and I did not consider that his response was an acquiescence to [Child 1]’s attendance at [School 1].
I did not consider that [Child 1]’s attendance at [School 1] constitutes him being educated in a manner that was expected by Mr Bentley. I therefore found that the ground for departure set out in subparagraph 117(2)(b)(ii) of the Act has not been made out.

Mr Bentley’s income, property and financial resources

This ground for a departure determination – referred to by Child Support as “Reason 8A” – is set out in subparagraph 117(2)(c)(ia) of the Act. It provides a ground to depart from the statutory formula may be established if, in the special circumstances of the case, the child support assessment results in an “unjust and inequitable determination of the level of financial support to be provided by the liable parent …” due to the income, property and financial resources of either parent.
Under the administrative assessments of child support, Mr Bentley is assessed on his adjusted taxable incomes of $19,943 from 11 October 2021, derived from his 2020–21 taxable income, and $17,015 from 22 August 2022, derived from his 2021–22 taxable income.
Mr Bentley is the sole shareholder and director of [Business 1]. Mr Bentley confirmed that the company was established in July 2021. Mr Bentley explained that the company undertakes work in [industry 1]. It may be subcontracted to undertake work on behalf of a [business] or undertake private work of its own. Mr Bentley explained that the company undertakes [type] work and does [occupation 1 work]. Mr Bentley’s evidence was that prior to establishing the company he undertook the same type of work as a sole contractor.
It is a long-established principle of law that when a person conducts their business through an intermediary, such as a company or trust, it is proper to lift the corporate veil to determine the value of the company or trust to that person. In the context of child support assessments, the Federal Magistrates Court said in Shearer & Benson & Anor (SSAT Appeal) (Shearer):[3]
...when a person conducts their business through an intermediary company or trust, it is proper to lift the corporate veil to that person with regard to the determination of a parent’s income for child support purposes...
Mr Bentley’s evidence shows that [Business 1] is essentially his alter ego and I considered it appropriate to lift the corporate veil in this case.
[3] [2011] FMCAfam 623
In Costa & Fairbank(SSAT Appeal),[4] the Federal Magistrates Court said about the interpretation of the term “financial resources”:
A financial resource … refers to something which is not property but from which financial benefit is or may be gained.
…
… in the light of the objects of the Assessment Act [the term] should be broadly defined and would … refer to any financial benefit that would enhance the capacity of parents to provide a proper level of financial support for their children.
[4] [2010] FMCAfam 39
Regarding the extent of the examination required by a tribunal, the Federal Magistrates Court has referred to the tribunal’s obligation to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.[5] The Court has observed that the tribunal is accordingly not required to undertake a “forensic audit” or major investigation of the financial circumstances of a party. Rather, I must be satisfied on the balance of probabilities as to the party’s income, property and financial resources (see for example Morse & Potts(SSAT Appeal)[6] and Shearer).
[5] See subsection 2A(b) of the Administrative Appeals Tribunal Act 1975 and Schedule 4 to the Tribunals Amalgamation Act 2015
[6] [2010] FMCAfam 1305
[Business 1’s] income tax return for 2021–22 shows the company had gross income of $97,693 and expenses of $97,693, including a director’s fee of $16,986 paid to Mr Bentley. [Business 1] also claimed an expense of $11,052 for depreciation on a 2020 [Brand 1 vehicle] acquired by the company on 30 June 2022 for a price of $73,680. Documents supplied by Mr Bentley, dated 10 June 2022, disclose that the vehicle was acquired using finance of $85,885, and the first repayment under the finance arrangement was due to be paid on 8 July 2022.
I formed the view that the depreciation expense of $11,052 claimed by [Business 1] for a vehicle acquired on the last day of the financial year, under finance arrangements where payments did not commence until 8 July 2022, meant that the sum of $11,052 should be treated as a financial resource available to Mr Bentley in respect of the 2021–22 financial year.
Financial statements for [Business 1] are not available for the current financial year as it has yet to conclude. Business activity statements (BAS) for the company show that the gross sales were $22,970 for the quarter ending 30 September 2022, $43,974 for the quarter ending 31 December 2022 and $0 for the quarter ending 31 March 2023. The average of the three quarters for which BAS are available is $22,315, which suggests that the gross income for [Business 1] for the current financial year could be in the vicinity of $89,259. Mr Bentley’s evidence was that the company’s financial performance for the current financial year should be similar to the 2021–22 financial year.
Mr Bentley’s personal bank statements show that there have been deposits from the company into his personal accounts which total $40,000 since 1 July 2022. Mr Bentley’s evidence was that some of these represented funds borrowed by the company from [Mr A] and his partner. Mr Bentley has provided an unsworn written statement signed by [Mr A] and his partner indicating that they had lent $40,000 to Mr Bentley and his family to help them in a time of need, in addition to $20,000 lent to assist Mr Bentley to set up his business.
Mr Bentley explained that the company was lent the funds in cash, and he was supposed to make repayment of the loans in cash. Some of the $40,000 deposited into his account by [Business 1] represented the $20,000 loan by [Mr A] and his partner to the business. The evidence was that Mr Bentley had not repaid the loan to [Mr A] and his partner, but Mr Bentley used the funds to meet the living expenses of himself and his family. Mr Bentley’s evidence was that the company currently owes him $7,000 and he does not owe the company any money.
Mr Bentley’s personal bank statements also disclose that a sum of $50,000 was deposited into his personal bank account on 15 August 2022 and was then moved to his home loan on the same date. Mr Bentley’s evidence was that $40,000 of the $50,000 was the funds loaned by [Mr A] and his partner, with the remaining $10,000 being funds from [Business 1]. Mr Bentley’s home loan statement shows that he had $51,720 available to redraw from his mortgage as of 14 September 2022.
Mr Bentley claimed that the available funds held in the mortgage have now been redrawn but was unable to point to any transaction in his bank account statements to support this assertion. Having regard to the evidence, I found it was more likely than not that Mr Bentley still retains approximately $50,000 in funds available for redraw in his home loan account.

Mr Bentley’s Statement of Financial Circumstances (Child Support reviews) discloses that his household expenditure is $1,165 per week, or $60,580 per annum. Mr Bentley’s partner does not work but it is likely that she is in receipt of family tax benefit in respect of hers and Mr Bentley’s child. The maximum amount of family tax benefit she could potentially be eligible for as of 31 January 2023 (being the date Mr Bentley signed the statement) is $5,978.70 per annum, leaving Mr Bentley and his partner needing approximately $54,601 per annum to fund their living expenses.
Mr Bentley’s evidence was that he has funded the difference between his income and living expenses by relying on debt and denied that his income was in the order of $55,000 per annum. It was my view that if, as he says, Mr Bentley has used debt to fund his lifestyle, he has treated his borrowings as a financial resource to fund his living costs, and I considered it reasonable that such a resource be considered when it comes to Mr Bentley’s liability to provide for [Child 1]’s support.
Having regard to all the evidence, I was satisfied that it was more likely than not that Mr Bentley’s income, property and financial resources are approximately $55,000 per annum. If such an amount were used to determine Mr Bentley’s liability to pay child support, his liability would exceed $3,500 per annum and I consider that such financial resources would make the administrative assessment where the minimum annual rate applies unjust and inequitable.
I was satisfied that the circumstance of Mr Bentley operating his business through [Business 1] provides him with a financial benefit, when compared to wage and salary earners, and makes this case out of the ordinary and satisfies the requirement for special circumstances.
Therefore, the ground for departure set out in subparagraph 117(2)(c)(ia) of the Act is established in respect of Mr Bentley’s circumstances.

Mr Bentley’s earning capacity

This provision, set out in subparagraph 117(2)(c)(ib) of the Act – commonly referred to as “Reason 8B” by Child Support – provides that a ground to depart from the statutory formula may be established if, in the special circumstances of the case, the child support assessment results in an “unjust and inequitable determination of the level of financial support to be provided by the liable parent …” due to the earning capacity of either parent.
Assigning a parent an earning capacity is only possible if subsection 117(7B) of the Act is satisfied, which relevantly provides:
(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.
In July 2022, Mr Bentley went from working as a sole trader to using [Business 1] to operate his business. I was satisfied that in changing from being a sole trader to being a company director, Mr Bentley has changed his occupation and subsection 117(7B) of the Act is satisfied.
There is no evidence that Mr Bentley’s decision to change his occupation was justified on the state of his health or his caring responsibilities. I found that paragraph 117(7B)(b) of the Act applies.
Prior to incorporating [Business 1], Mr Bentley worked as a sole trader. For the 2019–20 income year Mr Bentley’s taxable income was $10,170 and for the 2020–21 income year it was $19,943. These amounts result in Mr Bentley being liable to pay the minimum rate of child support, and I found that by changing his occupation, Mr Bentley has not been advantaged in terms of the administrative assessment of child support. I concluded that this demonstrates that affecting the child support assessment was not a major purpose of Mr Bentley’s decision to change his occupation. This means that paragraph 117(7B)(c) of the Act does not apply.
As subsection 117(7B) of the Act is not satisfied, because paragraph (c) does not apply, the ground for departure set out in subparagraph 117(2)(c)(ib) of the Act is not made out.

Conclusion

I found that two of the grounds for departure raised by Ms Nunez in her application for a departure determination are made out, being “Reason 2” and “Reason 8A”. I proceeded to consider whether or not it would be just and equitable to make a departure determination.

Just and equitable

The requirement to consider whether a departure would be just and equitable directs that my attention is turned to what is fair to the parents and their children. Regard must be had to a variety of factors, set out in subsection 117(4) of the Act, such as the needs of the children, the parents’ commitments and any hardships that would be caused by departing, or not departing, from the statutory formula.

[Child 1]

[Child 1] is in Ms Nunez’s sole care. [Child 1]’s special needs and the manner of his education have been considered earlier in these Reasons. Under the administrative assessments of child support, the costs of maintaining [Child 1] are assessed as $0. There is no evidence that [Child 1] has any income, property, financial resources or earning capacity of his own that are relevant to my consideration.

Ms Nunez

Under the administrative assessments of child support, Ms Nunez’s adjusted taxable income is assessed to be $27,974, derived from her 2020–21 taxable income, at the time of her application for a departure and $30,857 from 7 December 2022, derived from her 2021‍–‍22 taxable income. Ms Nunez’s payslips show that her current year earnings are $51,450 as of 21 May 2023. Once Ms Nunez lodges her income tax return for 2022–23 her adjusted taxable income will be amended based upon her current, higher income.
I was satisfied that Ms Nunez’s income, property and financial resources are adequately represented by the adjusted taxable income that is used, or will be used, in the administrative assessment of child support. I received no submissions nor identified any evidence to suggest that there are any issues with Ms Nunez’s capacity to earn that are relevant here.
Under the statutory formula, Ms Nunez has the benefit of a self-support amount of approximately $27,000 per annum and a relevant dependent amount which recognises her duty to support another child. Ms Nunez did not suggest that there was another person or any further children that should be considered in the context of a child support assessment. Ms Nunez submitted that the self-support amount of $27,000 was inadequate. Ms Nunez did not identify any unusual expenditure that she incurs to support herself or her other child.
Ms Nunez submitted that a refusal to make a departure determination would result in her and [Child 1] incurring financial hardship.

Mr Bentley

Mr Bentley’s income, property, financial resources and earning capacity have been considered earlier in these reasons. I have found that Mr Bentley’s financial resources are adequately represented by the sum of approximately $55,000 per annum and that Mr Bentley does not have any unutilised capacity to earn relevant in these proceedings.
Under the statutory formula, Mr Bentley has the benefit of a self-support amount of approximately $27,000 per annum and a relevant dependent amount which recognises his duty to support another child. Mr Bentley did not submit that there was any other person or any further children that should be considered in the context of a child support assessment. Mr Bentley did not dispute that the self-support amount was sufficient for him to meet the costs of his own necessary self-support nor did he identify any unusual expenditure required to support his dependent child.
Mr Bentley did not submit that being required to pay more child support that the statutory minimum would cause him financial hardship. However, he did assert that the amount he is currently required to pay under the decision I am reviewing is causing him hardship.

Conclusion

Having considered the matters set out in subsection 117(4) of the Act, I was satisfied that it would be just and equitable to make a departure determination in this case. I will now consider whether or not it is otherwise proper to make a departure determination.

Otherwise proper

The requirement to consider whether a departure would be otherwise proper is set out in subsection 117(5) of the Act, which directs my attention to what is fair to the community. It is necessary to consider the effect, if any, that a departure from the administrative assessment would have on entitlements to any income tested pension, allowance or benefit. Parents, rather than the community, have the primary duty to maintain their children.
The evidence shows that Ms Nunez receives family tax benefit for [Child 1]. Family tax benefit is paid subject to a maintenance income test. I was satisfied that the departure determinations I am contemplating making would be otherwise proper.

Conclusion

Section 4 of the Act sets out the objectives of the Act. These objectives include:
·      parents of a child have a primary duty to maintain that child;
·      that duty has a priority over all commitments of the parent other than commitments necessary for self-support;
·      the level of financial support to be provided by parents to their children should be determined in accordance with the legislatively fixed standards; and
·      the level of financial support is to be determined according to the capacity to provide financial support and noting that parents with a like capacity to provide financial support should provide like amounts.
I have found that there are two grounds for departure in this case, and it would be just and equitable and otherwise proper for me to make a departure determination. Section 98S of the Act describes the determinations that I may make if a decision is made to depart from the administrative assessment of child support. There are in total nine types of determinations that can be made. These nine types of determinations, in some way or other, affect the various components of the administrative formula.
Section 98S of the Act imposes a limit on the retrospectivity of a determination (no more than 18 months prior to an application for a departure being made), but otherwise does not prescribe a date from which a determination to depart from an administrative assessment of child support may take effect.
The objections officer set Mr Bentley’s adjusted taxable income at $54,125 from 4 January 2022, $55,016 from 1 January 2023 and an amount to be increased by the child support inflation factor from 1 January 2024 until 30 July 2024. I considered these departure determinations appropriate and reasonable considering my own findings on Mr Bentley’s income, property and financial resources and do not intend to disturb them.
However, I have found that there is a ground for departure made out in respect of [Child 1]’s special needs and found that Ms Nunez had incurred costs of $2,357.05 during the period 1 January 2021 to 31 October 2021 meeting those special needs, during the period before [Child 1] was granted NDIS funding. I decided that there should be a further departure determination that will result in Mr Bentley contributing $1,179, or approximately half of the total costs, towards the costs of meeting [Child 1]’s special needs.
To achieve this, I decided that there should be a further determination that increases Mr Bentley’s child support liability by an extra $1,179 for a period of 12 months from 1 January 2022. This would have the effect of causing Mr Bentley to have child support arrears of $1,179. I was satisfied that Mr Bentley has funds available to him from which he could address those arrears.
I therefore decided to vary the decision under review, to the extent that from 1 January 2022 to 31 December 2022, the annual rate of child support otherwise payable by Mr Bentley should be increased by $1,179 per annum.

DECISION

[2023] AATA 2669

21 June 2023

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