Parker and Parker (Child support)

[2018] AATA 2235

Parker and Parker (Child support) [2018] AATA 2235 (15 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC012728

APPLICANT:  Mr Parker

OTHER PARTIES:  Ms Parker

Child Support Registrar

TRIBUNAL:  Member P Jensen

DECISION DATE:  15 May 2018

DECISION:

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

• from 1 January 2017 to 30 June 2018, Mr Parker’s rate of child support payable is increased by $19,647 per annum on account of the children’s special needs; and

• from 1 July 2018 to 30 September 2019, Mr Parker’s rate of child support payable is increased by $16,801 per annum on account of [Child 2]’s special needs.

CATCHWORDS
Child support – Departure from assessment – Costs associated with special needs of the child – Decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

Introduction

1. Mr Parker and Ms Parker are the parents of [Child 1] who was born in 2003 and [Child 2] who was born in 2007. A child support case was registered in 2007. Since at least July 2008, Mr Parker has been recorded as providing 29% care and Ms Parker has been recorded as providing 71% care to the children.

2. 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. From 1 January 2017 the administrative assessment was based on Mr Parker’ 2015-16 adjusted taxable income of $201,731 and Ms Parker’ 2015-16 adjusted taxable income of $46,052, and Mr Parker was required to pay $25,266 per annum in child support.

3. The Act also provides for a departure from the administrative assessment in certain circumstances. Ms Parker lodged a departure application on 3 January 2017. The Department of Human Services – Child Support (“the CSA”) granted her application and made a departure decision. Ms Parker objected to that decision. An objections officer allowed her objection and made the following departure decision:

• from 3 January 2017 until 31 August 2017, Mr Parker’ rate of child support payable is increased by $15,031 per annum;

• from 1 September 2017 until 31 December 2017, Mr Parker’ rate of child support payable is increased by $13,870 per annum; and

• from 1 January 2018 to 31 January 2019, Mr Parker’ rate of child support payable is increased by $14,286 per annum.

1. Mr Parker sought further review by the Tribunal. I conducted a telephone directions hearing on 22 January 2018 and a full hearing on 14 May 2018. Mr Parker attended the full hearing by conference phone and Ms Parker attended in person. In reaching my decision I have considered the sworn evidence of Mr Parker and Ms Parker as well as the documentation provided by the CSA, Mr Parker and Ms Parker.

2. Subsection 98C(1) of the Act provides, relevantly, that a decision to depart from the administrative assessment may be made if:

   (i)... one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and

   (ii)... 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 …

A ground for departure

1. Subparagraph 117(2)(b)(ia) of the Act, commonly referred to as Reason 2, provides as a ground for departure:

   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 …

2. The following matters are not in dispute: [Child 2] has a number of medical conditions including [Disability 1]; he has special needs; the costs of maintaining him are significantly affected because of his special needs; and Ms Parker directly incurs the costs associated with his special needs. Those circumstances constitute special circumstances. Reason 2 is established in respect of [Child 2] and the costs that Ms Parker incurs in respect of his special needs. Mr Parker submitted, in effect, that [Child 2] is receiving excessive treatment and that the associated costs exceed the costs of [Child 2]’s “proper needs”. That submission is addressed below.

3. There is no dispute that [Child 1] required some form of orthodontic treatment. Ms Parker stated, and I accept, that [Child 1]’s dentist referred him to [Dr A], orthodontist, in mid-2014 and [Dr A] indicated that he would require treatment the following year. At the full hearing, Ms Parker recalled, in effect, that she kept Mr Parker informed of matters pertaining to [Child 1]’s proposed orthodontic treatment but Mr Parker was largely non-communicative. Mr Parker disagreed with Ms Parker’ recollection. He stated that he informed Ms Parker that he was agreeable to paying half “the best” (i.e. the least expensive) quote in respect of the proposed treatment. 

4. Mr Parker obtained two reports from [Dr B], dental surgeon. Mr Parker acknowledged that he had never previously taken either child to a dentist. The first report is an email dated 19 May 2015 (reproduced verbatim):

   [Child 1] has [a dental condition]. The only crowding is in his upper right lateral area which he has cross bit. The lower teeth are normal and in good alignments. His orthodontic treatment should be simple mainly correcting upper right lateral x-bite.
   My treatment suggestion summarizes wearing an upper removable application for period of 6-9 months
   the cost for that will be $700.
   It also can be corrected by placing fixed braces on [which] will cost $1500.
   both techniques will correct his crowding ,and there will be similar results.

5. On 18 June 2015, [Dr B] provided a shorter report that repeated the main points of her earlier email.

6. On 26 June 2015, [Dr A] provided a report. Ms Parker stated, and I accept, that [Dr A] provided the report after considering [Dr B]’s report. He provided reasons as to why he recommended that [Child 1] have upper and lower braces. He also provided the following reasons as to why a removable appliance, whilst appropriate for treating some dental problems, was not appropriate for treating [Child 1]’s dental problems.

   For people who have straight teeth on one arch only and wish to correct the other arch, it is possible to just put braces and correct it independently but this is only possible after a case by case review and assessment to ensure that the bite will be or remain correct. However, [Child 1]has multiple spaces on his lower teeth and his upper and lower roots are not aligned. Treatment of his crossbite also requires his upper and lower arches to be coordinated and roots this [sic] teeth properly aligned. It is not possible to achieve this with a removable appliance (plate). When he bites down currently, the teeth are also not interdigitating properly and having braces only on one arch will also not correct his bite properly.

7. No further reports were obtained from either doctor. I consider [Dr A]’s conclusions, and his reasoning for those conclusions, to be the more reliable evidence on point. I find that [Child 1] had “[a dental condition]”, as noted by [Dr A], and that he required upper and lower braces.

8. Ms Parker stated that [Dr A] charged $6,200 in respect of the braces and she received insurance rebates of $2,500. She stated that the out-of-pocket expenses for mouth guards to ensure the braces were not damaged while playing sport were $43 and additional cleaning products were $120. She provided an invoice in respect of the fee of $6,200. Mr Parker disputed, or at least did not accept, the quantum of the insurance rebates and the smaller costs. More generally, Mr Parker disputed, or at least did not accept, the majority of Ms Parker’ evidence concerning the costs she incurred and the various rebates she received in respect of the various treatments the children have received. For reasons that I will discuss in detail below, I ultimately concluded that Ms Parker’ evidence concerning the costs she incurred and the various rebates she received was reliable. I accept Ms Parker’ evidence concerning the costs she incurred and the rebates she received in respect of [Child 1]’s orthodontic treatment. Her out-of-pocket costs total $3,863. Those costs significantly affected the costs of maintaining [Child 1]. Reason 2 is established in respect of [Child 1] and the costs that Ms Parker incurred in respect of his special needs.

9. [Child 2] broke his arm in January 2017. In March 2018, Ms Parker provided written submissions in which she stated that her out-of-pocket costs to date in respect of [Child 2]’s broken arm were $1,048 and she would incur further out-of-pocket expenses of approximately $700 in respect of further surgery and “removing the rods”. Mr Parker stated that he should not be required to contribute to those costs because Ms Parker could have taken [Child 2] to a public hospital where the medical services would have been provided at no cost to the parents. Mr Parker’ statement provoked an emotive response from Ms Parker. She stated, and Mr Parker did not deny, the following. [Child 2] broke his arm while he was in Mr Parker’ care. Mr Parker did not seek any medical treatment for [Child 2]. When [Child 2] returned to Ms Parker’ care she took him to a public hospital. They noted that he had broken his forearm in two places. He was referred to [Hospital 1]. Ms Parker and [Child 2] attended that hospital. Upon returning home, Ms Parker receive a phone call from [Hospital 1]. She was informed that in addition to the two breaks in one of the bones in [Child 2]’s forearm, there was also a “bow” in the other bone in his forearm. She was told that he needed surgery urgently and she was asked whether she had private health insurance. She said she did and the hospital said it would find a surgeon who could perform the surgery immediately. [Child 2] received that surgery.

10. Mr Parker explained that he had been unaware that [Child 2] had broken his arm whilst in his care. He acknowledged that the surgery had been necessary. However, he submitted, in effect, that the circumstances surrounding [Child 2]’s broken arm did not constitute special circumstances for the purposes of Reason 2 because young children are physically active and they will injure themselves from time to time.

11. There is no dispute that [Child 2] needed surgery in respect of his broken arm. It constituted a special need. I accept Ms Parker’ oral evidence concerning her likely out-of-pocket expenses. Those costs significantly affect the costs of maintaining [Child 2]. Children who engage in physical activity will scratch and bruise themselves from time to time. Such minor injuries do not constitute special circumstances. Suffering multiple fractures that require urgent surgery is a different matter. There is no dispute that Mrs Parker incurred the associated out-of-pocket expenses. Those circumstances constitute special circumstances. Reason 2 is established in respect of [Child 2]’s broken arm and the associated costs.

12. Subparagraph 117(2)(b)(ii) of the Act, commonly referred to as Reason 3, provides as a ground for departure:

    that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

    …   

    (ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents …

13. [Child 1] attends [School 1]. There is no dispute that he is being educated in the manner that was expected by Mr Parker and Ms Parker and that the costs of maintaining him are consequently significantly affected. There is also no dispute that Mr Parker pays [Child 1]’s tuition fees. Nevertheless, Ms Parker submitted that Reason 3 was established in respect of the other costs that she incurs in respect of [Child 1]’s attendance at [School 1]. She calculated that in 2016 she paid $3,355 in respect of uniforms, sporting activities, music tuition, a camp, and a book and laptop levy. She calculated (in her 2017 submissions) that those expenses would reduce to $2,393 in 2017 and increase to $3,690 in 2018.

14. The administrative assessment is based, in part, on the average costs of children whose parents’ combined income falls within certain brackets. Those average costs include typical school costs. Ms Parker lodged her departure application on 3 January 2017 and the administrative assessment at that time was based, in part, on her 2015-16 adjusted taxable income of $46,052. If it had also been based, in part, on Mr Parker having an identical income, he would have been required to pay $3,050 per annum in child support. However, because it was based on his 2015-16 adjusted taxable income of $201,731, he was required to pay the much higher rate of $24,266 per annum in child support, which included a much higher contribution towards [Child 1]’s general school expenses. I am not persuaded that the costs that Ms Parker calculated she would be required to pay in respect of [Child 1]’s attendance at [School 1] constitute special circumstances. Reason 3 is not established.

Just and equitable

1. The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the proper needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

Proper needs

1. The costs associated with “the proper needs” of [Child 2] have been the primary focus of twelve previous departure decisions. The child support case was registered in December 2007 and Ms Parker lodged a departure application in May 2008 which culminated in the Social Security Appeals Tribunal (“the SSAT”) making a departure decision in March 2009 to increase Mr Parker’ rate of child support by $8,275.20 per annum from 15 May 2008 to 31 October 2010 on account of the costs associated with [Child 2]’s special needs. The SSAT noted at paragraph 24 of its Reasons for Decision:

   Mr Parker raised objections to specific items of other expenses which could be summarised as a general proposition that when faced with competing ways of achieving treatment, Mrs Parker chooses the more expensive. The Tribunal questioned Mrs Parker closely on this issue in relation to a variety of expenses and could not find any suggestion that this is what Mrs Parker is doing. On the contrary, Mrs Parker appears to be exercising extreme diligence and thrift in selecting treatment options.

2. Ms Parker lodged another departure application in November 2010 which culminated in the SSAT making a departure decision in August 2011 to vary Mr Parker’ adjusted taxable income, and also increase his rate of child support payable by $8,124 per annum from 1 November 2010 to 30 June 2013 on account of the costs associated with [Child 2]’s special needs. The SSAT noted the following at paragraphs 23 and 24 of its Reasons for Decision, which is also apposite to the current case:

   ... While the parents agree that there are significant costs [associated with meeting [Child 2]’s special needs], they disagree about the reasonableness of some of the costs and the extent to which Mr Parker should contribute.

   In considering what would be just and equitable, the Tribunal is not limited to the matters listed under section 117(4) of the Act. Under section 117(9), the Tribunal may have regard to other matters. However, as the issue of the costs associated with [Child 2]’s condition fall neatly under the rubric of ‘proper needs’, the Tribunal considers that it should be guided by Parliament’s expression ‘proper needs’. Implicit in this expression is that the costs be necessary, rather than discretionary, and that they be objectively ‘proper’. As with ordinary needs, however, what might be proper for a child with an affluent parent might well be more costly than what might be considered proper for a child whose parents are both of modest means. It might be proper for a child with an affluent parent to have optimal, rather than merely basic, treatment for a condition.

3. Ms Parker lodged another departure application in August 2012 and in November 2012 a CSA senior case officer increased Mr Parker’ rate of child support payable by $7,332 per annum from 1 July 2012 to 31 December 2012, and $4,355 per annum from 1 January 2013 to 31 December 2013, on account of the costs associated with [Child 2]’s special needs. Neither parent objected to that decision.

4. Ms Parker lodged another departure application in February 2014 which culminated in the SSAT making a departure decision in March 2015 to increase Mr Parker’ rate of child support payable by $11,333 per annum during 2014, $12,318 per annum during 2015, and $12,540 per annum during 2016 on account of the costs associated with [Child 2]’s special needs.

5. [Dr C], paediatrician, has been [Child 2]’s treating paediatrician since shortly after he was born. On 19 January 2015, [Dr C] wrote to Ms Parker and stated, relevantly:

   In November last year I prepared a report for [Mr Parker] via his solicitor,[Law Firm 1]. This report was released to the lawyers, presumably to be presented at your Tribunal meetings. I am not sure if you are aware of the contents of this report, or whether this has been presented to the Tribunal, but I do not feel I am at liberty to discuss its contents directly with yourself.

   However, I do wish to make it clear that at the time of compiling that report I revisited [Child 2]’s file, noting every consultation he has had with me in the past. I am aware of the involvement of [Child 2]’s therapists and contacted them individually to discuss [Child 2]’s involvement and ongoing needs.

   As you have I noted, and I certainly agree, [Child 2] has made remarkable progress considering his medical problems. He does have moderate intellectual impairment, compounded by visual problems, and also by secondary behavioural issues. I am aware of the positive nature of [Child 2]’s interactions with his therapists, and would certain attribute his current progress to this input.

   I feel certain that you and [Mr Parker] would wish to see this good progress continue, and I certainly would not recommend that this avenue of treatment (i.e.: Physiotherapy, Occupational Therapy and Speech Therapy) be discontinued or withdrawn in part.

6. When the SSAT made its decision in March 2015 it noted the following at paragraph 14 of its Reasons for Decision:

   Mr Parker acknowledged that he has received the report [from [Dr C]] but declined to produce it to the Tribunal. He stated that on the advice of his solicitor it was not in his interests to do so.

7. Mr Parker has not provided a copy of that report to the Tribunal in the current proceedings either.

8. More recently, Mr Parker arranged for [Child 2] to be seen by [Dr E], paediatrician. He provided a report dated 30 September 2016 which relevantly concluded as follows:

   My approach to a boy of this age with these diagnoses would be the following:

   1.     Ensure that he is regularly being followed up by the relevant ophthalmologist – [Dr D]

   2. Ensure that the school placement and support is appropriate [at the special school that [Child 2] attends]

   3.Encouraging him generally in daily living to do lots of activities which include both fine and gross motor activities

   4.     Speech therapy if that was indicated

   5.     Psychological referral for counselling for his behaviour

   ...

   I would think that I would not be referring him for physio and occupational therapy as I feel at this age, as clearly [Child 2] is mobile and capable of being active, that significant activity and normal daily living should be encouraged and supported.

   With regards to speech therapy, I would be guided by the teachers assessment of his communication skills (although they seem quite reasonable to me) as well as the speech therapist’s opinion, and the goals that they were aiming to set, as well as the progress that they were realistically achieving.

1. On 5 December 2016, [Dr C] provided another report which included the following:

   [Child 2] is attending his therapy sessions as before. I have read current reports from all the therapists today, and each in turn indicates how well [Child 2] has responded to therapy, but importantly, outlines the need for continuation of his therapy program in all instances.

2. On 4 January 2017, [Dr E] provided another report which included the following:

   There appears to be no overall plan for his therapeutic services and this, I think often leads to a therapist continuing to provide therapeutic services without any insight into where they might be overlapping with other therapists. Clearly that can be occurring. I feel there should be an overall management plan and my recommendation would be that, at the most, he should be seeing a therapist monthly. If the situation is stable or is slowly progressing, that could decrease with the capacity to return if necessary, if there was any deterioration in any particular area.

   ...

   In particular, the hydrotherapy could be very significantly decreased, as I note that there are pools at both school and his homes.

   His school report, as I said earlier, suggests that progress there is really good and it would be detrimental for him to miss any significant amount of school, so attention to a management plan that minimises this, in my opinion, would be of paramount importance.

3. Ms Parker provided submissions in response to [Dr E]’s report which included details of the therapists’ and the school’s corroborative approach to the therapies that [Child 2] receives and to the minimal school time that [Child 2] misses in order to receive those therapies: see pages 353 to 355 of the hearing papers.

4. [Dr E] provided another report on 4 December 2017 in which he concluded that the amount of extra therapy [Child 2] was receiving was excessive.

5. I conducted a directions hearing on 22 February 2018. Mr Parker applied for leave to allow [Dr E] to give oral evidence at the full hearing. Ms Parker opposed that application. She noted the disparity in the parents’ incomes and stated that she could not afford to arrange for [Dr C] and [Child 2]’s various therapists to give oral evidence. She submitted that the relevant issues could be determined via an exchange of expert reports. On 1 March 2018 I decided to refuse Mr Parker’ application for leave to allow [Dr E] to give oral evidence at the full hearing. I provided written reasons for that decision.

6. [Dr E] provided another report on 13 March 2018 in which he noted that he had “met [Child 2] now on three occasions”. He concluded that the amount of therapy that [Child 2] was receiving was “excessive and in fact, potentially a significant burden on him psychologically.”

7. [Dr C] provided another report on 13 April 2018 which included the following:

   ... He did have [a] trial off medication late last year, and things did not go well. ... It is quite obvious to me that [Child 2] does not manage well without his pharmacological support, but additionally, he also requires close supervision from his therapy sessions.

   I have seen the latest reports from the therapists outlining his progress in the past, his ongoing difficulties, and the need to continue his therapy at the present levels. Of course, there are financial considerations, and I do understand there is dispute about the therapy mainly in relation to cost, rather than the advantages obtained by [Child 2]. A further note from the Principal at [School 2]indicated that the level of therapy [Child 2] is receiving is not available at the School, although there are Specialists in those areas helping to facilitate [Child 2]’s interaction with the Teaching Staff. Additionally, the time spent by [Child 2] at the therapy sessions is not thought to impact on his School curricular activities.

8. There is no dispute that [Dr C] is mistaken in his belief that the dispute about [Child 2]’s therapy is mainly in relation to cost.

9. Ms Parker also provided reports from [Child 2]’s various appropriately qualified therapists concerning [Child 2]’s continuing need for their services and the gains that he had achieved with their help. It is worth noting that both parents agreed during the full hearing that [Child 2] had, through his efforts, coupled with the efforts of his parents, his schools, his doctors and his allied health professionals, achieved far more than had previously been predicted. Mr Parker stated a number of times that [Child 2]’s doctors and allied health professional had not been the “silver bullet” who had single-handedly achieved those results. There is no evidence that anyone has ever suggested otherwise.

10. I have carefully considered [Dr C]’s and [Dr E]’s reports, the reports of [Child 2]’s various therapists, the parents’ written submissions and the oral evidence they provided during the hearing. I am mindful that [Dr C] has been [Child 2]’s treating paediatrician  since shortly after he was born. He recommends that [Child 2] continue with his therapies. [Dr E] disagrees with that opinion, and he has provided reasons for his opinion, but I consider [Dr C]’s opinion, which is supported by the professional opinions of [Child 2]’s various therapists, to be more probative evidence concerning the issue I need to decide, namely [Child 2]’s proper needs, determined in the context of the parent’s incomes and financial resources. There is no dispute that Mr Parker has the financial capacity to meet the costs of the therapies that [Dr C] has recommended that [Child 2] continue to receive. On 21 February 2017 the CSA noted: “[Mr Parker] stated that he can afford whatever I decide however doesn’t think it’s fair to be paying so much just because he can afford to.” He reiterated that position at the directions hearing in January 2018.

Oral and documentary evidence

1. Ms Parker provided detailed but not exhaustive submissions in respect of the costs that she incurs in respect of [Child 2]’s medical conditions. She provided some primary documentation, such as receipts, in support of her submissions. At the directions hearing, Mr Parker submitted that Ms Parker should be directed to provide summaries of all the payments made to [Child 2]’s doctors and allied health professionals and all the payments made by Medicare and [Insurance Provider 1] (which is Ms Parker’ private health insurer), and that those summaries should be provided by those third parties. Ms Parker replied that she had provided all the relevant information to the CSA and it was contained in the hearing papers. I invited Ms Parker to refer me and Mr Parker to the relevant documentation with a view to determining what additional documentation, if any, she should be directed to provide prior to the full hearing. When Ms Parker started to do so, Mr Parker stated that he did not have his hearing papers with him. Mr Parker was unable to meaningfully engage in the process of identifying what additional documentation, if any, Ms Parker should be directed to provided, and I decided not to make the direction that Mr Parker had sought.

2. Mr Parker reiterated his request during the full hearing. I considered his request but ultimately decided to refuse his request for the following reasons. It is not necessary for every fact to be proven via primary documentary evidence. To take a hypothetical example, it might be necessary to determine the profitability of a company. Depending on the particular circumstances of the case, it might be appropriate to accept the reliability of the company’s financial statements, or it might be appropriate to require the provision of a sample of the company’s bank account statements, or it might be appropriate to require the provision of the company’s bank account statements for an entire financial year. In the current case, Ms Parker attended the hearing in person. I questioned her at length about the details of the expenses she claimed to have incurred and the rebates she claimed to have received. I found her to be a reliable witness. I did not consider it necessary to direct her to provide the additional documentation that Mr Parker had requested.

Medicare rebates

1. [Dr E] stated the following in his report dated 13 March 2018:

   I repeat again, that the Administrative Appeals Tribunal does not seem to have taken into account the fact that a lot of these therapeutic sessions could have been Medicare rebated, which would have lessened the financial load on [Child 2]’s father.

2. As an aside, it is a concern that [Dr E] appears to have taken on the role of Mr Parker’ advocate: see the Tribunal’s Persons Giving Expert and Opinion Evidence guidelines which are available on the Tribunal’s website. Further, when [Dr E] made that statement the Tribunal had not expressed a view in respect of the Medicare rebates to which Ms Parker might have been entitled.

3. On 16 March 2018, Ms Parker stated that “[Child 2] received a total of 5 Medicare rebated [therapy] sessions per year.” At the full hearing, Mr Parker submitted that [Child 2] was entitled to Medicare rebates in respect of most of his therapy sessions. He did not provide any primary documentary evidence in support of that submission.

4. In the absence of any primary documentary evidence from either parent, I located the Chronic Disease Management Individual Allied Health Services Under Medicare factsheet on the Department of Health’s website.[1] The factsheet contains a summary which commences as follows:

   A Medicare rebate is available for a maximum of five services per patient each calendar year. Additional services are not possible in any circumstances.

   [1]The Tribunal is not bound by the rules of evidence: paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975, and see Clark & Irvine [2017] FCCA 531 at paragraph 22.

5. Mr Parker accepted that [Child 2] was limited to five Medicare rebates under the Chronic Disease Management guidelines. He submitted that there were other guidelines that provided additional Medicare rebates for people who suffer from autism. There is no dispute that [Child 2] has never been diagnosed with autism. Mr Parker stated that [Dr E] had stated that he would be prepared to diagnose [Child 2] as suffering from autism for the purpose of making him eligible for additional Medicare rebates. [Dr E] has not made a statement to that effect in any of his reports and I am not prepared to accept Mr Parker’ uncorroborated evidence on that issue. The best evidence on point is the fact that [Child 2] has never been diagnosed with autism. I find that he is entitled to five Medicare rebates per annum in respect of his therapies. Ms Parker stated, and I accept, that the five rebates are claimed against the costs of his occupational therapy.

Private health insurance

1. Ms Parker has [Insurance Provider 1 Top cover] health insurance. Mr Parker was provided with those details prior to the full hearing. Ms Parker’ calculations of her out-of-pocket costs took into account the capped amounts of her health insurance rebates in respect of various categories of treatment. Mr Parker disputed her evidence. However, he confirmed that he had not compared Ms Parker’ submissions against the relevant information contained on [Insurance Provider 1]’s website. In an anticipation of Mr Parker’ submissions, I checked some, but not all, of Ms Parker’ submissions against the relevant information on [Insurance Provider 1]’s website prior to the full hearing. Based on the checks that I made, Ms Parker’ calculations correctly took into account the capped amounts of her health insurance rebates.

Categories of expenses

1. [Child 2] receives clinical physiotherapy. He generally attends 13 sessions per annum at a cost of $110 per session and he is entitled to a [Insurance Provider 1] rebate of $700. 13 x $110 - $700 = $730 per annum.

2. [Child 2] receives hydrotherapy. He generally attends 26 sessions per annum at a cost of $75 per session. The clinical physiotherapy and the hydrotherapy are administered by physiotherapists and for convenience I have attributed the relevant rebate entirely to the clinical physiotherapist, although in practice the total rebate might be split between the two therapies. 26 x $75 = $1,950 per annum. [Child 2] broke his arm earlier this year and will not have hydrotherapy sessions from the start of January 2018 to mid-May 2018, which is approximately 10 fortnights.

3. [Child 2] receives occupational therapy. Ms Parker also attends the sessions and she receives training to assist her in assisting [Child 2] generally. They generally attend 17 sessions together per annum at a cost of $145 per session and they are each entitled to a Medicare rebate of $500. [Child 2] is also entitled to five Medicare rebates. Ms Parker did not provide evidence of the quantum of the Medicare rebates but she estimated that they would be $80 to $100 per session and she submitted that I should proceed on the basis that the rebates are $100 per session to avoid any suggestion that she has overstated her out-of-pocket expenses. I accept her evidence and submissions on that point. The occupational therapist also conducts two school visits per annum at a cost of $365 per visit. 17 x $145 + 2 x $365 – 2 x $500 – 5 x $100 = $1,695 per annum.

4. [Child 2] receives speech therapy. Ms Parker stated, and I accept, that he generally attends 17 sessions per annum but he is sometimes unable to complete the session, in which case the speech therapist does not charge Ms Parker for the session. To avoid any suggestion that she has overstated her out-of-pocket expenses, she stated in her written submissions that he generally attends (and is charged for) 12 sessions per annum at a cost of $117 per session. The speech therapist also conducts two school visits per annum at a cost of $170 per visit. He is entitled to a [Insurance Provider 1] rebate of $500. 12 x $117 + 2 x $170 - $500 = $1,244 per annum.

5. [Child 2] requires orthotics. Ms Parker stated that her out-of-pocket expense was $785 - $500 = $285. She did not provide evidence of the cost of $785. She said [Child 2] requires orthotics regularly and she had provided evidence of the costs in previous departure applications. She offered to provide evidence of the cost of $785 after the full hearing. I accept her oral evidence on that issue.

6. [Child 2] has consultations with a physiologist. He generally attends 12 sessions per year at a cost of $160 per session. He receives a Medicare rebate of $500 and a [Insurance Provider 1] rebate of $500. 12 x $160 - $500 - $500 = $920 per annum.

7. There is no dispute that Ms Parker’ out-of-pocket expenses in respect of [Child 2]’s prescription spectacles are $670 per annum.

8. Ms Parker claimed $320 per annum in respect of [Child 2]’s various medications. I accept her evidence on that issue.

9. Ms Parker claimed $600 per annum in respect of [Child 2]’s consultations with his medical specialists: his paediatrician, ophthalmologist, orthodontist – Mr Parker noted that [Child 2] will require significant orthodontic treatment in the future – and orthopaedist. I accept her evidence on that issue.

10. Ms Parker submitted that she generally incurred $2,566 per annum in general travel expenses (324 kilometres / month x 66c per kilometre x 12 months), $150 per annum in parking expenses and $480 per annum in tolls in respect of [Child 2]’s medical conditions. $2,566 + $150 + $480 = $3,196 per annum. Mr Parker disputed Ms Parker’ submissions.

11. It is difficult to quantify out-of-pocket travel expenses. In August 2011 the SSAT noted at paragraphs 50 and 51 of its Reasons for Decision:

    Ms Parker seeks a contribution of $308 per month from Mr Parker for her vehicle costs, based on a cost of 74 cents per kilometre capped at 5,000 kilometres per year as per Australian Taxation Office guidelines. She also seeks $15 per month for parking, and the cost of tolls. The tolls cost was $17 per month as at November 2010; then $25 per month as at January 2011; and current $34 per month as from April 2011.

    Mr Parker argues that the figure of $308 per month is generous but reasonable, in the absence of precisely quantified costs.

12. At the full hearing, Mr Parker stated that he made that submission in 2011 when [Child 2] had a greater need for treatment and his need for treatment has subsequently reduced. [Child 2]’s proper needs have already been discussed. However, there is no dispute that Ms Parker is undertaking less travel and claiming a lower per kilometre rate, and consequently claiming less travel expenses, i.e. $3,196 per annum in 2017 compared with $308 x 12 = $3,696 per annum in 2011. Doing the best I can in the circumstances, I find that Ms Parker incurs travel expenses of $3,196 per annum in respect of [Child 2]’s medical conditions.

13. Ms Parker claimed $1,548 per annum for miscellaneous expenses. The majority of those expenses were percentages of fixed costs such as home internet and telephone expenses which she would incur in any event. She sought to draw an analogy with the expenses that a home business would claim for taxation purposes. I do not consider that scenario to be analogous. The other significant cost was attendance at a [medical conference] [Disability 1]Australia conference. She said she attended the conference in 2016 and would attend the conference again this year. She said the cost would be $880. I am not persuaded that such a cost constitutes a cost of [Child 2]’s proper needs for the purposes of the child support legislation. The other costs were minimal, such as memberships fees of $50 per annum and $45 per annum. I am not persuaded that Mr Parker should make any contribution towards those fees beyond his contribution via his basic administratively assessed rate of child support payable.

14. Ms Parker has family health insurance. Ms Parker submitted that Mr Parker should pay the entire premium because the level of insurance that the family has is determined by [Child 2]’s special needs. Mr Parker submitted that he should pay the difference between the family premium and a single person’s premium. He did not provide any documentary evidence that would have allowed me to calculate that figure.

15. Currently, Ms Parker’ family premium is $523.00 per month. During the full hearing Mr Parker said his insurance premium (with a different insurer) is $192.00 per month. He submitted that it would be appropriate for him to contribute the difference between those two rates. Ms Parker submitted that if she were a single person, and having regard to her income and health, she would choose a much less expensive insurance policy than the policy that Mr Parker has chosen for himself. I accept Ms Parker’ evidence on that point. In the absence of any further direct evidence on point, I went to [Insurance Provider 1]’s website after the full hearing. [Insurance Provider 1] provides three [policies] for “Singles” which cost $18.10 per week, $22.72 per week and $22,89 per week. $22.72 x 52 / 12 = $98.45 per month. I consider that evidence to be the best evidence for calculating the additional cost that Ms Parker incurs in providing health insurance for the two children. $523.00 - $98.45 = $424.55. That cost is 81% of the total current cost and I will use that percentage when calculating the additional cost at different times.

Mr Parker’ income and financial resources

1. Mr Parker is an[occupation]. His 2016-17 adjusted taxable income was $217,438. He owns his home and he has an associated home loan. His household consists of himself and the two children. His expenses are unremarkable. Both parents agree, and I also agree, that his income and financial resources are fairly reflected for child support purposes in his adjusted taxable income as assessed by the Australian Taxation Office from time to time. There is no dispute that Mr Parker has the capacity pay the expenses listed above in addition to his basic administratively assessed rate of child support payable.

Ms Parker’ income and financial resources

1. Ms Parker is a[occupation]. She is employed on a casual basis. She also receives carer payment, carer allowance and family tax benefit. Her 2016-17 adjusted taxable income was $35,485. She owns her home and she has an associated home loan. Her household consists of herself and the two children. She stated, and I accept, that she has elected not to seek contributions from Mr Parker in respect of every additional cost that she incurs in respect of [Child 2]’s medical conditions. For example, at the directions hearing Mr Parker submitted that Ms Parker should be directed to provide documentary evidence of the payments she makes to carers who assist her in caring for [Child 2]. There had been no suggestion that Ms Parker had sought a contribution from Mr Parker in respect of such costs. Ms Parker confirmed that she did retain the services of carers from time to time to assist her in her provision of care to [Child 2], but she had not, and was not, seeking a financial contribution from Mr Parker towards those costs. More generally, Ms Parker explained that from time to time she has increased her home loan to help her meet her various expenses. Ms Parker requires significant additional financial support from Mr Parker to assist her in meeting the children’s costs.

[Child 1]’s orthodontic costs that were incurred prior to Ms Parker lodging her departure application

1. It is necessary to return to the issue of [Child 1]’s orthodontic costs. Ms Parker made the first payment in respect of those costs on 29 July 2015. She lodged her most recent departure application on 3 January 2017, almost 18 months later. As matters currently stand, any departure decision that I make can only be in respect of a day that is not more than 18 months prior to 3 January 2017: subsection 98S(3B) of the Act. My decision can therefore take into account all of the costs that Ms Parker incurred in respect of [Child 1]’s orthodontic treatment.

2. Decision-makers do not normally make departure decisions that have actual or effective retrospective effect from 18 months prior to the date the departure application was lodge, but each case must be assessed on its own merits. Ms Parker lodged an earlier departure application in February 2014 which culminated in the SSAT making a departure decision in March 2015 which significantly increased Mr Parker’ rates of child support payable from 1 January 2014 to 31 December 2016. [Child 1]’s future orthodontic costs did not form a part of the SSAT’s reasons for increasing Mr Parker’ rate of child support payable. Ms Parker submitted that would be unreasonable to expect her to promptly lodge another departure application in respect of [Child 1]’s orthodontic costs, having just completed a departure process that had taken over a year, and having been involved in departure processes for most of the preceding seven years. There is merit in that submission and it is appropriate to adjust Mr Parker’ rate of child support payable in respect of those orthodontic costs. While I could increase Mr Parker’ rate of child support payable from 29 July 2015, such a decision might cause confusion given that the SSAT made a departure decision with effect until 31 December 2016. Instead, I will increase Mr Parker’ rate of child support payable from 1 January 2017, taking into account various costs referred to above including the orthodontic costs that Ms Parker has incurred since 29 July 2015.

Final matters

1. Viewing the circumstances of the case as a whole, it is appropriate that Mr Parker pay the entirety of the additional costs that I have identified above.

2. Ms Parker stated that [Child 2] is eligible for the National Disability Insurance Scheme (“the NDIS”) from 1 July 2018. She said she has done all she can do at this stage to have his application processed as quickly as possible. She said her out-of-pocket costs might start reducing as soon as August 2018 or as late as August 2019. Both parents agreed that making a departure decision with effect until 30 September 2019 would be appropriate given the uncertainty surrounding the way in which the NDIS might affect Ms Parker’ out-of-pocket expenses.

3. I will vary Mr Parker’ rate of child support payable from 1 January 2017 to 30 June 2018 by one rate which will take account of the various out-of-pocket costs referred to above up until 30 June 2018. Those costs are as follows:

·    [Child 1]’s orthodontic treatment:   $3,863

·    [Child 2]’s broken arm:  $1,748

·    [Child 2]’s clinical physiotherapy, $730 per annum x 18 months:  $1,095

·    [Child 2]’s hydrotherapy, (26 + 13 – 10) sessions x $75 per session:                  $2,175

·    [Child 2]’s occupational therapy: $1,695 per annum x 18 months:   $2,542

·    [Child 2]’s speech therapy, $1,244 per annum x 18 months:  $1,866

·    [Child 2]’s orthotics, $285 per annum x 18 months:  $427

·    [Child 2]’s psychological treatment, $920 per annum x 18 months:  $1,380

·    [Child 2]’s spectacles, $670 per annum x 18 months:  $1,005

·    [Child 2]’s medications, $320 per annum x 18 months:   $480

·    [Child 2]’s specialists, $600 per annum x 18 months:  $900

·    Ms Parker’ travel, $3,196 per annum x 18 months:  $4,794

·    Ms Parker’ health insurance

-   from January 2017 to March 2017, the premium was $452.50 per month (page 363 of the hearing papers), $452.50 x 3 x 81% = $1,100

-    from April 2017 to March 2018, the premium was $496.50 per month (page B20 of the hearing papers), $496.50 x 12 x 81% = $4,826

-    from April 2018 to June 2018, the premium will be $523.00 per month $523.00 x 3 x 81% = $1,271

-    $1,099 + $4,826 + $1,271 =   $7,196

1. Those costs total $29,471 over 18 months which equates to $19,647 per annum.

2. I will vary Mr Parker’ rate of child support payable from 1 July 2018 to 30 September 2019 by one rate which will take into account the various out-of-pocket costs referred to above that Ms Parker is likely to incur, assuming she does not receive any significant assistance from the NDIS:

   ·    [Child 2]’s clinical physiotherapy:   $730 per annum

   ·    [Child 2]’s hydrotherapy:  $1,950 per annum

   ·    [Child 2]’s occupational therapy:   $1,695 per annum

   ·    [Child 2]’s speech therapy:   $1,244 per annum

   ·    [Child 2]’s orthotics:   $285 per annum

   ·    [Child 2]’s psychological treatment:   $920 per annum

   ·    [Child 2]’s spectacles:   $670 per annum

   ·    [Child 2]’s medications:   $320 per annum

   ·    [Child 2]’s specialists:   $600 per annum

   ·    Ms Parker’s travel:   $3,196 per annum

   ·    Ms Parker’s health insurance:  

   -    from July 2018 to March 2019, $523.00 x 9 x 81% = $3,813

   -    from April 2019 to September 2019, $550.72[2] x 6 x 81% = $2,676

   -    ($3,813 + $2,676) / 15 x 12 =   $5,191 per annum

   [2]The most recent increase was from $496.50 per month to $523.00 per month which is an increase of 5.3%. A similar increase would result in a premium of $550.72 per month.

3. Those rates total $16,801 per annum. Ms Parker submitted that future costs should be calculated on the basis that costs would increase by 10% per year. I am not persuaded that the evidence supports such an approach. While some costs have shown steady increases, such as health insurance premiums, Ms Parker’ travel costs have reduced. I consider it appropriate to vary Mr Parker’ rate of child support based on the calculations I have set out above.

4. The proposed decision will increase Mr Parker’ child support liability to date by approximately $7,200 There is no dispute that he can pay that additional liability without experiencing financial hardship. It is appropriate that he make that contribution towards the costs that Ms Parker has incurred. The proposed decision would require him to pay a current rate of child support of approximately $45,206 per annum. Again, there is no dispute that he can make that financial contribution towards the children’s costs. Such a decision would be just and equitable.

Otherwise proper

1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents rather than the community have the primary duty to maintain a child. Ms Parker receives family tax benefits in respect of the children of the assessment. Increasing Mr Parker’ rate of child support payable might result in Ms Parker receiving a lower rate of family tax benefit, depending on the decision Centrelink makes in respect of Ms Parker’ increased rate of child support and the application of Schedule 1, section 3 (the definition of “maintenance income”) and subsection 19(3) of the A New Tax System (Family Assistance) Act 1999. In any event, the proposed decision would be otherwise proper.

DECISION

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

• from 1 January 2017 to 30 June 2018, Mr Parker’ rate of child support payable is increased by $19,647 per annum on account of the children’s special needs; and

• from 1 July 2018 to 30 September 2019, Mr Parker’ rate of child support payable is increased by $16,801 per annum on account of [Child 2]’s special needs.