Pryde and MacCauley (Child support) - [2024] ARTA 548

Pryde and MacCauley (Child support) [2024] ARTA 548 (30 December 2024)

Applicant/s: Ms Pryde
Mr MacCauley

Respondent: Child Support Registrar
Other Parties: Mr MacCauley
Ms Pryde

Tribunal Number: 2024/SC028226
2024/CC028366

Tribunal:General Member S Irvine
Place:Hobart
Date:30 December 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that:
·For the period 1 January 2024 to 31 December 2024 the annual rate of child support payable by Mr MacCauley is increased by an amount of $2,700, being a contribution to costs associated with [Child 1’s] special needs.
·For the period 1 January 2025 to 31 December 2025 the annual rate of child support payable by Mr MacCauley is increased by an amount of $935, being a contribution to costs associated with [Child 1’s] special needs.
·For the period 1 January 2024 to 31 December 2024 the annual rate of child support payable by Mr MacCauley is further increased by an amount of $1,414, being a contribution to childcare costs for [Child 2] and [Child 1].
·For the period 1 January 2025 to 31 December 2025 the annual rate of child support payable by Mr MacCauley is further increased by an amount of $727, being a contribution to childcare costs for [Child 1].

CATCHWORDS

CHILD SUPPORT – departure determination – special needs of the child – costs of special needs – contribution to childcare costs – ground for departure – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

Ms Pryde and Mr MacCauley are the parents of [Child 2] (11) and [Child 1] (8). A child support assessment for the children commenced on 29 January 2019. Both children are in Ms Pryde’s sole care.
On 16 January 2024 Ms Pryde made an application to Services Australia – Child Support (Child Support) for a departure from the administrative assessment of child support for the children. At that time, the child support assessment for the child support period that had commenced on 1 September 2023 required Mr MacCauley to pay an annual rate of child support of $16,522. The assessment used an adjusted taxable income of $97,554 for Mr MacCauley and an adjusted taxable income of $25,054 for Ms Pryde. In her application Ms Pryde raised grounds for departure relating to additional costs incurred by her as a result of [Child 1’s] special needs, high costs of childcare for the children and commitments of Ms Pryde necessary to enable her to support herself. Mr MacCauley opposed the application.
On 30 April 2024 a Child Support decision‑maker determined that there should be a departure from the administrative assessment in the following terms:
For the period 16 January 2024 to 1 April 2025 the annual rate will be increased by $1,935 for [Child 2’s] child care fees.
For the period 16 January 2024 to 15 January 2025 the annual rate will be increased by $1,920 for [Child 1’s] child care fees.
For the period 16 January 2025 to 15 January 2026 the annual rate will be increased by $1,977 for [Child 1’s] child care fees.
For the period 16 January 2026 to 15 January 2027 the annual rate will be increased by $2,036 for [Child 1’s] child care fees.
For the period 16 January 2027 to 21 January 2028 the annual rate will be increased by $2,097 for [Child 1’s] child care fees.
For the period 16 January 2024 to 15 January 2025 the annual rate will be increased by $2,790 for [Child 1’s] medical costs.
For the period 16 January 2025 until 15 January 2027 the annual rate will be increased by $1,984 for respite care for [Child 1].
On 17 May 2024 Mr MacCauley objected to that decision and the matter was referred to a Child Support objections officer. On 8 July 2024 the objections officer set aside the decision made on 30 April 2024 and made a new decision as follows:
For the period 16 January 2024 to 1 April 2025, the annual rate of child support otherwise payable by Mr MacCauley is increased by an amount of $687, being his contribution to [Child 2’s] childcare costs.
For the period 16 January 2024 to 15 January 2025, the annual rate of child support otherwise payable by Mr MacCauley is increased by an amount of $727, being his contribution to [Child 1’s] childcare costs.
For the period 16 January 2024 to 15 January 2025, the annual rate of child support otherwise payable by Mr MacCauley is increased by an amount of $1,984, being his contribution to [Child 1’s] respite care.
For the period 16 January 2024 to 15 January 2025, the annual rate of child support otherwise payable by Mr MacCauley is increased by an amount of $751, being his contribution to other costs associated with [Child 1’s] special needs.
The variation to the annual rate for the children’s childcare fees and the increase to the annual rate for respite care for [Child 1] will not apply at any time when Mr MacCauley has at least 35% care of the children.
The variation to the annual rate for the children s childcare fees and the increase to the annual rate for respite care for [Child 1] will not apply at any time when the special circumstance ceases to apply.
On 8 July 2024 Ms Pryde applied to the Administrative Appeals Tribunal (the AAT) for an independent review of Child Support’s decision. On 5 August 2024 Mr MacCauley also applied to the AAT for an independent review of Child Support’s decision.
A hearing took place on 3 December 2024. Ms Pryde and Mr MacCauley attended by telephone and gave sworn evidence. I had before me documents submitted to the Tribunal by Child Support numbered 1 to 580, documents submitted by Ms Pryde prior to the hearing numbered A1 to A96 and documents submitted by Mr MacCauley prior to the hearing numbered B1 to B5.
Following the hearing I adjourned the matter to allow both parties to submit further evidence. Following the hearing I received further documents from Ms Pryde that were numbered A97 to A128, and from Mr MacCauley that were numbered B6 to B9.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

ISSUES

The legislative provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988.
The rate of child support payable by a liable parent is usually based on an administrative assessment determined under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of children, the income of each parent and the level of care provided by each parent. In relation to the income used for each parent, the formula requires that each parent’s adjusted taxable income be determined. Section 43 of the Act provides a definition of adjusted taxable income which states that it is the total of the parent’s taxable income for the last relevant year of income in relation to the child support period, and other components set out in section 43. The last relevant year of income is defined in section 5 of the Act as the last year of income that ended before the start of the relevant child support period.
The formula uses the Costs of the Children Table to calculate the costs that are to be shared between the parents. The Costs of the Children Table is set out in Schedule 1 to the Act. The costs are calculated based on the parents’ combined child support incomes, with adjustments made according to the number and age of children. In general, the costs calculated in accordance with the Costs of the Children Table are intended to cover the usual costs of raising children, and the formula determines how those costs are to be shared between the parents according to the income of each parent.
However, it is recognised in the legislation that in some special circumstances an adjustment to the formula may need to be made. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a determination to depart from the provisions of the Act in respect of the administrative assessment.
Section 98C of the Act provides that before making a departure determination the Registrar must be satisfied that in the special circumstances of the case one or more of the grounds set out in subsection 117(2) of the Act exist, and also that it would be just and equitable and otherwise proper to make a particular determination. There are a number of grounds set out in subsection 117(2), including a ground relating to special needs of a child and a ground relating to high childcare costs.
Section 98S of the Act sets out the determinations that can be made. Relevantly, they include a determination varying the annual rate of child support payable by a parent. Subsection 98S(3B) provides, in effect, that a determination can only be made for a day that is more than 18 months earlier than the day on which the application for a departure determination was made if a court has granted leave for such a determination to be made.
The issues which arise in this case are:
· Whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and if so
· Whether it is just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment.

CONSIDERATION

Is there a ground to depart from the administrative assessment?

As set out above, the threshold question to depart from an administrative assessment of child support is that one or more of the grounds for departure referred to in subsection 117(2) of the Act is established.
In her application Ms Pryde has raised, predominantly, two grounds for departure, relating to costs incurred as a result of [Child 1’s] special needs and also high child care costs incurred for the children.
Subparagraphs 117(2)(b)(ia) and (ib) of the Act provides that a ground for departure is that:
in the special circumstances of the case, the costs of maintaining the chid are significantly affected:
…
(ia)because of the special needs of the child; or
(ib)because of high child care costs in relation to the child.
The words “in the special circumstances of the case” are not defined in the legislation. In Gyselman and Gyselman (1992) FLC 92–279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.

Does [Child 1] have special needs?

Ms Pryde provided evidence to the Tribunal that [Child 1] was diagnosed with autism spectrum disorder in around May 2023, and that he has a number of other diagnoses. The evidence includes a copy of a psychologist’s report prepared by [Psychologist A] and dated 17 May 2023 which confirms that [Child 1] meets the criteria for a diagnosis of autism spectrum disorder level 3/2 with comorbid anxiety and depression, and also for a diagnosis of attention deficit hyperactivity disorder and comorbid Tourette’s syndrome. The report also sets out that [Child 1] has existing diagnoses of oppositional defiance disorder and sensory processing disorder, and that he has a speech delay.
Mr MacCauley indicated at the hearing that he does not dispute any of [Child 1’s] diagnoses.
The report from [Psychologist A] indicates a number of recommended NDIS supports as follows:
·      Weekly or fortnightly therapy to work on social skills, anxiety management, developing positive behaviours and emotional regulation;
·      Ongoing occupational therapy;
·      Ongoing speech therapy to work on articulation as well as pragmatic and social communication;
·      Regular attendance at dance classes;
·      Sensory equipment.
Ms Pryde provided further evidence about [Child 1’s] behavioural issues and needs as follows:
·      A letter of support from [Therapist A], occupational therapist at [a named therapy service], dated 20 April 2023. [Therapist A’s] letter states that [Child 1] regularly experiences continence difficulties (fecal), as well as urinating in inappropriate places, and that he has a behaviour of smearing fecal matter in the carpets of his home due to his sensory needs.
·      A letter from [Disability Support Worker A], [Child 1’s] disability support worker, dated 11 October 2023. [Disability Support Worker A] states that she had worked with [Child 1] for three years. The letter states that [Child 1] has higher and more complex needs than other children, and that Ms Pryde needs to ensure that [Child 1] is provided with adequate routines and activities. She states that Ms Pryde provides $100 per week for activities which include swimming, going out to lunch in the community to help him build social etiquette and attendance at a children’s play group to build on [Child 1’s] social interactions. [Disability Support Worker A] also confirms [Child 1’s] incontinence and states that she has had to throw away numerous items of [Child 1’s] underwear for hygiene reasons.
·      A letter from [Ms A] of [Agency 1] dated 22 November 2024. [Ms A] states that she is a behaviour support practitioner and has been working with [Child 1] over his toileting behaviours over the past year. In part [Ms A] reports that:
… When services were engaged, [Child 1] was urinating on the carpet in the family home, typically in front of the television in the living room, or on the carpet in his bedroom, and smearing faecal matter on surfaces such as the couch, coffee table, bathroom sink, bed and bedside table. … These behaviours were occurring multiple times per day.
Due to the smell and hygiene concerns related to this behaviour, [Ms Pryde] reported spending a considerable amount of time cleaning each day, and upon observation showed substantial indicators of carer burnout. It was also noted that the family would regularly become unwell, and it was hypothesised this was due to residual amounts of faecal matter in the home.
Over the past several months, Positive Behaviour intervention has focused on desensitisation around [Child 1’s] aversion to using the toilet, an intensive toileting schedule, and replacement behaviours to address [Child 1’s] sensory needs around faecal smearing. This programming has required a considerable amount of time per day for [Ms Pryde] to implement effectively. [Child 1] has began to show improvement with toileting, with [Child 1] able to use the toilet with [Ms Pryde’s] prompting and supervision. Faecal smearing behaviours have greatly reduced, with majority of smearing now occurring only in the bathroom.
Due to the complexity of [Child 1’s] diagnoses and the multifaceted functions around [Child 1’s] toileting behaviours, it is important to note that future regressions may be expected. …
In respect of the need for respite care in particular, Ms Pryde provided:
·      A letter dated 22 November 2023 from [Psychologist B], clinical psychologist, which sets out that Ms Pryde is experiencing burnout associated with her caring responsibilities, and that Ms Pryde and [Child 1] would benefit from [Child 1] being provided with regular overnight respite;
·      A letter dated 20 November 2023 from [Doctor A] which confirms that Ms Pryde is the main carer for [Child 1], lists some of [Child 1’s] diagnoses, and expresses [Doctor A’s] support for Ms Pryde seeking respite to reduce the impact on her mental health.
·      A letter dated 28 March 2024 from [Doctor B]. [She] states in the letter that Ms Pryde has a long-standing diagnosis of Major depressive disorder, that she is experiencing significant carer burnout and that it is likely her mental state will further deteriorate if her burnout is not promptly addressed.
At the hearing I also heard oral evidence from [Mr A], who is a behavioural support practitioner from [Agency 1]. [Mr A] gave the following evidence:
·      He has worked with [Child 1] for a little over a year, through [Child 1’s] NDIS plan. His role is to put in place programs to help reduce [Child 1’s] challenging behaviours. [Mr A] said he does not have medical training but he is aware of [Child 1’s] diagnoses.
·      [Child 1] presents with numerous challenging behaviours including verbal behaviours such as swearing and issuing threats, aggression, threats of self-injury and absconding, particularly from after-school care. He finds demands very challenging unless they are worded in a very specific way. He struggles with language comprehension, although his expressive language is not too bad.
·      [Child 1] also has toileting challenges, which he is working on with [Mr A’s] colleague, [Ms A]. [Mr A] explained that the toileting issues are not his area of expertise.
·      Other than his work with [Mr A], [Mr A] is aware that [Child 1] has regular speech therapy and is attending a swimming course. He considers both of those therapies to be reasonable and helpful to [Child 1].
Mr MacCauley’s oral evidence was that he had cared for [Child 1] every weekend for 4 years up until the end of 2022. He said that during that time [Child 1’s] needs were manageable and he had never felt the need of a disability support worker. He had a few issues with toileting but they weren’t significant, he just needed to stay on top of it and make sure [Child 1] went to the toilet.
Mr MacCauley said he spoke to [Child 1’s] teacher earlier in 2024 and was told that toileting is not an issue for [Child 1] at school and [Child 1] is doing very well at school. For example, he is reading and is managing his emotions better. Mr MacCauley said there seems to be one kind of behaviour at home and another kind at school.
I note that note that Mr MacCauley provided a written submission to Child Support when he lodged his objection to the child support decision. In respect of [Child 1’s] needs Mr MacCauley said in that submission, in summary, that:
·Respite care for [Child 1] is unnecessary, as in Mr MacCauley’s view the children should have regular contact with Mr MacCauley which would negate the need for any respite. Mr MacCauley’s mother is also willing to assist with child care.
·The letter from [Disability Support Worker A] and the recommendations for additional care and respite represents a conflict of interest, since [Disability Support Worker A] is the carer providing that support and therefore profits from her own recommendation.
·Ms Pryde should not have out-of-pocket costs associated with the disability support worker as those costs should be covered by NDIS funding. Mr MacCauley suggests in his submission that Ms Pryde’s use of the disability support worker is excessive and unnecessary, particularly as Ms Pryde is also utilising after-school care and vacation care for the children.
·Mr MacCauley also says:
The application for increase in child support, and the decision letter grossly exaggerates my son’s disabilities. I know my son, and although he can be very difficult, he also has a sweet temperament, and is capable of getting himself dressed, feeding himself, brushing his own teeth, and going to the toilet by himself. I understand his ODD can be extra challenging at times, but he is by no means disabled, he is neuro divergent. On the 16^th of May 2024 I had a meeting with [Child 1’s] teacher who informed me he is thriving at school. He is learning regulation strategies, which need to be practiced and supported in the home, with his parents and sister. Furthermore, he has had no instances of incontinence this year at school. Please see attached school report. [Child 2] is also a very independent 11 year old who is capable of getting herself ready in the mornings. I certainly never felt I needed a support worker while caring for them.

Mr MacCauley provided a copy of [Child 1’s] student report rom his school for semester 2, 2023. The report shows that [Child 1] has been consistently assessed as performing at the expected standard across a range of subjects. The report also notes that [Child 1] is working on an Individual Learning Plan, and the achievement standards reported is reported against the standards in his plan rather than his current grade level.
Ms Pryde said at the hearing that [Child 1] tries really hard at school and gets good support, so he is able to manage his behaviours reasonably well through the school day. However he can’t maintain that level of effort all the time so he will often melt down when he gets home or at after school care as he is exhausted from the effort he puts in during the day. He does occasionally have continence problems at school but he is very frightened of having an accident at school so it is less likely to happen at school. Again it is a big effort for him and so he is more likely to have issues at home.
In terms of his academic achievement Ms Pryde said that she has ensured that a lot of effort has gone into supporting [Child 1] at school. He has had to repeat a year, but he is doing well in his current year level, although that is a year behind where other children of his age would be. Ms Pryde said she considers it a real achievement that [Child 1] is progressing as well as he is, but it requires a lot of effort from her.
I also note that [Child 1] has had NDIS funding for various supports since approximately 2023. Ms Pryde’s evidence is that [Child 1’s] original funding was inadequate and did not cover all his needs. She applied for new funding in February 2024 and an interim plan was put in place pending review of the plan. Ms Pryde said she has been expecting and waiting on a review of the funding since that time but due to a series of administrative issues and errors the review has still not been completed. Ms Pryde provided screen shots in relation to [Child 1’s] current NDIS funding showing that currently [Child 1] has a plan that started [in] May 2024 which provides self-managed funding over a two-year period in the total amount of $50,244 across a number of support categories.
Having considered the evidence, I am satisfied that [Child 1] has special needs. I am satisfied that in practical terms those needs manifest in behavioural issues that require high levels of support through medical intervention, treatment by a psychologist, speech therapy, behavioural support and other interventions. I am also satisfied that there is a need for respite care from time to time, and that need arises from [Child 1’s] special needs.

Are the costs of maintaining [Child 1] significantly affected because of his special needs?

Ms Pryde’s evidence is that, while some of [Child 1’s] needs are covered by the NDIS funding, she also has out-of-pocket expenses associated with [Child 1’s] needs. I have considered the following documentary evidence:
Medical expenses

The evidence provided by Ms Pryde to Child Support includes a Medicare statement for [Child 1] covering the period from 15 March 2022 to 15 March 2024. Over that time, the out-of-pocket medical expenses incurred for [Child 1] were $394 in respect of consultations with a paediatrician and $573.85 in respect of consultations with a psychiatrist. There is also one out‑of‑pocket amount of $7.65 for a GP visit.
In addition, Ms Pryde provided evidence of further paediatrician consultations on 27 June 2024 with an out‑of‑pocket cost of $349.35.
Respite care
·      Ms Pryde provided Child Support with evidence that she paid out-of-pocket for weekend respite care for [Child 1] on Friday 8 and Saturday 9 December 2023 at a total cost of $2,286.49.
Disability support worker costs
·      Ms Pryde provided Child Support with evidence of payments to [Agency B] for a disability support worker for $335.39 on 19 February 2024, $462.78 on 18 March 2024 and $306.50 on 23 March 2024, a total of $1,104.67. Ms Pryde’s evidence is that these were out-of-pocket expenses paid by her and not reimbursed by the NDIS, despite the fact that she had NDIS funding for a disability support worker. Ms Pryde said that she was required to meet additional costs out-of-pocket because the NDIS plan had not been updated and was not, at that time, suitable for [Child 1’s] needs. Essentially her evidence is that [Child 1] needed more support from a disability support worker than the NDIS funding allowed for.
·      Ms Pryde also provided Child Support with a [Agency B] payment history showing that in the period from 23 September 2023 to 18 March 2024 there were disability support worker costs for [Child 1] covered by NDIS funding in the amount of $25,001.43.
·      Ms Pryde’s evidence was that in addition to the payment for the support worker she also incurred significant out-of-pocket expenses to reimburse the disability support worker for food and activities undertaken while he was in the care of the support worker. She provided copies of bank transactions showing transfer of a total of $1,410 to the disability support worker between 28 June 2023 and 14 November 2023. In addition, Ms Pryde provided to Child Support a letter from the disability support worker which stated that Ms Pryde gives her $100 per week to ensure that the sessions with [Child 1] include emotional support, community engagement, development skills and social interactions.
Other costs
·      Ms Pryde provided a tax invoice from [Agency 3] dated 5 September 2023 in the amount of $792.52 for a “defendabilities” program undertaken in Term 4 2023.
·      Ms Pryde stated that she has also had additional costs for [Child 1] as she has been required to buy new underwear regularly and also provide him with pullups to wear at night due to his continence issues. Ms Pryde provided Child Support with a number of receipts for those items, and estimated that the cost is around $100 per month.
·      Ms Pryde said she incurs other additional costs relating to [Child 1’s] issues with toileting. He has caused a number of toilet blockages, and she has been charged by [Agency 4] to remedy those blockages. She incurred costs of $243 in each of February 2024, April 2024 and July 2024. Ms Pryde provided to the Tribunal a copy of a tax invoice dated 18 July 2024 in respect of one of those payments. Because she couldn’t afford that cost, she has now learned how to unblock the toilet herself, so she does not anticipate any further costs in relation to toilet blockages.
·      Ms Pryde said that she also has higher than usual cleaning costs, including the expense of hot water and cleaning products, gloves and masks. She is frequently required to scrub carpets where [Child 1] has soiled them and she has to launder his bedding and also covers from couches and chairs very frequently. Ms Pryde estimated a cost of around $50 per week for PPE including face masks, disposable gloves, hand sanitisers and skin care, cleaning products, a hand-held steam cleaner and additional hot water due to [Child 1] needing multiple showers every day and a high level of additional laundry.

Mr MacCauley has challenged the need for a number of the expenses incurred by Ms Pryde. In respect of respite care, Mr MacCauley has submitted that this is not necessary on a number of grounds. Mr MacCauley’s evidence is that he cared for the children for three nights per week up to November 2022, and submitted that since that time Ms Pryde has withheld care. He submitted that he and his family members are available to provide overnight care for [Child 1] if Ms Pryde needs respite, and instead Ms Pryde is choosing to pay care workers to provide that care. Mr MacCauley submitted to the Tribunal a written statement from his mother, [Ms B]. [Ms B’s] statement outlines her understanding of the history of the relationship between Ms Pryde and Mr MacCauley, most of which is not relevant to the matters before me. [Ms B] expresses the opinion in her statement that “[Mr MacCauley] and his family has supported [Ms Pryde] and her children … and would do so again given the opportunity. If this were allowed [Ms Pryde] would not have carer burnout and need respite.” Ms Pryde’s evidence is that her view is that it is not safe for Mr MacCauley to have care of [Child 1], and she has no other family who are able to have him as her own parents are elderly and do not have capacity to manage [Child 1’s] needs.
As discussed at the hearing, it is not the role of the Tribunal to determine parenting matters between the parents. Decisions about parenting can be resolved by the appropriate court if the parents are unable to agree. In relation to whether there should be a departure from the child support assessment I am limited to considering the grounds set out in the Act, including whether the costs of maintaining [Child 1] are significantly affected because of his special needs. I am not in a position to determine whether either Mr MacCauley or his family are able to provide care for [Child 1], or whether it would be appropriate for them to do so. I am satisfied on the evidence of the parents that in fact Mr MacCauley has not had care of [Child 1] since November 2022.
Ms Pryde provided to Child Support a letter from [Psychologist B], a clinical psychologist, dated 22 November 2023 in which [Psychologist B] states that Ms Pryde is experiencing burnout relating to her caring responsibilities and says that [Child 1] would benefit from being provided with regular overnight respite care. Ms Pryde also provided a letter from [Doctor A] dated 20 November 2023 supporting the need for respite care. I am satisfied that the provision of respite care for [Child 1] is a necessary cost of maintaining [Child 1] due to his special needs. I am also satisfied that Ms Pryde has incurred an out-of-pocket cost of $2,286.49 for respite care for [Child 1]. I do not have evidence of any ongoing costs for respite care and I note Ms Pryde’s evidence that she is hopeful that respite care in the future will be funded by the NDIS.
Mr MacCauley also questioned why costs such as the disability support worker costs were incurred by Ms Pryde instead of being met by the NDIS funding. Ms Pryde’s evidence is that the NDIS funding has been inadequate for some time and did not cover the level of disability support [Child 1] needed as his condition has changed and the plan was based on previous and outdated goals. Ms Pryde said she has been waiting since January 2024 for a proper review of [Child 1’s] NDIS plan, but to date that has not occurred which has been a source of significant frustration.
I am satisfied that Ms Pryde did incur out-of-pocket costs of $1,104.67 in respect of a disability support worker for [Child 1] in February and March 2024. Ms Pryde’s evidence is that these costs will not be reimbursed by the NDIS. At the moment [Child 1] is not working with a disability support worker and Ms Pryde’s evidence is that she is hopeful that in future such costs will be met by the NDIS funding. I note the evidence that Ms Pryde had further out of pocket expenses relating to reimbursement for food and activities undertaken by [Child 1] while in the care of the disability support worker, however I am not satisfied that those costs were directly attributable to [Child 1’s] special needs, as they appear to have been the normal costs of food and activities for a child of [Child 1’s] age.
In respect of ongoing expenses, Ms Pryde’s evidence is that [Child 1] sees his paediatrician around three times per year and will incur an out-of-pocket cost of around $350 per visit. This will be an ongoing cost to monitor and adjust [Child 1’s] medication. Ms Pryde said that [Child 1’s] paediatrician, [named], has recommended that it would be beneficial for [Child 1] to undergo further cognitive assessments in the future and there will be a cost associated with those assessments. However, no documentary evidence as to the recommendation for such assessments, the nature of the assessments or the cost of the assessments has been submitted by Ms Pryde.
In relation to the costs that she has incurred for [Child 1], Ms Pryde’s evidence is that at the time of the hearing [Child 1] is seeing a speech pathologist once per fortnight, working with his behaviour therapist once a week and also participating in a toileting program through the behavioural therapy provider, and attending a specialised swimming lesson once per week. In October and November 2024, he also had 10 hours of respite care in Ms Pryde’s home which was provided through [Agency 5]. Ms Pryde has not incurred any out-of-pocket expenses in respect of those things.
Ms Pryde explained that she has to replace and repair items more frequently than would ordinarily be the case because of [Child 1’s] special needs. His underwear needs to be replaced frequently, as he often soils himself badly enough that the underwear has to be thrown away. He also loses and breaks things more frequently than most children his age, so items such as lunch boxes and drink bottles have to be replaced frequently. Some of [Child 1’s] medication increases his appetite so she also has higher food bills than would be the case with most children.
[Child 1] is not currently working with a disability support worker. He had to stop working with his previous disability support worker, [Disability Support Worker A], due to difficulties with NDIS funding. Ms Pryde said she will be looking for a new disability support worker for [Child 1] when the NDIS funding review is finalised and she has more certainty but she anticipates it may take some time to find the right worker and establish good routines for [Child 1].
Ms Pryde said that she is hopeful that next year [Child 1] will be able to move to mainstream swimming lessons, which will not be covered by NDIS funding. He will need to have one-on-one lessons as he won’t be able to manage in a group class. The cost will be $660 per term and she is hopeful that it will start in either first or second term in 2025. Ms Pryde has not provided any documentary evidence in respect of the need for private swimming lessons or the cost that will be incurred.
In relation to other future costs, Ms Pryde said that the NDIS plan is undergoing a review at the moment. She is hopeful that the review will result in a plan that recognises [Child 1’s] current needs and will include recognition of and support around [Child 1’s] toileting issues, including continued therapy to address those issues. She expects there will be a certain amount of funding for a disability support worker, although it won’t cover her out-of-pocket expenses for [Child 1’s] food and activities while he is with the disability support worker. In relation to funding for respite care, Ms Pryde said that the NDIS is reluctant to provide respite funding, but she is hopeful some funding for respite care will be included. However, if she needs additional weekend respite, she may need to pay out of pocket for that.
I am satisfied that Ms Pryde has incurred necessary costs of maintaining [Child 1] as a result of his special needs totalling $5,418:
·Out-of-pocket medical expenses of approximately $1,325 in the period from March 2022;
·Out-of-pocket expenses for a disability support worker of $1,104 (incurred in February and March 2024);
·Costs of respite care of $2,286;
·Costs associated with managing faecal incontinence including cleaning products and replacement of underwear, the quantum of which are difficult to determine on the documentary evidence provided, but appear to be at least $25 per month;
·Costs associated with unblocking of the toilet in her home of $243 – I note Ms Pryde’s evidence that this happened on three separate occasions, but documentary evidence has only been provided in respect of one incident;
·Costs associated with an initial orthodontic consultation of $160 in December 2024.
In relation to future costs, I am satisfied that Ms Pryde will continue to incur costs of approximately $1,050 per year in out-of-pocket costs for paediatric care. I accept that costs associated with managing faecal incontinence are also likely to continue for a period of time, although I noted the evidence of [Ms A] that there has been an improvement in [Child 1’s] behaviour around toileting.
I am satisfied that [Child 1] does have an ongoing need for other supports, and that it is likely that he may require the ongoing support of a disability support worker. I am also satisfied that there is likely to be an ongoing need for respite care and for swimming lessons.
In respect of the costs of a disability support worker and the costs of respite care, Ms Pryde’s evidence is that she is hopeful that those costs will be covered by NDIS funding. At the time of the hearing [Child 1’s] NDIS funding was undergoing a review, and so there is no evidence before me as to what ongoing funding will cover. At the time of the hearing there was no evidence before me that Ms Pryde was in fact incurring any out-of-pocket expenses other that the costs relating to seeing the paediatrician.
Ms Pryde has also provided evidence as to future orthodontic treatment for [Child 1]. In the shorter term, Ms Pryde says that [Child 1] will have oral surgery in February 2025, and then will be fitted with a retainer by the orthodontist. After a few months there will be further orthodontic treatment, probably involving braces. In respect of this Ms Pryde has provided an email where she submits that [Child 1] will need 5 orthodontic appointments in 2025 at a total cost of $800 and will also require “3 different types of retainers / procedures / moulds x-rays etc” at a cost of around $1,200. Ms Pryde says this is “A total of $2,000 in foreseeable orthodontic work per year for two years.”
In relation to documentary evidence, Ms Pryde has provided an email from [Health Service 1] which confirms an appointment on 12 March 2025 which includes a cost of $360 for a retainer. I accept that there will be a consultation fee associated with this appointment of $160, so the total cost of the appointment in March 2025 will be $520.
While I accept that [Child 1] is likely to require further and ongoing orthodontic treatment, Ms Pryde has not provided any documentary evidence as to the ongoing costs. To some extent it appears the ongoing costs are not yet known, as the exact treatment plan is not known. It is not possible for me, on the evidence available, to make a clear assessment of ongoing orthodontic costs for [Child 1].
I am satisfied that in 2025 Ms Pryde will incur costs relating to [Child 1’s] special needs of at least $1,870.
I am satisfied that the ground set out in subparagraph 117(2)(b)(ia) of the Act is established.

Is a departure from the assessment just and equitable?

As I am satisfied that there is at least one ground to depart from the administrative assessment of child support, the next step is to consider whether a particular decision to depart from the assessment is just and equitable.
In deciding whether any decision is just and equitable, I must have regard to the matters set out in subsection 117(4) of the Act, and I may also have regard to any other relevant factors. The factors set out in subsection 117(4) are 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; and
(iii)   to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

I note that pursuant to section 3 of the Act, I must approach this task on the basis that the duty that a parent has to maintain their children has priority over all other commitments of the parent other than commitments necessary to support themselves and any other people they have a duty to maintain.
In addition to the costs associated with meeting [Child 1’s] special needs, Ms Pryde has also provided evidence in respect of child care costs incurred for both [Child 1] and [Child 2].
I am satisfied on the basis of the evidence before me that in the period from 1 November 2022 to 21 July 2024 Ms Pryde incurred out-of-pocket childcare costs for the children of $5,063.86 (being $2,511.78 for [Child 2] and $2,552.08 for [Child 1]). In the period from 24 July 2024 to 8 November 2024, Ms Pryde has incurred further out‑of‑pocket expenses of $249.12 in respect of [Child 2] and $318.09 in respect of [Child 1].
Ms Pryde’s evidence is that childcare costs will continue for [Child 2] until the end of the current school year. [Child 2] will not attend school holiday care in the future as she is now too old. [Child 1] will continue to attend both after school care and school holiday care.
Mr MacCauley submitted that he should not be required to contribute to childcare costs for the children. He said that Ms Pryde does not work and should not require childcare. Ms Pryde’s evidence is that caring for the children, and in particular [Child 1], is a full‑time job that requires all of her energy and attention. Beyond the day-to-day care and supervision of the children, she spends considerable time advocating for [Child 1] to receive services, liaising with the NDIS and various service providers, as well as managing the additional cleaning and repair work associated with some of [Child 1’s] behaviours. She has had to forfeit the opportunity to engage in paid work in order to provide that care. In addition, she said that when [Child 1] does not attend after-school care she has to be at the school by 2.30pm to manage his pick-up, which leaves her with only a short window during the day while the children are at school.
I am satisfied, given Ms Pryde’s significant caring responsibilities, that it reasonable for her to utilise childcare for the children.
Ms Pryde said that [Child 2] has been seeing a psychologist regularly (although there are no out-of-pocket expenses associated with that treatment) and has recently been referred for an ASD assessment. Following the hearing, Ms Pryde made a written submission in which she states that she does not have documentary evidence as to the need for such an assessment but refers to an email sent to her on 15 November 2024 from a psychologist at [Health Service 2] attaching an information sheet for ASD assessments, which Ms Pryde says was in reference to the likelihood of [Child 2] being assessed as ASD Level 1. There is no evidence before me as to the likely cost for such an assessment.
Ms Pryde provided a statement of financial circumstances which shows that she receives income in the form of a carer’s payment and carer allowance from Centrelink. She also receives family tax benefit for [Child 1] and [Child 2]. I am satisfied that Ms Pryde has no other income. She has no significant assets. She has listed weekly household expenses for herself and the children at $1,451 per week. She lists liabilities of $22,460 including a NILS loan from [Agency 6] with a balance of $1,160, and other loans from a family member and a neighbour.
Mr MacCauley also provided a statement of financial circumstances in which he declares a weekly before-tax income of $1,725 per week. He has no significant assets other than a car valued at $12,000. He has listed his liabilities as a bank loan with a balance of $23,112 and a small amount of credit card debt. He has listed weekly expenses for himself of $828. Mr MacCauley also provided recent payslips which show that his current income is $3,660.62 per fortnight (or approximately $95,000 per year). His taxable income is made up of salary of $3,519 per fortnight and a service allowance of $140 per fortnight.
Taking into account the evidence before me, I am satisfied that it is just and equitable that Mr MacCauley contribute half the amount of the costs incurred in meeting [Child 1’s] special needs, and half the childcare costs.
I am satisfied that it is just and equitable to increase Mr MacCauley’s annual rate of child support by an amount of $2,700 up to the end of 2024, and of $935 for the 2025 year in respect of [Child 1’s] special needs.
I acknowledge that the costs associated with the special needs of both children may be higher in 2025 than the costs I have found. There may be additional costs associated with [Child 1’s] orthodontic treatment, and there may also be costs associated with further psychological assessment for both children. I have not taken account of those costs as the evidence before me is insufficient to enable me to do so. I note it is open to Ms Pryde to make a new application for a further departure from the administrative assessment if, due to circumstances existing at the time of the new application, there are grounds for departing from the assessment.
In respect of childcare costs, I consider it is appropriate to further increase Mr MacCauley’s annual rate of child support by an amount of $1,414 in the period from 1 January 2024 to 31 December 2024. From 1 January 2025 to 31 December 2025, I will further increase Mr MacCauley’s annual rate of child support by an amount of $727 in respect of [Child 1’s] childcare costs.

Because the future costs associated with the special needs of the children are uncertain, I do not consider that it would be appropriate to depart from the assessment beyond the end of the 2025 calendar year.
I have considered whether a decision in these terms will cause any hardship to either of the parents, or to the children.
I accept that Ms Pryde does live in conditions of financial hardship, and is in need of financial support from Mr MacCauley to meet the needs of [Child 1] and [Child 2]. I have also taken into account that Ms Pryde incurs indirect costs, in that she is forced to forego income and earning capacity in order to provide care for the children and in particular in order to meet [Child 1’s] needs, including advocating for his NDIS funding and managing the various supports and interventions that [Child 1] needs. I consider that a 50% contribution by Mr MacCauley to the additional costs incurred by Ms Pryde in respect of [Child 1’s] needs will go some way to alleviating that hardship, although I accept that Ms Pryde’s financial situation will continue to be difficult.
Mr MacCauley has submitted to me that he is unable to afford any additional child support. Mr MacCauley has pointed out that he is currently assessed to pay child support on the basis of his 2022/23 taxable income of $97,554, but submitted at the hearing that his current income is around $90,000. In light of the payslips provided to the Tribunal I am satisfied that Mr MacCauley’s actual gross income is equivalent to approximately $95,000 per year, although I accept that he may have allowable tax deductions that may reduce his taxable income to some extent.
Mr MacCauley also submitted that he has entered into a contract to purchase property in a new property development, and payment of a higher amount of child support may compromise his ability to take out a mortgage to enable him to honour that contract. His evidence at the hearing was that he signed a contract (together with his partner) for the purchase of the property on 24 April 2024. The purchase price is $864,900, and he and his partner have recently paid a deposit of 10% of the purchase price, which was paid mostly by Mr MacCauley’s partner.
Mr MacCauley said that when he entered into the contract he had disclosed to his mortgage broker that he had an annual child support liability at the rate that was assessed at that time (which I note was an annual rate of $16,522, or $1,376 per month). However, he has recently been advised by his mortgage broker that the increased child support liability means his capacity to take out the necessary mortgage may be in jeopardy. Mr MacCauley said that if he had to default on the contract he and his partner would lose their deposit.
I put it to Mr MacCauley that on 24 April 2024 he was aware that a change of assessment process was underway and so there was a risk that his child support liability would increase, but he said he didn’t realise there would be a change.
Mr MacCauley said that he had been advised by his mortgage broker that, given the increased rate of child support, there was now some doubt about his ability to borrow the money he would need. He provided to the Tribunal an email from [a representative] of [a ortgage broker], which says in part that he increase in child support means that “you’re [sic] off the plan purchase may be in jeopardy as your borrowing power has been reduced significantly”. Mr MacCauley was unable to provide any further evidence in respect of what level of child support would be acceptable to a mortgage provider.
I have considered the information provided in Mr MacCauley’s statement of financial circumstances, and I am satisfied that he has capacity to pay child support in the amount set out in the decision. I accept that he does not have savings or significant capacity to save, but beyond that I am not satisfied that payment of the child support set out in this decision will cause him hardship. In relation to the question of the contract for purchase of a property I am satisfied that Mr MacCauley entered into that contract at a time when he knew or ought to have known that his child support assessment was under review in light of costs arising from [Child 1’s] special needs. He chose to enter into the contract in spite of that knowledge. In any event, Mr MacCauley has not provided any definitive evidence to me as to whether or not any particular level of child support will mean that he is unable to take out the mortgage he wants.
I am satisfied, taking into account all the factors and evidence before me, that a departure from the assessment in the terms set out in this decision is just and equitable.

Is a departure from the assessment otherwise proper?

Finally, I must be satisfied that the departure determination is “otherwise proper”. Subsection 117(5) of the Act requires me to take into consideration the nature of the duty of a parent to maintain a child, and the effect that any change to the assessment would have on the rate of any Centrelink benefits being received by the parties or the child.
The child support law recognises that each parent has a primary duty to maintain their children. In the case that they cannot, the government may assist in the form of family assistance payments. I am satisfied that the departure from the assessment properly reflects the capacity of each parent to provide for the children, and on that basis I am satisfied that the departure determination is otherwise proper.

DECISION

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

·      For the period 1 January 2024 to 31 December 2024 the annual rate of child support payable by Mr MacCauley is increased by an amount of $2,700, being a contribution to costs associated with [Child 1’s] special needs.
·      For the period 1 January 2025 to 31 December 2025 the annual rate of child support payable by Mr MacCauley is increased by an amount of $935, being a contribution to costs associated with [Child 1’s] special needs.
·      For the period 1 January 2024 to 31 December 2024 the annual rate of child support payable by Mr MacCauley is further increased by an amount of $1,414, being a contribution to childcare costs for [Child 2] and [Child 1].
·      For the period 1 January 2025 to 31 December 2025 the annual rate of child support payable by Mr MacCauley is further increased by an amount of $727, being a contribution to childcare costs for [Child 1].

Date of hearing:	Tuesday, 3 December 2024
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented