Ridgway and Ridgway (Child support)

Ridgway and Ridgway (Child support) [2023] AATA 3307 (31 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/MC025732
APPLICANT:  Ms Ridgway
OTHER PARTIES:  Child Support Registrar
Mr Ridgway

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 31 August 2023
DECISION:

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

Mr Ridgway’s income for the purposes of child support for the period 1 July 2023 to 30 June 2024 is varied to $133,936.
Mr Ridgway’s child support for the period 1 July 2023 to 30 June 2024 is increased by $1,815.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – costs of special needs significantly affect the cost of maintaining the children – income and financial resources of both parents – decision under review set aside and substituted

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

REASONS FOR DECISION

BACKGROUND

The issue to be considered in this application is whether there is a reason to change the administrative assessment of child support and, if so, whether it is just and equitable and otherwise proper to do so.
Ms Ridgway and Mr Ridgway are the parents of [the child]. Currently [the child] is in the shared care of both parents. There has been a registered child support assessment in place from 27 May 2022. Mr Ridgway is the parent liable to pay child support. Child Support is currently collected by Services Australia (Child Support).
Prior to the departure applications initiated by both parents, the administrative assessment of child support in place was as follows:
·      For the period 27 May 2022 to 26 June 2022, Mr Ridgway is assessed to pay an annual rate of child support of $12,640; based on a 2020/2021 adjusted taxable income (ATI) of $565,796 for Mr Ridgway and a 2020/2021 ATI of $80,528 for Ms Ridgway.
·      For the period 27 June 2022 to 26 November 2022, Mr Ridgway is assessed to pay an annual rate of child support of $20,661. This assessment is based on the above incomes for both parents. The assessment increased due to Ms Ridgway’s care for [the child] increasing to primary care.
·      For the period 27 November 2022 to 31 January 2023, Mr Ridgway is assessed to pay an annual rate of child support of $12,640. This assessment is based on the above incomes for both parents. The assessment decreased due to [the child] moving into the shared care of the parents.
·      For the period 1 February 2023 to 30 April 2024, Mr Ridgway is assessed to pay an annual rate of child support of $12,658. This assessment is based on a 2021/2022 ATI of $451,136 for Mr Ridgway and a 2021/2022 deemed income of $82,863 for Ms Ridgway.

On 29 June 2022 Mr Ridgway lodged a departure application on the basis that, in the special circumstances of the case, the costs of maintaining the child are significantly affected because Ms Ridgway has received money, goods or property from Mr Ridgway for the benefit of herself or [the child] (Reason 5), Mr Ridgway’s ability to provide financial support for [the child] is significantly reduced because of his necessary commitments of self-support (Reason 7), the income, property and financial resources of either parent (Reasons 8A) and the earning capacity (Reason 8B) is not accurately reflected in the administrative assessment of child support for Ms Ridgway and, Mr Ridgway has a moral obligation to provide for a resident child (Reason 10), are special circumstances which make the administrative assessment in place at the time of Mr Ridgway’s departure result in an unjust and inequitable determination of the level of financial support to be provided by him for [the child].
On 4 July 2022 Ms Ridgway cross applied on the basis that, in the special circumstances of the case, the costs of maintaining the child are significantly affected on the basis that, the capacity of either parent to provide financial support to the child are significantly affected because of the special needs of the child (Reason 2), or because the child is being cared for, educated or trained in the manner that was expected by his or her parents (Reason 3), as well as Reasons 8A and 8B.
On 7 October 2022 a decision was made to depart from the administrative assessment of child support on the basis of Reason 8A in relation to Mr Ridgway’s application and Reasons 2 and 3 in relation to Ms Ridgway’s application and Mr Ridgway’s child support payments were increased as follows:
·      For the period between 1 July 2022 and 30 September 2023 the adjusted taxable income for Mr Ridgway is set at $450,000.00.
·      For the period between 1 July 2022 and 31 December 2022 the annual rate of child support payable by Mr Ridgway is increased by $12,944.00 as a contribution to the child’s private school fees.
·      For the period between 1 January 2023 and 31 December 2023 the annual rate of child support payable by Mr Ridgway is increased by $11,653.00 as a contribution to the child’s private school fees.
·      For the period between 1 January 2024 and 31 December 2024 the annual rate of child support payable by Mr Ridgway is increased by $10,773.00 as a contribution to the child’s private school fees.
·      For the period between 1 July 2022 and 30 June 2023 the annual rate of child support payable by Mr Ridgway is increased by $4,800.00 as a contribution to the child’s orthodontic treatment costs.
·      For the period between 1 July 2022 and 30 June 2023 the annual rate of child support payable by Mr Ridgway is increased by $3,014.00 as a contribution to the child’s other special needs.
·      For the period between 1 July 2023 and 31 December 2024 the annual rate of child support payable by Mr Ridgway is increased by $3,044.00 as a contribution to the child’s other special needs.
On 4 November 2022 Mr Ridgway lodged an objection to this decision. On 8 February 2023 an objections officer partly allowed Mr Ridgway’s objection and made the following departure determination:
· For the period 1 July 2022 to 31 December 2022, the annual rate of child support payable by Mr Ridgway will be increased by $5,730 to reflect his contribution towards [the child]’s special needs and education costs.
· For the period 1 January 2023 to 31 December 2023 the annual rate of child support payable by Mr Ridgway will be increased by $752 to reflect his contribution towards [the child]’s special needs.
On 7 March 2023 Ms Ridgway sought further review with the Social Services Child Support Division of the Tribunal (the Tribunal). Directions were issued to both parties on 6 July 2023. On 31 August 2023 a telephone hearing was held in which Ms Ridgway and Mr Ridgway gave evidence under affirmation. The Tribunal considered the documents and information provided to both parties prior to the hearing, as well as the oral evidence of Ms Ridgway and Mr Ridgway.[1] Relevant aspects of the material and evidence will be referred to in the Tribunal’s Reasons for Decision.

CONSIDERATION

[1] Administrative Appeals Tribunal Act 1975, subsection 37(1) and section 38AA Statement and Documents provided by the Agency numbered 1 to 1127; Ms Ridgway’s documents numbered A1–A345 and Mr Ridgway’s documents numbered B1–B74.

The legislative framework

The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). The liable parent or a carer may apply for a determination departing from the administrative assessment under Part 6A of the Assessment Act.
Section 98C of the Assessment Act establishes a three-step process to be satisfied: that there is a ground for departure; that it is just and equitable to depart; and that it is otherwise proper to make a departure determination. Once satisfied, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act.

Reason 2 – [the child]’s special needs

The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Assessment Act. Subparagraph 117(2)(b)(ia) of the Assessment Act – commonly referred to as “Reason 2”– states as follows: “(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: … (ia) because of special needs of the child”.
The term “special circumstances” is not defined in the Assessment Act. In Gyselman and Gyselman [1991] FamCA 93 the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary. Ms Ridgway’s submission to the Tribunal, and to Child Support, was that [the child]’s counselling was a special need.
The term ‘special needs’ is not defined in the Act. In Lightfoot v Hampson [1996] FLC 92-663 the special needs can be because of a physical, mental or learning disability or because of a special talent of a child. The condition or disability must be out of the ordinary.
In relation to [the child]’s special needs, Ms Ridgway said in around mid-2016 [the child] was diagnosed with attention deficit hyperactivity disorder (ADHD), she had been placed on medication and requires ongoing paediatric review while she remains on medication. She also said [the child] has flat feet which she has inherited from her father, and she has been having regular physiotherapy to manage this, she also has bunions. Ms Ridgway also said she arranged for [the child]’s feet to be reviewed by an orthopaedic surgeon to see if corrective surgery is required sooner rather than later for her bunions and whether surgical intervention was appropriate for [the child]’s flat feet. Ms Ridgway said [the child] has also seen a chiropractor on a few occasions because she complained of a sore back. [the child] also requires orthodontic work. More recently Ms Ridgway said [the child] commenced counselling, Ms Ridgway said she has funded most of these costs since separation.
Ms Ridgway said she arranged further counselling for [the child] following an appointment [the child] had with their GP, [Dr A]. In around May 2023 [the child] was placed under a Mental Health Plan by [Dr A] and referred to counselling.[2] Ms Ridgway said she arranged counselling for [the child] with an organisation called [Organisation 1]. Ms Ridgway said [the child] has been having counselling support fortnightly at a cost of $160 a session. She commenced this on 14 March 2023 and she has remaining sessions booked to 4 December 2023.[3] Ms Ridgway thought the counselling sessions would continue after this period but said this would depend on whether [the child] needed or wanted further support.[4]
[2] A345 of Ms Ridgway’s submissions.
[3] A63–A65 of Ms Ridgway’s submissions.
[4] A63 of Ms Ridgway’s submissions.
Mr Ridgway did not agree that he should contribute to half of the cost of counselling for [the child], because he had not been consulted about the need for this, did not agree to it, and said [the child] had said to him she did not understand why she was attending. Mr Ridgway said [the child] had been attending [Organisation 2] for psychological support and once these sessions had concluded she has been attending a youth advisory group (YAG) fortnightly. Mr Ridgway said the YAG provides on-going support for [the child] and this is provided at no cost to either parent.
Ms Ridgway said [Organisation 2] only provided about six sessions of psychological support to [the child] and it was evident to her and the family GP that [the child] required further counselling due to her parents’ separation. Ms Ridgway said she did not discuss this with Mr Ridgway, but she did not think it was fair that she be responsible for the total costs of counselling for [the child].
Mr Ridgway said the YAG provided on-going support to [the child] and the meetings she attended had the presence of a qualified counsellor. The Tribunal notes that YAG for [Organisation 2] is open to past and current young people who have been a client of [Organisation 2] and meet with the community engagement coordinator for [Organisation 2]. The young person with lived experience of mental health enables [Organisation 2] to stay relevant, continue to deliver appropriate services, remain a trusted and respected partner, and to improve service provision for priority groups.[5]
[5] From [Organisation 2] website.
Ms Ridgway provided her [Bank] account showing some deductions of $160 a session paid to [Organisation 1] for counselling for [the child].[6] [The child] is booked in to have 12 sessions with the counselling service. An initial referral for counselling in 2023 under a Mental Health Plan is six sessions up to a maximum of 10 sessions if required. Ten sessions in a 12-month period cost $1,600. [The child] commenced counselling on 8 May 2023.
[6] A64 of Ms Ridgway’s submissions.
Ms Ridgway said [the child] has a diagnosis of ADHD and since the parents’ separation she has paid for the ongoing follow up for [the child] with the paediatrician [Dr B]. Evidence before the Tribunal shows there has only been one appointment with [Dr B] since the parents separated and since the commencement of the child support assessment. This appointment occurred on 12 October 2022 and the out-of-pocket cost for Ms Ridgway was $211.10.[7] [Dr B] indicates six-monthly reviews are required on an ongoing basis.[8] The other main costs in relation to management for [the child]’s ADHD has been the cost of medication.
[7] A220 of Ms Ridgway’s submissions.
[8] A234 of Ms Ridgway’s submissions.
In relation to [the child]’s medication for ADHD on 3 November 2022 [Dr B], [the child]’s paediatrician indicated that [the child] was continuing on 40mg daily of Vyvanse and 3mg daily of Intuniv.[9] Evidence before the Tribunal for the period 6 May 2022 to 28 March 2023 shows Ms Ridgway has paid $925.55 for medication for [the child].[10] The Australian Government provides subsidised PBS approved medications, commencing on 1 January 2023 the safety net will be $1,563.50, after the safety net is reached the medicines are provided free.[11] Ms Ridgway said she has been paying for the cost of the ADHD medication for [the child] since separation. The costs of medication for [the child] did not reach the safety net for the 12 month period. It is likely the costs of [the child]’s medication will be around $1,000 for a 12-month period.
[9] Pages 714–175 of the subsection 37(1) Agency documents.
[10] A44–A45 of Ms Ridgway’s submissions.
[11] From the m.pbs.gov.au – Australian Government – Department of Health and Aged Care website.
Ms Ridgway said she also arranged and paid for the assessment by [Dr C] in relation to [the child]’s flat feet. Ms Ridgway said this was arranged with the consent of Mr Ridgway prior to their separation. The Tribunal notes that appointments with [Dr C] occurred on 15 September 2021 and 27 April 2022.[12] As these appointments were prior to the parents’ separation and prior to the registration of child support, the costs cannot be considered part of this departure determination.
[12] A41–A42 of Ms Ridgway’s submissions.
Ms Ridgway said she also spoke with Mr Ridgway prior to their separation about the recommendation from [Dr C] that [the child] attend physiotherapy to assist with the management of pain caused by her flat feet. Evidence before the Tribunal shows [the child] commenced physiotherapy from 12 November 2021 ceasing on 11 November 2022 (see Appendix 1).
Mr Ridgway said he was working away from home at the time Ms Ridgway arranged physiotherapy for [the child], he really did not have a say in this. Mr Ridgway said he did not think he should be required to fund treatment that was not necessary, in his view flat feet is not a medical condition requiring treatment. The Tribunal notes that [Dr C] referred [the child] for physiotherapy treatment on 4 November 2021 to undertake “eccentric gastrocnemius and hamstring exercises with tibialis posterior activation and strengthening”.[13] The Tribunal notes that from commencement of the child support assessment Ms Ridgway has paid $657 in out-of-pocket costs for physiotherapy for [the child] (see Appendix 1).
[13] Pages 714 – 715 of the subsection 37(1) Agency documents.
Ms Ridgway said she was happy to be responsible for the costs for [the child] having a review by a chiropractor for her sore back. The Tribunal notes [the child] has had three sessions costing $235.
In relation to the orthodontic costs for [the child] Ms Ridgway said she has paid a deposit of $3,000 towards the cost of treatment out of a total of around $7,000. Mr Ridgway said he has since paid the outstanding balance of orthodontic treatment for [the child] of $4,000 which is his share of the costs. Mr Ridgway said he had arranged to pay 60% of the costs of treatment which took into account his higher income at that time when compared with Ms Ridgway’s income. As Mr Ridgway’s has already paid for his share of these costs they cannot be included in this departure determination.
The Tribunal considered whether physiotherapy, counselling, management of her ADHD including medication management are special needs for [the child]. A letter from [Dr A] provides that [the child] “was asking for the opportunity to talk about issues with a counsellor. She has been connected with [Organisation 1]”.[14] The Tribunal also notes that [Dr C] recommended and referred [the child] for physiotherapy and as this was occurring prior to the parents’ separation the Tribunal concluded it was reasonable for this to continue. The Tribunal also notes that medication management for [the child]’s ADHD is recommended to continue by [Dr B].
[14] A345 of Ms Ridgway’s submissions.
The Tribunal is satisfied that [the child]’s condition of ADHD is out of the ordinary enough to be a special need. The Tribunal is also satisfied that counselling which has been recommended by [the child]’s GP and requested by her, is also a special need, as is physiotherapy treatment for [the child] as recommended by [Dr C].
The Tribunal notes that Ms Ridgway has paid the following costs in relation to [the child]’s special needs from the commencement of the administrative assessment of child support:

2022/2023 financial year from 27 May 2022 to 30 June 2023

2023/2024 financial year including estimated remaining cost

Physiotherapy

$51

$606

Counselling

$320

$1,600[15]

Paediatrician

$422.20[16]

Medication

$84.40

$1,000

Total

$455.40

$3,628.20[17]

[15] This is the cost for 10 sessions which is allowed under a Mental Health Plan.
[16] This includes the out-of-pocket cost for the consultation with [named doctor] on 12 October 2022 (A232 of Ms Ridgway’s submissions as well as the appointment in six months’ time.
[17] The Tribunal has determined that half of these costs rounded up is $1,815.

For the period 27 May 2022 to 30 June 2023 Ms Ridgway’s costs in relation to [the child]’s special needs for the 399 days in the period is $1.14 a day or, $7.98 a week. For the period 1 July 2023 to 30 June 2024, which is 365 days in the period, the costs in relation to [the child]’s special needs are $9.94 daily or $69.58 weekly. The Tribunal is satisfied that for the period from 1 July 2023 the costs associated with [the child]’s special needs are a significant expense for Ms Ridgway. Accordingly, the Tribunal is satisfied that the costs in relation to [the child]’s special needs affect Ms Ridgway’s ability to maintain [the child]. The Tribunal therefore concludes that there are special circumstances in this case which establish a ground for departure under subparagraph 117(2)(b)(ia) of the Assessment Act.

Would departure from the administrative assessment be just and equitable?

Having found that special circumstances exist such that the administrative assessment resulted in an unjust and inequitable result, so a ground for departure is established in relation to subparagraph 117(2)(b)(ia) (Reason 2) of the Assessment Act, the next step for the Tribunal is to consider whether it is just and equitable to depart from the administrative assessment.
In deciding whether it is just and equitable, the Tribunal had regard to the matters set out in subsection 117(4) of the Assessment Act. Section 3 of the Assessment Act makes it clear that the parents of a child have the primary duty to maintain the child over all commitments of the parents other than commitments necessary for self-support or the support of another person to which they have a duty.

The needs of the child

In determining the proper needs of a child, it is necessary to have regard to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained, and any special needs of the child (subsection 117(6) of the Assessment Act). The Tribunal has considered the evidence of both parents relating to the needs of [the child].
In regard to the child’s special needs, as discussed above, [the child] saw a physiotherapist as recommended by [Dr C] until 11 October 2022, this treatment has now ceased. [The child] is currently under a Mental Health Plan and is booked in to see a counsellor until 4 December 2023, this means [the child] will have 12 counselling sessions instead of the maximum of 10 sessions allowed under her current Mental Health Plan. For sessions to continue after this period, [the child] will require further assessment by her GP to ascertain if she is eligible for another Mental Health Plan. It is reasonable to expect Mr Ridgway to contribute his share for 10 sessions of the cost of counselling for [the child] until 30 June 2024.
[The child] has attended [School] which she commenced in preschool, she is currently in Year 9. The interim court orders made on 23 January 2023 at paragraph 15 state: “Until further order or written agreement, each party shall be responsible for one half (50%) of [the child]’s school fees and ancillary expenses to [School] as and when they fall due”.[18] Evidence before the Tribunal shows that both parents have contributed their share of half of the school fees and ancillary expenses from 7 June 2022 in accordance with the interim court orders.[19]
[18] Page 781 of the of the subsection 37(1) Agency documents.
[19] See Appendix 2.
Ms Ridgway submitted that [the child] has no income or financial resources of her own and Mr Ridgway confirmed this submission.

Mr Ridgway’s income, property and financial resources and earning capacity

Mr Ridgway is currently employed by [Employer 1]. He commenced employment with this employer on 24 January 2023.[20] Mr Ridgway is employed full time. His salary package inclusive of superannuation is $148,000 annually.[21] Payslips before the Tribunal show a gross annual income of $133,936.55.[22]
[20] B39 of Mr Ridgway’s submissions.
[21] B42 of Mr Ridgway’s submissions.
[22] B42 of Mr Ridgway’s submissions.
Mr Ridgway said he resigned from his previous employer [Employer 2] because following his separation from Ms Ridgway he wanted to be around more for [the child]. The work for [Employer 2] necessitated Mr Ridgway working as a fly-in fly-out worker on a 16 day on, 12 day off roster. Mr Ridgway said he wanted to be based in [Region] and cease his fly-in fly-out work so he could have more regular care of [the child]. Mr Ridgway also said he had experienced depression which lead him to re-evaluate his situation and he sought employment closer to home.
For the financial year ending 30 June 2022 Mr Ridgway had an adjusted taxable income of $452,234.[23] For the period from 1 July 2022 to 30 June 2023 Mr Ridgway’s income was approximately $380,000 from [Employer 2].[24] Mr Ridgway said he was unemployed from around early December 2022 until he commenced work on 24 January 2023 for [Employer 1], during this period he said he lived off his savings. Mr Ridgway’s income from [Employer 1] from 1 July 2022 to 30 June 2023 is likely to be approximately $56,471.58.[25] Mr Ridgway has not yet completed his tax return for the financial year ending 30 June 2023. Mr Ridgway’s income for the financial year ending 30 June 2023 is likely to be approximately $437,000.[26] From 1 July 2023 Mr Ridgway’s gross annual income from [Employer 1] will be $133,936.55.
[23] B65 of Mr Ridgway’s submissions.
[24] See B42, B43 and B52 of Mr Ridgway’s submissions.
[25] The period from 24 January 2023 to 30 June 2023 is 157 days or 22.4 weeks. Mr Ridgway is paid by [Employer 1] fortnightly, there are 11 fortnights until the end of the financial year: Mr Ridgway’s gross fortnightly income from his current employment is $5,133.78 (see B42) x 11 = $56,471.58.
[26] The Tribunal has added the year-to-date income for [Employer 1] and Mr Ridgway’s income for the period from [Employer 2]; $380,000 + $56,741 = $437,412 rounded up to $437,000.
Mr Ridgway’s SOFC shows an average weekly income of $2,745.14. Mr Ridgway indicates personal expenditure of $2,427.50 weekly which includes the costs for himself and [the child] which is $126,230 annually.[27] Mr Ridgway’s main expense is rent at $440 weekly which has recently increased to $460 a week. Mr Ridgway’s said the investment property has now been sold and he has no expenses in relation to this currently. Mr Ridgway said he pays about $195 weekly towards the cost of [the child]’s private school education. Mr Ridgway’s other major expense is repayment of his car which is $413.25 weekly.[28] Mr Ridgway said the lease of the car is through [Leasing provider] which was purchased for $105,000, the lease is for a five-year term with a balloon payment of $40,000. Subtracting the costs of the investment property of $255.25 means Mr Ridgway’s personal expenditure is reduced by $13,273. This reduces Mr Ridgway’s weekly expenses to around $112,957 annually. Mr Ridgway also owns a [Vehicle] with club plates which he values at $13,500.[29]
[27] B8 of Mr Ridgway’s submissions.
[28] B8 of Mr Ridgway’s submissions.
[29] B4 of Mr Ridgway’s submissions.
Mr Ridgway currently has assets which include the family home, he values his share at $450,000. In accordance with the interim court orders made on 23 January 2023 Mr Ridgway said the investment property was sold and the balance of the funds being $171,538.19 remain in the trust account of the conveyancer awaiting the final court orders for the property settlement between himself and Ms Ridgway.[30] Also in accordance with the court orders, Ms Ridgway currently remains in the former family home. As the financial settlement has not been finalised it is unclear what the final outcome will be in relation to the family home and other joint assets owned by Ms Ridgway and Mr Ridgway.
[30] A159 of Ms Ridgway’s submissions.
Mr Ridgway has $282,182 in [Private sector] superannuation and $582,432 in the [Public sector superannuation] which is a defined benefit. Mr Ridgway said he has not contributed any additional funds to superannuation.
Mr Ridgway said his costs of self support are higher because he has to pay rent while Ms Ridgway currently remains in the former family home, the home loan has been repaid and she incurs limited expenses in terms of her accommodation when compared with his. The Tribunal notes Mr Ridgway is currently paying $460 weekly in rent, which recently increased, this is a cost annually $23,920. The self-support costs for 2023 are set at $27,508 which includes the cost of rent. The Tribunal does not conclude that Mr Ridgway’s self-support costs were out of the ordinary and no changes were made.
Mr Ridgway said his SOFC was an accurate reflection of his current financial circumstances. Mr Ridgway indicates higher weekly expenses than his current income and as he has some small savings of around $10,000 it is likely he is currently supplementing his income with his savings.[31]
[31] B4 of Mr Ridgway’s submissions.
Mr Ridgway said he does not have a legal duty to support anyone else.
Mr Ridgway said that he disagreed with the decision of the objections officer in including school fees because he has now paid his share of those fees.

Ms Ridgway’s income, property and financial resources and earning capacity

Ms Ridgway is currently receiving disability benefits from her [Public sector superannuation]. Ms Ridgway indicated on her SOFC that her average income is $1,600 weekly and her weekly expenses are $1,313.[32] Ms Ridgway said she has been in receipt of disability benefits from 2012.
[32] A1 and A8 of Ms Ridgway’s submissions.
Mr Ridgway said Ms Ridgway was running a [Service provider]’s business, [Business name], which he said was run from a small shed at the entrance to the property where the family home is, and she is paid in cash. Mr Ridgway said Ms Ridgway’s mother lives in a granny flat on the property of the family home, there is currently a caveat taken out on the property by Ms Ridgway’s mother to protect her interests. Mr Ridgway said Ms Ridgway’s mother provides money to Ms Ridgway and assists with the cost of feed for the horses. Ms Ridgway denied this.
Ms Ridgway said she no longer runs the [business] following their separation because she has not had time to do this. Neither parent was able to provide evidence that Ms Ridgway was receiving additional cash in hand.
Ms Ridgway indicates her share of the joint property to be $722,451 which includes her share of the family home and the investment property.[33] The value of the property has reduced following the sale of the investment property. Ms Ridgway indicates liabilities of $146,849 which was her share of the home loan for the investment property which has now been sold.[34] Ms Ridgway has a personal loan of $53,897.[35] Ms Ridgway was vague about the details of the personal loan, but said it was a personal loan to support another person. Ms Ridgway said she is currently also supporting someone else but did not provide details about this to the Tribunal. Ms Ridgway confirmed that she does not have a legal duty to support this person.
[33] A5 of Ms Ridgway’s submissions.
[34] A5 of Ms Ridgway’s submissions.
[35] A6 of Ms Ridgway’s submissions.
Ms Ridgway receives a small amount of family tax benefit fortnightly.[36] Her other assets include her [Public sector] superannuation which has a balance of $607,795.[37] Ms Ridgway said she has made additional contributions to her superannuation. Ms Ridgway indicates savings of about $4,000.[38]
[36] A3 of Ms Ridgway’s submissions.
[37] A5 of Ms Ridgway’s submissions.
[38] A4 of Ms Ridgway’s submissions.
Ms Ridgway indicates average weekly expenses of $1,313 which are not out of the ordinary. She indicates holiday spending of $112 weekly which she said was money she would like to save towards going on a holiday but has been unable to save this money, this amount is not a weekly expense.[39]
[39] A8 of Ms Ridgway’s submissions.
Ms Ridgway indicates there is an education fund for [the child] and currently there are funds available to contribute to [the child]’s education.[40] There was no further information before the Tribunal in relation to this fund. The Tribunal assumes these matters will be worked out in the final settlement between the parents. Both parents indicate other assets which are likely to form part of the property settlement.[41]
[40] A9 of Ms Ridgway’s submissions.
[41] A9 of Ms Ridgway’s submissions and B9 of Mr Ridgway’s submissions.
Ms Ridgway said she does not have a legal duty to support anyone else.

Conclusion

The Tribunal concludes that it would be just and equitable to make a departure determination from the administrative assessment, and as noted above, Mr Ridgway should contribute to half of the costs in relation to [the child]’s special needs following separation as Ms Ridgway has been solely funding these costs.[42] The Tribunal has determined that the expenses in relation to [the child]’s special needs are those set out in the Table in paragraph 29 of these Reasons. The Tribunal is also satisfied that Mr Ridgway’s income from full-time employment has reduced since relocating his full-time work back to Australia. Accordingly, the Tribunal makes a departure determination which varies the administrative assessment in place as follows:
· For the period 1 July 2023 to 30 June 2024 Mr Ridgway’s ATI is set at $133,936.
· For the period 1 July 2023 to 30 June 2024 the annual rate of child support payable by Mr Ridgway will increase by $1,815 to reflect Mr Ridgway’s contribution towards [the child]’s special needs.
[42] The Tribunal has excluded the costs in relation to [the child]’s chiropractic appointments as these are not an on-going special need.
The Tribunal has carefully considered the written and oral evidence and costs regarding the child’s proper needs provided in this matter. The income, resources, benefits and assets together with the commitments and liabilities of both parties were also scrutinised to determine the above departure determination.

Would there be resulting hardship from a departure from the administrative assessment?

The decision of the Tribunal varies the objections officer’s decision by changing the departure period to include Mr Ridgway assisting with half of the costs for [the child]’s special needs for counselling, medication and physiotherapy. Extending the departure period to 30 June 2024 also gives Ms Ridgway some certainty in having the costs of [the child]’s special needs shared between both parents.
The decision of the Tribunal also sets Mr Ridgway’s income at the rate it will be going forward from 1 July 2023, which is a fairer assessment for Mr Ridgway because his income from full-time employment has changed. The departure determination has also removed the costs of the school fees and associated costs because Mr Ridgway is meeting these expenses in accordance with the interim court orders and has done so from 7 June 2022 (see Appendix 2).

Is it otherwise proper to make a particular departure determination?

The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Assessment Act. Subsection 117(5) of the Assessment Act sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination. Subsection 117(5) focuses on the balance of support carried between the parents on the one hand and the taxpayer on the other. It is appropriate for children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Assessment Act means that the Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the child may be affected by the level of child support. The Tribunal has concluded that it is otherwise proper in the circumstances to depart from the administrative assessment.
The Tribunal notes that it is open to either party to lodge further change of assessment applications should future circumstances of either party change significantly from the circumstances upon which this decision is based.

DECISION

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

· Mr Ridgway’s income for the purposes of child support for the period 1 July 2023 to 30 June 2024 is varied to $133,936.
· Mr Ridgway’s child support for the period 1 July 2023 to 30 June 2024 is increased by $1,815.

Date	Appointment	Total cost	Actual amount paid by Ms Ridgway	Page
15/9/2021	[Dr C]	$280
12/11/2021	PT	$148	A48 / 712
25/11/2021	PT	$90	A50 / 711
20/12/2021	PT	$90	A49
12/1/2022	PT	$90	A51 / 710
14/2/2022	PT	$90	A52 / 709
21/3/2022	PT	$90	A53 / 708
27/4/2022	[Dr C]	$180	A41
27 May 2022 commencement of child support assessment
[Physiotherapy provider]
20/6/2022	PT	$93	$51	A54 / 707
6/7/2022	PT	$93	$93	A55 /706
15/7/2022	PT	$84	$84	705
21/7/2022	PT	$84	$84	A56
1/8/2022	PT	$84	$84	A57 /704
15/8/2022	PT	$84	$84	A58 / 534 /703
15/9/2022	PT	$93	$93	A59 /702
10/10/2022	PT	$84	$84	A60/701 discharged on 11/10/2022 - 713
1/9/2022	Chiro	$105	$105	533
15/9/2022	Chiro	$65	$65	549
24/11/2022	Chiro	$65	$65	680
12/10/2022	[Dr B]	$280	$211.10	A220.
Total	$868.10 (this excludes $235 for chiro)

Appendix 1:

Date	Payment of school fees by Ms Ridgway	Payment of school fees by Mr Ridgway *	Page
7/6/2022	$936.58	60
14/6/2022	$975.08	283
14/6/2022	$38.50	286
5/9/2022	$1,214	531
19/9/2022	$1,214	532
3/10/2022	$1,214	550
31/10/2022	$1,214	A120
2/11/2022	$1,214	$2,700	B24
14/11/2022	$1,214	A121/669
28/11/2022	$1,214	A122
2 March – 8 June 2023	$4,760	A85-A86
6/3/2023	$1,382.45	B26
17/4/2023	$500	B28
18/4/2023	$668.20	B29
16/5/2023	$1,038.19	B31
15/6/2023	$1,037.44	B33
7/6/2023	$936.58	B22
14/6/2023	$975.08	B23
24/7/2023	$1,065.95	B36
3/8/2023	$62.26	B34
Total	$13,258	$12,316.67

Appendix 2:

Evidence of payment of school fees and ancillary costs:

*Mr Ridgway’s payments includes school fees and ancillary costs.

[2023] AATA 3307

31 August 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Costs

Judicial Review

2022/2023 financial year from 27 May 2022 to 30 June 2023	2023/2024 financial year including estimated remaining cost
Physiotherapy	$51	$606
Counselling	$320	$1,600[15]
Paediatrician	$422.20[16]
Medication	$84.40	$1,000
Total	$455.40	$3,628.20[17]