Salah and Morden (Child support) - [2025] ARTA 254

Salah and Morden (Child support) [2025] ARTA 254 (14 February 2025)

Applicant/s: Mr Salah

Respondent: Child Support Registrar

Other Parties: Ms Morden
Tribunal Number: 2024/SC027756
Tribunal: Senior Member J Longo
Place:Melbourne
Date:14 February 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
·For the period 1 January 2023 to 31 December 2025, Mr Salah’s adjusted taxable income is varied to $100,000 per annum.
·For the period 1 January 2024 to 31 December 2025, the annual rate of child support payable by Mr Salah is increased by $1,865 per annum for [Child 2]’s orthodontic costs.
·For the period 1 July 2024 to 31 December 2025, the annual rate of child support payable by Mr Salah is increased by $1,200 per annum for [the children’s] counselling costs.
·For the period 1 January 2023 to 31 August 2023, Ms Morden’s adjusted taxable income is varied to $110,407 per annum.

CATCHWORDS
CHILD SUPPORT – departure from the administrative assessment – adjusted taxable income – income, property or financial resources – father’s earning capacity and use of corporate structures – previous contract work through partner’s corporate entity and current part-time work because of caring responsibilities – loan agreement between father and partner – property settlement – mother’s expenses – costs of maintaining children – orthodontic treatment and counselling – education at private school or special entry public school – decision under review set aside and sent back with directions

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

Mr Salah and Ms Morden are the separated parents of [Child 1] (born 2008) and [Child 2] (born 2012). According to Services Australia – Child Support (Child Support), the child support assessment was registered on 21 January 2016 and Child Support has been responsible for the collection of child support since registration. The children are recorded as being in the primary care of Ms Morden and regular care of Mr Salah.
The most recent administrative assessment, prior to the current application for this departure determination, was as follows:
· For the period 1 November 2022 to 31 August 2023 Mr Salah was assessed to pay $5,496 per annum, based on a 2021-22 adjusted taxable income of $70,627 for Mr Salah and a 2021-22 adjusted taxable income of $75,532 for Ms Morden.
· For the period 1 September 2023 to 30 November 2024 Mr Salah was assessed to pay $3,802 per annum, based on a 2022-23 adjusted taxable income of $74,033 for Mr Salah and a 2022-23 adjusted taxable income of $110,407 for Ms Morden.
On 31 January 2023, Ms Morden applied to Child Support for a departure from the administrative assessment on the basis that, in the special circumstances of the case, it was unfair because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 254
Decision Date: 14 February 2025

CaseChat Overview and Summary

This decision concerns a review of a child support departure determination made by the Child Support Registrar (Registrar). Mr Salah, the father of two children, applied to the Administrative Appeals Tribunal (Tribunal) for a review of the Registrar’s decision. The Tribunal determined that a departure from the administrative assessment of child support should be made. It set aside the Registrar’s decision and made a departure determination in its place. The Tribunal varied Mr Salah’s adjusted taxable income from 1 January 2023 to 31 December 2025. It also increased the annual rate of child support payable by Mr Salah for the children’s orthodontic and counselling costs for specified periods.

The Registrar’s decision had departed from the administrative assessment of child support on the basis of the special circumstances of the case. Ms Morden, the mother of the children, had applied for a departure from the administrative assessment on the basis of special needs of the children and income, property or financial resources of one or both parents. The Registrar had determined Mr Salah’s adjusted taxable income and the annual rate of child support payable by Mr Salah for the specified periods.

The Tribunal found that a ground for departure from the administrative assessment was established on the basis of special needs of the children. The Tribunal found that [Child 2]’s orthodontic treatment was necessary and for a functional purpose. It was a special need which, in the special circumstances of this matter, was a cost of Ms Morden that significantly affected the cost of maintaining the children. The Tribunal also found that the costs of [Child 2]’s orthodontic treatment were $9,860 in total. The Tribunal further found that the children’s psychology treatment were a special need which, in the special circumstances of this matter, were costs of Ms Morden that significantly affected the cost of maintaining the children. The Tribunal found that the out of pocket cost of [Child 2]’s orthodontics was $7,960 and the out of pocket cost of the counselling was $2,400 per annum for both children.

The Tribunal found that a ground for departure from the administrative assessment was not established on the basis of [Child 2]’s education costs. The Tribunal was not satisfied that the children are being educated in the manner that is expected by both parents. As the Tribunal had already determined that there was a ground to depart from the administrative assessment based on the considerations above, it had not considered the school costs for [Child 2] to attend [School 1].

The Tribunal considered whether it was just and equitable to make a particular departure determination from the administrative assessment of child support. It found that there was little on which the parents could agree. The Tribunal considered the duties of parents and the objects of the Assessment Act. It also considered the needs of the children, the parents’ assets, liabilities, income and commitments, and any hardship that would be caused by departing or not departing from the formula. It considered Mr Salah’s income, property and financial resources and Ms Morden’s income, property and financial resources.

The Tribunal considered Mr Salah’s earning capacity in the context of determining whether it was just and equitable to make a departure determination. It found that Mr Salah was working part-time, 3 days per week, for [Employer]. It found that his working hours were below full-time work and that this was justified by his caring responsibilities for the children. The Tribunal found that the change in Mr Salah’s working pattern was not for the purpose of affecting the administrative assessment of child support.

The Tribunal found that it was just and equitable to make a departure determination from the administrative assessment of child support. It determined that Mr Salah’s adjusted taxable income was varied to $100,000 per annum for the period 1 January 2023 to 31 December 2025. It also determined that the annual rate of child support payable by Mr Salah was increased by $1,865 per annum for [Child 2]’s orthodontic costs for the period 1 January 2024 to 31 December 2025 and by $1,200 per annum for [the children’s] counselling costs for the period 1 July 2024 to 31 December 2025. The Tribunal determined that Ms Morden’s adjusted taxable income was varied to $110,407 per annum for the period 1 January 2023 to 31 August 2023.

The Tribunal found that it was otherwise proper to make a particular departure determination from the administrative assessment of child support. It considered whether any departure determination, or failure to make a departure determination, would cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support. It found that the above determination was reflective of Mr Salah’s capacity to pay based on the Tribunal’s assessment of his current circumstances and his personal and household expenses. The Tribunal found that Mr Salah’s expenses were less than his income and allowed him to meet the additional expenses of the children without causing hardship in meeting his necessary commitments for self-support. The Tribunal found that the needs of the children should have priority. It found that the above determination would not cause hardship.

Orders