Saldmann and Taybourne (Child support) - [2025] ARTA 504

Saldmann and Taybourne (Child support) [2025] ARTA 504 (3 March 2025)

Applicant: Miss Saldmann

Respondent: Child Support Registrar

Other Parties: Mr Taybourne

Tribunal Number: 2024/MC028237
Tribunal:General Member M King
Place:Brisbane
Date:3 March 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides:
· For the period 1 November 2023 to 30 June 2024, Mr Taybourne’s adjusted taxable income be varied to $336,745 and Miss Saldmann’s adjusted taxable income be varied to $93,230;
· For the period 1 July 2024 to 31 December 2025, Mr Taybourne’s adjusted taxable income be varied to $412,230 and Miss Saldmann’s adjusted taxable income be varied to $115,597.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – ground for departure – adjusted taxable incomes – director’s loans – high costs of spending time with the child – education costs – 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

Miss Saldmann and Mr Taybourne are the parents of [Child 1], born 2020. From 22 October 2023, Miss Saldmann is recorded as having 86% care of [Child 1], and Mr Taybourne 14% care of [Child 1].
The administrative assessment for the period 1 September 2023 to 26 February 2024 was based on an adjusted taxable income of $189,162 for Mr Taybourne (based on his 2022/23 income) and an adjusted taxable income of $81,661 for Miss Saldmann (based on her 2022/23 income). Mr Taybourne was assessed to pay child support at a rate of $18,854 annum for the period 1 September 2023 to 21 October 2023 and $12,814 per annum for the period 22 October 2023 to 26 February 2024.
The administrative assessment for the period 27 February 2024 to 30 April 2024 was based on an adjusted taxable income of $189,162 for Mr Taybourne (based on his 2022/23 income) and an adjusted taxable income of $100,444 for Miss Saldmann (a reconciled estimate of income). Mr Taybourne was assessed to pay child support at a rate of $11,303 per annum.
The administrative assessment for the period 1 May 2024 to 30 June 2024 was based on an adjusted taxable income of $189,162 for Mr Taybourne (based on his 2022/23 income) and an adjusted taxable income of $193,592 for Miss Saldmann (a reconciled estimate of income). Mr Taybourne was assessed to pay child support at a rate of $6,373 per annum.
The administrative assessment for the period 1 July 2024 to 30 November 2024 was based on an adjusted taxable income of $189,162 for Mr Taybourne (based on his 2022/23 income) and an adjusted taxable income of $81,661 for Miss Saldmann (based on her 2022/23 income). Mr Taybourne was assessed to pay child support at a rate of $12,814 per annum.
On 31 October 2023, Miss Saldmann applied for a departure from the administrative assessment of child support, under Part 6A of the Child Support (Assessment) Act 1989 (the Act).
On 11 January 2024, Mr Taybourne also applied for a departure from the administrative assessment of child support.
On 11 April 2024, the Child Support Registrar (Child Support) made a decision to vary Mr Taybourne’s adjusted taxable income to $350,000 for the period 1 November 2023 to 30 November 2024.
Mr Taybourne objected to the decision. On 14 June 2024, a Child Support objections officer partly allowed the objection and varied Mr Taybourne’s adjusted taxable income to $330,000 for the period 1 November 2023 to 31 October 2024.
On 11 July 2024, Miss Saldmann applied for review of the decision by the Tribunal. The Tribunal hearing was conducted on 7 January 2025. Miss Saldmann and Mr Taybourne attended the hearing by telephone conference and gave sworn evidence. Miss Saldmann’s representative, Ms Jaz Cornish of Cornish Lawyers, also attended the hearing with Miss Saldmann. The Tribunal deferred making a decision to allow both parents to provide additional evidence for the Tribunal to consider.
The Tribunal took into account the relevant documents provided by Child Support to the Tribunal: pages 1 to 957 (the hearing papers), additional evidence provided by Miss Saldmann (marked A1 to A174), additional evidence provided by Mr Taybourne (marked B1 to B667) and additional evidence provided by Child Support (marked C1 to C26).

CONSIDERATION

The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. A formula is used. It takes into account variables including each parent’s adjusted taxable income, the number of children, and the level of care provided by each parent.
Part 6A of the Act allows for a departure from an administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1) of the Act, the Registrar may make such a departure determination if three matters are established:
·      one, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(i));
·      a departure is just and equitable as regards the children and each parent (sub‑subparagraph 98C(1)(b)(ii)(A)); and
·      it is otherwise proper to make a departure decision (sub‑subparagraph 98C(1)(b)(ii)(B)).
Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2).
If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.

Grounds for departure

Income, property and financial resources

Subparagraph 117(2)(c)(ia) – commonly referred to as Reason 8 – provides as a ground for departure:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child: …
(ia) because of the income, property and financial resources of either parent; …
The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. 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”. The Tribunal’s approach to the interpretation and application of the particular grounds in subsection 117(2) must be guided by that qualification.

Mr Taybourne

Ms Cornish told the Tribunal that Miss Saldmann believes Mr Taybourne’s income, as varied by Child Support, is understated. She noted that Mr Taybourne’s payslip, at page B29, records that he received an incentive bonus.
Ms Cornish submitted that bank statements show funds being transferred in and out of Mr Taybourne’s business as director’s loans. She submitted, if they are Division 7A loans, Mr Taybourne will need to return the funds to the business, which would then declare a dividend.
Mr Taybourne told the Tribunal that his 2023/24 income tax return is almost complete. He has provided income statements for 2023/24 showing income of about $327,000 and a reportable fringe benefit amount of $9,000. He said he also had dividend and interest income and he incurred a net rental loss.
At page 439 of the hearing papers is a copy of Mr Taybourne’s 2022/23 income tax return. It records $176,041 from salary and wages; $7,240 reportable superannuation contributions; $4,630 dividends; $383 interest income and a supplementary loss of $30,336. The supplementary loss was comprised of a $38,164 net rental loss; $6,223 capital gains and $1,495 foreign income. Deductions of $6,850 were claimed.
At page B42 is a copy of an income statement from [Employer 1] for the 2023/24 year. The statement records that Mr Taybourne was paid $327,323.66 for that year as well as incurring a reportable fringe benefit amount of $9,422. That would provide for an adjusted taxable income of $336,745 for that year.
Mr Taybourne said he will earn less income this year as he spent his savings on a house deposit. His interest income will therefore be reduced. He said he will still incur a net rental loss this year, which is likely to be higher than last year. He also sold about $100,000 of shares to pay for legal fees, which will incur a net capital gain.
At page B27 are copies of recent payslips for Mr Taybourne from [Employer 1]. The payslips record that, as at 31 October 2024, Mr Taybourne’s year-to-date income was $214,163.74. That included a bonus of $120,000 which Mr Taybourne received in September 2024.
Adding Mr Taybourne’s regular monthly income of $23,580.65 from November 2024 to June 2025 provides for employment income of $402,808.94 for the 2024/25 year.
Mr Taybourne said the director’s loans were made by [Business 1] to him as an offset. The funds are sitting in an offset account to reduce the interest he pays on the loan for his [Town 1] house. He repaid the funds to his company, with interest, as there are tax implications if the funds are not repaid within a year. He has disclosed those loans in his Statement of Financial Circumstances form. He said the company funds were received when he was operating the business. He no longer runs the business.
Mr Taybourne said, when he had to move to Victoria to spend time with [Child 1] in mid‑2021, there was no work for him in Victoria as a career [occupation 1]. He therefore had to look at starting his own business. He formed the company [Business 1] so he could work as a consultant. He worked on a fly-in fly-out basis in the Northern Territory for about 6 months.
He said, as the legal proceedings progressed and his care arrangements for [Child 1] became clearer, he started looking at other jobs so he could show a salary which would allow him to purchase a house in [Town 1]. He said there were significant costs in setting up his business. The business is not currently receiving any income and it has not done so since he commenced his employment. He does not have time to operate the business given his employment, part-time study and care of [Child 1].
At page B82 is a copy of a Profit & Loss Statement for [Business 1] for the period 31 March 2024 to 31 October 2024. The statement records $0 income and $140.43 expenses.
The Tribunal discussed Mr Taybourne’s Statement of Financial Circumstances form, dated 1 August 2024, with him. Mr Taybourne clarified that the car parking cost of $288 per week includes the costs of travelling to spend time with [Child 1]. He said he is currently studying a [Qualification 1] which costs him $90,000 over 3 years. That amount is accounted for as a HELP debt which he is repaying at a rate of $300 per week. He said he pays the cost off in advance, if he can, to reduce the interest he has to pay on the debt.
Ms Cornish submitted that the director’s loan needs to be declared as dividends at some point. If those funds were not provided as a director’s loan to Mr Taybourne, they could have been paid to Mr Taybourne as dividends.
Ms Cornish submitted that Mr Taybourne’s [Town 1] property could be earning income, if it is not his primary residence. Alternatively, his property in New South Wales (NSW) could be earning income. She asked if the company made a profit from selling the car which Mr Taybourne used, which was financed.
Mr Taybourne said he bought the car from the company in a genuine transaction. The company did not make a profit from the sale of that asset. As the company was not earning any income, it could not pay for the car.
The Tribunal finds that Mr Taybourne’s 2023/24 adjusted taxable income for child support purposes should comprise his $327,323 wages and $9,422 reportable fringe benefit amount. The Tribunal will disregard any dividend and interest income as that would be offset by any work-related deductions Mr Taybourne could claim. Any net rental loss is disregarded for child support purposes.
His 2023/24 adjusted taxable income for child support purposes is therefore fairly reflected by an income of $336,745.
The Tribunal finds that Mr Taybourne’s 2024/25 adjusted taxable income for child support purposes should comprise his likely wages of $402,808. The Tribunal will assume Mr Taybourne will also incur a similar reportable fringe benefit amount to what he incurred in 2023/24.
The Tribunal will again disregard any dividend and interest income as that would be offset by any work-related deductions Mr Taybourne could claim. Any net rental loss is disregarded for child support purposes.
His 2024/25 adjusted taxable income for child support purposes is therefore fairly reflected by an income of $412,230.
The Tribunal is satisfied that Mr Taybourne has not received any net benefit from [Business 1] for the 2023/24 or 2024/25 years. He did move funds between his company and personal accounts but the Tribunal is satisfied those funds were returned.
Mr Taybourne was assessed on an income of $189,162 in the administrative assessment from 1 September 2023.
The Tribunal is satisfied that Mr Taybourne’s income constitutes special circumstances which make the administrative assessment unjust and inequitable.

Just and equitable and otherwise proper: general observations

The requirement to consider whether a departure would be just and equitable and otherwise proper directs attention to what is fair to the parents, their children and the community. A decision maker must have regard to a variety of factors such as the needs of the children, the parents’ commitments, any hardship that would be caused by departing or not departing from the formula, and the effect on any income-tested benefits: subsections 117(4) to (9). Parents rather than the community have the primary duty to maintain a child: paragraph 117(5)(a). It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits: paragraph 117(5)(b). Relevantly, this requires consideration of the effect on either parent’s entitlement to FTB Part A, which is subject to a maintenance income test.
A decision maker must bear in mind the duties of parents and the objects of the Act, set out in sections 3, 4 and 114. These include:
·      The duty of a parent to maintain his or her child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person that the parent has a duty to maintain.
·      The level of support should be determined in accordance with the costs of the children, and according to the parents’ capacity to provide.
·      Parents should share equitably in the support of the child, and the child should have his or her proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents.

Would departure from the formula assessment be just and equitable?

The Tribunal has found there is a ground to depart from the administrative assessment. The Tribunal must also consider, pursuant to subsection 117(4) of the Act, whether it would be just and equitable to make a particular order. The Tribunal has considered the matters set out in subsections 117(4) and (6) to (8). The Tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application.

Mr Taybourne

Mr Taybourne’s financial circumstances have been discussed above.

Miss Saldmann

Miss Saldmann told the Tribunal said she works 3 days per week. She is hoping to purchase a house and will use her saved funds to do so.
The Tribunal discussed Miss Saldmann’s Statement of Financial Circumstances form, dated 20 August 2024, with her. Miss Saldmann confirmed her Centrelink income is from family tax benefits. She said she has broken the maturity of her term deposit to release the funds early to pay for legal fees and other expenses.
Mr Taybourne noted Miss Saldmann did not submit three consecutive payslips as directed. He also said there were some bank statements missing from the evidence Miss Saldmann provided. Mr Taybourne believes Miss Saldmann had modified some of the bank statements she provided.
Mr Taybourne submitted that Miss Saldmann significantly inflated her living expenses. He said her bank statements do not show the payment of any rent to her mother. He believes Miss Saldmann is being heavily support financially by her mother. He believes Miss Saldmann is currently living with her mother as the house she has been living in, which was her grandmother’s house, has been sold.
Miss Saldmann told the Tribunal her living expenses are not inflated. She said she does not have [a specified financial institution] account, as Mr Taybourne suggested.
At page A34 is a copy of Miss Saldmann’s 2023/24 income tax return. The return records income of $53,896 from [Employer 2] for the period 1 July 2023 to 26 February 2024 and $13,454 from [Employer 3] for the period 19 April 2024 to 30 June 2024; $4,483 income from parenting payment for the period 29 February 2024 to 16 May 2024; $19,354 interest income; $3,557 deductions; and $5,600 reportable superannuation contributions.
At page A82 are copies of recent payslips for Miss Saldmann from [Employer 3]. The payslips record Miss Saldmann’s income as $3,552.63 per fortnight, which equates to about $92,000 per annum. The payslips also record a salary sacrifice deduction of $300 per fortnight, which equates to $7,800 per annum.
The Tribunal finds that Miss Saldmann’s 2023/24 adjusted taxable income for child support purposes is fairly reflected by her adjusted taxable income of $93,230 in her 2023/24 income tax return.
The Tribunal finds that Miss Saldmann’s 2024/25 adjusted taxable income for child support purposes should include $92,000 wages and $7,800 in salary sacrifice deductions. The Tribunal will also assume that Miss Saldmann will receive similar interest income and claim similar deductions as she did in 2023/24.
Her 2024/25 adjusted taxable income for child support purposes is therefore fairly reflected by an income of $115,597.

[Child 1]

There is no evidence that [Child 1] has any income or financial resources which should affect the rate of child support payable.

Mr Taybourne’s costs of spending time with [Child 1]

Mr Taybourne provided a summary of his costs of spending time with [Child 1] at page 510 of the hearing papers. He said his care of [Child 1] has been in accordance with the court order made [in] September 2023. He clarified that from, 14 June 2024 to 1 January 2025, he had care of [Child 1] from Tuesday morning to Wednesday afternoon every fourth week. From 1 January 2025, he has had care of [Child 1] every second Tuesday night and Friday through to Sunday in the same week.
Mr Taybourne said he moved back to NSW in March 2024. He purchased the property at [Town 1], in Victoria, at the same time. He said he works in NSW, and his family is in NSW, so he only travels to Victoria to see [Child 1]. He said Miss Saldmann confirmed this in a record at page 754 of the hearing papers.
He flies from either [City 1] or [City 2] to Melbourne and return. He said he predominantly flies out of [City 1], as he goes straight from work. It depends on what part of his work roster he is in. He keeps a car at the airport in Melbourne as he needs a car seat in the car for [Child 1]. He leaves his car at the airport in [City 1] or [City 2] when he flies to Melbourne. He said it is not possible for him to fly out of Avalon airport given his work roster.

Mr Taybourne said he lives in a camp whilst he is at work, as the mine site is very remote. When he travels straight from work to Melbourne, he would otherwise travel home if he was not going to see [Child 1].
He said he chose to buy the property in [Town 1] as it was in the best interests of [Child 1]. He said, as his time with [Child 1] increases in the future, he wants [Child 1] to feel comfortable in the house.
Mr Taybourne said he understands that his accommodation costs cannot be considered from the date he started having regular care of [Child 1]. He accepts that, given that, any change made to the assessment under this ground is likely to be small.
Mr Taybourne said he has never worked in Victoria. He attended university in Melbourne for 12 months. He said he will need to move permanently to Victoria when his care of [Child 1] increases. Until that time, he is living where he works and his family lives.
Miss Saldmann said, whilst the parents were living in [Town 2], the decision was made that she would return to Victoria with [Child 1].
She suggested that Mr Taybourne may have use of a company car, which is subsidised, and he has many frequent flyer points which he may have used to pay for flights.
Ms Cornish submitted that Mr Taybourne’s primary residence is in [Town 1]. Therefore, the costs of travelling from there to NSW are related to his employment and not to spending time with [Child 1]. She said the court order was made on the basis of Mr Taybourne living in Victoria and it would not be fair for Miss Saldmann to be financially disadvantaged because Mr Taybourne moved to NSW.
Ms Cornish submitted that, in each fortnight, Mr Taybourne works at a remote site for 8 days. He then travels to [Town 1] for 6 days. He then returns to his remote site to work for 5 days and he then has 2 days off. She said Miss Saldmann does not know where he spends those 2 days. He then spends 4 days working at the remote site before travelling to [Town 1]. He therefore only has limited time he could spend at his home in NSW. In each 4 weeks, he spends 17 days working and 9 days in [Town 1].
Ms Cornish said Miss Saldmann accepts that Mr Taybourne has relocated to NSW but she believes that was done with a view to reducing the child support payable by him.
Mr Taybourne said his payslips record that he pays $10,000 per annum for the use of a company car. He does not use frequent flyer points and that is shown in the evidence provided by him.
The Tribunal considered whether Mr Taybourne has high costs of spending time with [Child 1].
Under subsection 117(2B) of the Act, a parent’s costs are high if during the child support period they total more than 5% of the parent’s adjusted taxable income for the child support period.
Subsection 117(2C) of the Act provides that, if a parent has at least regular care of a child, the only costs that can be taken into account are costs related to travel to enable the parent to spend time with, or communicate with, the child.
In this case, the relevant child support periods are 1 September 2023 to 31 October 2024 and 1 November 2024 to 31 January 2026.
Based on the Tribunal’s findings regarding the income to be used for Mr Taybourne, for the child support period 1 September 2023 to 31 October 2024, an income of $418,030 will be used for Mr Taybourne. Five per cent of that income is $20,901.50.
Therefore, to be considered high, Mr Taybourne’s costs of spending time with [Child 1] would have to be at least $20,901.50 during the period 1 September 2023 to 31 October 2024.
From 1 September 2023 to 21 October 2023, all of Mr Taybourne’s costs of spending time with [Child 1] can be considered. From 22 October 2023 (when Mr Taybourne commenced having regular care of [Child 1]), it is only his costs of travel to spend time with [Child 1] which can be considered.
From page B206, Mr Taybourne has provided copies of flight bookings and itineraries. The total cost of the flights for the period 1 September 2023 to 31 October 2024 is $20,126.75.
The Tribunal accepts that Mr Taybourne also incurred costs of parking a vehicle at [City 1] and Melbourne airports. However, whilst the cost of driving to and from an airport could be considered a cost of travel, the Tribunal does not consider parking costs are cost of travel. Therefore, parking costs can only be considered for the period 1 September 2023 to 21 October 2023.
Similarly, the cost of Mr Taybourne buying and maintaining a home in [Town 1] is not a cost of travel.
The Tribunal finds that the relevant costs of Mr Taybourne spending time with [Child 1] equated to almost 5% of the income which will be used for him in the assessments for the child support period 1 September 2023 to 31 October 2024.
The Tribunal further finds that it would not be just and equitable to make any change to the administrative assessment on the basis of those costs which Mr Taybourne incurs. Whilst the costs totalled about 5% of Mr Taybourne’s income, the Tribunal is not satisfied the costs met or exceeded the 5% threshold. The Tribunal is also not satisfied that the costs will be at least 5% of Mr Taybourne’s income for the child support period commencing 1 November 2024.
The Tribunal also accepts that, at the time the court order regarding the care arrangements for [Child 1] was made, Mr Taybourne was living in Victoria. It was Mr Taybourne who moved to NSW and therefore created the need to incur additional costs to meet his care obligations pursuant to the court order. It would therefore not be fair for Miss Saldmann and [Child 1] to receive less financial support for [Child 1] because of Mr Taybourne’s decision in that regard.

Education costs for [Child 1]

Ms Cornish told the Tribunal that Miss Saldmann is seeking a contribution of 50% from Mr Taybourne in relation to [Child 1’s] fees at [College 1].
Miss Saldmann said that, as part of court proceedings, Mr Taybourne agreed to [Child 1] attending [College 1]. He then refused to sign the enrolment documents.
She said, in September 2023, a notation was made on the court orders that Miss Saldmann would be responsible for the fees at [College 1]. However, she did not realise that was to be forever. Mr Taybourne was represented by Senior Counsel in those proceedings.
Ms Cornish submitted that Mr Taybourne clearly has the funds to assist with meeting [Child 1’s] fees at [College 1].
Mr Taybourne told the Tribunal that at no stage did he intend to send [Child 1] to a private school. Miss Saldmann applied for [Child 1] to attend [College 1]. She informed him of that some months later and she offered to pay the fees, if he was not willing to do so. He told her he would accept her offer to pay the fees.
He said that remained unresolved until the parents’ final court hearing in September 2023. He said, during that hearing, Miss Saldmann under oath said she would be willing to pay the fees. That was recorded in the notation to the court order.
Mr Taybourne said the following day Miss Saldmann called Child Support and advised that Mr Taybourne was not contributing to [Child 1’s] school fees.
Ms Cornish submitted that it would be fair for Mr Taybourne to contribute to [Child 1’s] fees. She said it was definitely both parents’ intention that [Child 1] would attend [College 1].
Ms Cornish submitted that, in an affidavit of 20 September 2023, Mr Taybourne deposed that his concern with committing to contributing to the fees was that the parents had not discussed [Child 1’s] schooling beyond kindergarten. He said, if he committed to paying kindergarten fees, that may be interpreted as agreeing to pay for later schooling. He felt he was unable to do that as his financial circumstances would likely change and he may not be able to afford to continue to pay private school fees.
Ms Cornish submitted that indicates that Mr Taybourne was prepared to contribute to the [College 1] fees if he had the financial capacity to do so. She submitted that he does have the capacity to pay half of the [College 1] fees.
Miss Saldmann said, prior to Mr Taybourne signing the enrolment documents for [Child 1], he went quiet and she wanted to lock in [Child 1’s] place at [College 1]. When the court date came, she felt very pressured as she wanted to lock in [Child 1’s] place. She felt the only way Mr Taybourne would agree to sign [Child 1’s] enrolment was by her agreeing to include the notation to the court order. She said she did not have the time to consider the consequences on the day.
She said Mr Taybourne and his family attend events at [College 1] and [Child 1] is thriving at the school. She said she envisaged that Mr Taybourne would contribute to the fees in the future.
Miss Saldmann confirmed that [Child 1] attended 3-year-old kindergarten in 2024.
Mr Taybourne said he is willing to contribute to private school fees. However, he does not trust Miss Saldmann, so he would only do so by way of a binding agreement.
He said Miss Saldmann said in her email of 16 June 2023, in her court affidavit and in her change of assessment application, that she would pay the fees at [College 1]. His understanding of the effect of the notation to the court order was that he could contribute what he was willing to contribute to the [College 1] fees.
He said he does not see the need for a child to attend a private kindergarten or primary school.
Miss Saldmann confirmed that the signed enrolment for [Child 1] allows her to continue school at [College 1] until Year 12. A new enrolment is not required.
Ms Cornish submitted that a binding agreement was not raised by Mr Taybourne at the parents’ court proceedings.
At page 246 of the hearing papers is a copy of a court order made [in] September 2023. The orders provide that Mr Taybourne will sign the enrolment form for [Child 1] at [College 1], to commence in 2024. There is a notation to the court order which states that Mr Taybourne’s agreement to this does not indicate his agreement to pay for same. Miss Saldmann agrees to be responsible for the fees.
At page B2 is a copy of an email from Miss Saldmann to Mr Taybourne, dated 16 June 2023. In the email Miss Saldmann advises Mr Taybourne that [Child 1] has been offered a 3‑year‑old kindergarten place at [College 1]. [Child 1] will then continue onto school at [College 1]. Miss Saldmann asked Mr Taybourne if he would contribute to the cost and stated, if he would not, she would cover the cost.
The Tribunal is satisfied that, in attending [College 1], [Child 1] is being educated in a manner expected by both parents. A court order was made [in] September 2023 that Mr Taybourne would sign the enrolment forms for [Child 1] at [College 1]. It therefore seems clear that, at least from that time, both parents must have expected that is the school [Child 1] would attend.
However, the Tribunal is also satisfied it would not be fair to vary the assessment to have Mr Taybourne contribute to the school costs through the child support assessment. It is clear that, at the time the court ordered Mr Taybourne to sign the enrolment documents for [College 1], Miss Saldmann agreed to be responsible for paying the costs. That is borne out by the wording of the notation to the court order.
Given it was Miss Saldmann who initially raised the possibility of [Child 1] attending [College 1], the matter had to be settled by a court order and, at that time, Miss Saldmann agreed to pay the school costs, the Tribunal finds it would not be fair to move any of that financial burden onto Mr Taybourne by increasing the administrative assessment of child support.
Whilst Mr Taybourne told the Tribunal he would consider contributing to [Child 1’s] school costs as part of a binding agreement, that is for Mr Taybourne, Miss Saldmann and their legal representatives to discuss.

Further consideration

Using incomes of $336,745 for Mr Taybourne and $93,230 for Miss Saldmann would provide for Mr Taybourne to pay child support at rates of about $20,404 per annum for the period 1 July 2023 to 31 August 2023; $20,757 per annum for the period 1 September 2023 to 21 October 2023; and $14,716 per annum for the period 22 October 2023 to 30 June 2024.
Using incomes of $412,230 for Mr Taybourne and $115,597 for Miss Saldmann would provide for Mr Taybourne to pay child support at rates of about $14,439 per annum from 1 July 2024 to 31 October 2024 and $14,975 per annum from 1 November 2024.
The Tribunal finds it would be fair to commence the departure decision from 1 November 2023, which is about when Miss Saldmann lodged her change of assessment application.
The effect of such a decision will be to increase the child support liability, and therefore the child support arrears owed by Mr Taybourne, by about $800 for the period 1 November 2023 to 31 January 2025. The Tribunal notes that, as at 17 December 2024, Mr Taybourne owed child support arrears of $317.
The Tribunal is satisfied such an outcome is just and equitable.
To provide some certainty for the parents, the Tribunal will continue its decision until 31 December 2025. If either parent’s income or circumstances change significantly during that period, either parent can make a further departure application with Child Support to have the changed circumstances considered.

Is a departure otherwise proper?

In considering whether a departure is otherwise proper, the Tribunal must take into account subsection 117(5) of the Act, which provides as follows:
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
The child support law recognises that each parent has a primary duty to maintain their child. For the reasons outlined above, the Tribunal is satisfied it is appropriate to depart from the administrative assessment.
The Tribunal is satisfied the decision appropriately reflects both parents’ capacities to support [Child 1] during the departure period and the decision is otherwise proper.

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

For the period 1 November 2023 to 30 June 2024, Mr Taybourne’s adjusted taxable income be varied to $336,745 and Miss Saldmann’s adjusted taxable income be varied to $93,230;
For the period 1 July 2024 to 31 December 2025, Mr Taybourne’s adjusted taxable income be varied to $412,230 and Miss Saldmann’s adjusted taxable income be varied to $115,597.

Date of hearing:	Tuesday 7 January 2025
Representative for the Applicant:	Ms Jaz Cornish of Cornish Lawyers