Sidell and Sidell (Child support) - [2025] ARTA 1279

Sidell and Sidell (Child support) [2025] ARTA 1279 (2 July 2025)

Applicant: Mr Sidell

Respondent: Child Support Registrar

Other Parties: Ms Sidell

Tribunal Number: 2024/BC028823
Tribunal: General Member R Prasad
Place:Sydney
Date:2 July 2025
Decision:The Tribunal varies the decision under review so that for the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by the father is increased by $9,846.

Statement made on 02 July 2025 at 4:36pm

CATCHWORDS
CHILD SUPPORT – departure determination – costs of education – cost of maintaining the children – school fees reduced as a result of DVA payments – maximum family rate for fees no longer applied after oldest child turned 18 and her school enrolment was separated – apportionment of education costs – available income and resources – expected to contribute to children’s education costs – will not suffer undue hardship by increase of annual rate – decision under review varied

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 Sidell (the father) and Ms Sidell (the mother) are the parents of three children, born [dates], this case was registered with Services Australia – Child Support (Child Support). The oldest child is no longer part of the child support case, and the existing percentages of care in relation to the younger children are that the mother has 69% care and the father has 31% care.
The mother lodged an application to change the child support assessment (the departure application) on 14 April 2024. Prior to the mother’s application, the most recent change of assessment decision was made by the Administrative Appeals Tribunal (the AAT) on 29 June 2023 that:
a.    for the period 1 January 2022 to 31 December 2025, the father’s adjusted taxable income is varied to $190,385;
b.    for the period 1 January 2022 to 31 December 2022, the father’s annual child support liability is increased by $7,400;
c.     for the period 1 January 2023 to 31 December 2023, the father’s annual child support liability is increased by $9,142.
On 19 July 2024, Child Support made a decision in relation to the departure application and determined that:
a.    for the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by the father would be increased by $5,766 to reflect his share of the children's school fees payable to [School 1] (the school);
b.    for the period 1 January 2025 to 31 December 2031 the annual rate of child support payable by the father would be increased by 50% of the children's tuition fees, minus any sibling discount and education allowance payments for the children, under the Veterans’ Children Education Scheme (VCES) administered by the Department of Veterans’ Affairs (the DVA), in each applicable calendar year;
c.     each calendar year, the mother is to provide Child Support with an account statement from the school showing the tuition fees component for each child, as well as the sibling discount. The mother is also to provide Child Support with letters from DVA confirming the VCES education allowance payable for each child during that calendar year. The agency will then calculate the net cost and raise the annual rate payable by the father from 1 January to 31 December in that calendar year by 50% of the net cost. If the mother does not provide the correspondence by 28 February of the calendar year, the annual rate of child support payable by the father will not be increased until the date the correspondence is received.
On 15 August 2024, the mother lodged an objection. An objections officer, on 14 October 2024, allowed the objection in part and varied the earlier decision by determining that for the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by the father would be increased by $9,981 to reflect his share of the children’s school fees payable to the school, with the remainder of the decision to stay the same.
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.
On 7 November 2024, the father sought review of the objection decision by the Tribunal.
A directions hearing was held on 28 April 2025, and directions were issued on 29 April 2025 requiring compliance by 21 May 2025.
The hearing took place on 11 June 2025. The father appeared by MS Teams audio and provided documentation,[1] as did the mother.[2] The Child Support Registrar elected not to be represented at the hearing, but provided documentation.[3]

ISSUES

[1] A1 to A17.

[2] B1 to B34.

[3] T1 to T379. Child Support were requested to resupply T216 to T239, which were a copy of the mother’s business valuation report dated 16 November 2020 (business valuation) as the pages were illegible. At the time of the hearing, the parties did not have these documents, but it was confirmed that they were aware of the business valuation and were able to proceed with the hearing.

The issues before me are:
a. does a ground exist for departure from the administrative assessment of child support; and if so,
b. would it be just and equitable and otherwise proper to make a particular determination.

CONSIDERATION

What does the law say in relation to the departure of administrative assessments?

Section 98C of the Child Support (Assessment) Act 1989 (the Act) provides that a decision to depart from an administrative assessment may be made if each of the following requirements are met:
a.    at least one ground for departure referred in subsection 117(2) of the Act exists;
b.    it would be just and equitable as regards to the child and the parents to the assessment; and
c.     it would otherwise be proper.
Section 117 of the Act provides the matters that must be considered before being satisfied in making an order in relation to a child in the special circumstances of the case. The phrase ‘special circumstances of the case’ is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.[4]
[4] Gyselman and Gyselman [1991] FamCA 93 at [39].
The ground for departure that I have been asked to consider in this matter is commonly known as ‘Reason 3’. Reason 3 is set out in subparagraph 117(2)(b)(ii) which provides that, in the special circumstances of the case, the costs of maintaining a child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by the parents. Once the costs associated with educating, maintaining or training a child in the manner expected by the parents have been calculated, the additional amount must be significant in relation to the assessed costs of the child. If it is not, then the costs of maintaining the child may not be significantly affected and there would be no reason to change the assessment.
In deciding whether a decision is fair, consideration is given to the amount and duration of any proposed change and the factors listed in subsection 117(4) of the Act which are relevant to a particular case. Particular factors may be given more weight depending on the circumstances of the case.
Subsection 117(5) of the Act provides that in determining whether it would be ‘otherwise proper’ to change the assessment, consideration must be given to:
a. the nature of the duty of a parent to maintain a child and, in particular, the fact that it is the parents of a child who have the primary duty to maintain the child; and
b. the effect that any proposed change would have on the child or the receiving parent's entitlement to, or the rate of, an income tested pension, allowance or benefit.

What information has been provided?

I will only address the matters that are pertinent to the issues before me and have not referred to some of the arguments that were made previously by the parties, which are no longer pressed as the understanding of the facts and issues have changed. I will only refer to such information if they assist in understanding the matters before me.
In the departure application, the mother noted that it was the parents’ intention for the children to attend the school, with enrolment forms signed by both parents in 2014. This intention has been accepted by previous decisions including by the AAT in 2023. She provided letters from the DVA dated 8 January 2024 indicating that in relation to the education allowance under the VCES, the middle child received payments of $66.60 per fortnight and the youngest child received an annual payment of $326.40, although the letter also noted this as a fortnightly payment. She subsequently provided an updated DVA letter dated 14 August 2024 that confirmed the youngest child received an education allowance under the VCES at an annual rate of $326.40.
The mother provided a statement from the school showing the fees and charges for the 2024 school year being $14,375 (tuition fees $13,150, outdoor education $1,095, subject levies $130) for the middle child, and $11,045 (tuition fees $10,750, sibling discount $2,150, outdoor education $695, stationery levy $150, extracurricular music $1,600) for the youngest child. She also provided an account history report from the school as well as receipts of payments made.
In her written submissions to the Tribunal, the mother noted that child support payments including school fees for the oldest child ceased to be payable after the child turned 18 on [date], and was therefore no longer included in the child support case. She referred to the father’s documents and conversations with Child Support where he noted that the oldest child was over 18 years old and no longer a child of the assessment, and should be removed from consideration. The school fees provided do not include the oldest child, and only reflect the costs for the younger children, which she has confirmed by cross-referencing with the school’s website. She considered that the objection decision had an error in the calculations and that instead of $9,981, the school fees payable by both parents should be $9,846.
At the hearing, the mother advised that she found out it would be difficult to make an application to continue the child support assessment beyond the oldest child’s 18^th birthday while she was in year 12, and so thought to simplify things with Child Support by separating the oldest child and the younger children at the school. She confirmed that the oldest child’s school fees was covered under the VCES, which is one of the reasons she chose not apply to have her included in the child support assessment after she had turned 18. She considered the objection decision was correct apart from the error noted above, and confirmed that she was happy with an equal split of the school fees rather an apportionment based on income.
The father, in his documents to Child Support, stated that any component of the oldest child’s school fees should be excluded from the administrative assessment and that she qualified for education allowance under the VCES of $11,000 per annum.
The father advised at the hearing, and in his submissions to the Tribunal, that he now understands the mother had split the children’s school enrolment such that the oldest child was considered an individual and the younger children were treated as siblings. By doing so, the maximum family rate for the school fees no longer applied. He stated that he was not consulted about splitting the children’s enrolment. He advised that when his home was affected by floods in 2019 and he had higher costs, he approached the school about removing the children from the school as he was no longer able to pay the school fees. The school removed the father from the children’s enrolment and sent a letter to the mother for her to be solely responsible for the school fees. He did not think it was just and equitable for the mother to make changes to the children’s enrolment as it has become more costly and he has to pay more. He noted that he was not part of the decision-making process and that if the oldest child was under 18 years of age, then the court orders would have applied and he would have to be consulted. As she is over the age of 18, he was not consulted and there have been financial consequences.
The father stated that the 2024 school year is the focus of this review, as it is the last year the oldest child would be in high school, and as she is not part of the child support case, a different fee structure should apply. From the 2025 school year, the school fees will be much simpler as only the younger children are at school and they are both included in the child support case. He asserted that as the oldest child was still at school in 2024, the family maximum tuition fee would normally apply. He considered that the school fees should be calculated on the following basis:
To determine the pro rata amounts for [the younger children] we can look at the schedule of fees for the years that each of the children fall under. For Senior School the tuition fee is $14,100, for Middle School the tuition fee is $13,150 and for Upper Primary the tuition fee is $10,750. This gives a total amount of $38,000.
If we now determine the percentage amount of the total for each of the above years’ tuition fees we can see that for Senior School the percentage is 37.1%, for Middle school the percentage is 34.6% and for Upper Primary the percentage is 28.3%.
If we now apply these percentage weightings to the Family Maximum Tuition Fee we can see that the pro-rata amount for each child is $9,987.32 for [the oldest child], $9,314.32 for [the middle child] and $7,618.36 for [the youngest child].
Adding the amounts for [the younger children] together we get a total of $16,932.00 for the 2024 school year. We must now subtract the Veterans' Childrens’ Education Scheme allowances from this total to determine the net amount payable. For [the middle child] this amount was $67.50 per fortnight (annual amount of $1,755) and the annual amount for [the youngest child] of $326.40 for a total amount of $2.081.40 for the 2024 school year. … The net amount is $14,850.60.
This amount of $14,850.60 should then be split equally between the parents for an amount of $7,425.30.
The father also stated that the 50% split between the parties was fair as his veterans’ pension provided a reduction in the school fees.
The father confirmed that he wished for the Tribunal review to be a simple process and did not seek to raise any other issues. However, the parties were requested to provide information about their financial position in order for the just and equitable considerations to be considered, should a reason to change the administrative assessment be established.
In his statement of financial circumstances, the father indicates he receives a ComSuper disability support payment and a DVA disability compensation payment of $3,581 weekly. He pays tax of $396 and $670 in child support weekly. The total value of his property, comprising of a home, savings, a car and household contents, is $1,108,200. He has a home mortgage of $748,376 and has personal loans totalling $100,155 including for a car loan, solar installation, house maintenance and legal fees. He estimates total household expenditure to be $2,126 each week for himself, the children and his partner. He also noted other expenses when there are special events such as birthdays, Christmas, school holidays and family visits, and estimated the costs to be $110. The father confirmed that his partner does not have any income and he supports her.
In her statement of financial circumstances, the mother indicates she is self-employed as [an Occupation 1], works part time, and her gross weekly salary is about $1,328. She noted the education allowance received for the younger children under the VCES, and that she receives $696 in child support each week. There are two other income earners in her household, including the oldest child and her partner. She has two cars and household contents valued at $48,500, and she has 33% share of her business and 50% share of the trust, but no value was provided. She has $95,140 in superannuation. Her total liabilities, comprising of loans including for legal fees, credit card repayments, and a HECS loan is $344,478. Her personal expenditure, comprising of income tax, credit card payments and health insurance premiums for herself and the children, is $462 weekly. Her and the children’s weekly household expenses were approximately $1,872. The mother advised that the business and trust were not doing well and were not valued much. The business valuation included in the Child Support papers was completed in 2020 during the property settlement and when the business was thriving, and therefore the valuation of $438,377 was not a true reflection of the current value. She noted that the business valuation and was also considered by the AAT in the 2023 decision, and the Tribunal was satisfied her adjusted taxable income was accurately reflected in her tax returns. She also advised that the oldest child was studying at university and working around 12 hours a week, so she is still fully supporting the child, and that while her partner does earn an income, they keep their expenses separate as he has two children of his own to support, with his children living in a different home.

Should the administrative assessment be changed in the special circumstances of the case?

Has a reason to depart from the administrative assessment been established?

The father has sought review of the objection decision as he considers the calculations for the younger children’s school fees to be incorrect, and that a pro rata approach should instead be taken. The mother instead considers Child Support’s approach to be correct although noting there was an error in the calculation.
There is no dispute that the parents intended for the children to attend the school. The oldest child is no longer included in the administrative assessment as she is now over the age of 18 years, however, as she was still in school in 2024, the parties dispute the amount of school fees that were or should be paid.
The information before me indicates that as the oldest child was no longer included in the child support case, the mother separated her from the other children’s enrolment at the school. Her reason for this was to keep the fees relating to the younger children separate which she could provide to Child Support. The father states that he was not consulted before this decision was made, but as he himself has noted, the oldest child is no longer under the age of 18 years and his consent was not required prior to the mother doing this.
I accept the father’s assertions that by separating the oldest child from the other children, such that she was considered to be an individual, has meant that the maximum family rate for the tuition fees no longer applied.
While I accept that by separating the children has resulted in an increase in school fees, the fact is that the younger children’s necessary school fees totalled $21,750 (comprising tuition fees less sibling discount). I note it was not disputed that other components of the school expenses should be included in the administrative assessment, and in any event, I do not consider those to be necessary, significant o otherwise not already included in the administrative assessment.

Having considered both parties’ assertions, I am not satisfied that it would be appropriate to only consider what the school fees should have been if the oldest child was not separated from the other children in the school’s enrolment. I will, however, consider the father’s assertions when I consider the just and equitable considerations.
Accordingly, taking into account the school fees and the education allowance for each of the children, the total amount of school fees paid for the younger children is $19,692 ($21,750 less education allowance ($66.60 × 26 + $326.40)).
Overall, I consider that the ground provided for in subparagraph 117(2)(b)(ii) of the Act, or Reason 3, is established as the children are being educated in a manner expected by the parents, and the education costs can be considered as special, and significantly affect the costs of maintaining the children.
As a reason for changing the assessment has been established, I must now consider whether the proposed decision to change the assessment is both ‘just and equitable’ and ‘otherwise proper’.

Would it be just and equitable to depart from the assessment?

In order to determine whether a departure would be just and equitable, I must consider the factors set out under subsection 117(4) of the Act, as far as they are relevant to this case.
Section 3 of the Act provides that a parent’s duty to maintain their 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. Further, the objects of the Act, among others, are to ensure that the level of a parent’s financial support for a child is determined by their capacity to provide financial support, and that the change of assessment provisions are there to ensure that parents share equitably in the support of their children.[5] In this regard, I note that the father, as well as the mother, should contribute to the costs of raising their children to the extent of their financial capacity.
[5] Paragraph 4(2)(a) and paragraph 114(b) of the Act.
Both parties did not raise any concerns in this regard and the father requested that my review focus on the education costs. I have otherwise considered the relevant factors to determine whether it is just and equitable to depart from the administrative assessment.
There is no evidence that the children have any significant income or resources available to them. I note that I have considered the information in relation to the parents’ income and property provided, and there is nothing to suggest, and it is not in dispute, that each parent’s income, property and financial resources have not been accurately reflected in the administrative assessment, noting the AAT previously had already considered the parents’ income and set the father’s income until the end of 2025.
In relation to the earning capacity of each parent, the father relies on government benefits and the mother works part-time for her business and otherwise relies on child support payments. From the information before me, I am satisfied neither parent has any unused earning capacity.
I note that both parents have advised of their expenses, which include payment of various loans such as for legal fees. However, I do not consider the expenses are necessary that should be considered for the purposes of this review.
I have earlier considered the children’s education costs and am not of the view that it is just and equitable for the mother to bear these costs solely and propose that the father is to contribute to the education costs. In order to determine his level of contribution, I note this would generally be based on each parent’s income and financial resources available, which in this case would be 25% to the mother and 75% to the father. However, the mother has submitted that she is happy for the school fees to be equally shared. I note that I am permitted to find otherwise, and generally consider it to be fair that apportionment is to be based on income. As mentioned earlier, I have considered the father’s assertions that the mother’s decision to separate the oldest child’s enrolment from the other children has had financial consequences with higher school fees being paid. If I had accepted his pro rata calculations, I would have been minded to apportion the education costs based on the parties’ income, which would have meant the father would be required to pay $11,138 ($14,850.60 × 75%) and the mother $3,713 ($14,850.60 × 25%). However, I have earlier determined that it is appropriate to consider the actual necessary school fees paid, and as the costs have increased as a result of the mother’s decision and she has otherwise agreed to pay for half of the costs, I am satisfied that the parents should each pay 50% or $9,846 ($19,692 × 50%). I note that while the school fees have been reduced as a result of the DVA payments the father receives, without such a discount, both parents would have been subject to higher education costs, but in any event, I have not determined the father should pay a higher percentage given his income.
I am satisfied this increase should be applied for the 2024 calendar year, with school fees for future years to be considered in the relevant school years. There was no dispute with the arrangement that the mother provide correspondence to Child Support of the school fees and education allowance paid under the VCES for the relevant year and that she do so by 28 February of that calendar year, otherwise the increase in child support payable in respect of the school fees would only apply from when she provides the relevant correspondence. I consider that this is an appropriate way for the contribution of education costs to be determined for the parties in relation to the younger two children going forward.
I note that in making this determination, I have considered the objects of the Act, and there is no corroborating evidence before me that either parent has a legal duty to support anyone apart from the children and so I am unable to be satisfied that they should not contribute more to maintaining the children.
Overall, the effect of this decision will increase the father’s liability by the apportionment of the education costs. Given the father’s available income and resources, and the fact that he would have expected to contribute to the children’s education costs, I do not consider the father will suffer undue hardship by the increase of the annual rate as determined.
After consideration of all of the factors in subsection 117(4) of the Act, I am satisfied that it is just and equitable to depart from the administrative assessment.

Would it be otherwise proper to depart from the assessment?

I must now consider whether the proposed departure would be proper within the context of the public interest and welfare expenditure by the community. The father is in receipt of disability support payments and disability compensation payments, however he also has a duty to maintain his children. The mother is not in receipt of government benefits and therefore the departure from the administrative assessment is unlikely to have any effect on welfare expenditure.
Overall, I am satisfied that the requirements under subsection 117(5) of the Act are met and that it is otherwise proper to depart from the administrative assessment.

DECISION

The Tribunal varies the decision under review so that for the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by the father is increased by $9,846.

Date of hearing:	11 June 2025
Representative for the Applicant:	Self represented
Representative for the Other party:	Self represented