Toczek and Thierry (Child support)

The Administrative Appeals Tribunal (AAT) reviewed a child support assessment concerning a 15-year-old child. The mother had applied for a change of assessment, arguing that the costs associated with the child's special needs significantly affected the cost of maintaining him. The Child Support Registrar had previously decided that no grounds for departure from the administrative assessment were established, and an objection by the mother was also disallowed. The mother subsequently applied to the AAT for a review of these decisions.

The primary legal issue before the AAT was whether a ground existed to depart from the administrative child support assessment, specifically under subparagraph 117(2)(b)(ia) of the *Child Support (Assessment) Act 1989*. This provision allows for departure if, in the special circumstances of the case, the costs of maintaining the child are significantly affected due to the child's special needs. The AAT was required to determine if the costs claimed by the mother for orthodontic work, speech therapy, tutoring, and psychiatric assessments constituted "special needs" and if these costs "significantly affected" the overall cost of maintaining the child.

The AAT considered the definition of "special needs" as encompassing a wide range of necessary or desirable needs beyond the normal needs of a child, and "significantly affected" by reference to the parents' income and the child support rate. The tribunal found that dental costs were not significant enough to warrant departure. While orthodontic work was identified as a potential special need, the mother had not yet incurred these costs and had not provided evidence of the clinical basis for the treatment. Regarding the child's specific learning disorder (SLD), the AAT accepted the diagnoses from two clinicians and found that the child met the criteria for SLD. The tribunal considered out-of-pocket expenses for occupational therapy and psychiatric assessments totalling $465.00 and $259.70 respectively, incurred between July 2019 and February 2020, to be costs associated with the child's special needs that should be taken into account. However, speech therapy costs were not considered as they had not yet been incurred.

The AAT set aside the previous decisions and substituted its own. It determined that a ground for departure was established due to the costs associated with the child's special needs, specifically the occupational therapy and psychiatric assessment expenses. The tribunal then varied Mr Thierry’s adjusted taxable income to $136,000 from 2 December 2019 to 4 October 2023, and ordered that the decision be backdated to the date of the mother's application for a change of assessment.