Wilshere and Wilshere (Child support)

[2021] AATA 469

Wilshere and Wilshere (Child support) [2021] AATA 469 (7 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019734

APPLICANT:  Mr Wilshere

OTHER PARTIES:  Child Support Registrar

Ms Wilshere

TRIBUNAL:Member J Leonard

DECISION DATE:  7 January 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment by:

• increasing the annual rate of child support payable by Mr Wilshere by $3,767 from 1 January 2020 to 31 December 2020;

• increasing the annual rate of child support payable by Mr Wilshere by $5,132 from 1 January 2021 to 31 December 2021; and

• increasing the annual rate of child support payable by Mr Wilshere by 50% of the total cost of the compulsory tuition fees and building levy for [Child 1’s] attendance at [School 1] for each subsequent calendar year until [Child 1] completes her secondary school education or a terminating event happens in relation to [Child 1], whichever is earlier.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of education – whether educated in manner expected by both parents – costs of special needs – whether child’s talent amounts to special need – 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

1. Ms Wilshere and Mr Wilshere are the parents of [Child 2], born 2006, and [Child 1], born 2008 (the children).

2. There has been a child support assessment for this case since 17 May 2016.

3. In the period 1 December 2019 to 30 June 2020 Mr Wilshere was liable to pay child support of $22,816 per annum based in his 2018/19 taxable income of $127,259 and Ms Wilshere’s reconciled estimate of $87,681. The children are assessed as being in the full-time care of Ms Wilshere.

4. On 19 December 2019, Ms Wilshere applied for a change of assessment on the basis that the costs of maintaining [Child 2] are significantly affected by her special needs and because there are extra costs in educating [Child 2] and [Child 1] in the manner intended by both parents.

5. On 23 April 2020, a delegate of the Child Support Registrar made the following decision:

   ·     For the period 1 January 2020 to 31 December 2020, the annual rate of child support payable by Mr Wilshere was to be increased by $7,298; and

   ·     For the period 1 January 2021 to 31 December 2021 the annual rate of child support payable by Mr Wilshere was to be increased by $8,222.

6. Mr Wilshere lodged an objection to decision on 11 May 2020. On 1 August 2020, an objections officer disallowed Mr Wilshere’s objection.

7. On 25 August 2020, Mr Wilshere applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of the objections officer’s decision.

8. A hearing was conducted on 7 January 2021. Ms Wilshere and Mr Wilshere gave evidence by telephone. The Tribunal also had before it papers provided by the Services Australia (346 pages).

9. Prior to the hearing, Mr Wilshere and Ms Wilshere provided additional material (A1 to A9 and B1 to B116), copies of which were provided to all parties.

ISSUES

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under the Child Support (Assessment) Act 1989 (the Assessment Act). The formula used to calculate the rate takes into account factors such as the number of children, the levels of care provided and the income of each parent.

2. Under section 98B of the Assessment Act, a liable parent or a carer receiving child support can apply to the Child Support Registrar for a determination to depart from the administrative assessment. This is known as a change of assessment.

3. Under section 98C of the Assessment Act, the Child Support Registrar may change the assessment if the case meets the following three criteria:

   · There is a ground to depart from the assessment (subsection 117(2) of the Assessment Act lists those grounds);

   ·     It is “just and equitable” to make particular changes to the assessment; and

   ·     It is “otherwise proper” to make those changes to the assessment.

4. To make a decision on Mr Wilshere’s application for review, the Tribunal considered whether the case meets these three criteria.

CONSIDERATION

Issue 1: Is there a ground to depart from the administrative assessment?

14.Subparagraph 117(2)(b)(ia) of the Assessment Act provides a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because of the special needs of the child.

1. The term “special circumstances” is not defined in the Assessment Act. In Gyselman and Gyselman (1992) FLC 92-279 the Full Court of the 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.

16.  The term “special needs” is not defined in the legislation. The Family Court has held that its meaning is not restricted to medical conditions or disabilities but can also include special needs because of physical abilities (see for example, Blamey and Blamey (1995) FLC 92-554).

17.  The special needs costs in question in this case are the costs required for [Child 2] to develop and maintain a talent for dance.

18.  In 2020 [Child 2] was accepted into [grade] at [Specialist School 1] through an application and audition. She is studying towards a [secondary qualification] which is provided by the [Agency 1] while at the same time undertaking a [tertiary qualification] in Dance. [Specialist School 1] also provides other classes including [specified subjects] and training in various styles of dance. In her written submission Ms Wilshere stated in part:

[Specialist School 1] are not expecting to find the perfect dancer in the audition, but one that the Directors recognise has the passion and undeniable talent that can be turned into an elite dancer. With the right training with internationally recognised dance teachers, and vocational training programs, students become ‘Elite’ athletes who compete on the world stage, representing Australia, on Broadway NY, in [named venues] to name a few.

[Specialist School 1] garner great talent and they build upon that raw talent by employing the best teachers who specialise in manifesting the best from each student, so that ultimately, each individual may be marketed to the world stage and internationally recognised as the best of the best in their chosen profession.

19.  Ms Wilshere stated [Child 2] has wanted to dance since she was a young child and is committed to making a career from it. She likened [Child 2’s] passion for dance to that of an elite athlete. [Specialist School 1] has a talent agency that teaches casting techniques and provides casting opportunities for students. [Child 2] trains 25 hours per week.

20.  Ms Wilshere provided a summary of costs associated with [Child 2’s] education and dance for 2020 totalling $20,289. This incorporated $1,832 for [Agency 1], $17,067 for high school fees. $146 uniform purchase, $72 physiotherapist, $960 dance [event] and $220 dancer registration. The dance [event] did not eventuate in 2020. Ms Wilshere estimated the costs in for 2021 will be $24,891.47

21.  Mr Wilshere submitted that [Child 2] cannot be compared to an elite athlete who represents her country. She has drive and talent, but this does not mean that she has special needs.

22.  The Tribunal is satisfied that [Child 2’s] acceptance into [Specialist School 1] shows that she has been identified as having talent and has a passion to be a dancer. [Specialist School 1] seeks to develop the talent and provide guidance towards the young person’s career goals while the person completes their secondary school studies.

23.  There was no evidence before the Tribunal, other than Ms Wilshere’s opinion, that because of [Child 2’s] particular talent, it is desirable for her welfare that she be equipped for and trained in dance so that she can perform at an elite level. 

24.  The Tribunal considered other cases in which the issue of a child’s “special needs”/talents have been considered which involve children who have already been selected to compete at a national or international level, and it is clear that [Child 2] is not at this level, although she may well be in due course.

25.  On balance, the Tribunal was not persuaded that there are special circumstances in this case such that [Child 2’s] skills are of a standard such that her talent for dance amounts to a “special need”. The Tribunal concludes that a ground to depart from the administrative assessment is not established.

1. Ms Wilshere also sought a departure from the administrative assessment on the ground that the cost of educating the children in the manner she and Mr Wilshere expected, significantly affects the cost of the support of the children.

2. The legislative test is detailed in subparagraph 117(2)(b)(ii) of the Assessment Act. The test is whether:

   in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents.

3. Mr Wilshere and Ms Wilshere separated in 2016. The children were enrolled at [School 2] and the costs were shared. Both parents signed the enrolment forms. When [Child 2] was accepted into [Specialist School 1], Ms Wilshere moved to the [named region] and enrolled [Child 1] into [School 1] in 2020; a school previously considered by both parents. 

4. Mr Wilshere stated that there is a court order in place that the children attend [School 2]. He paid half of the school fees and other associated costs while [Child 1] and [Child 2] were enrolled at [School 2].  He did was not consulted when the decision was made to enrol [Child 1] at [School 1] and he does not agree to [Child 2] attending [Specialist School 1] and undertaking her [secondary qualification] through distance education.

5. The Tribunal considered Mr Wilshere’s submissions; however, it was of the view that Mr Wilshere made a commitment to be financially responsible for half of the children’s school fees at [a type] school and the change from [School 2] to [School 1] did not sever that intention in respect of [Child 1]. It is the manner of education, not a particular school, that must be considered.

6. In 2020 [Child 1] was in Year 6. The tuition fee and building fund levy for [Child 1] was $7,534. The relevant assessment at the time reflected that the annual cost of [Child 1] was $17,866. The Tribunal concluded that in the special circumstances of the case, the cost of maintaining [Child 1] is significantly affected because she is being educated in the manner that was expected by her parents. [Child 1] will commence Year 7 in 2021. The tuition fee and building fund levy for [Child 1] will be $10,264. Ms Wilshere stated [Child 1] is happy at [School 1] and she anticipates she will remain at the school through to the end of her secondary education.

7. In respect of [Child 2], Ms Wilshere claims the school fees comprising [Agency 1] ($1,760 in 2020) and “[Specialist School 1] School fees” ($9,945 in 2020) are significant. She submitted [Child 2] is being educated in the manner expected by the parents as [Child 2] is able to complete the same subjects she was studying at [School 2] and has the benefit of two teachers in the onsite classroom to assist her with her education.

8. While [Child 2] is able to complete the same subject selection at [Specialist School 1], the Tribunal finds the mode of delivery, distance education with onsite support, is different to the manner of education she would receive at [School 2] where there were onsite teachers expert in particular subject matters providing face-to-face education each school day. The Tribunal concludes that [Child 2] is not being educated in the manner expected by Mr Wilshere and so there is no basis to departure from the administrative assessment in respect of [Child 2’s] school fees.

9. The Tribunal concludes that there are special circumstances such that the cost of educating [Child 1] in the manner expected by both parents significantly affects the cost of supporting [Child 1] and a ground for departure is established under subparagraph 117(2)(b)(ii) of the Assessment Act.

Issue 2: Is it just and equitable to depart from the administrative assessment?

1. To decide whether it is just and equitable to depart from the administrative assessment, the Tribunal must consider the matters required by subsection 117(4) of the Assessment Act, plus any other matters raised in the change of assessment application.

2. The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the needs of [Child 2] and [Child 1], the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

3. The children have no financial resources of their own. The expenses associated with [Child 2’s] education and dance is detailed above.  [Child 1] also undertakes classes at [Specialist School 1] at a cost of $1,414 in 2020. Ms Wilshere stated that there are costs which arise periodically associated with the girls’ attendance at [two health specialists] and [Child 2] is under the care of [another specialist]. [Child 1] requires prescription glasses every two years. Ms Wilshere has recently increased her level of private health cover to better cover the out-of-pocket expenses. No evidence of the out-of-pocket expenses was provided, but Ms Wilshere estimated it was in the vicinity of $800 to $1,000 per year. The Tribunal was not persuaded on the available evidence that a reason to depart from the administrative assessment was made out on the basis of the periodic health expenses incurred in relation to [Child 2] and [Child 1].

Mr Wilshere

1. Mr Wilshere pays rent of $400 per week. He prepared a Statement of Financial Circumstances in which he stated that he has savings of $7,500. He has no unusual expenses associated with his own self-support. He is employed full-time and he stated that  the decision of the objection’s officer did not result in financial hardship.

2. There is nothing in the evidence to suggest that the self-support amount allowed for in the formula (of approximately $25,000 per annum) is not an appropriate measure of Mr Wilshere’s proper needs. He reported regular household expenses for himself of around $750 per week. The Tribunal is satisfied that Mr Wilshere has the capacity to meet his regular expenses together with his child support liability.

3. Consideration of Mr Wilshere’s evidence showed no indication that he has access to any relevant income, property or financial resources not currently being taken into account in the assessment.

Ms Wilshere

1. Ms Wilshere lives in a home with her partner and the children. The home and the mortgage are in her name.  She prepared a Statement of Financial Circumstances in which she stated she is employed full-time. She estimated her household expenses to be $2,046 per week, which exceeds her weekly income, but acknowledged that her partner contributes approximately $900 per week to household expenses.

2. There is nothing in the evidence to suggest that the self-support amount allowed for by the child support formula (of approximately $25,000 per annum) is not an appropriate measure of Ms Wilshere’s proper needs. Ms Wilshere stated she would be in financial hardship if the child support assessment was based on the administrative assessment. The costs of the children’s activities were always shared between the parents.

3. Consideration of Ms Wilshere’s evidence showed no indication that she has access to any relevant income, property or financial resources not currently being taken into account in the assessment.

Conclusions as to what is just and equitable

1. The Tribunal proposes to increase the annual rate of child support payable by Mr Wilshere by 50% of the costs of [Child 1’s] tuition fees and school building levy in respect of [School 1]. For the period 1 January 2020 to 31 December 2020 the annual rate payable by Mr Wilshere will increase by $3,767. For the period 1 January 2021 to 31 December 2021 the annual rate payable by Mr Wilshere will increase by $5,132.

2. In order to  provide certainty for the parents, the Tribunal proposes to extend this departure determination until a terminating event occurs for [Child 1] providing she remains enrolled at [School 1].

3. The annual rate of child support payable by Mr Wilshere will be approximately $26,500 increasing to approximately $30,100 from 1 January 2021. The proposed departure will not place Mr Wilshere in financial hardship and it will increase the annual rate of child support received by Ms Wilshere to assist her to meet the costs of the children. The Tribunal considers that the proposed departure is consistent with the available evidence and takes into account the circumstances of Mr Wilshere, Ms Wilshere, [Child 2] and [Child 1].

Otherwise proper

1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. Ms Wilshere is not in receipt of government benefits and so the proposed determination will not have any effect on the cost to the community. It is otherwise proper in the circumstances to make the proposed determination.

Conclusion

1. The Tribunal has found a ground to depart from the administrative assessment and has determined that a departure is just and equitable and otherwise proper.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment by:

• increasing the annual rate of child support payable by Mr Wilshere by $3,767 from 1 January 2020 to 31 December 2020;

• increasing the annual rate of child support payable by Mr Wilshere by $5,132 from 1 January 2021 to 31 December 2021; and

• increasing the annual rate of child support payable by Mr Wilshere by 50% of the total cost of the compulsory tuition fees and building levy for [Child 1’s] attendance at [School 1] for each subsequent calendar year until [Child 1] completes her secondary school education or a terminating event happens in relation to [Child 1], whichever is earlier.