CHILD SUPPORT - annual rate of child support payable - departure application - income, property and financial benefits available - private school fees - costs of special needs - ground to depart from the administrative assessment of child support - fair, just and equitable - delay in lodging a change of assessment application due to history of domestic violence - increasing arrears would cause hardship - discretionary spending - departure determination - 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.

1. Mr Ogilvy and Ms Larner are the separated parents of [Child A] and [Child B]. According to the records of Services Australia - Child Support (Child Support), the child support assessment was registered on 1 May 2019. Child Support have been responsible for the collection of child support from Mr Ogilvy from the outset. Ms Larner was initially attributed with the sole care of both children. Since 20 June 2024, the care attributed to Mr Ogilvy in respect of the children is 14% and the care attributed to Ms Larner is 86%.
2. The child support assessment is generally calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation uses the adjusted taxable income (ATI), based on the incomes recorded by each parent in their most recently completed income tax returns, as lodged with the Australian Taxation Office (ATO) or an estimated ATI accepted by Child Support. It is open to either parent to lodge a change of assessment or departure application to depart from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. According to Child Support, Ms Larner lodged such a departure application on 28 August 2024.
3. The departure application was on the basis that in the special circumstances of the case, the administrative assessment produced an unfair outcome because the overall costs of maintaining the children are significantly affected due to their special needs (Reason 2), because the overall costs of maintaining the children are significantly affected because they are being educated in the manner expected by both parents (Reason 3), and because of the earning capacity, income, property and financial resources of the parents (Reason 8).
4. At that time, the administrative assessment was based on the 2022/23 ATI of Mr Ogilvy and Ms Larner of $43,548 and $43,043 respectively. The resulting annual rate of child support payable by Mr Ogilvy to Ms Larner in respect of [Child A] and [Child B] was $2,030. This assessment followed a series of child support assessments since commencement of the child support case whereby Mr Ogilvy was assessed to pay child support at the minimum annual rate of between $435 and $493, until his 2022/23 provisional income was reconciled with his 2022/23 ATI in July 2024 and applied to the child support assessment from 1 November 2023. The annual rate of child support payable by Mr Ogilvy for the child support period commencing on 1 November 2023 was $3,850.
5. On 30 October 2024, a delegate of the child support registrar decided not to depart from the administrative assessment having found that there were no grounds established to justify doing so.
6. On 31 January 2025, Ms Larner lodged a request for an extension of time to lodge an objection to the decision of 30 October 2024. The request was subsequently granted and on 18 March 2025 an objections officer decided to allow the objection and found that a ground was established in relation to the income, property and financial benefits available to Mr Ogilvy (Reason 8). The decision was to vary the ATI of Mr Ogilvy to $81,000 for the period 1 February 2025 to 31 May 2027.
7. Mr Ogilvy lodged an application to this Tribunal on 21 March 2025, requesting an independent review of Child Support's decision. The directions hearing was conducted by telephone with Mr Ogilvy and Ms Larner on 9 December 2025. Following this hearing, directions were made to both parties requiring them to provide further information and documents by 2 January 2026. Both parties substantially complied with the directions.
8. The hearing was held on 20 January 2026. Mr Ogilvy participated by conference telephone and gave oral evidence on affirmation. Ms Larner also participated by conference telephone and gave oral evidence to the Tribunal on affirmation. Ms Larner was represented by Ms [A] of [Legal service 1]. The Tribunal considered information in the documents provided by Child Support in accordance with the Administrative Review Tribunal Act 2024 numbered 1 to 281, documents lodged by Mr Ogilvy numbered A1 to A339, documents lodged by Ms Larner numbered B1 to B96 and documents from Centrelink numbered C1 to C7. The parties confirmed receipt of all documents. The Tribunal also received oral evidence on affirmation from [Mr Ogilvy Snr], who participated in the hearing as a witness.

1. When calculation of the rate of child support is based on the usual administrative formula it also takes into account, relevantly, factors such as the number of children, the level of care provided, the costs of the children, the costs of self-support of each parent and the income of each parent. Section 98C of the Act allows for a decision maker to depart from the usual manner of calculating the rate of child support payable by one parent to the other parent for a child after considering the following issues:
   • whether a ground exists to depart from the administrative assessment; and if so
   • whether any proposed departure is fair to Mr Ogilvy, Ms Larner, [Child A] and [Child B]; and if so
   • whether any proposed departure is fair to the public.

Issue 1 - Does a ground exist to depart from the administrative assessment?

1. The grounds for departure are set out in subsection 117(2) of the Act. Each ground is prefaced by the words 'in the special circumstances of the case'. The meaning of this expression is not defined in the Act. However, the Tribunal was guided by the courts, which have concluded that the expression relates to the facts peculiar to each case such that those facts are 'out of the ordinary' and set the case apart from the usual case (Gyselman and Gyselman [1991] FamCA 93; (1992) FLC 92-279 (Gyselman) and Philippe and Philippe (1978) FLC 90-433).
2. Ms [A] submitted that the true nature of Mr Ogilvy's financial circumstances was not reflected in the child support administrative assessment. She further submitted that it would also be just, equitable and otherwise proper to depart from the administrative assessment because of the extra costs incurred by Ms Larner in respect of private school fees and the special needs of [Child B].
3. Ms Larner clarified that she wanted the Tribunal to consider the special needs of [Child B] and [Child A] and reiterated that she considers Mr Ogilvy has access to additional financial resources that are not recorded in his tax return. She further stated that his expenditure on the children when they are in his care every fortnight is not consistent with the level of income declared on his tax return.
4. Mr Ogilvy submitted that he did not consider Child Support's decision to be fair because the assumptions in relation to his income and assets are incorrect.

Reason 8A - the income, property and financial resources of each parent

1. Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, use of the administrative assessment would result in an unfair level of child support payable by Mr Ogilvy because of the available income, property and financial resources available to either parent. The Act goes on to state in subsection 117(7A) that the decision-maker must have regard to "the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of the parent that do not produce, but are capable of producing, income" and disregard "the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child".
2. Both parties are employed on the basis of being regular PAYG employees, Ms Larner is also in receipt of various Centrelink payments. Her circumstances are transparent and not complicated. While Mr Ogilvy maintains that his wages are all reflected in his payslips and tax returns, as he is employed in the family [business], it is appropriate that Mr Ogilvy's circumstances be examined to determine whether he receives any additional benefits and/or financial resources from the family business that may not be recorded on his annual tax return.
3. As discussed with the parties, the role of the Tribunal is not to conduct a forensic audit (Podmore & Pillai [2011] FMCAfam 952 and Frost and Frost [2011] FMCAfam 1311). Rather, it is to determine from the available evidence before it the financial resources available to the parties for child support purposes, such that a fair decision can be made in respect of the child support liability.
4. Mr Ogilvy gave oral evidence that he had previously been employed working [at Location 1] with [Employer 1] for around 18 months prior to May 2023. He then immediately commenced his role as [an Occupation 1] with [Business 1] (the family company). He is employed on a casual basis. Mr Ogilvy Snr told the Tribunal that there is no work on Fridays so [Occupation 1 is] Monday to Thursday nights only. Mr Ogilvy works two shifts each of those days amounting to 7.5 hours per day or 30 hours per week at the casual rate of $35 per hour.
5. Mr Ogilvy explained that sometimes work isn't available, [details deleted].
6. Mr Ogilvy's 2022/23 tax return was before the Tribunal and recorded an ATI of $43,548, which included combined gross wages and allowances from [Employer 1] and the family company of $43,210 and jobseeker payments of $5,132. Information from Centrelink confirmed that Mr Ogilvy was in receipt of jobseeker payments from 14 February 2023 to 17 July 2023. From commencement at the family company on 14 May 2023 to 30 June 2023, Mr Ogilvy received gross wages of $6,300.
7. Other than a motor vehicle deduction in the amount of $3,744, the other expenses claimed were unremarkable. In response to a question from the Tribunal, Mr Ogilvy stated that he uses [Vehicle 1] to get to work and home again. As this is not a generally acceptable tax deduction, the Tribunal finds it appropriate to add it back for child support purposes.
8. Mr Ogilvy's 2023/24 tax return was before the Tribunal and recorded an ATI of $50,539, which included gross wages and allowances from the family company of $54,530 (representing almost 52 weeks) and jobseeker payments of $1,309. Again, other than a motor vehicle deduction in the amount of $4,250, the other expenses claimed were unremarkable.
9. Mr Ogilvy's 2024/25 tax return was before the Tribunal and recorded an ATI of $40,750 which included gross wages and allowances from the family company of $50,400 (representing 48 weeks). The motor vehicle deduction in the amount of $3,660.80 was duplicated. The other expenses claimed were unremarkable. Mr Ogilvy told the Tribunal that 2025 was a bad year with many interruptions to the [business], which meant his working hours were reduced.
10. Mr Ogilvy confirmed that the [Vehicle 1] he drives is registered in the name of the family company. He further stated that he pays the weekly fuel costs in the amount of around $100. Mr Ogilvy Snr confirmed that his son pays the fuel costs while the family company pays the registration ($632) and insurance ($1,000) and the services and repairs are done internally. He further stated that the vehicle is not under finance, having purchased it outright in 2019.
11. In Costa & Fairbank (SSAT Appeal) [2010] FMCAfam 39, the Court said about the interpretation of the term "financial resources":

'Financial resource' refers to 'something which is not property but from which financial benefit is or may be gained. In light of the objects of the Act, the term should be broadly defined and would refer to any financial benefit that would enhance the capacity of parents to provide a proper level of financial support for their children.

1. It is clear that Mr Ogilvy receives a benefit through private use of [Vehicle 1], the registration and insurance costs of $1,632 from pre-tax dollars being fully met by the family company. As an employee where travel between home and work is not deductible, the Tribunal considers his private use to be 100%. The Tribunal calculates the grossed-up value of the benefit at the tax rate of 32.5 cents in 2022/23 and 2023/24 to be $2,162 and at the tax rate of 30 cents in 2024/25 to be $2,122.
2. In response to a question from the Tribunal, Mr Ogilvy Snr confirmed that while the family company pays child support for Mr Ogilvy, it is paid directly from Mr Ogilvy's after- tax wages. Therefore, his gross wages as recorded on his tax returns include the child support paid out by the family company. The Tribunal was satisfied that this was so, as evidenced on the payslips and [bank] statements of Mr Ogilvy.
3. Mr Ogilvy Snr told the Tribunal that his son has had a hard life, self-inflicted through drugs. However, he has now turned his life around. He wants him to stand on his own two feet and he ensures that he works for everything he gets, telling the Tribunal that the family company provides no additional income or financial benefit to Mr Ogilvy other than [Vehicle 1], to enable him to get to and from work.
4. The [bank] accounts of Mr Ogilvy indicated numerous debit and credit transactions to and from Coinspot. The Coinspot statements for 2023, 2024 and 2025 were before the Tribunal. It was evident that the total buys and sells corresponded closely on each statement. This aligns with the oral evidence of Mr Ogilvy that he uses it like another bank account to move funds into to avoid subscriptions like Netflix accessing funds in his [account]. Based on the evidence before it, the Tribunal is satisfied that Coinspot has provided little if no financial resource to Mr Ogilvy.
5. It was evident from the [bank] statements that Mr Ogilvy has received financial assistance from his mother throughout 2024 and 2025 of around $8,000. It is also evident that he repaid in excess of $6,000 in mid-2025. As discussed at hearing, there is no legal duty on Mr Ogilvy's mother to provide him with financial assistance. It appears to be on an ad hoc basis, the last transfer being in mid-2025. In such circumstances the Tribunal does not consider it appropriate to increase the ATI of Mr Ogilvy on the basis of the assistance from his mother, albeit it is a consideration in the examination of his overall financial circumstances.
6. Mr Ogilvy gave oral evidence that he has received financial resources through the sale of various items such as a buggy, a child's motor bike, go kart and a Ute canopy. Other items such as an amplifier, television and Makita angle grinder were also evident in the [bank] statements in 2024 and 2025. Based on the oral and written evidence, the Tribunal estimated the sale proceeds to be around $5,000 or $2,500 per annum in each of 2024 and 2025. He further stated that there are no further items that he intends to sell. As the sales proceeds received are available as a financial resource to Mr Ogilvy to spend as he wishes, the Tribunal considers it appropriate that they be a part of the ATI of Mr Ogilvy.
7. The Tribunal is satisfied that ATIs recorded on the tax returns submitted by Mr Ogilvy do not provide an accurate reflection of his income, benefits and financial resources due to the sale of goods, motor vehicle expenses claimed and the benefit received through provision of [Vehicle 1] from the family company. Therefore, the Tribunal finds that the income, benefits and financial resources available to Mr Ogilvy are more accurately reflected in an ATI as set out in the table below.

1. According to his Statement of Financial Circumstances, Mr Ogilvy has very few assets other than some household contents and a jet ski totalling $5,000, noting his own motor vehicle does not operate and requires an engine replacement. Other than child support arrears, his only other liability is Fines Victoria in the amount of $9,098. He is yet to finalise a payment arrangement with Fines Victoria. The Tribunal is satisfied that Mr Ogilvy has a negligible asset base.
2. The Tribunal accepts the oral evidence of Mr Ogilvy that his Cbus superannuation account has a current balance of around $28,529. The Tribunal is satisfied that no personal contributions have been made by Mr Ogilvy in the relevant period and the superannuation guarantee contributions made by the family company are at the required rate of 12%.
3. The courts have made it clear that in assessing whether a ground is established in respect of Reason 8, a change in income is not necessarily sufficient consideration. The Tribunal must also consider the person's commitments to be met by that income before being in a position to determine whether or not the resulting child support liability is fair (Ross & McDermott [1998] FamCA 134).
4. Mr Ogilvy gave oral evidence that he resides in a rented property and shares it with his children for two nights every alternate weekend, paying $250 per week. In respect of his overall commitments, according to his Statement of Financial Circumstances, after adjusting the food costs for the children to weekly, the total average weekly costs in respect of the household total $880, annualising to $45,760. It is noteworthy that this amount includes discretionary expenses of at least $40 per week. The bank accounts of Mr Ogilvy record spending on Sportsbet, Netflix, Minecraft, Google and the like. According to his payslips, Mr Ogilvy incurs income tax of approximately $159 per week. This assumes a regular weekly income of $1,050, as was the case in 2023/24.
5. Mr Ogilvy told the Tribunal that he is generally in good physical health, as are the children. The Tribunal observed that it appeared Mr Ogilvy has been able to meet his necessary and discretionary expenses without accumulating debt. The Tribunal noted the financial assistance he has received from his mother and that the majority of it has since been repaid in the last year. Based on Mr Ogilvy's estimates of his average weekly expenses and the Tribunal's findings above in respect of his available financial resources, it appears that he has the capacity to meet his commitments and those of the household, albeit with little buffer.
6. In response to a question from the Tribunal, Mr Ogilvy stated that he expects little change in his circumstances over the next few years and is hopeful that there will be fewer work interruptions this year. Based on his payslip at 16 November 2025, it was evident that his year-to-date wages of $13,650 are less than expected for regular 30-hour weeks since 1 July 2020 of around $21,000. This supports the interruptions indicated by Mr Ogilvy throughout 2025.
7. The Tribunal accepts that the income, benefits and financial resources of Mr Ogilvy have reduced in the latter half of 2025. Assuming work conditions resume to normal in 2026 the income, benefits and financial resources of Mr Ogilvy in 2025/26 will likely be less than in 2024/25. However, 2026/27 should see his income, benefits and financial resources increase again.
8. Ms Larner told the Tribunal that she has worked as [an Occupation 2] [for Employer 2] for the last six years. She is employed on a permanent part-time basis for four days per week.
9. Ms Larner's 2022/23 tax return was before the Tribunal and recorded an ATI of $43,043, which included gross wages and allowances of $30,692, interest earned of $25 and parenting payment (single) pension payments (PPS) of $14,332. Information from Centrelink confirmed that Ms Larner has been in receipt of PPS throughout the entire relevant period. She confirmed to the Tribunal that she is required to report her earnings on a fortnightly basis and her PPS payments increase or decrease accordingly. The deductions were unremarkable.
10. Ms Larner's 2023/24 tax return was before the Tribunal and recorded an ATI of $48,129, which included gross wages and allowances of $34,618, interest earned of $27 and PPS payments of $14,438. The deductions were unremarkable.
11. Ms Larner's 2024/25 tax return was before the Tribunal and recorded an ATI of $53,131, which included gross wages and allowances of $43,911. Ms Larner gave oral evidence that about 18 months ago she commenced a second job as [an Occupation 3] on a casual basis to help her make ends meet. Her shifts vary across alternate Saturdays and a Thursday (her day off from [Employer 2]). Other income consisted of interest earned of $46 and PPS payments of $11,189. The deductions were unremarkable.
12. It is noteworthy that Ms Larner's 2024/25 tax return has not yet been applied by child support. Rather, from 1 December 2025 a derived ATI of $11,189 is used in the administrative assessment, resulting in an inflated annual rate of child support payable by Mr Ogilvy. The administrative assessment will be adjusted and backdated upon advice from the ATO of her 2024/25 ATI and the corresponding child support liability will then apply.
13. Ms Larner is also in receipt of family tax benefit (FTB) Part A and FTB Part B for the children. Centrelink information records her current fortnightly combined FTB payment in the amount of $413. The Tribunal notes that for child support purposes, as FTB is an income-tested benefit, it is not considered to be a part of her ATI (subparagraph 117(7)(b)(ii) of the Act). Furthermore, FTB is not defined as a tax-free benefit under section 5 of the Act to be included in ATI (paragraph 43(1)(e) of the Act).
14. As discussed at hearing, while Ms Larner is in receipt of carer allowance (CA) in respect of [Child B], CA is a non-taxable payment and is not included in the list of tax-free benefits to be included in the calculation of ATI as defined in section 5 of the Act. Accordingly, CA payments received by Ms Larner are not considered to be a part of her ATI for child support purposes.
15. Ms Larner gave oral evidence that, going forward, she does not expect any significant change in her circumstances. The Tribunal is satisfied that the annual tax returns as lodged by Ms Larner with the ATO provide an accurate reflection of her available income from all sources and will likely continue to do so.
16. The Tribunal accepts the written and oral evidence of Ms Larner, that the contributions to her [superannuation] fund have consisted only of employer contributions in accordance with the superannuation guarantee regulations and that no personal contributions have been made in the relevant period.
17. The Tribunal considered the assets and liabilities of Ms Larner. According to her Statement of Financial Circumstances, her assets consist of bank balances of around $2,500, household contents of $20,000 and a motor vehicle valued at $20,000. In addition, Ms Larner is paying off a loan from her grandmother in respect of the motor vehicle, the amount outstanding is currently around $8,000. She further stated that she has an Afterpay debt of around $484. Therefore, the Tribunal calculates the net asset base of Ms Larner to approximate $34,000, noting that the liquid assets are negligible.
18. Ms Larner gave oral evidence that she resides in a rented property and shares it with her children for 86% of the time. According to her Statement of Financial Circumstances the total average weekly costs in respect of the household total $1,400, including $175 for rent. This annualises to $72,800. It is noteworthy that this amount also includes discretionary expenses in respect of entertainment, holidays, gifts of more than $150 per week.
19. Ms Larner told the Tribunal that she is generally in good physical health, as are the children. The Tribunal observed that based on the income sources available to Ms Larner from her employment, Centrelink PPS, FTB and CA and child support, it appeared that she was able to meet her necessary and discretionary expenses without accumulating debt, albeit not without careful budgeting. Ms Larner agreed.
20. The Tribunal notes that given Ms Larner has majority care of the children, that variations in her income due to timing would need to be fairly significant before impacting on the child support liability, the same would apply to any adjustments to her costs of self-support.
21. Based on the administrative assessment, the total child support liability payable by Mr Ogilvy in the period 28 February 2023 to 30 November 2025 is around $6,800. Based on the estimated ATIs of Mr Ogilvy as set out in paragraph 31 above and the ATIs of Ms Larner used in the administrative assessment, the child support payable by Mr Ogilvy approximates $13,700. If the ATIs of Ms Larner are replaced with the current year ATI in each period, the child support payable by Mr Ogilvy approximates $13,300. He has been well under-stated in the administrative assessment.
22. The Tribunal notes that the under-assessment in relation to Mr Ogilvy is largely attributable to the period prior to the change in care decision which impacted the assessment from 25 June 2024. The corresponding discrepancy approximates $6,500. Mr Ogilvy had been assessed to pay child support at the minimum annual rate of $459 per annum until 31 October 2023 and had done so since commencement of the child support assessment in 2019.
23. Therefore, the Tribunal finds that special circumstances do exist in this case, in that the administrative assessment results in an unfair outcome. As such, the Tribunal is satisfied that a ground for departure is established in relation to subparagraph 117(2)(c)(ia) of the Act.
24. As the Tribunal is satisfied that one of the grounds before it is established, it has not gone on to consider whether the other grounds under Reason 2 and Reason 3 are also established as a separate ground. The relevant issues will be dealt with in detail below under the "just and equitable" criteria.

Issue 2 - Is it fair or 'just and equitable' in relation to Mr Ogilvy, Ms Larner and the children to make a particular departure determination?

1. As the Tribunal is satisfied that there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is fair as regards the parents and the children to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the Tribunal to have regard to a range of factors, including but not limited to those set out in subsections 117(4) and (6) to (8) of the Act, such as 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. The Tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application (Gyselman).

1. Section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain (Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250). In this case Mr Ogilvy and Ms Larner have the primary duty to financially support [Child A] and [Child B] and that contributing to their costs should take priority over all other costs other than their "necessary" costs of self-support.
2. In determining the proper needs of the child, subsection 117(6) of the Act also requires the Tribunal to have regard to the manner in which the parents expected the child to be cared for, educated and trained as well as a consideration of any special needs of the child.
3. Special needs of a child must generally involve a cost that is additional to the normal needs that are expected to be met from the child support assessment. The Tribunal considers general practitioner visits that would be expected with a child, regular dental checkups and other one-off consultations would be included in those needs expected to be met from the child support assessment.
4. In relation to special needs, Ms Larner provided a letter from Dr [A] of [Medical clinic 1], dated 17 December 2025. Dr [A] stated that [Child B] has been diagnosed with major depressive disorder (MDD), autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). Ms Larner gave oral evidence that much of his treatment is covered under NDIS. According to the Medicare statement provided, it is evident that the majority of the costs for [Child B] have been bulk-billed. Ms Larner told the Tribunal that the paediatrician costs are now also bulk-billed. Her out-of-pocket costs are limited to ongoing prescription medication of around $92 per annum and paediatrician visits in 2023 totalling $220.
5. In respect of [Child A], while no medical letter was available, Ms Larner stated that she has also been diagnosed with ADHD and suffers from anxiety. According to the Medicare statement the majority of her consultations are also bulk billed, with the exception of audiology in 2023 and 2025 recording out-of-pocket costs totalling $150, paediatrician consultations in 2024 and 2025 recording out-of-pocket costs totalling $320 and psychologist consultations in 2025 recording out-of-pocket costs totalling $243. Ms Larner told the Tribunal that the paediatrician costs are now also bulk billed and she gave oral evidence that [Child A] has a Mental Health Plan to assist with psychology costs, resulting in out-of-pocket costs of $39.75 per visit over 10 visits. This essentially covers one year of visits for [Child A], being around $398.
6. [Child A's] prescription medication equates to $15.40 per month, or $185 per annum. Noting that all other consultation costs are bulk billed, The Tribunal estimated the annual out-of-pocket costs for [Child A] going forward in relation to prescriptions and psychology to be $583.
7. [Child A] and [Child B] attend [School A] and are currently in [year levels] respectively. It was undisputed that the children were being educated in the manner expected by the parents.
8. The statements from [School A] for the 2023, 2024 and 2025 calendar years were before the Tribunal. As discussed at hearing, the Tribunal considers that costs in respect of excursions, stationery and co-curricular activities are equivalent to similar types of costs required to be met in government schools and as such do not create special circumstances. It was also evident that Ms Larner received considerable assistance in relation to these costs through specific grants.
9. Ms Larner explained that the Chromebook laptop for [Child A] in 2025 cost $597 and [Child B] also requires one for the current year. As discussed at hearing, such costs are generally only considered when seen to be in addition to the normal needs of a child that are expected to be met from the child support assessment. At 5.2.23 of the Guide, it suggests that costs of computer requirements may be considered where they are significantly higher than would be incurred at a public state school. The Tribunal made the observation that the cost of $597 does not appear to be much different to those incurred in a public school. Ms Larner replied that in [Suburb 1] the public primary school provides laptops for the children to use at school. Mr Ogilvy disagreed that this was so. The Tribunal is not satisfied that the computer costs are significantly higher than those incurred in a public school, noting that in cases where there is provision of a laptop by the school there is generally a technology levy that applies.
10. The Tribunal considered the tuition fees in each of the relevant calendar years. After application of a healthcare card reduction by the school in each year that included meeting the capital levy in full, the out-of-pocket cost to Ms Larner for tuition fees amounted to $520 per annum.
11. The Tribunal then considered whether, in the special circumstances of the case, the costs incurred by Ms Larner in respect of the children's special needs and their education at [School A], significantly affected the costs of maintaining them. The term 'significantly affected' is not defined in the Act. In the case of Potter & Burbage (SSAT Appeal) [2010] FMCAfam 1009, Riethmuller FM stated that when considering whether the costs of maintaining the child are "significantly affected", it is necessary to take into account not only the rate of child support but also the income of the parents.
12. The rate of child support is based on the costs of the child, as estimated using the Costs of the Children Table. In the child support period until 31 October 2024, where the administrative assessment used the 2022/23 ATIs of the parents, the costs of the children approximated $7,500 per annum. From 1 November 2024, the 2023/24 ATIs of the parents were used in the administrative assessment and the costs of the children approximated $10,000 per annum. Using the ATIs of the parents as found by the Tribunal in 2024/25, the costs of the children approximate $11,600 per annum.
13. The Tribunal pointed out that Ms Larner is in receipt of CA in the amount of more than $4,000 per annum to assist with the costs of [Child B]. Ms Larner acknowledged that the costs she incurred for [Child B] did not significantly affect the overall costs of the children and the Tribunal concurs.
14. The medical costs incurred for [Child A] were negligible in 2023 and in 2024, however in 2025, the out-of-pocket costs for medical, prescriptions and psychology were $568. These are costs that are in addition to those that are expected to be met by child support. The Tribunal calculates that [Child A's] medical costs approximate 11% of the costs of the child as used in the administrative assessment for [Child A] and approximately 1% of Ms Larner's relevant ATI. Going forward, her annual out-of-pocket costs for psychology and prescriptions of $583 equate to 10% of the costs of [Child A] as used in the administrative assessment and continue to represent around 1% of Ms Larner's relevant ATI. The Tribunal considers that the prescription and psychology costs in 2025 and going forward are special needs which are additional to the normal needs of a child that are expected to be met from the child support assessment.
15. Ms Larner did not break down all of the costs for the children. However, she told the Tribunal that the costs for the children as used in the administrative assessment was reasonable in respect of their normal costs, excluding private school education and special medical needs.
16. Mr Ogilvy has had care of the children for two nights per fortnight since 26 June 2024. He also failed to break down all of the costs of the children.
17. The school fees and capital levy costs for the children represent between 4.5% and 5.5% of the costs of the children in 2024 and 2025 and around 1% of Ms Larner's relevant ATI in each of 2024 and 2025.
18. The Tribunal notes that it is expected that a certain level of medical/dental cost and the like are met from the child support assessment as a contribution by the paying parent. In addition, a portion of the child support liability is also expected to meet a contribution by the paying parent to costs relating to a public school education. At $520 per annum, or $260 per child, the Tribunal suggested that this would likely not be more than the costs incurred in respect of a public school.
19. In the special circumstances of this case, the Tribunal is satisfied that [Child B] and [Child A] are being educated privately in a manner expected by the parents. However, the Tribunal is not satisfied that the tuition fees of $520 per annum create special circumstances such that it is appropriate to make an adjustment to the child support assessment.
20. As noted above, given the CA received by Ms Larner and the assistance through NDIS, the Tribunal does not consider that the costs related to [Child B's] special medical needs significantly impact on the costs of maintaining him.
21. In relation to [Child A's] special medical needs, the Tribunal does not consider that the related costs, as discussed above, have significantly affected the costs of maintaining her in 2023 and 2024. However, in 2025 the costs incurred for psychology and prescriptions have significantly affected the costs of maintaining her and while the parents' circumstances do not change, they will likely do so going forward. Therefore, the Tribunal is satisfied that it is appropriate to consider an adjustment to the child support to allow for an equal contribution to those costs by Mr Ogilvy and Ms Larner.

The earning capacity, income, property and financial resources and commitments of each parent

1. As found earlier in this Statement of Reasons, the Tribunal is satisfied that Mr Ogilvy has income, financial resources and benefits available to him that exceed the amounts recorded in his annual tax returns. The Tribunal found that the income, financial resources and benefits of Mr Ogilvy in 2022/23, 2023/24 and 2024/25 are around $49,454, $59,451 and $52,693 respectively.
2. The Tribunal accepts the oral evidence of Mr Ogilvy that he expects little change in his circumstances other than hoping for less interruptions to his work schedule and increased earnings going forward. The Tribunal expects the income, financial resources and benefits of Mr Ogilvy are likely to approximate $45,000 in 2025/26. Assuming a regular working year, the Tribunal estimates Mr Ogilvy's income, benefits and financial resources in 2026/27 will likely approximate $54,000.
3. Similarly, Ms Larner also gave oral evidence that she expects little change in her circumstances going forward. The Tribunal acknowledges the time delay in the administrative assessment using her ATI from the previous year, noting that her ATI continues to increase on an annual basis. The Tribunal is satisfied that Ms Larner's annual tax returns in the past and going forward are a fair reflection of her income, financial resources and benefits from all sources, however, finds it fair to apply them to the correct period, in line with the ATIs of Mr Ogilvy.
4. The Tribunal finds that her ATIs in respect of 2022/23, 2023/24 and 2024/25 are $43,043, $48,129 and $53,131 respectively. Going forward, as Ms Larner is already working close to her maximum capacity, based on her most recent payslips, any discrepancy from the year before will likely be negligible. Therefore, it is reasonable to continue using her ATI in accordance with the administrative assessment from 1 July 2025.
5. There is no evidence of special circumstances in respect of either parent and therefore the Tribunal is satisfied that the self-support amount allowed in the administrative assessment is appropriate. It is also apparent that neither parent has accumulated significant debt in order to meet their respective costs of self-support and/or costs of the children. The Tribunal also accepts that neither parent has a significant liquid asset base from which to draw upon and both are meeting their weekly costs with little ability to save.
6. In relation to a parent's earning capacity, the Tribunal can only take earning capacity into account in limited circumstances, as set out in subsection 117(7B) of the Act which requires the Tribunal to consider three matters in determining that the parent's earning capacity is greater than is reflected in his or her income used in the administrative assessment.

• not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
• has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
• has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and

• If the parent's decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and

• If the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support paragraph 117(7B)(c);

1. All three of the above criteria must be met before a departure determination can be made to take into account whether either parent has a greater earning capacity. If the above criteria are satisfied then the Tribunal must determine the actual earning capacity of the parent.
2. Ms Larner has only increased her hours of work through taking on a second job. She has not changed her occupation as her main employment remains as [an Occupation 2]. Furthermore, as her ATI has only increased over time, which can only potentially reduce the child support liability, it is nonsensical to suggest that any changes in her working circumstances were driven by a desire to affect the administrative assessment of child support. Therefore, as all three criteria cannot be met, it is not open to the Tribunal to make an earning capacity determination in respect of Ms Larner.
3. There is no question that Mr Ogilvy has changed his occupation since May 2023 when he ceased working at [Location 1] and commenced at the family company employed as [an Occupation 1]. As such, the first criterion is satisfied.
4. In respect of the second criterion, there is no evidence to indicate that the change in occupation was justified because of his health or caring responsibilities. At that time he was attributed with 0% care of the children. As such, the second criterion is satisfied.
5. At 5.2.9 of the Child Support Guide, the third criterion is described as a rebuttable presumption where the onus is on the parent to prove that the decision to change their circumstances was not to affect the administrative assessment of child support. While this approach was questioned in the case of Carlson & Acuff & Anor (SSAT Appeal) [2010] FMCAfam 677, in this case, given that at the time of changing his circumstances Mr Ogilvy had been consistently assessed at the minimum annual rate since commencement of the child support assessment, he could not affect the administrative assessment other than by increasing it. Therefore, the Tribunal is satisfied that the third criterion is not met. As all three criteria cannot be met, it is not open to the Tribunal to make an earning capacity determination in respect of Mr Ogilvy.

1. After consideration of the income, resources, benefits and assets together with the commitments and liabilities of Mr Ogilvy and Ms Larner and the needs of the children, the Tribunal considers it is just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Act. The Tribunal may make one of the determinations set out in section 98S of the Act. Section 98S sets out a range of determinations, including varying the annual rate of child support payable, the adjusted taxable income of a parent, or the costs of self-support.
2. The Tribunal may not make a determination in respect of any period more than 18 months earlier than the date on which the application for a change in the way the child support liability is calculated was made (subsection 98S(3B)). In this case, Ms Larner is seeking backdating of a departure decision to 28 February 2023 and an extension of a departure decision for up to three years. The Tribunal must also be cognisant of whether either party has rested on their rights in not pursuing an objection or appeal process and also whether backdating a departure decision would cause prejudice to either party in the form of overpayment or additional arrears. There is also the generally accepted principle that the parties should be able to rely on the child support assessment in making financial decisions until such time as they are put on notice of a possibility of a change.
3. In response to a question from the Tribunal, Ms Larner stated that she did not lodge a change of assessment application earlier because of a history of domestic violence and the busyness of meeting the demands of the two children, including their special medical needs.
4. The Tribunal accepts the oral evidence of Ms Larner, yet is also cognisant of the limitations on the financial resources of Mr Ogilvy and his acceptance of the earlier child support assessments as being accurate. Mr Ogilvy Snr told the Tribunal that he is directing around $150 per week to Child Support from Mr Ogilvy's wages to address the child support assessment, including the arrears, except in weeks where his gross wages are less than $530 due to reduced workloads of the family company. He has managed to cope with this arrangement without accruing debt, albeit has used sale proceeds from various items and relied on some loans from his mother, neither of which are necessarily ongoing. The Tribunal acknowledges that more recently the current repayment arrangement has impacted on his discretionary spending.
5. Mr Ogilvy had arrears at 30 November 2025 in the amount of $696. The Tribunal's proposed decision using the ATIs of the parents recorded above from 28 February 2023 and contributing on an equal basis with Ms Larner to the special medical needs of [Child A] in the amount of $280 per annum each for 2025 would create additional arrears of around $2,000 at 30 November 2025. In the circumstances, the Tribunal does not consider it appropriate to increase the arrears of Mr Ogilvy any further.
6. Mr Ogilvy has no access to an asset base to assist him in meeting additional arrears, nor was he privy to the possibility of any change to the child support assessment prior to lodgement of the change of assessment application by Ms Larner on 28 August 2024. The Tribunal recognises the stressful nature of a change of assessment application and the desire of the parties not to endure such processes on a regular basis and hopes that the proposed decision will give a degree of certainty to the parents in respect of the future child support assessment.
7. Subsection 117(4) of the Act requires the Tribunal to consider whether any departure determination or failure to make a departure will cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support.
8. In response to a question from the Tribunal, Mr Ogilvy stated that he does not consider that the administrative assessment liability of around $2,800 per annum, based on the 2023/24 ATIs of the parents would cause hardship to Ms Larner and the children, nor does he consider a child support liability in the vicinity of $53 per week would cause hardship to him. However, he reiterated that the current requirement to pay $159 per week does cause him hardship.
9. Ms Larner told the Tribunal that in her view a child support payment in the amount of $159 per week does not cause hardship to Mr Ogilvy, based on the lifestyle he leads when the children are in his care on alternate weekends. In contrast, if the child support rate were to be only $53 per week, it would cause hardship to her and the children. She has already taken on a second job to assist her to meet the household expenses and cannot do any more, reiterating that it is she who meets the majority of the children's costs.
10. There is no question that Ms Larner requires the assistance of Mr Ogilvy to meet the needs of the children. The Tribunal proposes to set an annual rate of child support payable by Mr Ogilvy in respect of the period 28 February 2023 to 30 November 2025 of $4,109 per annum, resulting in the arrears of Mr Ogilvy remaining at $696 at 30 November 2025.
11. Going forward from 1 December 2025, the Tribunal proposes to set an annual rate of child support payable by Mr Ogilvy in the amount of $2,000 to 30 June 2026 and $3,000 from 1 July 2026 to 31 October 2027. Depending on payments made by Mr Ogilvy since 1 December 2025, this may result in a reduction in Mr Ogilvy's arrears to date. This decision is made on the basis that there is no expected change in the registered care of the children in the next few years.
12. The Tribunal is cognisant that both parents' circumstances appear to be straitened and reiterates the obligation of both parents to contribute to the children's needs in accordance with their capacity.
13. The Tribunal is confident that Mr Ogilvy has the financial capacity to meet the current child support liability based on this departure decision of $38 per week, while also addressing the arrears. Based on a net pay of $891 per week and based on Mr Ogilvy's own estimated household weekly costs for him and the children of $880, he has an additional $11 over. He meets discretionary expenses such as Sportsbet, Netflix, Google and the like, in addition to costly entertainment costs with the children. The Tribunal is satisfied that Mr Ogilvy can manage to pay child support at the rate of $38 per week by prioritising the necessary costs of him and the children over discretionary spending. To date he has managed to prioritise his necessary needs in most weeks so as to meet the payment arrangement with Child Support of $159 per week. It is also open to him to seek additional employment so he is working the equivalent of a full-time week, as Ms Larner has done. It is also open to Ms Larner to prioritise the "necessary" needs of her and the children according to her capacity, noting that she incurs discretionary expenses in addition to private school costs in relation to entertainment, holidays and gifts.

Issue 3 - Is it otherwise proper to make a particular departure determination?

1. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be 'otherwise proper' to make a departure determination.
2. In this case, Ms Larner is in receipt of FTB Part A and Part B in respect of [Child A] and [Child B]. Based on her ATI her entitlement to FTB Part A is at less than the maximum rate and at more than the base rate. As a single parent with a current ATI of less than $120,007, the child support liability has no impact on her entitlement to FTB Part B. The Tribunal noted at hearing that an increased child support assessment may have an impact on Ms Larner's past entitlement to FTB Part A. Regardless, the Tribunal considers that it is otherwise proper to make the particular proposed determination.
3. It is open to either party to lodge a further change of assessment application should the future circumstances of either party change significantly from the circumstances upon which this decision is based, in particular if there is a change in care of the children or Mr Ogilvy picks up additional employment.

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

• The annual rate of child support payable by Mr Ogilvy to Ms Larner in respect of the children is varied to $4,109 for the period 28 February 2023 to 30 November 2025;
• The annual rate of child support payable by Mr Ogilvy to Ms Larner in respect of the children is varied to $2,000 for the period 1 December 2025 to 30 June 2026; and
• The annual rate of child support payable by Mr Ogilvy to Ms Larner in respect of the children is varied to $3,000 for the period 1 July 2026 to 31 October 2027.