CHILD SUPPORT - departure determination - income, property and financial resources and child support payable - father's adjusted taxable income - physical and mental health and no work, then return to reduced then full-time work - medical documentation - additional self-employed part-time work - business expenses and personal use - not likely to continue - insufficient evidence of reduced work for required study and qualification - costs associated with child's special needs - orthodontic and psychological treatment - essential and non-essential expenses - mother's increased work and income - 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 Saudwell and Ms Saudwell are the parents of [Child 1] (born 2010), [Child 2] (born 2014) and [Child 3] (born 2017). A child support assessment for the children commenced on 29 April 2019.
2. For the period commencing on 1 August 2023 the child support assessment required a nil rate of child support to be paid for the children. The assessment was based on Mr Saudwell's 2022/23 adjusted taxable income of $32,046 and Ms Saudwell's 2022/23 adjusted taxable income of $47,156, and took into account that Mr Saudwell had a care percentage of 22% for each of the children and Ms Saudwell had a care percentage of 78% for each of the children.
3. On 25 September 2023 Ms Saudwell made an application for a departure from the child support assessment on the basis of Mr Saudwell's income, property and financial resources and also on the grounds of costs associated with [Child 1]'s special needs. On 26 January 2024 a decision-maker in Services Australia - Child Support (Child Support) made a decision to depart from the child support assessment in the following terms:
   • For the period 1 November 2023 until 31 December 2024, the adjusted taxable income of Mr Saudwell will be set at $92,000.
   • For the period 1 November 2023 until 31 October 2024, the annual rate of child support payable by Mr Saudwell will increase by $3,689.
4. On 21 February 2024 Mr Saudwell objected to Child Support's decision. On 29 July 2024 a Child Support objections officer set aside the decision made on 26 January 2024, and made a new decision to depart from the child support assessment in the following terms:
   • For the period 25 September 2023 to 24 September 2025 the annual rate is increased by $3,676 with respect to [Child 1]'s special needs.
   • For the period 25 September 2023 to 24 September 2025 Mr Saudwell's ATI is set to $112,000.
5. On 23 August 2024 Mr Saudwell applied to the Administrative Appeals Tribunal (the AAT) for an independent review of Child Support's decision.
6. A hearing took place on 25 March 2025. Mr Saudwell and Ms Saudwell attended the hearing by telephone and gave sworn evidence. I had before me documents submitted by Child Support numbered 1 to 517, documents submitted by Mr Saudwell prior to the hearing numbered A1 to A147 and documents submitted by Ms Saudwell prior to the hearing numbered B1 to B42.
7. Following the hearing I adjourned the matter to enable Mr Saudwell to provide further documentary evidence. Mr Saudwell provided further documents that have been numbered A148 to A219. A copy of those documents was provided to Ms Saudwell, and Ms Saudwell provided further written submissions numbered B43 to B53.
8. 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. This decision and statement of reasons is made by the Tribunal.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988.
2. The rate of child support payable by a liable parent is usually based on an administrative assessment determined under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of the children, the income of each parent and the level of care provided by each parent.
3. In relation to the income used for each parent, the formula set out in the Act requires that each parent's adjusted taxable income be determined. Section 43 of the Act defines adjusted taxable income as the parent's taxable income for the last relevant year of income in relation to the child support period, plus other income components set out in section 43. The last relevant year of income is defined in section 5 of the Act as the last year of income that ended before the start of the relevant child support period.
4. The formula uses the Costs of the Children Table, set out in Schedule 1 to the Act, to calculate the costs that are to be shared between the parents. The costs are calculated based on the parents' combined child support incomes, with adjustments made according to the number and age of the children. In general, the costs calculated in accordance with the Costs of the Children Table are intended to cover the usual costs of raising children, and the formula determines how those costs are to be shared between the parents according to the income of each parent.
5. However, it is recognised in the legislation that in some special circumstances an adjustment to the formula may need to be made. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a determination to depart from the provisions of the Act in respect of the administrative assessment. Section 98S of the Act sets out the determinations that can be made. Relevantly, they include a determination varying the annual rate of child support payable by a parent, or adjusting the adjusted taxable income used for a parent in the formula. Subsection 98S(3B) provides, in effect, that a determination can only be made for a day that is more than 18 months earlier than the day on which the application for a departure determination was made if a court has granted leave for such a determination to be made.
6. Section 98C of the Act provides that before making a departure determination the Registrar must be satisfied that in the special circumstances of the case one or more of the grounds set out in subsection 117(2) of the Act exist, and also that it would be just and equitable and otherwise proper to make a particular determination. There are a number of grounds set out in subsection 117(2), including grounds relating to the income, property and financial resources of each parent, the earning capacity of each parent, and costs associated with the special needs of a child.
7. The issues which arise in this case are:
   • whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and if so
   • whether it is just and equitable as regards the children, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment.

Is there a ground to depart from the administrative assessment?

1. As set out above, the threshold question to depart from an administrative assessment of child support is that one or more of the grounds for departure referred to in subsection 117(2) of the Act is established.
2. Subparagraphs 117(2)(c)(ia) and 117(2)(c)(ib) of the Act provide that a ground for departure exists if:

...in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

(ia) because of the income, property and financial resources of either parent; or

(ib) because of the earning capacity of the parent ...

1. The words "in the special circumstances of the case" are not defined in the legislation. In Gyselman and Gyselman (1992) FLC 92-279, it was held that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases".
2. At the time of Ms Saudwell's original application for a change of assessment on 25 September 2023 the income used for Mr Saudwell in the child support assessment was his 2022/23 adjusted taxable income of $32,046.
3. It is not in dispute that Mr Saudwell is currently employed. He commenced working with his current employer in September 2023, after a period of study. Mr Saudwell confirmed at the hearing that he is still employed by the same employer, and that he works as [an occupation 1]. He provided copies of payslips from that employer showing a full-time fortnightly income of $3,745.28.
4. Mr Saudwell submitted to the Tribunal a copy of his 2023/24 income tax return which shows that in that financial year he had income from employment of $69,175, taxable government payments totalling $5,191, and business income after expenses and deferred losses of $6,789. After deductions Mr Saudwell had a taxable income in the 2023/24 financial year of $80,498.
5. In his written submissions and at the hearing Mr Saudwell said he had a period of ill health and was unable to work at all from 5 August 2024 to 20 November 2024, and that for approximately four weeks following his return to work in November 2024 he was only able to work at a reduced capacity. Mr Saudwell provided copies of his payslips which show that he worked zero hours and received no pay for fortnightly pay periods ending 23 August 2024, 6 September 2024, 20 September 2024, 4 October 2024, 18 October 2024, 1 November 2024 and 15 November 2024. In the pay period ending 29 November 2024 Mr Saudwell's payslip indicates that he worked 48.6 hours and earned gross pay of $2,395.01, and in the pay period ending 13 December 2024 Mr Saudwell's payslip indicates that he worked 45.6 hours and earned gross pay of $2,247.17. The payslip evidence shows that as of 14 December 2024 Mr Saudwell had returned to full-time work and was again earning a fortnightly amount of $3,745.28.
6. I am satisfied that Mr Saudwell had a temporary reduction in his income in the period from approximately 5 August 2024 until he returned to full-time work in December 2024. I have considered whether Mr Saudwell had an earning capacity during that period of time that should be taken into account.
7. Subsection 117(7B) of the Act provides that in having regard to the earning capacity of a parent of a child, I may determine that the parent's earning capacity is greater than is reflected in his or her income only if the following three criteria are met:
   • the parent does not work, or has reduced his or her hours of work below full-time hours, or has changed his or her occupation, industry or working pattern; and
   • the parent's decision to not work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of the parent's caring responsibilities or the parent's state of health; and
   • the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
8. I am satisfied that Mr Saudwell was either not working, or had reduced his hours of work below full-time hours, in the period from 5 August 2024 to approximately 13 December 2024. Mr Saudwell's evidence is that his decision to not work is justified on the basis of his state of health at that time.
9. At the hearing Mr Saudwell said that on 5 August 2024 he was involved in an incident relating to his work that triggered some health issues for him. From that date he suffered from mental health issues, and at around the same time also experienced a stomach problem that required surgery. Mr Saudwell said that the two conditions were related, as he has been advised that the stomach problems related to stress. Mr Saudwell said that he initially accessed leave from his employment, and then was without pay for a period of time while he underwent surgery and received other treatment.
10. Mr Saudwell said that he was hospitalised from 2 September 2024 to 13 September 2024, and outside of those times was receiving treatment and recovering. Due to the nature of his illness and the nature of his job he was unable to return to work until he received medical clearance to do so. He was cleared to return to work at a reduced capacity, three days per week, from 16 November 2024, and was cleared to return to work full-time from 14 December 2024. During the period he was unable to work he had no income. He applied for an insurance payment but was refused because his health condition was considered to be a pre-existing condition. He said he received some assistance from his parents to meet his rent payments, and he had a small amount of savings that he was able to use to meet necessary expenses.
11. In support of his contention that he was unable to work Mr Saudwell provided a medical certificate issued by [Medical provider], which indicates that he was unwell and under the care of [Medical provider]F, and unable to work, in the period from 2 September 2024 to 13 September 2024. He also provided medical certificates signed by [Dr A] indicating that he had a medical condition and was unfit for work from 12 August 2024 to 6 September 2024 and from 16 September 2024 to 5 October 2024.
12. Following the hearing Mr Saudwell provided the following further documentary evidence as to his inability to work:
    • A Mental Health Treatment Plan dated 12 August 2024 prepared by [Dr A];
    • A referral to [Ms B], psychologist, requesting treatment for Mr Saudwell for management of the conditions of depression, cluster B personality disorder and PTSD dated 12 August 2024;
    • A discharge summary from [Medical provider] which says that Mr Saudwell was treated as an inpatient for mental health conditions from 2 September 2024 to 13 September 2024;
    • A medical report prepared by [Dr C] and dated 3 February 2025, confirming that his treatment for psychological issues is ongoing;
    • Further medical certificates from [Dr A] indicating that Mr Saudwell was unfit for work from 7 August 2024 to 9 August 2024;
    • A radiology report confirming that Mr Saudwell underwent a CT scan of his abdomen and pelvis in August 2024.
13. Ms Saudwell did not dispute the evidence as to Mr Saudwell's actual earnings from his employment, however she submitted that Mr Saudwell was able to continue [part-time occupation] work during the period he alleges he was unable to undertake his usual employment. She submitted copies of social media posts indicating that Mr Saudwell did a [part-time occupation] gig at a local [venue] on 7 September 2024, shortly after he was released from hospital. Mr Saudwell agreed that he did that gig, but said it was a favour for a friend and that it was a short gig lasting an hour during the morning in a local [venue], which is a low-pressure situation for him. Mr Saudwell denied that it was indicative of a broader ability to work, particularly in his day job as [an occupation 1].
14. Following the hearing and the receipt of the further evidence provided by Mr Saudwell, Ms Saudwell submitted in writing that Mr Saudwell had only provided medical evidence in relation to part of the period he claimed he was unable to work.
15. Taking into account the medical evidence provided by Mr Saudwell, and the evidence given by him at the hearing, I find that Mr Saudwell's decision to not work, or to work at a reduced capacity, in the period from August 2024 to December 2024 was justified by his state of health at that time. I acknowledge that the documentary evidence he provided is not comprehensive as to the entire period he was unable to work, but it is sufficient to show that he was suffering from serious health conditions, and his evidence as to his period of treatment and gradual return to work is consistent with the documentary evidence. I accept that Mr Saudwell did do a short, unpaid [part-time occupation] gig on 7 September 2024, but I don't consider that was indicative of a return to full health, or that it was inconsistent with the medical and oral evidence given by Mr Saudwell as to his state of health.
16. As I have found that Mr Saudwell's decision was justified by his state of health it is not open to me to determine that his earning capacity in that period was greater than his actual earnings.
17. In relation to Mr Saudwell's income from employment, I therefore make the following findings:
    • In the period from 25 September 2023 to 30 June 2024 Mr Saudwell had an income from employment equivalent to an annual income of approximately $94,212 (based on fortnightly gross income of $3,610).
    • In the period from 1 July 2024 to 9 August 2024, and from 14 December 2024 to date, Mr Saudwell had an income from employment equivalent to an annual income of approximately $97,375 (based on fortnightly income of $3,745.28).
    • In the period from 10 August 2024 to 15 November 2024 Mr Saudwell had no income from employment.
    • In the period from 16 November 2024 to 13 December 2024 Mr Saudwell had a reduced income from employment equivalent to an annual income of $60,346.
18. Mr Saudwell gave oral evidence that he expects a further reduction in his income from employment in the near future. He said that new government regulations mean that he will need to obtain further qualifications in order to keep working in his current position. His evidence at the hearing was that he was still working through the details with his employer, but he expected to reduce his work hours to 3 or 4 days per week commencing around April 2025.
19. Following the hearing Mr Saudwell provided the following documentary evidence:
    • Information published by the Victorian government relating to mandatory minimum qualifications for specialist [occupation 1] s. Relevantly that information states that all new specialist [occupation 1] s must hold a Bachelor of [Subject 1] or 'equivalent'. The information states in part:

The new mandatory minimum qualification requirement will oblige funded services to require specialist [occupation 1]s to hold a [subject 1] or equivalent degree from 1 July 2021.

There will be a 5-year transition period for the workforce to meet the new mandatory minimum qualifications. ...

• A letter from the [University] confirming Mr Saudwell's enrolment in a Bachelor of [Subject 2].
• A "staff request to attend study" which appears to be requesting two days per week to complete online studies in the period from 7 April 2025 to 26 September 2026 in order to complete an accredited Bachelor degree.

1. Following the hearing and the receipt of the further evidence provided by Mr Saudwell, Ms Saudwell submitted in writing that Mr Saudwell had not provided evidence to support that he is required to complete the period of study as a condition of his continued employment, or that there would be a reduction in his pay as a result of undertaking the study, or that his employer has required him to undertake the study.
2. In respect of Mr Saudwell's future income from employment, I accept that Mr Saudwell intends to reduce his hours of work for a period of time in order to undertake further study, however the evidence provided by Mr Saudwell is not sufficient for me to make any finding as to his future income. While he has provided a form that suggests he has requested a reduction in his work hours to undertake study, there is no evidence that the request has been approved for any particular period of time, and no specific evidence as to what his income will be.
3. In relation to his business income, Mr Saudwell confirmed that he has for several years operated a small business in which he works as a [part-time occupation]. He confirmed that his earnings from that business in the 2023/24 financial year are accurately set out in his 2023/24 tax return. Mr Saudwell also referred to a spreadsheet that he submitted to the Tribunal with his application which sets out his business expenses in more detail.
4. The tax return submitted by Mr Saudwell indicates that in the 2023/24 financial year he had total business income of $21,086. The tax return lists expenses of $14,080 comprising depreciation expenses of $4,120, motor vehicle expenses of $3,063 and other expenses of $6,897. This gives a net income from the business in the 2023/24 financial year of $7,006. In his tax return Mr Saudwell has claimed other deductions against that income including a deferred business loss from a previous year and an amount of "small business entity simplified depreciation". While those are entirely legitimate from an income tax perspective, I am not satisfied that they represent actual costs incurred by Mr Saudwell in the relevant income tax year, and so I will consider only the business expenses listed in the tax return.
5. Mr Saudwell also submitted to the Tribunal a spreadsheet that he said was prepared by him and his accountant, which lists the business expenses in more detail.
6. In relation to the motor vehicle expenses claimed, Mr Saudwell said that he used a logbook to calculate the percentage of motor vehicle usage that was attributable to the business, which in the 2023/24 financial year was 38% of the total vehicle costs. Those costs included registration, insurance, repairs, fuel, tolls and parking.
7. In relation to the depreciation costs claimed in his tax return, Mr Saudwell said that they related to a motor vehicle that was purchased during the 2023/24 financial year and also some [equipment] that was purchased during that financial year. The documentation provided by Mr Saudwell indicates that the motor vehicle was purchased for $24,000, and the equipment was purchased for $3,059. Only a portion of those actual expenses has been claimed as depreciation. I note that the motor vehicle is used by Mr Saudwell for both business and personal use, and so the whole cost of that vehicle is not attributable to the business.
8. In relation to other costs Mr Saudwell listed expenses such as purchasing [product], payment of other [part-time task occupation]s when he was unavailable to complete a job, public liability insurance, stationery, marketing, accounting costs, telephone, Internet and electricity and gas. Mr Saudwell said that the telephone costs claimed were the whole cost of his mobile phone service, which is also used for his personal use. The costs for Internet and electricity and gas were calculated at 1/8 of the full costs incurred by Mr SaudwellSaudwell, which Mr Saudwell said was calculated by his accountant and based on the square metreage of his house in accordance with tax standards.
9. I am satisfied based on the evidence provided by Mr Saudwell that he had income from his [part-time occupation] business in the 2023/24 financial year of $21,086 (exclusive of GST). In relation to the expenses that he incurred against that income, I am satisfied that the expenses claimed are reasonable and are referable to actual expenses incurred by Mr Saudwell. I note that Mr Saudwell did derive a small amount of personal benefit from the expenses that he was able to claim against his business income, notably his personal use of a mobile telephone, and the ability to claim part of his Internet and electricity expenses. However, those expenses are relatively small and do not significantly affect the amount of income available to Mr Saudwell. I therefore find that in the 2023/24 financial year Mr Saudwell had net income from his [part-time occupation] business of $7,006.
10. In relation to his business income and expenses in the current financial year, Mr Saudwell provided a list of income he says he has received in the business since July 2024, showing total income up to 5 February 2025 of $3,800 (inclusive of GST). Mr Saudwell said that his actual income was lower, as there were two occasions when he was unable to do a [part-time occupation] gig himself, and so he passed the work on to another [part-time occupation] and retained only a booking fee - however he was unable to provide the details of which particular payments that related to, or the amount of the booking fee he had received on those occasions. He said that since 5 February 2025 he has had one more [part-time task occupation] gig for which he received a fee inclusive of GST of $750. Mr Saudwell said that he has not taken any further bookings for [part-time occupation] work. His evidence is that he does not intend to work as a [part-time occupation] in the future as he believes it is not financially viable, and also that his full-time work, state of health and future study are unlikely to allow him time to pursue the business. Mr Saudwell did not provide evidence as to expenses that he has incurred in relation to his [part-time occupation] business during the 2024/25 financial year, but at the hearing he stated that his expenses in the current financial year have been minimal.
11. I am satisfied that in the period from 1 July 2024 to 1 March 2025 Mr Saudwell received total income from his [part-time occupation] business of approximately $4,550. Excluding GST, that equates to total income of $4,136. I accept that he has had some expenses in the form of having to pay someone to undertake some of the booked gigs. While there is insufficient evidence for me to make a precise calculation of his income, I am satisfied that he has likely received net income from the business of around $3,500 over that 8 month period.
12. Mr Saudwell's evidence is that he does not intend to take on any further [part-time occupation] work, and therefore will not receive any further income from the business. I note that Mr Saudwell is employed on a full-time basis in his role as [an occupation 1], and also that it is entirely within his control whether he takes on additional work as a [part-time occupation]. I accept that Mr Saudwell will not receive any further income from his [part-time occupation] business in the foreseeable future. I find that in the period from 1 July 2024 to 1 March 2025 Mr Saudwell received income from his [part-time occupation] business equivalent to an annual income of $5,250. From 1 March 2025 I find that Mr Saudwell has no income from his [part-time occupation] business.
13. I have taken into account the findings set out above in respect of Mr Saudwell's income from his employment and his business. In the 2023/24 financial year Mr Saudwell had tax deductions other than his business expenses of $665, which I consider to be a reasonable allowance for tax deductions. I have considered that the business income should be applied consistently across the periods over which it was earned. On that basis, I find that over the periods relevant to this review Mr Saudwell's income was as follows:
    • In the period from 25 September 2023 to 30 June 2024 Mr Saudwell had income equivalent to an annual taxable income of $100,554.
    • In the periods from 1 July 2024 to 9 August 2024 and from 14 December 2024 to 1 March 2025 Mr Saudwell had income equivalent to an annual taxable income of $101,960.
    • In the period from 10 August 2024 to 15 November 2024 Mr Saudwell had income equivalent to an annual taxable income below the relevant self-support amount allowed for in the relevant child support formula.
      • In the period from 16 November 2024 to 13 December 2024 Mr Saudwell had income equivalent to an annual taxable income of $64,931.
    • In the period from 2 March 2025 to date, Mr Saudwell had income equivalent to an annual taxable income of $96,710.
14. Absent any departure from the assessment, the adjusted taxable income that would be used for Mr Saudwell in the child support assessment would be $32,046 until 31 August 2024 and $80,498 from 1 September 2024.
15. The disparity between the income actually earned by Mr Saudwell and the income that would ordinarily apply for him in the child support assessment is significant, and this constitutes a special circumstance that means that application of the provisions of the Act relating to the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by Mr Saudwell for the children. I therefore find that the ground for departure set out in subparagraph 117(2)(c)(ia) is established.

Is a departure from the assessment just and equitable?

1. As I have found that there is at least one ground to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable to depart from the assessment.
2. In deciding whether a departure from the assessment is just and equitable, I must have regard to the matters set out in subsection 117(4) of the Act, and I may also have regard to any other relevant factors. The factors set out in subsection 117(4) are as follows:

(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and

(b) the proper needs of the child; and

(c) the income, earning capacity, property and financial resources of the child; and

(d) the income, property and financial resources of each parent who is a party to the proceeding; and

(da) the earning capacity of each parent who is a party to the proceeding; and

(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

(i) himself or herself; or

(ii) any other child or another person that the person has a duty to maintain; and

(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

(g) any hardship that would be caused:

(i) to:

(A) the child; or

(B) the carer entitled to child support;

by the making of, or the refusal to make, the order; and

(ii) to:

(A) the liable parent; or

(B) any other child or another person that the liable parent has a duty to support;

by the making of, or the refusal to make, the order; and

(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

1. Pursuant to section 3 of the Act, I must approach this task on the basis that the duty that a parent has to maintain their children has priority over all other commitments of the parent other than commitments necessary to support themselves and any other people they have a duty to maintain.
2. Subsection 117(6) of the Act provides that in having regard to the proper needs of the children I must have regard to the manner in which each child is being, and in which the parents expected the child to be, cared for, educated and trained, and I must also have regard to any special needs of the child.
3. It is not disputed that [Child 1] commenced orthodontic treatment in July 2023, or that [Child 1] has received treatment from a psychologist intermittently since 2019.
4. In respect of [Child 1]'s orthodontic treatment, Ms Saudwell provided to Child Support a letter from [Dr D] of [Dental Surgery] dated 13 September 2023. According to that letter, [Child 1] required orthodontic treatment due to a 60% overbite and crowding of the anterior teeth, in order to improve her ability to maintain good oral hygiene and functionality and address the wear and tear seen on the lower front teeth because of the overbite. [Dr D] states that the orthodontic treatment is not for cosmetic reasons.
5. I am satisfied that [Child 1] has a medical need for orthodontic treatment, and that the treatment constitutes a special need for [Child 1]. It is not disputed that the full cost of that treatment is $6,500, or that Mr Saudwell contributed $900 toward that cost in July 2023, and that Ms Saudwell has otherwise met the direct costs relating to [Child 1]'s orthodontic treatment. Ms Saudwell submitted to the Tribunal a tax invoice from [Dental Surgery] dated 18 February 2025, showing that the outstanding balance in respect of [Child 1]'s orthodontic costs is $2,200.
6. Mr Saudwell told me that he does not object to meeting half the cost of [Child 1]'s orthodontic treatment, however he submitted that the effect of the objection decision is to require him to pay the full amount of the treatment (less the initial deposit that he and Ms Saudwell contributed to equally). He submitted that it was an administrative error in the objection decision that should be corrected.
7. In relation to Mr Saudwell's submissions, I note that in the written objection decision the following information is set out in respect of the orthodontic costs:

I am satisfied that the orthodontic costs for consideration of $4,700 and both parents ought to share equally in this cost, being $2350 each per annum.

1. The objections officer ultimately increased the annual rate of child support payable by Mr Saudwell by $3,676 for a period of two years. The amount of $3,676 is made up of $2,350 in respect of [Child 1]'s orthodontic costs, and a further $1,326 in respect of [Child 1]'s psychology treatment. I agree with Mr Saudwell's assessment that, in increasing his annual rate of child support by $2,350 per year for a period of two years in respect of the orthodontic costs, the objections officer has effectively required Mr Saudwell to contribute the full amount of $4,700, rather than 50% of that amount. I am satisfied that it is reasonable that Mr Saudwell contribute an amount of $2,350 in total toward [Child 1]'s orthodontic costs, taking into account that he had already made a direct contribution of $900. Over a period of two years this would mean that in respect of the orthodontic costs the annual rate of child support payable by Mr Saudwell should be increased by $1,175 per year in respect of [Child 1]'s orthodontic costs.
2. In respect of [Child 1]'s psychology treatment, Ms Saudwell provided to Child Support a letter from [Ms E], psychologist, stating that [Child 1] had initially been referred to [Ms E] for treatment of anxiety and low mood in 2019, and that [Child 1] would require further treatment over the next 12 months, at which time a further assessment would need to be made. Ms Saudwell also provided to Child Support a copy of a tax invoice dated 16 October 2023 showing that [Child 1] received treatment on 16 October 2023 at a total cost of $195, with a Medicare rebate of $92.90. An appointment list stated that [Child 1] had further appointments with [Ms E] on 2 November 2023, 23 November 2023 and 14 December 2023.
3. At the hearing Ms Saudwell's evidence was that [Child 1] continues to receive treatment from [Ms E]. There was a break in her treatment during the 2024 calendar year because [Ms E] had a medical condition that meant she was unable to see patients for a period of time, however [Child 1]'s treatment resumed in October 2024, and since then [Child 1] has seen [Ms E] on a monthly basis. Ms Saudwell's evidence is that the treatment is ongoing and is likely to be required for the foreseeable future.
4. Mr Saudwell told me that he does not dispute the need for [Child 1] to continue to receive treatment by a psychologist, and he accepts that it is appropriate that [Child 1] be treated by [Ms E] given her longstanding relationship with [Ms E]. He queried whether any additional rebates might be available in relation to the costs being incurred but did not provide any substantive evidence as to what those rebates are or whether they were available to [Child 1].
5. I am satisfied that [Child 1] has a medical need for the treatment she is receiving from [Ms E], and that constitutes a special need for [Child 1].
6. Ms Saudwell provided the following documentary evidence to the Tribunal in respect of [Child 1]'s treatment:
   • a tax invoice dated 15 September 2023 indicating that [Child 1] was seen by [Dr F] for the preparation of a GP Mental Health Treatment Plan with a fee of $210 and a Medicare rebate of $146.90;
   • a tax invoice from [Ms E] for treatment on 16 October 2023 with a fee of $195 and a Medicare rebate of $92.90;
   • a tax invoice from [Ms E] for treatment on 2 November 2023 with a fee of $195 and a Medicare rebate of $93.35;
   • a tax invoice from [Ms E] for treatment on 23 November 2023 with a fee of $195 and a Medicare rebate of $93.35;
   • a tax invoice from [Ms E] for treatment on 14 December 2023 with a fee of $195 and a Medicare rebate of $174.70;
   • tax invoice from [Ms E] for treatment on 20 February 2024 with a fee of $195 and a Medicare rebate of $93.35;
   • tax invoice from [Ms E] for treatment on 27 February 2024 with a fee of $215 and a Medicare rebate of $93.35;
   • a tax invoice dated 1 May 2024 indicating that [Child 1] was seen by [Dr F] for review of a GP Mental Health Treatment Plan with a fee of $120 and a Medicare rebate of $78.95;
   • a tax invoice from [Ms E] for treatment on 14 October 2024 with a fee of $215 and a Medicare rebate of $96.65;
   • a tax invoice from [Ms E] for treatment on 12 November 2024 with a fee of $215 and a Medicare rebate of $96.65;
   • a tax invoice from [Ms E] for treatment on 10 December 2024 with a fee of $215 and a Medicare rebate of $165.75;
   • a tax invoice dated 18 December 2024 indicating that [Child 1] was seen by [Dr F] for the preparation of a GP Mental Health Treatment Plan with a fee of $225 and a Medicare rebate of $191.35;
   • tax invoice from [Ms E] for treatment on 19 December 2024 with a fee of $215 and a Medicare rebate of $191.35;
   • a tax invoice from [Ms E] for treatment on 18 February 2025 with a fee of $225 and a Medicare rebate of $96.65.
7. At the hearing Ms Saudwell said that in addition to the treatments detailed in the invoices provided to the Tribunal, [Child 1] attended one further appointment in March 2025, incurring a fee of $225 and attracting a Medicare rebate of $96.65. Ms Saudwell confirmed that she expects that cost to be consistent for approximately the next year. In relation to the higher Medicare rebates received in December 2023 and December 2024, Ms Saudwell confirmed that the rebates increased in December because she had reached the Medicare threshold by that stage in the year.
8. I am satisfied that in the period from September 2023 to August 2024 Ms Saudwell incurred out-of-pocket costs relating to [Child 1]'s psychology treatment of $549, plus $104.15 relating to the preparation and review of a GP Mental Health Treatment Plan for [Child 1], giving a total amount of out-of-pocket expenses relating to [Child 1]'s psychology treatment of $653. It is reasonable that Mr Saudwell contributes half of this cost.
9. In the period from September 2024 to date, I am satisfied that Ms Saudwell has incurred out-of-pocket costs relating to [Child 1]'s psychology treatment totalling $556.30 up to and including March 2025, plus $33.65 relating to the preparation and review of a GP Mental Health Treatment Plan for [Child 1]. In the future it is likely that Ms Saudwell will incur out-of-pocket expenses of approximately $128 per month, although I note that it is likely based on previous history that [Child 1] will not have an appointment in January and that Ms Saudwell's out-of-pocket expenses in December of each year will be lower due to a higher Medicare rebate being available during that part of the year. In the period from 1 September 2024 to 1 September 2025 the likely total out-of-pocket expenses relating to [Child 1]'s psychology treatment will be $1,230. It is reasonable that Mr Saudwell contributes half of this cost.
10. There is no evidence before me as to any other special needs of any of the children. [Child 1] attends a Catholic fee-paying school, and at the hearing Ms Saudwell said she currently meets the costs in relation to [Child 1]'s school fees. Ms Saudwell said she is not seeking any additional contribution from Mr Saudwell in relation to the school fees, and she has not provided any evidence as to the costs involved, or as to whether [Child 1] is being educated in accordance with the expectation of both parents. [Children 2 and 3] attend a public primary school.
11. In addition to the costs outlined above I accept that the parents incur the usual costs of supporting children of [the children's] ages. There is no evidence to suggest that any of the children have independent income, property, financial resources or earning capacity, and am satisfied that the three children are wholly dependent on their parents to meet their needs.
12. In relation to the income, property and financial resources of the parents, Mr Saudwell's income has been considered earlier in this statement of reasons. Mr Saudwell provided a Statement of Financial Circumstances to the Tribunal in which he disclosed total assets consisting mainly of a motor vehicle that was purchased for $24,000 and against which he currently owes an amount of $14,000. Mr Saudwell said that the current market value of the motor vehicle is likely to be approximately $18,000. Other than that Mr Saudwell's assets consist of a small amount of money in a bank account and a small amount of household contents. Mr Saudwell has interest in superannuation valued at approximately $115,000. Mr Saudwell also lists total liabilities of approximately $19,000 including a personal loan with a balance of $15,193, credit cards with an amount owing of $1,779 and unpaid fines of $2,015. At the hearing Mr Saudwell said that the balance of his credit card has reduced, and the amount owing is currently around $500 or $600, and that his liabilities are otherwise unchanged.
13. In relation to her income, Ms Saudwell said that she is currently self-employed, having started her own [occupation 2] business in January 2024. Prior to that she had been employed as [an occupation 2] on a part-time basis.
14. Ms Saudwell provided the Tribunal with a copy of her 2023/24 income tax return, which discloses that she had a taxable income in that year of $44,029 consisting of salary and wage income, business income and taxable government payments.
15. Ms Saudwell also provided an interim profit and loss schedule prepared by her accountants which indicates that in the period 1 July 2024 to 1 February 2025 her business income was $50,337 and total business expenses were $19,728, giving the business a year-to-date income as at 1 February 2025 of $30,609. Ms Saudwell said that she expects her income from her business to continue at approximately the same rate for the remainder of the current financial year and agreed that her net income from the business is therefore likely to be approximately $51,000 in the 2024/25 financial year. In addition, Ms Saudwell said that she receives a small amount of parenting payment from Centrelink of around $145.50 per week. I am satisfied that Ms Saudwell currently has an income equivalent to an annual income of approximately $58,500.
16. In her Statement of Financial Circumstances Ms Saudwell has declared assets totalling approximately $69,000, consisting of a term deposit of $25,449, a small amount of money in other bank accounts, a motor vehicle valued at $20,000, household contents of $45,000, other personal property listed as jewellery and artwork valued at $3,000, and her business which is valued at $1,100. Ms Saudwell has interest in superannuation valued at $93,809. Ms Saudwell has listed liabilities consisting of a credit card debt of $798 and a Centrepay advance of $642.
17. Both Mr Saudwell and Ms Saudwell provided in their Statement of Financial Circumstances details of their average weekly expenses. Mr Saudwell listed weekly expenses for himself and the children totalling $1,220.29. Mr Saudwell confirmed at hearing that those expenses were still current. Taking into account Mr Saudwell's current fortnightly income of $3,745.28, less tax deducted of $1,068, Mr Saudwell has income available to meet his expenses of $2,677 per fortnight or approximately $1,338 per week. I note that based on the expenses listed by Mr Saudwell there may be some scope for him to reduce non-essential expenses if necessary, for example he lists a total amount of $80 per week for holidays and $20 per week for entertainment and hobbies. Mr Saudwell also said that his medication costs are likely to reduce due to recent changes in the pharmaceutical benefits scheme which are likely to reduce his costs from approximately $140 per month for medication down to approximately $50 per month.
18. Ms Saudwell has listed weekly expenses for herself and the children of $2,086.50 per week. She has listed total income including income from her business and Centrelink payments including parenting payment and family assistance payments totalling $1,596 per week and has noted that on average she has received child support payments from Mr Saudwell averaging approximately $400 per week. On that basis, I note that the expenses listed by Ms Saudwell currently exceed household income. At the hearing Ms Saudwell said that she has been meeting the shortfall from savings, which largely consist of money set aside from the parents' property settlement. I note that based on the expenses listed by Ms Saudwell there may also be some scope for her to reduce non-essential expenses if necessary, for example she lists a total amount of $90 per week for holidays and $60 per week for entertainment and hobbies.
19. Taking into account all of the circumstances discussed above, I am satisfied that it is just and equitable to vary the adjusted taxable incomes used in the assessment for Mr Saudwell to the incomes I have found he has earned in the periods since 25 September 2023, which is the day Ms Saudwell lodged her application for a change of assessment. While it is open to me to consider periods up to 18 months prior to the date Ms Saudwell made her application, I am satisfied that Mr Saudwell only commenced his full-time employment in September 2023, and I therefore consider that it is reasonable to vary Mr Saudwell's income from the date of Ms Saudwell's application.
20. I am also satisfied that it is just and equitable to increase the annual rate of child support payable by Mr Saudwell by half the amount of the costs associated with [Child 1]'s special needs, by increasing the annual rate payable by a total amount of $1,502 in the period 25 September 2023 to 24 September 2024, and by a total amount of $1,790 in the period 25 September 2024 to 24 September 2025.
21. Finally, I note that Ms Saudwell's income has also increased, and I am satisfied it is just and equitable to increase the income used in the assessment to $58,000 from 1 July 2024.
22. Those changes to the assessment overall will result in a reduction in the arrears of child support owed by Mr Saudwell, because he will be required to contribute less child support overall than he was required to contribute as a result of the objection decision. Based on the information available to me it is possible that Mr Saudwell will still have a small amount of arrears to pay for past periods, although I have no information about actual payments made by Mr Saudwell since the end of February 2025.
23. According to my calculations, the decision will result in an ongoing annual rate of child support to be paid by Mr Saudwell of approximately $14,690 (including a contribution to the costs associated with [Child 1]'s special needs), or approximately $1,224 per month. I have considered the issue of hardship in relation to Mr Saudwell, and also in relation to Ms Saudwell and the children. I am satisfied that the decision appropriately balances any hardship that may be experienced by the parties and the children.
24. Mr Saudwell has submitted that his income will reduce from April 2025 due to his undertaking further study. As set out above, I do not have sufficient evidence to make any definite finding about that. I therefore propose to vary the incomes for both parents to the incomes I have found to be their current incomes until 31 August 2025. If Mr Saudwell has a significant reduction in income before that date, it will be open to him to seek a further departure from the assessment pursuant to section 98J of the Act.

Is a departure from the assessment otherwise proper?

1. Finally, I must be satisfied that the departure determination is "otherwise proper". Subsection 117(5) of the Act requires me to take into consideration the nature of the duty of a parent to maintain a child, and the effect that any change to the assessment would have on the rate of any Centrelink benefits being received by the parties or the child.
2. The child support law recognises that each parent has a primary duty to maintain their children. In the case that they cannot, the government may assist in the form of family assistance payments.
3. The evidence before me is that Ms Saudwell does receive some family assistance payments in respect of the children, and the amount of family assistance ultimately payable to Ms Saudwell may be affected by the rate of child support payable for the children. I am satisfied that the departure from the assessment properly reflects the capacity of each parent to provide for the children, and on that basis I am satisfied that the departure determination is otherwise proper.

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

• for the period 25 September 2023 to 30 June 2024 Mr Saudwell's adjusted taxable income is varied to $100,554;
• for the periods 1 July 2024 to 9 August 2024 and 14 December 2024 to 1 March 2025 Mr Saudwell's adjusted taxable income is varied to $101,960;
• for the period 10 August 2024 to 15 November 2024 Mr Saudwell's adjusted taxable income is varied to nil;
• for the period 16 November 2024 to 13 December 2024 Mr Saudwell's adjusted taxable income is varied to $64,931;
• for the period 2 March 2025 to 31 August 2025 Mr Saudwell's adjusted taxable income is varied to $96,710;
• for the period 1 July 2024 to 31 August 2025 Ms Saudwell's adjusted taxable income is varied to $58,000;
• for the period 25 September 2023 to 24 September 2024 the annual rate of child support payable by Mr Saudwell is increased by $1,502;
• for the period 25 September 2024 to 24 September 2025 the annual rate of child support payable by Mr Saudwell is increased by $1,790.