CHILD SUPPORT - departure determination - income, property and financial resources - costs of education - manner expected by both parents - consent order of Family Court of Australia - ground for departure - decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

1. For child support purposes Mr Yachti is the parent liable to pay child support to Ms Yachti for their child [Child A] (born March 2017). Mr Yachti has 37% of [Child A's] care and Ms Yachti has the remaining 63% care. The parties' child support case has been registered with Child Support since April 2018.
2. On 22 February 2024, Ms Yachti lodged an application with Child Support seeking a change of assessment. Although 2 grounds were cited, ultimately the concern is Reason 3 in relation to [Child A's] private schooling costs for his attendance at [School A]. Prior to Ms Yachti's application, she was covering the tuition fees and compulsory school levies and this remains the case.
3. According to Child Support records, at the time of Ms Yachti's application Mr Yachti's child support liability of $355 per annum was assessed under Part 5 of the Child Support (Assessment) Act 1989.[1] This assessment used adjusted taxable incomes for the 2022/23 income year of $65,983 for Mr Yachti and $96,084 for Ms Yachti.
4. From 1 August 2024, Mr Yachti was assessed to pay child support of $1,038 per annum under Part 5. This assessment used adjusted taxable incomes for 2023/24 of $76,188 for Mr Yachti and $120,568 for Ms Yachti.
5. On 18 July 2024, a Child Support officer made a departure determination. The officer decided that Reason 3 applied and concluded Mr Yachti should contribute to half of [Child A's] school fees. The officer decided that the child support otherwise payable by Mr Yachti under Part 5 should be increased by $4,500 per annum from 1 January 2024 to 31 December 2025.
6. Mr Yachti objected to this decision on 22 July 2024. Mr Yachti's main reason for objecting was that, as he had 37% of [Child A's] care, any increase in his child support liability to accommodate school fees, should be limited to 37% (and not 50%) of the total fees payable.
7. On 9 December 2024, an objections officer agreed that Reason 3 was established and that Mr Yachti should contribute 50% of the school fees payable. The objections officer varied the decision under review to accommodate the increase in the fees payable to [School A] in 2025. Accordingly, the objections officer decided that the child support otherwise payable by Mr Yachti should be increased by $4,500 per annum from 1 January to 31 December 2024 and by $5,288 per annum from 1 January to 31 December 2025.
8. On 10 December 2024, Mr Yachti sought review by the Tribunal and the application was heard on 3 September 2025. Both parties appeared by conference telephone and gave sworn evidence. An interpreter for Mr Yachti was present.
9. The following material was before the Tribunal:
   • - the 'Section 23 Statement and Documents' and supplementary papers provided by Child Support comprising folios 1 to 319 (marked Exhibit 1);
   • - documents provided by Mr Yachti, comprising folios A1 to A21 (marked Exhibit A); and
   • - documents provided by Ms Yachti, comprising folios B1 to B54 (marked Exhibit B).

1. In pre-hearing submissions and at the hearing, Mr Yachti raised as an issue that Ms Yachti's present partner's income was not being considered. I indicated that, as Ms Yachti's partner is not [Child A's] parent, he has no financial obligations under the child support law regarding [Child A]. Under the child support law, the obligation to meet a child's costs is imposed on the child's parents.
2. Mr Yachti also confirmed a preparedness to contribute to 37% of [Child A's] school fees commensurate with the level of care he has. I indicated that a departure determination under Reason 3 is not based on this consideration. Mr Yachti's position is that, in any event, he cannot afford to contribute more than 37% of the fees.

1. Section 98B enables a liable parent, or carer entitled to child support, who is of the view that special circumstances exist, to ask Child Support to make a determination departing from the provisions of the Act governing the administrative assessment of child support (a departure determination, also known as a change of assessment decision).
2. Section 98C empowers the Registrar to make a departure determination if satisfied that:

(1) one or more grounds for departure referred to in subsection 117(2) exist;

(2) it would be just and equitable as regards the child, the liable parent and the carer entitled to child support; and

(3) it would be otherwise proper.

1. As indicated, Ms Yachti applied for a change of assessment on 23 February 2024 seeking a departure determination under Reason 3, which concerns [Child A's] private education costs.

1. Subparagraph 117(2)(b)(ii) provides a ground for departure where, in the special circumstances of a case, the costs of maintaining a child are significantly affected because the child is being educated in the manner that was expected by their parents.
2. The term 'special circumstances' is not defined in the Act. In Gyselman v Gyselman [1991] FamCA 93; (1992) FLC 92-279 the Full Family Court indicated that, for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.
3. It is well established that an administrative assessment under Part 5 does not address the compulsory costs of private schooling that exceed those ordinarily incurred in the public education system. Accordingly, the focus of Reason 3 is typically on tuition fees and compulsory school levies not incurred in public schooling.
4. A joint expectation at some point should not be understood as akin to entering a contract from which there is no exit clause. Apart from the fact the relevant provision is not couched in contractual terms, or in terms of an agreement between parents, it is clear parents can have the same expectation without ever having discussed the subject of the expectation. Further, it has never been suggested that a parent cannot change a prior expectation about private education where their financial resources are not adequate. In this regard, Riethmuller J noted in Dobbins & Devlin & Anor [2014] FCCA 1274 (at paragraph 43):

The simplistic argument of the mother that it is not open to a parent to change their expectations with respect to their child's education simply due to financial reasons cannot be correct. Throughout life people change their expectations both with respect to their own lives and their children as a result of the resources available to them.

1. I think this passage has to be understood with circumspection. Where a parent has expected their child to be privately educated, there would need to be clear evidence both that their financial position has materially altered and that this was the cause of their changed view.
2. In my view an expectation that a child will attend private schooling involves a positive or active attitude by a parent that this will occur. It amounts to an anticipation typically associated with active steps to bring this about, or an active acquiescence in the other parent taking the requisite steps. Regarding education, the active steps a parent may make may include seeking out suitable schools, being placed on a waiting list, signing enrolment forms and paying school fees.
3. Central to the present matter is a consent order of the Family Court of Australia, dated [November] 2020. Clause 22 of the order reads:

That, unless as agreed between the parties in writing, the child shall attend [School A] until he ceases his formal education;

1. There is also a notation at the end of the consent order that: "The Father indicates that he will pay for half of the child's educational, medical and extra curricular expenses".
2. I accept Mr Yachti's evidence that [School A] was not his preferred school and I understand he would have preferred that [Child A] have an Islamic education. Nevertheless, Mr Yachti's view is that [Child A's] education is important and he does not contest that, in line with the court order, he anticipated that [Child A] would attend [School A] and was prepared to contribute to the associated schooling costs.
3. Ms Yachti advised that [Child A] started Kindergarten at [School A] at the beginning of 2022 and started Year 1 in 2023. Ms Yachti said she covered the school fees for both years as Mr Yachti declined to contribute. [Child A] commenced Year 2 in 2024 and is now undertaking Year 3.
4. I am satisfied from [School A's] published schedules of fees for 2024 and 2025 (which are included in the hearing papers) that the compulsory annual tuition fees and levies from Kindergarten to Year 4 are as follows:

1. A [School A] statement of account Ms Yachti has provided shows she has paid the school fees in full for both years. The statement shows Ms Yachti's out-of-pocket expense for 2025 is $11,013.75 as [School A] applied a discount of $1,361.25 for early payment. Ms Yachti confirmed that she did not receive a discount for 2024.
2. It will be noted that half these costs exceed the figures adopted by the objections officer. In this regard, it is evident the objections officer did not (for unexplained reasons) include the capital levy component. As this is a compulsory charge associated with [Child A's] attendance at [School A], it should be included.
3. As the fees are significant and are not taken into consideration in the Part 5 assessment, I consider they give rise to special circumstances. Further, as I am satisfied there was a mutual expectation that [Child A] be privately educated, there are grounds for departure under Reason 3.

1. Subsection 117(4) provides as follows:

Matters to consider for purposes of subparagraph (1)(b)(ii)

(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

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

(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

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

(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. Under subsection 3(1) parents have a primary duty to maintain their children and under subsection 3(2) this duty has priority over all commitments other than (amongst other things) the commitments necessary to enable a parent to support themselves. In the present context, the point is essentially to ascertain what level of contribution to [Child A's] school fees by Mr Yachti is fair.
2. On the available evidence, there is no suggestion that [Child A] has special needs or separate income or financial resources.

1. As noted, Mr Yachti's adjusted taxable income for 2023/24 was $76,188. The supplementary material Child Support provided indicates Mr Yachti's adjusted taxable income for 2024/25 is $103,175. This includes a fringe benefit component.
2. As Ms Yachti is yet to lodge a tax return for 2024/25, her adjusted taxable income for this income year was provisionally set at $127,113. Ms Yachti said at the hearing that she anticipated her adjusted taxable income would be $132,000.
3. Mr Yachti's present employer is [Employer 1]. There was some controversy at the hearing regarding whether Mr Yachti is also doing [Occupation 1] work. As part of the documentation provided, Ms Yachti provided several photographs from the [Social media 1] page of [Sports team 1]. I note from checking the posts that the photographs were uploaded on 17 February 2025 and relate to a match with [Sports team 2] on 15 February 2025. Two of the photographs show a [person in an Occupation 1 uniform] in the background and one photograph shows a man's face. Although the background shots are not crisp, Ms Yachti said the [person in an Occupation 1 uniform] is Mr Yachti.
4. Mr Yachti said he has not worked as [an Occupation 1] after December 2024 because he developed [a health issue] (said to be [Health condition 1]). Mr Yachti was adamant he was not working as [an Occupation 1] in February 2025, although he indicated he did not see the photographs because he was unable to open the relevant email attachment from the Tribunal Registry.
5. Mr Yachti said in any event that his work as [an Occupation 1] is declared for tax purposes and I have no reason to assume the [firm] employing Mr Yachti would fail in its lawful obligations to report his earnings to the Australian Taxation Office (ATO). Mr Yachti said he also earns about $6,000 per year as an [an Occupation 2], which is declared on his tax returns.
6. As requested, Mr Yachti provided pay advices from [Employer 1] for the fortnights ending 18 June 2025, 2 July 2025 and 16 July 2025. The gross amounts earned in these fortnights are $5,039.32, $3,816 and $3,588. Assuming this rate of earnings continues, Mr Yachti's adjusted taxable income for 2025/26 including [Occupation 2] would be commensurate with his adjusted taxable income for 2024/25.
7. Mr Yachti's pay advices reveal a fortnightly total fringe benefit outlay of $917.80 (including a fee of $10). I understand the component of $615.27 covers a novated lease and the component of $346.53 is a contribution to Mr Yachti's home mortgage.

1. Mr Yachti completed a 'Statement of Financial Circumstances' (SOFC) form on 27 January 2025. At Part K of the form Mr Yachti lists weekly expenses totalling $2,025. If the usual expenses covered by a novated lease are removed and the mortgage figure is reduced by the associated fringe benefit payment, the claimed weekly expenses would be $1,572. Looking at the 3 pay advices provided, on my calculations Mr Yachti's gross income less the fringe benefit deductions averages $1,615 per week. In circumstances where Mr Yachti does not have significant debts, it appears the weekly expenses are overstated.
2. Although Mr Yachti's expenses were covered in some detail at the hearing, I will not labour through all the details here as I found it difficult to draw reliable conclusions. For example, amongst the weekly expenses listed are 'medical, dental and optical expenses' of $239.35 and $192.30 for holidays. As I understood Mr Yachti, he went to [Country 1] to obtain [a medical device] due to delays in Australia's health system but was assisted with his costs by his family.
3. As noted, Mr Yachti has indicated a preparedness to pay 37% of the school fees. This would amount to contributions of $3,996 and $4,075 for 2024 and 2025 respectively (taking into account the discount for 2025). I presume Mr Yachti concedes he can budget around this expenditure.
4. Fifty per cent of the school fees is $5,400 and $5,506 for 2024 and 2025 respectively (taking into account the discount for 2025). The difference between what Mr Yachti is prepared to contribute and 50% of the school fees is therefore $1,325 in 2024 and $1,431 in 2025.
5. I note that Mr Yachti's child support liability under Part 5 is relatively low. This is a combination of the level of Ms Yachti's adjusted taxable income and the fact Mr Yachti has 37% of [Child A's] care. As noted, when Ms Yachti lodged her change of assessment application (in February 2024), Mr Yachti's child support liability was only $355 per annum. This increased to $1,038 per annum from 1 August 2024 following the ATO's assessment of Mr Yachti's 2023/24 tax return.
6. According to Child Support's latest assessment, Mr Yachti's child support liability under Part 5 increased to $3,261 per annum from 1 September 2025 based on his 2024/25 adjusted taxable income and a provisionally assessed adjusted taxable income for Ms Yachti of $127,113. If, as Ms Yachti anticipates, her taxable income for 2024/25 will be $132,000, this would reduce Mr Yachti's child support liability from 1 September 2025 to $3,046 per annum (using Child Support's official calculator).
7. Ultimately, I can find no compelling reason for concluding that, with prudent budgeting, Mr Yachti would be unable to meet the additional cost of increasing his commitment to paying school fees from 37% to 50%. It seems to me that, having assumed the significant commitment of a novated lease in circumstances where he signalled in the consent order of November 2020 that he was prepared to pay half the school fees, Mr Yachti has reasonable confidence in his capacity to cover this expense.
8. It appears also that Mr Yachti's novated lease involves discretionary expenditure. In this regard, I understand from the SOFC form Mr Yachti completed that he owned 2 cars apart from the car being leased. Although I understand Mr Yachti's [Car A] was "written off" (but is still worth around $7,000), his [Car B] was sold rather than retained.

1. Ultimately, I consider it is just and equitable for Mr Yachti to pay an equal share of [Child A's] private schooling costs for 2024 and 2025. Although Ms Yachti's adjusted taxable income considerably exceeded Mr Yachti's adjusted taxable income for 2023/24, as noted, Ms Yachti paid [Child A's] fees for 2022 and 2023 in circumstances where she had reason to believe following the November 2020 court order that Mr Yachti would contribute half.
2. In this context, I consider it fair to commence a departure determination from 1 January 2024. I indicated to the parties that, if a departure determination was made, I would set an end date of 31 December 2025. As Mr Yachti has indicated a willingness to contribute to the school fees but would prefer to do so directly to the school rather than through a change of assessment process, it may be that the parties are able to arrange this for 2026.
3. Accordingly, it is just and equitable in my view to increase the annual rate of child support otherwise payable by Mr Yachti under Part 5 from 1 January to 31 December 2024 by $5,400 per annum and from 1 January to 31 December 2025 by $5,506 per annum.

1. Subsection 117(5) provides as follows:

(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:

(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

(b) the effect that the making of the order would have on:

(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

1. I am satisfied that a departure determination in the proposed terms set out above is otherwise proper. As noted above, it recognises that Mr Yachti's financial resources are to be considered having regard to section 3. The increase in Mr Yachti's child support liability will likely decrease any family assistance payable to Ms Yachti.

The Tribunal varies the decision under review to the decision that Mr Yachti's annual rate of child support otherwise payable under Part 5 of the Child Support (Assessment) Act 1989 is increased from 1 January to 31 December 2024 by $5,400 per annum and from 1 January to 31 December 2025 by $5,506 per annum.

[1] All further legislative references are to this Act.