The decision under review is set aside and the matter is sent back to the Secretary for reconsideration, not before 1 August 2025, with a direction that:

(i) Upon Mr ZGPX demonstrating to the Secretary's satisfaction through clear and cogent documentary evidence that he has met 50% of an expense provided for by item 3.9 of his Binding Child Support Agreement in respect of the 2022-23 income year, Mr ZGPX's entitlement to family tax benefit for 2022-23 is to be recalculated to take into account his deductable child maintenance expenditure, which will be 100% of the applicable notional administrative assessment of child support.

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1A)-161(1B) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Family tax benefit - rate - adjusted taxable income - Deductible Child Maintenance Expenditure - Maintenance - Maintenance income - maintenance expenditure - whether maintenance expenditure includes expenses when child in one's care - specified amount of deductible child maintenance expenditure - binding child support agreement - non-periodic child support - amounts credited as to 100% against any assessment of child support - DCME not to exceed notional child support assessment

A New Tax System (Family Assistance) Act 1999

Child Support (Assessment) Act 1989

Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; (2016) 247 FCR 40

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48

Kallin v Kallin [1944] SAStRp 31; [1944] SASR 73

Re: AM (Adult Child Maintenance) [2006] FamCA 351

SZTAL v Minister for Immigration and Border Protection and Anor [2017] HCA 34

Trahair and Secretary Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 847

Explanatory Memorandum to the Child Support Legislation Amendment (Reform of the Child Support Scheme - new formula and other measures) Bill 2006

Guide to Social Policy Law - Family Assistance Guide, 3.2.7 Deductible child maintenance expenditure

1. Mr ZGPX is aggrieved by a construction of applicable legislation that in practice has meant that a range of expenses he has met have not been deducted from his adjusted taxable income for the purposes of calculating his rate of family tax benefit (FTB) in the 2022-23 income year.
2. Mr ZGPX puts in issue the correct construction of clause 8 of Schedule 3 to the A New Tax System (Family Assistance) Act 1999 (the Act), and therefore what expenses fall within the statutory definition of 'deductible child maintenance expenditure' (hereafter "DCME") in his circumstances.

1. During 2022-23, Services Australia paid Mr ZGPX $197.31 in FTB based on his estimated income of $111,000. On 13 July 2023, Services Australia reconciled Mr ZGPX's entitlement to FTB for 2022-23 against an amount of his adjusted taxable income (ATI) it considered to be $104,644. This resulted in Services Australia paying $1,905.09 to Mr ZGPX, commonly referred to as a 'top up'.
2. On 16 July 2023, Mr ZGPX lodged material in support of a substantial update to his family income for 2022-23. Referring to the notion of 'child support you pay', Mr ZGPX wrote that this was to include DCME. Mr ZGPX provided a schedule of 16 categories of expenses, claiming 100% of some categories and a proportion of others. By way of example, Mr ZGPX claimed expenses such as out of pocket Medicare, clothes, vehicles, his own mortgage expenses, holidays the children attended, groceries and utilities. Generally speaking, the reason for including such items were that the children benefited from the expenditure in some way.
3. Services Australia treated that as a request for review of the decision of 13 July 2023 (that is, the top up). On 27 November 2023, an authorised review officer found that Services Australia's decision to top up Mr ZGPX's entitlement to FTB by $1,905.09 for 2022-23 was correct, and in reaching that finding, that Mr ZGPX had nil DCME. Further inherent in that finding is a rejection of the proposition that the items identified by Mr ZGPX fall within the definition of DCME. Although not expressed in the reasons for decision, the notes made by the authorised review officer include a position expressed by the 'Business Team' noting that Mr ZGPX had wanted to include his entire 2022-23 financial year income as DCME, that this was completely unreasonable, and that DCME is not calculated based on money one spends on one's own children. The advice provided to the authorised review officer referred to Departmental policy in the Family Assistance Guide classing child maintenance expenditure as a payment or benefit provided by an individual or their partner to the other parent or carer of the children. The items identified by Mr ZGPX were not to be classed as maintenance because they were not cash or non-cash payments made to the other parent, but were regular ongoing expenses related to having a child in one's care.
4. Mr ZGPX applied to the Administrative Appeals Tribunal (AAT) for review on 28 December 2023.
5. On 24 July 2024, the Administrative Appeals Tribunal set aside the decision under review and sent the matter back with directions obliging (Services Australia) to recalculate Mr ZGPX's 2022-23 FTB entitlement to take into account his DCME under the binding child support agreement he was a party to, with those details to be provided by Mr ZGPX.
6. In its reasons, the AAT was quite clear in rejecting Mr ZGPX's arguments on the construction of clause 8 of Schedule 3 of the Act, but did find that some expenses Mr ZGPX had met may be in the nature of non-periodic payments under Mr ZGPX's binding child support agreement that may fall within the definition of a DCME - but any such expenditure had not been adequately documented.
7. On 21 August 2024, Mr ZGPX applied to the Administrative Appeals Tribunal for second review.
8. On 14 October 2024, the Administrative Appeals Tribunal was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
9. The documentary evidence now before the Tribunal for the purpose of this second review is extensively duplicated, but I have maintained that duplication as the parties have prepared their written submission by reference to different bundles of documents.
10. Exhibit A incorporates the material that was before the Administrative Appeals Tribunal in a folioed bundle with pages 1 to 388, and a further smaller bundle marked C1 to C3 which consists of an order for written submissions issued by the AAT and the response.
11. Exhibit B is a bundle lodged by Mr ZGPX, which he has titled 'Bale of Useful and Necessary Documents for Leisurely Examination' (BUNDLE). It contains 493 numbered folios, inclusive of material lodged by the Respondent, amendments to his claimed amount, legislative extracts, duplicated 'T-Docs', relevant AAT decisions and the AAT decision under review.
12. Both parties have filed extensive post-hearing submissions.
13. In the event that others must navigate this material, it is useful to observe that the Respondent's Statement of Facts Issues and Contentions refers to documents with the page numbering in Exhibit A while Mr ZGPX's written submissions refer to page numbering in Exhibit B.
14. In any event, the hearing of the review proceeded primarily on the basis of each party developing its arguments on the correct construction of clause 8 of Schedule 3 of the Act in the context of this matter, and these arguments can be followed by having regard to the legislation itself, the binding child support agreement (BCSA) (Exhibit A folio 43, Exhibit B folio 128) and Mr ZGPX's updated table of his 2022-23 DCME of 6 April 2024 (Exhibit B folio 481).
15. Importantly in this regard, Mr ZGPX confirmed in his submissions that all but the first three items and the 9th item in his schedule required me to accept his construction of the legislation to be recognised as DCME.

1. When- a person is eligible for FTB, their rate is calculated in accordance with Schedule 1 of the Act: section 58 of the Act. The rate is subject to an income test, which turns on a person's 'adjusted taxable income'. The calculation of adjusted taxable income is provided for by clause 2 of Schedule 3 of the Act.
2. Relevantly, and generally speaking, an individual's 'adjusted taxable income' will be the person's taxable income within the meaning of the Income Tax Assessment Act 1997 plus a range of different amounts such as fringe benefits, and investment loss.
3. Relevantly, an individual's adjusted taxable income will be the sum of those items less the individual's DCME.
4. DCME is addressed at clause 8 of Schedule 3 to the Act, which is reproduced below in full:

(1) For the purposes of this Schedule, if an individual incurs an amount of child maintenance expenditure during an income year, 100% of the amount of the expenditure is the individual's deductible child maintenance expenditure in respect of that year.

(2) For the purposes of this clause, an individual incurs child maintenance expenditure if:

(a) the individual (the payer) pays a payment (either one‑off or periodic) or provides benefits; and

(b) the payment or benefits are paid or provided in respect of the payer's natural, adopted or relationship child; and

(c) the payment or benefits are paid or provided to another individual other than the payer's partner (if any) for the maintenance of the child.

(3) For the purposes of this clause, if an individual incurs child maintenance expenditure, the amount of the child maintenance expenditure incurred by the individual is the amount of the payment paid or the value of the benefits to the individual who provided them.

(4) For the purposes of subclause (3), the value of a benefit, in relation to the individual providing the benefit, has the meaning set out in subclauses (5) and (6).

Value of benefit where provider is a party to a child support agreement

(a) an individual providing a benefit is a party to a child support agreement under the Child Support (Assessment) Act 1989; and

(b) the agreement contains:

(i) non‑periodic payment provisions (within the meaning of that Act) under which the individual is providing child support to another individual for a child; and

(ii) a statement that the annual rate of child support payable under any relevant administrative assessment is to be reduced by a specified amount that represents an annual value of the child support to be provided; and

(c) the individual provides the support;

the value of the benefit provided by the individual is the specified amount.

Value of benefit where provider is not a party to a child support agreement

(6) If an individual providing a benefit is not a party to a child support agreement under the Child Support (Assessment) Act 1989, the value of the benefit provided by the individual is the cost of the benefit to the individual.

1. There is no separate statutory definition of the term 'maintenance expenditure', but the Act provides for an inclusive definition of 'maintenance' stating merely "maintenance includes child support", while "child support means financial support under the Child Support (Assessment) Act 1989 and includes financial support by way of lump sum payment or by way of transfer or settlement of property".

1. Mr ZGPX has provided written initial submissions and further submissions in reply to submissions lodged by the Secretary after the hearing. Mr ZGPX's written submissions at first instance make extensive reference to the AAT decision, but in summarising his arguments I have attempted to distil Mr ZGPX's key arguments regarding the interpretation of Schedule 3, clause 8(2) without traversing all those matters.
2. Mr ZGPX contends that the AAT was in error in rejecting his construction of the meaning of the term DCME, in that the term 'maintenance', as used in that definition, was not to be narrowly interpreted. Mr ZGPX argues that recourse should not be had to other statutory provisions in interpreting the meaning of DCME as it is a defined term itself.
3. Mr ZGPX points to the definition of the term 'maintenance' as inclusive of child support as an indication that without that statutory intervention, 'child support' would not have the general characteristics of maintenance. In this way Mr ZGPX takes issue with the AAT's observation that because child support is mentioned in the definition of maintenance, this meant that the two concepts had the same general characteristics.
4. Further description of Mr ZGPX's analysis benefits from again reproducing the written text of Schedule 3, clause 8(2) in particular:

(2) For the purposes of this clause, an individual incurs child maintenance expenditure if:

(a) the individual (the payer) pays a payment (either one‑off or periodic) or provides benefits; and

(b) the payment or benefits are paid or provided in respect of the payer's natural, adopted or relationship child; and

(c) the payment or benefits are paid or provided to another individual other than the payer's partner (if any) for the maintenance of the child.

1. Mr ZGPX argues that the two uses of the word 'maintenance' in Schedule 3, clause 8(2) have different meanings: when used in the composite phrase 'child maintenance' and when used in the term 'maintenance' as it stands alone in clause 8(2)(c). Mr ZGPX argues that the first use is usually equivalent to child support while the use of the term 'maintenance' when standing alone is to be given a broader meaning.
2. In relation to the term 'child maintenance', Mr ZGPX argues that the phrase has a legal meaning in itself, pointing to the definition of the term 'child maintenance' in legal dictionaries, suggesting it connotes a transfer of value, usually compulsory ...from a first person to a second person...in fulfilment of ..a.duty to care for a child. In this way, Mr ZGPX argues that the composite phrase 'child maintenance' is usually but not always equivalent to child support. Mr ZGPX points to the use of the term in the Act at subsection 3(1) 'maintenance income', and elsewhere in other statutes. Mr ZGPX concludes his argument in this regard by asserting that when used as a composite phrase, the term 'child maintenance' connotes a concept that is tangible, quantitative and countable, such as an order, agreement or amount.
3. The term 'maintenance' when standing alone, to the contrary is much broader in Mr ZGPX's submission. Referring again to definitions of the term in legal dictionaries and ordinary usage as defined in the Oxford English Dictionary, Mr ZGPX proposes that the term be understood to mean, in the sense of for a child, the provision of anything that is necessary or convenient for the child including any cost of the child's daily living.
4. In this way, Mr ZGPX asserts that each of the items outlined in his schedule of DCME is 'maintenance', citing authorities where expenses of that general kind have been accepted to be of the nature of 'maintenance'.

1. The Secretary argues that the AAT correctly rejected Mr ZGPX's contentions that maintenance could include payments he made to other parties for benefits received by the children while in his care and not in the care of the other parent.
2. The Secretary contends that the AAT was correct to find symmetry in the statutory definition of 'maintenance income' notwithstanding there was no definition of 'maintenance expenditure', and correctly identified that payments must be made for the maintenance of the child, and that costs such as mortgage and utility costs are not made for the maintenance of the children. The Secretary draws support for this contention from the decision of Trahair and Secretary Department of Families, Housing and Community Services and Indigenous Affairs [2008] AATA 847 (Trahair), discussed further below.
3. In developing submissions regarding the meaning of the term maintenance after the hearing, the Secretary notes that the term is not defined in the Family Law Act 1975, but has been judicially considered. From the context in which the term 'maintenance' is used and considered in that regard, the term 'maintenance' refers to the direct benefit of a child to ensure its proper needs are met.
4. The Secretary contends that the provisions in the Act do not stand alone but are to be read in conjunction with other relevant provisions. Doing so against the scheme and objects of the Act reveals that child maintenance is for the direct benefit of a child while in another individual's care. The Secretary points to extracts from Departmental policy elaborating on that construction.
5. The Secretary submits it would not be consistent with the objects of the Act to allow an individual to claim any expenses that are not for the direct benefit of a child, or expenses incurred while the child is in the same individual's care, because family assistance is to assist individuals with the cost of raising children in their care. The Secretary contends that to permit an individual to reduce their adjusted taxable income and thus increase entitlement to family assistance by deducting such expenses would result in a perverse outcome.

1. Although Departmental policy is by no means conclusive of the correct interpretation of the legislation, it is relevant to note that the Guide to Social Policy Law - Family Assistance Guide, 3.2.7 Deductible child maintenance expenditure is expressed in terms consistent with the Secretary's position in this review as follows:

Child maintenance expenditure is a payment or benefit (for example, child support (1.1.C.20)) provided by an individual (1.1.I.90) and/or their partner (1.1.P.30) to the other parent or carer for their natural, adoptive or relationship children (1.1.R.22). It does not include spousal maintenance.

1. There is limited direct consideration of the construction of clause 8 of Schedule 3 to the Act. However, it was considered in Trahair. In that matter, the applicant advanced if not precisely the same contentions as Mr ZGPX, but similar ones in some respects. One point of difference was that the expenses the applicant in Trahair relied upon were the provision of accommodation and motor vehicles for use by his wife and the children from whom he was separated. These were summarised by the AAT as follows:

[4] He challenged the assessment of his adjusted taxable income for that year on the basis that all his DCME had not been brought to account. He claimed various expenses that he had paid benefited the children, and income that he had foregone also benefited the children and should be treated as DCME and brought to account when assessing his taxable income for FTB purposes.

• value of the benefit to his spouse and children of being able to live in the family home rent free while he paid rent;
• his payments of some of the capital outgoings on the family home in that year, being his contribution to rates and insurance; and
• the value of the use of the family car by his wife, including maintenance, insurance and registration.

1. In interpreting the legislation, the AAT decided:

[23] The words of the legislation require that the payment of benefit must be "paid or provided" and must be "for the maintenance" of the child or children. The words would appear to require a positive provision of funds or a benefit that is direct and is focused just on the children and is not just incidentally linked to a benefit for a child or children. The Tribunal does not accept that the benefits and payments that Dr Trahair claims can come within such a category.

1. As to judicial consideration of the term 'maintenance', it is unsurprising to observe that the judicial consideration of the term has taken place in the context of contested applications for the compulsory payment of 'maintenance'. Consideration of the term has thus been focussed on the scope of the term in that context, and does not extensively address any contention that maintenance includes meeting the costs of benefits children enjoy in the care of the person meeting those costs.
2. Kallin v Kallin [1944] SAStRp 31; [1944] SASR 73 (Kallin) did however recognise that the term maintenance can be used to describe the support of children while in the care of the parent providing the support, or to use the court's expression, 'where people live in amity together':

"Maintenance" means the act of maintaining, and denotes the regular supply of food, clothing and lodging; the provision of the necessaries and of the conveniences of Iife. The quality and quantity of wearing apparel, and to a less degree the amount and nature of food, as well as the size, situation and furnishing of the place of abode, will in each case depend in part on the standing of the parties, their wealth, and the environment to which they in their married state have been accustomed. These factors to provide for existence and comfort in ordinary circumstances, where people live in amity together, are supplied partly in specie, and partly by money wherewith other such things wanted may be acquired. But maintenance may also be lawfully provided for either wholly in kind, house furnishings, clothing, food, recreation and entertainment, or entirely by the payment to a " dependent" of moneys, with which to procure what is necessary. The jurisdiction, whereby monetary contribution for maintenance is ordered, is of course in constant use. But the enforcement of support by the provision of other media is less familiar. This may be expected to be in the form of preventing some right of maintenance presently enjoyed from being interrupted or precluding the wife or husband as the case may be from being molested in the enjoyment of the "right".

1. By 2006 it was recognised that the term 'maintenance' was now one of generous import: Re: AM (Adult Child Maintenance) [2006] FamCA 351:

[101]. Maintenance, however, is a term of generous import in the family law context and is commonly understood to mean something more than mere subsistence or necessaries of life. It includes financial provision for all reasonable, current and likely future daily requirements, including out of pocket, adequate housing, health and education related expenses, as well as any special needs. It is not a single concept concerned only with the payment of money. There is no reason in principle why a maintenance order cannot involve, for example, direct provision of goods or services.

1. While this very brief examination of judicial consideration of the term 'maintenance' generally supports Mr ZGPX's submissions as to the broad meaning of the term when it stands alone, I am conscious that my task is not to settle on an interpretation of the term as it stands alone, but to correctly construe Schedule 3, clause 8 of the Act, as an exercise of statutory interpretation.
2. As to that task, I cite for myself the principles of statutory interpretation that have been 'cited too often to be doubted,'[1] drawing from the discussion in SZTAL v Minister for Immigration and Border Protection and Anor [2017] HCA 34. The majority said:

[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

Do expenses incurred by Mr ZGPX of benefit to the children while in his care fall within the definition of DCME?

1. Turning therefore to construing the terms of clause 8 of Schedule 3 to the Act, and more specifically the terms of clause 8(2), I reflect on Mr ZGPX's contentions as to the differential meaning of the terms 'maintenance' and 'child maintenance' as those words or phrases appear in clause 8(2).
2. First however, it is important to observe that the composite phrase 'child maintenance' does not in fact appear in its own right in clause 8(2) of Schedule 3. It is a constituent part of the composite phrase, with express statutory meaning of 'child maintenance expenditure' which Mr ZGPX had also recognised may safely be used interchangeably with the phrase 'DCME' itself.
3. Much of Mr ZGPX's submissions regarding the meaning of the composite phrase 'child maintenance' therefore does not helpfully engage with the construction of clause 8(2) of Schedule 3 of the Act.
4. Having said that however, in developing those arguments Mr ZGPX has made clear the nuances in his contentions as to the meaning of the term 'maintenance' when that word stands alone. In developing his arguments in that regard, Mr ZGPX has persuaded me that when used in isolation, the ordinary meaning of the term 'maintenance' can potentially encompass, in some respects and contexts, expenses applied to the benefit of children in one's own care. I accept that meaning can be seen in the dictionary definition of the term, and indeed that meaning of the word was implicitly recognised in the discussion of the court in Kallin as mentioned above.
5. In that regard, Mr ZGPX cites the Oxford English Dictionary in his post hearing submissions, identifying two relevant entries: which I summarise as the action of keeping something in working order (which may be disregarded as obviously irrelevant) and the other as 'the action of providing for oneself, one's family etc. with the means of subsistence...'.
6. Mr ZGPX's reference to the Oxford English Dictionary is incomplete, and indeed it is a further meaning attributed to the term 'maintenance' in the copy of the Australian Concise Oxford Dictionary (2nd Edition 1992) that I habitually keep within arm's reach that underscores the difficulty of the statutory construction task and the need to always construe words in context at the first stage of statutory interpretation. A third meaning of maintenance offered is 'a husband or wife's provision for a spouse after separation or divorce; alimony'. While that meaning is essentially describing spousal maintenance, it reflects what Mr ZGPX contends to be the meaning of 'child maintenance' as distinct from 'maintenance'.
7. In this way, while I have followed with care the argument developed by Mr ZGPX regarding the difference in meaning between 'child maintenance' and 'maintenance' standing alone, I reject it. In my view, in some contexts the term 'maintenance' when standing alone will mean an arrangement reflective of the description ultimately described by the Concise Oxford Dictionary as 'alimony'. In other words, the two nuanced meanings Mr ZGPX has identified between the term 'child maintenance' and 'maintenance' can be found within the term 'maintenance' when standing alone, depending on the context.
8. However, as Gageler J observed of K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd[2] at [35] in SZTAL:

"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise."

1. As to the context in which clause 8 of Schedule 3 appears, unlike many Acts, the Act does not, in so many words, contain a neat statutory description of its objects and purposes. The legislation provides for a range of income tested benefits directed towards assisting families with the costs of raising children, not just FTB. Nor does Part 3 of the Act, which provides for eligibility for FTB, contain a provision describing, in as many words, the objects and purposes of the payment, and nor does Part 4, which contains the provisions regulating the calculation of rate.
2. The term 'DCME' and its application in identifying the adjusted taxable income to be used in the statutory rate calculation process exists for an entirely functional and mechanical purpose in the rate calculation process.
3. In understanding the context of the term 'maintenance' as it appears in the definition of 'DCME', it is necessary to recognise the role 'maintenance' plays in the application of the means tests in Schedule 1 of the Act, where it appears as a term in different composite phrases but, importantly, in the same overall statutory context.
4. It is clear through the existence of the 'maintenance action test' and the 'maintenance income test' that maintenance in the sense contended for by the Secretary (and not in the sense contended for by Mr ZGPX) is intended to impact on the rate of FTB to which an individual is entitled.
5. Generally speaking, the maintenance action test obliges a person who is entitled to claim or apply for maintenance for the child to take action to do so where the Secretary considers it reasonable that they should. If they do not take that action their entitlement to FTB will be restricted to the base rate: Schedule 1, clause 10 of the Act. I note the terms used in that clause are 'maintenance for the child' (the same phrasing as it is in Schedule 3, clause 8(2) (and 'obtain maintenance'). The syntax in Schedule 1, clause 10 simply does not permit the meaning of maintenance contended for by Mr ZGPX in that context.
6. The purpose of the maintenance action test is to facilitate the application of the maintenance income test. The effect of maintenance income on the rate of FTB is that, in general terms, it reduces a person's entitlement to FTB (unless they receive a pension) where the maintenance income exceeds the individual's maintenance income free area: Schedule 1, clause 20 of the Act.
7. In this way, the provisions in the legislation for DCME to be deducted from taxable income to arrive at the adjusted taxable income recognises that the maintenance expense will not be available for the individual to apply to the care of children, while the application of the maintenance income test recognises that additional income is being received for the purpose of providing care to the children. The provisions mirror each other in the overall statutory design, and these features of the legislation in my view are highly probative of the context within which the term 'maintenance' is to be construed in Schedule 3, clause 8. That the term maintenance is defined to include child support is entirely consistent with this construction.
8. In this way, I find myself in full agreement with the observations in the decision under review where it is noted that although maintenance expenditure is not defined in the Act, there is a symmetry with the term maintenance income, which is defined, relevantly:

(iii) otherwise - the amount of a payment or the value of a benefit that is received by the individual for the maintenance of an FTB child of the individual and is received from a parent or relationship parent of the child, or the former partner of a parent or relationship parent of the child;

1. That definition connotes the transfer of payments to an individual from a parent of the child (for simplicity), and having regard to the overall scheme of the Act, there is a provider of maintenance (maintenance expenditure) and a receiver of maintenance (maintenance income) in relation to an FTB child. The adjustment to an individual's rate of FTB is achieved through different mechanisms. In the case of the provider of maintenance it is achieved through the definition of adjusted taxable income and DCME. For the receiver of maintenance, it is achieved through the maintenance income test. The fact that the statutory definition of maintenance income explicitly closes down Mr ZGPX's construction of maintenance does not mean that it remains open in the case of DCME. To the contrary, in my view it persuasively provides the context in which the term must be construed having regard to the overall scheme of the Act and the operation of the rate calculation process within which the definition must function.
2. Furthermore, and for completeness, I also consider the observations in Trahair that "the words would appear to require a positive provision of funds or a benefit that is direct and is focused just on the children and is not just incidentally linked to a benefit for a child or children" arises from the context_._ I consider that expenses associated with mortgage repayments, household groceries and holiday expenses are insufficiently direct or focussed to fall within the definition of maintenance in context.
3. Returning to the text of Schedule 3, clause 8(2)(c) (where the term 'maintenance' is said to stand alone and connote a different meaning), I note further indicators in the text that are inconsistent with Mr ZGPX's construction. The text requires that the payment or benefits are paid or provided to another individual other than the payer's partner (if any) for the maintenance of the child. Mr ZGPX argues that the reference to 'another individual other than the payer's partner' would incorporate payments to service providers who provide the services that amount to the maintenance for the child. In my view, the reference to 'another individual other than the payer's partner' should not be construed that way, and instead underscores, through expressly preventing payments within a household (i.e. to the payer's partner) for the maintenance of a child from meeting the definition of DCME. This again arises from the context, and I do not consider the reference to 'another individual' is intended to capture any payment to the commercial world at large.
4. I therefore reject Mr ZGPX's construction of Schedule 3, clause 8(2) of the Act, and adopt the construction advocated for by the Secretary and reflected in the Departmental policy. I find that in context, Schedule 3, clause 8 of the Act requires child maintenance expenditure to be a payment or benefit (for example, child support) provided by an individual to the other parent for their children. Payments made to secure goods or services that benefit the children while in the care of an individual do not fall within the scope of DCME.
5. It follows therefore, embarking on a process of elimination, all items in Mr ZGPX's schedule other than the first three items and the ninth item, potentially and subject to the discussion below, cannot be components of his DCME. I reproduce only those remaining items below:

Children are ¾ of the recipients and thus receive ¾ of the benefit. Not reduced by 50% time, as these expenses are a fixed cost that does not vary with my care percentage

1. Schedule 3, clause 8 of the Act provides for the identification of the amount of child maintenance expenditure at Schedule 3, clause 8(3). The amount is the amount of payment paid or the value of the benefits to the individual who provided them.
2. Mr ZGPX has not made a 'payment' and relies on the value of the benefits he has provided.
3. Schedule 3, clause 4 of the Act provides for the identification of the value of a benefit, identifying alternative provisions (Schedule 3, clause 4 and clause 5) for an individual who is a party to a child support agreement and an individual who is not.
4. Mr ZGPX is a party to a binding child support agreement, and so the identification of the value of benefits he has provided is to be identified by reference to Schedule 3, clause 8(5) of the Act, reproduced again for convenience of reference:

Value of benefit where provider is a party to a child support agreement

(a) an individual providing a benefit is a party to a child support agreement under the Child Support (Assessment) Act 1989; and

(b) the agreement contains:

(i) non‑periodic payment provisions (within the meaning of that Act) under which the individual is providing child support to another individual for a child; and

(ii) a statement that the annual rate of child support payable under any relevant administrative assessment is to be reduced by a specified amount that represents an annual value of the child support to be provided; and

the value of the benefit provided by the individual is the specified amount.

1. Mr ZGPX's BCSA contains non-periodic payment provisions within the meaning of paragraph 84(1)(d) of the Child Support (Assessment) Act 1989.
2. By way of example, clause 6.3 of the agreement provides for the situation where both Mr ZGPX and the mother are eligible carers for an identified child and provides that each shall pay a 50% share of non-periodic expenses, which are defined at clause 3.9. As clause 6.3.2 provides, the 50% share of the non-periodic expenses is the non-periodic child support. In all instances, the child support agreement provides that the annual rate of periodic child support is nil.
3. The agreement contains clauses 4.16 and 6.13 which provide that payments of non-periodic child support pursuant to the agreement are to be credited as to 100% against any assessment of child support pursuant to the provisions of the Child Support Assessment Act 1989 and are intended to entirely replace the operation of the assessment provisions while the agreement is in force.
4. Schedule 3, clause 8(5)(b)(ii) of the Act looks for a statement in the agreement that the annual rate of child support payable under any relevant administrative assessment is to be reduced by a 'specified amount' that represents the annual value of the child support to be provided, and Schedule 3, clause 8(5) then concludes by providing that the value of the benefit is that 'specified amount'.
5. In this regard, clauses 4.16 and 6.13 of the agreement appear to be the provisions of the agreement that must be relied upon to identify the 'specified amount' for the purposes of Schedule 3, clause 8(5) of the Act.
6. In circumstances where clauses 4.16 and 6.13 provide for a crediting 'as to 100%' against any assessment of child support, I queried with the parties at hearing whether therefore the 'specified amount' required by Schedule 3, clause 8(5)(b)(ii) could not exceed the annual assessment of child support (that is, a notional assessment of child support) against which the credit as to 100% could apply.
7. Neither the Secretary nor Mr ZGPX construe the 'specified amount' in this way. The Secretary contends that the specified amount should be construed as the amount that could be deducted in the agreement, (which I understand to mean an amount that could fall within the definition of non-periodic child support under the agreement). The Secretary contends that there is no limit imposed by the value of any notional child support assessment. The Secretary contends that Mr ZGPX may only claim as DCME 100% of his portion (50%) of the non-periodic expenses.
8. Mr ZGPX draws attention to provisions of the agreement that relate to circumstances where separate invoices for items of non-periodic expense cannot be provided and one party must meet the expense and await reimbursement from the other. Mr ZGPX contends that in these circumstances 100% of the expense can form part of the DCME. Mr ZGPX contends that the sum total of non-periodic expenses incurred under the agreement are the 'specified amount'.
9. Upon reflection and analysis of the legislative text and the framing of the BCSA, and despite neither party agreeing with my construction I have settled on the view that the 'specified amount' for the purpose of clause 8(5)(b)(ii) cannot be greater than the notional child support assessment in circumstances where the specified amount is to be identified by reference to the amount credited as to 100% against any assessment of child support pursuant to the provisions of the Child Support Assessment Act 1989. Only the statements in the BCSA at 4.16 and 6.13 can operate to identify a specified amount which represents an amount by which the annual value of the child support to be provided, is to be reduced.
10. In other words, any amount which exceeds the notional child support assessment is not an amount that can form part of the DCME. I am reenforced in this construction by having regard to the Explanatory Memorandum to the Child Support Legislation Amendment (Reform of the Child Support Scheme - new formula and other measures) Bill 2006 which introduced clause 8(5) in its current form.

Item 30 repeals and substitutes subparagraphs 8(5)(b)(i) and (ii) of the Family Assistance Act in a consequential amendment to the FTB maintenance income test provision identifying the value of an individual's benefit from a child support agreement. The amendment clarifies that the benefit is the amount, specified in non-periodic payment provisions of an agreement, by which the annual rate of child support payable under any relevant administrative assessment is to be reduced.

1. In this case, the DCME is the amount by which the notional administrative assessment is reduced; namely 100% of the notional administrative assessment.
2. I note in passing that it would be an unlikely interpretation of these complex provisions that would permit parents who have entered into a BCSA to deduct from their taxable income amounts greater than parents in equivalent provisions who choose or must rely on the administrative assessment of child support in accordance with the child support law.
3. The Secretary contends that Mr ZGPX has not provided adequate evidence of meeting expenses that would form part of the specified amount, and to the extent that there is some evidence of an expense being met, it is not clear whether the amount is the 50% Mr ZGPX is entitled to claim or some other amount.
4. I agree that the evidence before the Tribunal is insufficiently clear to reach a finding that Mr ZGPX has provided the benefit under the non-periodic payment provisions of his BCSA. I consider it very likely that he has done so, but I am unable to put my finger on evidence confirming that he has met one of the non-periodic expenses set out at item 3.9 of the BCSA. Mr ZGPX may well have been distracted by demonstrating the meeting of other expenses in furtherance of his argument on statutory construction which I have rejected.
5. Upon Mr ZGPX demonstrating to the Secretary's satisfaction that he has met 50% of an expense as provided for by item 3.9 of the BCSA, item 4.16 and 6.13 of the BCSA will then operate to identify a 'specified amount' of 100% of the notional administrative assessment of child support for the purpose of quantifying his DCME in accordance with Schedule 3 clause 8(5) of the Act.
6. I will vary the decision under review to give effect to these reasons.

The decision under review is varied so it is as follows:

The decision under review is set aside and the matter is sent back to the Secretary for reconsideration, not before 1 August 2025, with a direction that:

(i) Upon Mr ZGPX demonstrating to the Secretary's satisfaction through clear and cogent documentary evidence that he has met 50% of an expense provided for by item 3.9 of his Binding Child Support Agreement in respect of the 2022-23 income year, Mr ZGPX's entitlement to family tax benefit for 2022-23 is to be recalculated to take into account his deductable child maintenance expenditure, which will be 100% of the applicable notional administrative assessment of child support.

[1] Federal Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; (2016) 247 FCR 40 at 43 - as cited in SZTAL and Minister for Immigration and Border Protection & Anor [2017] HCA 34 per Gageler J at [37]

[2] [1985] HCA 48; (1985) 157 CLR 309 at 315; [1985] HCA 48.