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Muraco and Muraco (Child support) [2024] AATA 2019 (3 June 2024)

Last Updated: 25 June 2024

Muraco and Muraco (Child support) [2024] AATA 2019 (3 June 2024)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2023/MC026607

APPLICANT: Mr Muraco

OTHER PARTIES: Child Support Registrar

Ms Muraco

TRIBUNAL: Member D Lambden

DECISION DATE: 3 June 2024

DECISION:

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

(a) The objection officer’s decision dated 4 November 2022 is to remain unchanged.

(b) For the period 1 August 2023 until 30 November 2023, Mr Muraco’s adjusted taxable income shall be set at $118,767.

(c) For the period 1 August 2023 until 31 December 2023, the assessment otherwise payable by Mr Muraco shall be increased by $15,556 (being a contribution of $1,642 towards [Child 1]’s orthodontics and $13,914 towards the children’s 2024 tuition fees).

(d) For the period 1 January 2024 until 31 July 2024, the assessment otherwise payable by Mr Muraco shall be increased by $15,904 (being a contribution of $1,642 towards [Child 1]’s orthodontics and $14,262 towards the children’s 2024 tuition fees).

(e) For the period 1 August 2024 until 31 December 2024, the assessment otherwise payable by Mr Muraco shall be increased by $14,262 (being a contribution of $14,262 towards the children’s 2024 tuition fees).

(f) For the period 1 January 2025 until 31 December 2025, the assessment otherwise payable by Mr Muraco shall be increased by $15,235 (his $14,619 contribution towards the children’s 2025 tuition fees and $616 towards [Child 1]’s orthodontic treatment).

CATCHWORDS

CHILD SUPPORT – change of assessment – there are special circumstances – mutual expectation that the children will be privately educated – special needs of one child – income, property and financial resources – hardship will be caused to mother – otherwise proper to depart from the administrative assessment – 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 removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

  1. Mr Muraco and Ms Muraco are the parents of [Child 2] and [Child 1] (the children) in respect of whom Mr Muraco has a child support liability. For the purposes of the child support assessment the children are recorded as being in the above primary care of Ms Muraco.
  2. The child support assessment commenced from 6 March 2022 and is currently registered for collection by Services Australia – Child Support (Child Support).
  3. On 4 November 2022 an objection officer made the following decision:
  4. On 23 January 2023 Ms Muraco applied for a departure from the administrative assessment of child support in special circumstances, also known as a ‘change of assessment’. Ms Muraco identified the grounds known as ‘Reasons 2 and 3’.
  5. On 21 April 2023 Child Support found that Reasons 2 and 3 were established and changed the assessment as follows:
  6. On 16 May 2023 Mr Muraco objected to this decision. On 29 July 2023 his objection was partly allowed and the following decision was made:
  7. Mr Muraco applied to the Tribunal for review on 17 August 2023.
  8. The parties participated in an MS Teams audio directions hearing on 6 December 2023 and have substantively complied with the directions.
  9. The documentary evidence before the Tribunal consists of the Tribunal papers, indexed C1 to C476, documentary evidence produced by Mr Muraco indexed A1 to A88 and documentary evidence produced by Ms Muraco indexed B1 to B103.
  10. The parties participated in an MS Teams audio hearing on 16 January 2024.
  11. The Tribunal reconvened on 3 June 2024 to consider all of the evidence before it and made its decision.

ISSUES

  1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula which considers factors such as the number and age of children, the level of care provided and the taxable income of each parent.
  2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains government guidelines as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
  3. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Child Support Registrar (the Registrar) in writing, requesting a departure from the administrative assessment in relation to a child.
  4. Under section 98C of the Act, before making a departure determination on an application made under section 98B of the Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Act exist, and that it would be just, equitable and otherwise proper to make a particular determination.
  5. The issues for the Tribunal to determine in this case are therefore:

CONSIDERATION

There is a ground to depart from the administrative assessment of child support

  1. As to the ground known as Reason 3, subparagraph 117(2)(b)(ii) of the Act provides that the ground will be established if, in the special circumstances of the case, the costs of maintaining the children are significantly affected because the children are being educated in the manner that was expected by their parents.
  2. The Guide at 2.6.9 states:

The Registrar will also consider the circumstances at the time of separation. If the child was attending a particular private school, or was participating in a particular extracurricular activity, then this element will usually be established. If not, evidence of the parents' expectation would need to be provided, for example, the payment of fees, evidence of joint enrolment, contribution towards a scholarship fund to pay private school fees. The parents' expectation can be created at any time, not just during the period that the parents lived together.

  1. The Tribunal noted the relevant case of Reiner and Reiner and Anor (SSAT Appeal) [2013] FCCA 189: when the Court determined it was clear that the parties did have long-standing, shared expectations about the child’s Christian private school education, and it was open to the Tribunal to have made its finding it was just and equitable for second respondent to contribute to those school fees despite previous confusion about whether she would and the appeal was dismissed.
  2. At C267 an email addressed to Mr Muraco dated 31 October 2022 from [College 1] is included which states ‘The enrolment contracts for [Child 2] and [Child 1] have been signed by Ms Muraco and yourself and on the current contract you have ticked the box mother only responsible for fees. This is why you have never received any fee statements. As your name is not on the fee account we are unable to email you past statements unless we have court orders requesting this’. Mr Muraco stated that he never ticked the box in relation to the school fees. Ms Muraco explained that the school fees statements are sent to her email address and when the children commenced at the school she would be sent the fortnightly statements and pay the fees each fortnight. A copy of a Confirmation of Enrolment Details form for [Child 2] for [College 1] was provided at B23 to B34 and the form had been signed by Mr Muraco and Ms Muraco on 1 November 2018. Included at B35 to B46 was a Confirmation of Enrolment Details form for [Child 1] which had been signed by Mr Muraco and Ms Muraco on 29 October 2018.
  3. At the hearing Mr Muraco stated that Ms Muraco’s father, Mr [A], offered to pay for one of the children to attend [College 1] under a verbal agreement with Mr Muraco and Ms Muraco. He stated that this agreement was reached when [Child 2] was in year 5 at school. Mr Muraco stated that he and Ms Muraco intended to pay school fees for one child. He stated that at separation Ms Muraco said initially that her father would continue to contribute to the payment of the children’s school fees Mr Muraco stated that he wants the children to stay at [College 1], however, it is impossible for him to afford to pay for school fees for both children now. Mr Muraco referred to C10 which was a statement from Mr [A] which outlined the payments he had made towards the children’s school fees in 2019 to 2022. Mr Muraco stated that Mr [A] retired in January 2020 and continued to make payments towards the children’s school fees until March 2022. Mr Muraco stated that he was not receiving statements from the school in relation to the fees.
  4. At the hearing Ms Muraco stated that her father, Mr [A], never paid fees for one of the children. She stated that the verbal agreement with her father was that he would make payments when he could when he was working and it was never going to be an ongoing situation. She stated that her father receives the pension now and she is not receiving money from her parents. Ms Muraco stated that her father is not a self-funded retiree and he retired at the end of 2021. She stated that her father’s last payment towards the children’s school fees was $10,000 made in March 2022. Ms Muraco stated that it is impossible for the children to stay at the school without Mr Muraco’s contribution. She stated that [Child 2] attended the school first and then [Child 1] moved there earlier than [Child 2] did. She stated that she and Mr Muraco were both very happy with the school and had agreed to work it out when they separated in relation to the fees. Ms Muraco explained that when they separated they sat down with the children and discussed working it out together and she stated that her father could not pay the fees. Ms Muraco explained that [Child 2] is studying year 10 and [Child 1] is studying year 7 this year and she referred to the 2023 fee statement for [College 1] which outlines fees charged for each year level.
  5. The Tribunal was mindful of the relevant case of Farthing & Robinson & Anor [2016] FCCA 2851, where the Court held that one of the factors for the Tribunal to consider is the circumstance at the time of separation. This case found that if the child was attending a particular school, then it may be evidence of the manner expected by the child's parents. Furthermore, this case found that the parents' expectations, however, can be created at any time, not just during the period that the parents lived together. The Tribunal also considered the case of Oliver v Oliver [2021] FCCA 965, where the father signed the enrolment form but did not make a commitment to pay school fees. In this case the Court agreed with the Tribunal’s approach that the father’s agreement to pay school fees was not a requirement for the ground of departure but instead that there are special circumstances in the case, the children are being educated in the manner expected by the parties and the costs of maintaining the children are significantly affected as a consequence of that.
  6. The Tribunal is satisfied on the balance of the evidence before it that both Mr Muraco and Ms Muraco expected that the children’s schooling would take place at a private school when they both signed the enrolment forms as outlined at paragraph 20 of this decision statement. The Tribunal is therefore satisfied that the evidence of the joint enrolment demonstrates a mutual expectation that the children will be privately educated.
  7. In Ms Muraco’s Statement of Financial Circumstances (B1 to B10) that Ms Muraco provided to the Tribunal she indicates that education expenses for the children are $620 per week. Ms Muraco provided to the Tribunal a Fee Schedule for 2023 for [College 1] which states that tuition fees for a year 10 student are $15,832 while for a student studying year 7 they are $11,997 after subtracting the sibling discount. Therefore, the total tuition cost for the children for 2023 was $27,829.
  8. Under the administrative assessment, on 21 April 2023 (C246 to C248) Mr Muraco was assessed to pay $29,721 per annum in child support. Focussing on the costs of the children’s private schooling, the Tribunal notes that the cost of educating the children in the manner expected by the parents is $27,829 and is not met fairly by the annual rate of child support produced by the administrative assessment. In the Tribunal’s view, this analysis clearly establishes that the costs of maintaining the children is significantly affected by the manner of their education, and the scale of the imposition of these costs solely on Ms Muraco is so great and disproportionate to the rate produced by the administrative assessment that it amounts to special circumstances.
  9. The Tribunal finds that in the special circumstances of this case, the costs of maintaining the children are significantly affected because the children are being educated in the manner expected by their parents, and the ground is established accordingly.

A just, equitable and otherwise proper departure

  1. The Tribunal is satisfied 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, equitable and otherwise proper to depart from the assessment.
  2. In deciding whether it is just and equitable, the Tribunal must have regard to the following matters set out in subsection 117(4) of the Act:
    (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. The Tribunal has considered all factors in subsection 117(4) of the Act but will only outline matters which are pertinent to the application.

Duty of a parent to maintain a child/commitment necessary for self-support or the support of anyone else the parent has a duty to maintain

  1. Section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain.
  2. The Tribunal is satisfied that both parties are capable of self-support having considered their necessary personal commitments of self-support outlined in their Statement of Financial Circumstances. Mr Muraco and Ms Muraco each have the primary duty to financially support their children. Neither identified anyone who they have a legal duty to maintain.
  3. Neither Mr Muraco or Ms Muraco identified any personal health-related costs or any other unusual self-support expenses they wished to have considered by the Tribunal.

The proper needs of the children

  1. Ms Muraco had raised the ground known as ‘Reason 2’ pertaining to the special needs of [Child 1] and her contention in this regard is that there are other additional costs to be considered for the special needs of [Child 1], which the Tribunal considers in respect of the proper needs of [Child 1].
  2. Ms Muraco provided a copy of a [Payment] Plan Schedule for [Child 1] dated 8 December 2022 with a payment plan amount of $6,600 which commenced on 1 January 2023 and ends on 1 September 2025 (B48 to B50). She provided an account from Dr [B] for $1200 for the initial diagnostic appointment on 29 November 2022 (C193) and a letter from Dr [B] dated 29 November 2022 (C195).
  3. Mr Muraco stated that he wants to contribute to the orthodontic costs for [Child 1].
  4. The Tribunal is satisfied on the evidence made available to it that [Child 1] has special needs as she requires orthodontic treatment.
  5. The Tribunal finds that these costs should be considered when determining the child support payable for [Child 1].
  6. The Tribunal notes that due to a previous change of assessment decision on 4 November 2022 Mr Muraco has been required to contribute $1,000 to [Child 2]’s orthodontic treatment for the period 1 November 2022 to 31 October 2023. The objection officer found that a balance of $2,000 was owed for [Child 2]’s orthodontic treatment at 19 October 2022 and Mr Muraco and Ms Muraco should both contribute on a 50/50 basis towards this outstanding balance.
  7. The Tribunal finds above at paragraph 27 that in the special circumstances of this case, the costs of maintaining the children are significantly affected because the children are being educated in the manner expected by their parents, and the ground of Reason 3 is established which is also linked with the proper needs of the children.

Income, property and financial resources of the children

  1. Ms Muraco stated to the Tribunal that [Child 2] has a part-time job with [an employer] for a few hours per week. In Mee and Ferguson [1986] FamCA 3, the Full Family Court determined substantial income and/or assets, whether or not directly under the control of the child, will be relevant when deciding whether the assessment is unjust and inequitable. Minimal earnings are generally not regarded as a reason to change an assessment of child support.
  2. The Tribunal accepts the evidence that the children do not have their own independent source of income or financial resources and are wholly reliant upon their parents for their maintenance. The Tribunal finds that the casual income earnt by [Child 2] was minimal earnings and insufficient to render the current level of child support payable unjust and inequitable.

Mr Muraco’s income, property and financial resources

  1. According to the payslips provided by Mr Muraco (A11 to A16) he is employed in an operations support role working 80 hours per fortnight. Mr Muraco had stated on his Statement of Financial Circumstances (A1 to A10) that his weekly total average income amount is $2,342.36, he has savings of $26,039, he owns a car worth $18,000 and he has no liabilities.
  2. At the hearing Mr Muraco stated that he has no care of the children. He stated that he will experience financial hardship if the amount of child support that he is required to pay stays the same or increases. He explained that he pays $960 per fortnight. He stated that his finances are tight each fortnight and he has fuel expenses and costs associated with servicing his car. He stated that he shares the cost of current bills with his partner.
  3. Mr Muraco provided a copy of his Notice of Assessment from the Australian Taxation Office (ATO) for the 2022 financial year which stated that his taxable income was $119,834 and a copy of his Notice of Assessment from the ATO for the 2023 financial year which stated that his taxable income was $121,803.
  4. It is clear to the Tribunal that a departure from the administrative assessment is required to produce a just and equitable assessment because of the financial resources available to Mr Muraco because he is employed full-time with an annual salary of $89,386 plus overtime and allowances according to the payslips that he provided to the Tribunal. The Tribunal noted that the payslips Mr Muraco provided to the Tribunal from November 2023 and December 2023 stated that his annual salary was still $89,386 and continued to be paid allowances and overtime (A11 to A16).
  5. In relation to Mr Muraco’s income, he had submitted to Child Support a payslip for the fortnight ending 20 May 2023 which stated he had an annual salary of $89,386 and his gross year to date income was $93,767.56 including overtime and penalty rates and his gross year to date allowances were $25,369.14. The Tribunal calculates Mr Muraco’s total gross year to date income to be $119,136.70 over a period of 24 fortnights which annualises to a gross income of $129,065 ($119,136.70/24 x 26) after rounding up. Mr Muraco’s 2022 tax return stated his employment income was $129,338 and his allowable deductions were $10,298. The Tribunal subtracted allowable deductions of $10,928 from Mr Muraco’s gross annualised income of $129,065 and finds that his current income for child support purposes becomes $118,767.

Income, property, financial resources and earning capacity of Ms Muraco

  1. Ms Muraco has completed a Statement of Financial Circumstances (B1 to B10) on which she indicated that she had a weekly total average income amount of $2,006.63 which includes $1,080 per week from her employment, $132.21 for FTB Part A and Part B payments from Centrelink and $794.92 child support payments. She also provided her Notice of Assessment for the 2022 financial year from the ATO which states that she had taxable income of $54,938 (B86 to B87) and her Notice of Assessment for the 2023 financial year from the ATO which states that she had taxable income of $58,577 (B84 to B85). The Tribunal noted that the ATO income statement dated 2 January 2024 that Ms Muraco had provided for the period 1 July 2023 to 31 December 2023 stated that her gross income for this period was $29,376. Taking into account this evidence the Tribunal is satisfied that Ms Muraco is not earning significantly more than her 2022-23 ATI of $58,577 which is being used in the child support assessment.

The commitments of each parent

  1. The Tribunal must consider the commitments that are necessary to enable the parent to support himself or herself or any other child or another person that the person has a duty to maintain. Neither Mr Muraco nor Ms Muraco provided any evidence relating to any other children or person they have a duty to maintain.
  2. Ms Muraco and Ms Muraco outlined on their Statement of Financial Circumstances in the average weekly expenses table the expenses including food, household supplies, telephone, clothing and shoes, children’s activities, medical/dental/optical costs, entertainment and hobbies, holidays, education expenses, chemist costs, repairs, gifts, hairdressing/toiletries that she meets for herself and for the children and that he meets for himself. The Tribunal finds that there is nothing unusual or out of the ordinary with the costs both Ms Muraco and Mr Muraco identified and finds that they are reasonable and appropriate expenses.

Direct and indirect costs of providing care for the child incurred by the parent entitled to child support

  1. Ms Muraco stated that the children have costs associated with sporting commitments and [Child 1] experiences [a medical condition] with associated costs which she is happy to pay for. Ms Muraco did not provide any evidence of the costs associated with the children’s sporting commitments or [Child 1]’s learning needs. The Tribunal was unable to find that these costs constitute significant costs within the context of considering this change of assessment application.

Any hardship that would be caused to the children or Ms Muraco by the making of, or the refusal to depart from the administrative assessment

  1. Ms Muraco stated that it would not be possible for her to take on any more financially and they have discussed leaving one child at [College 1] and moving one child to another school.
  2. Mr Muraco stated that he was paying $948 per fortnight in child support and now he is required to pay $1,600 per fortnight in child support to meet the costs associated with the braces and school fees which is not affordable.
  3. The Tribunal is satisfied that hardship will be caused to Ms Muraco and the children if a departure decision is not made as Ms Muraco is unable to afford the costs associated with meeting the children’s special needs on her income alone.

What determination should be made considering the above factors?

  1. The Tribunal, having regard to the totality of the children’s and their parents’ circumstances is satisfied that the administrative assessment is unfair given the financial resources available to Mr Muraco and because of the costs associated with the children’s private school education and [Child 1]’s orthodontic treatment.
  2. The Tribunal finds that the costs arising from:
    1. [Child 1]’s orthodontic treatment is $7,800 ($1,200 initial deposit plus $6,600 for orthodontic treatment) and
    2. The children’s school fees for 2023 were $27,829.
  3. As outlined in paragraphs 17 and 18 of this decision statement both Mr Muraco and Ms Muraco stated to the Tribunal that Ms Muraco’s father, Mr [A], had reached a verbal agreement with them that he would contribute to the children’s school fees, however, the Tribunal finds that a verbal agreement can be ended at any time and both Mr Muraco and Ms Muraco stated that Mr [A] has not contributed to the children’s school fees since 2022 and therefore the Tribunal finds that the verbal agreement has ended. The Tribunal finds that in relation to the children’s school fees Mr Muraco’s contribution towards the fees should remain at $13,914 to be added to the assessment of child support otherwise payable in 2023. The Tribunal finds to allow for a reasonable increase in tuition fees (2.5% per annum) Mr Muraco’s contribution for 2024 shall be increased to $14,262 and then again to $14,619 in 2025 to be added to the assessment of child support otherwise payable by Mr Muraco. The Tribunal finds that the assessment will end on 31 December 2025 when [Child 2] is expected to have finished her secondary education, and Mr Muraco and Ms Muraco will have information available to them at that time in relation to the school fees for [Child 1] in 2026.
  4. The Tribunal finds that the total cost of [Child 1]’s orthodontic treatment is $7,800 and Mr Muraco and Ms Muraco should contribute on a 50/50 basis towards these costs. This means that Mr Muraco is required to contribute $3,900 towards [Child 1]’s orthodontic costs.

Issue 3: Is it otherwise proper to depart from the administrative assessment?

  1. The final step for the Tribunal is to determine whether it is ‘otherwise proper’ to depart from the administrative assessment. Subsection 117(5) of the Act requires the Tribunal 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. This decision may reduce the amount of family assistance Ms Muraco receives in respect of the children. The Tribunal is satisfied that the departure from the assessment will better reflect the financial resources that have been available to both parents and ensure that the level of financial support provided by the parties for the children is determined according to their capacity to provide that support. The Tribunal finds that it is otherwise proper to depart from the administrative assessment in this matter.
  3. After considering all the evidence available to it, and the factors identified in section 117 of the Act, the Tribunal considers the following departure determinations to be just, equitable and otherwise proper:
  4. The parents should be aware that the Act, at section 98J, provides for either parent to apply again for a change of assessment in light of changed circumstances.

DECISION

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

(a) The objection officer’s decision dated 4 November 2022 is to remain unchanged.

(b) For the period 1 August 2023 until 30 November 2023, Mr Muraco’s adjusted taxable income shall be set at $118,767.

(c) For the period 1 August 2023 until 31 December 2023, the assessment otherwise payable by Mr Muraco shall be increased by $15,556 (being a contribution of $1,642 towards [Child 1]’s orthodontics and $13,914 towards the children’s 2024 tuition fees).

(d) For the period 1 January 2024 until 31 July 2024, the assessment otherwise payable by Mr Muraco shall be increased by $15,904 (being a contribution of $1,642 towards [Child 1]’s orthodontics and $14,262 towards the children’s 2024 tuition fees).

(e) For the period 1 August 2024 until 31 December 2024, the assessment otherwise payable by Mr Muraco shall be increased by $14,262 (being a contribution of $14,262 towards the children’s 2024 tuition fees).

(f) For the period 1 January 2025 until 31 December 2025, the assessment otherwise payable by Mr Muraco shall be increased by $15,235 (his $14,619 contribution towards the children’s 2025 tuition fees and $616 towards [Child 1]’s orthodontic treatment).

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