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Wolfe and Ziegler (Child support) [2023] AATA 4459 (22 December 2023)

Last Updated: 1 February 2024

Wolfe and Ziegler (Child support) [2023] AATA 4459 (22 December 2023)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2023/SC026467

APPLICANT: Mr Wolfe

OTHER PARTIES: Child Support Registrar

Ms Ziegler

TRIBUNAL: Senior Member K Dordevic

DECISION DATE: 22 December 2023

DECISION:

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

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of either parent – earning capacity of either parent – ground for departure established – decision to depart - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
  2. This case was registered with Services Australia – Child Support (Child Support) on 14 February 2008 and has been collectable since 31 March 2009. The parents, Ms Ziegler (the mother) and Mr Wolfe (the father), have three children though only the youngest child [Child 1] (the child) born [in] January 2006 remains a child of the assessment. As the child is completing her Year 12 studies in 2024 Child Support have accepted an application to extend the administrative assessment until 8 November 2024.[1] At all relevant times the child is recorded as being in the mother’s 100% care.
  3. The father lodged a departure application on 10 September 2021. On 8 October 2021 a senior case officer determined that for the period 7 December 2021 until a terminating event occurs in relation to the child, the father’s adjusted taxable income is varied to $100,000 per annum.
  4. On 7 February 2023, following a change of assessment application lodged by the father on 21 October 2022, a senior case officer determined that from 21 to 31 October 2022 the father’s adjusted taxable income is varied to $130,414 and the mother’s adjusted taxable income is varied to $50,000 from 21 October 2022 to 31 December 2023.
  5. The father sought a timely review of that decision and on 29 June 2023 an objections officer partly allowed the objection, determining that:
  6. On 24 July 2023 the father sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). Directions were issued on 3 October 2023 requiring compliance by 1 November 2023.
  7. The Tribunal heard the matter on 22 November 2023. The father and mother appeared by MS Teams audio. The mother was represented by [Representative A]. The Child Support Registrar was not represented at the hearing. The Tribunal also considered the documentation provided by Child Support (marked folios 1 to 450), the father (marked folios A1 to A28) and the mother (marked folios B1 to B14).
  8. The matter was deferred to permit the mother to submit evidence regarding the costs associated with the child’s special needs and private school education. The mother undertook to provide all documents she intended to rely on by 27 November 2023 (marked folios B15 to B77). On 23 November 2023 the father provided additional documents (marked folios A29 to A31), which were provided to the mother. A copy of the mother’s additional documents were provided to the father, who had until close of business 12 December 2023 to provide written submissions in response (marked folios A32 to A33).
  9. The Tribunal reached its decision on 22 December 2023.

ISSUES

A ground for departure

  1. Subparagraphs 117(2)(c)(ia) and (ib) of the Act provide a ground for departure if the administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent because of either party’s income, property, financial resources or earning capacity.
  2. The Tribunal finds that the father’s 2021 to 2023 adjusted taxable incomes were $122,333, $130,404 and $124,735 respectively. These adjusted taxable incomes include reportable fringe benefits as declared by his employer. At the time the father lodged his departure application he was liable to pay $14,681 in child support per annum based on the senior case officer decision dated 8 October 2021, where his adjusted taxable income was varied to $100,000 per annum.
  3. The father’s evidence at hearing is summarised as follows. The decision under review is wrong. His reportable fringe benefit should not form part of his adjusted taxable income for child support purposes. To include it is procedurally unfair. The 2021 senior case officer decision reflects his actual income and financial resources, as it did not include his reportable fringe benefits. In the most recent objection decision Child Support incorrectly added his gross salary sacrifice to his reportable fringe benefit, which is double dipping. He has tried to explain this, but nobody will listen. He is seeking that his adjusted taxable income is varied to $99,586 and the mother’s adjusted taxable income is varied to $40,441 from October 2022 until a terminating event occurs. He stressed that from 1 July 2023 he was no longer salary sacrificing.[2]
  4. The Child Support Guide relevantly states at section 2.6.14:[3]

Salary packaging

Salary packaging is an arrangement whereby an employee receives remuneration from their employer by way of a total package, made up of various benefits plus a component paid as salary. Usually the employee has some flexibility in the way that their salary is packaged. Depending upon the nature of the salary package, and whether the benefits are reportable fringe benefits, the person’s ATI may not be an accurate reflection of their overall remuneration from their employment.

Fringe benefits

...

For child support assessments commencing after 30 June 2000, the reportable fringe benefits total included in an employee’s payment summary (being the grossed up taxable value) is included in the parent’s ATI and used to calculate the child support assessment.

It is therefore unlikely that a parent’s reportable fringe benefits will be a special circumstance that will warrant a further increase in their child support assessment after 1 July 2000.

In some cases a parent may consider applying to change the child support assessment on the basis that their income, earning capacity, property and financial resources are not properly reflected in the child support assessment because such fringe benefits have been included. The fact that reportable fringe benefits have been included in the ATI will not, in itself, be a reason to change the assessment. In order to show a reason to change an assessment a parent must show that other circumstances affect their capacity to provide financial support for the child or that the nature of the fringe benefit received does not provide them with an actual, additional financial resource.

In deciding if the benefit provides the person with an additional financial capacity, the Registrar can consider the individual circumstances of the case including:

A parent may apply for a change of assessment solely because a fringe benefit does not provide him or her with an additional financial capacity. If the parent would have incurred the same kind (or similar kind) of expense but would not have incurred the expense to the extent reflected by the amount of the reportable fringe benefit, and the amount is significant, this may make the assessment unjust and inequitable. The Registrar may reduce the ATI by the difference of the reportable fringe benefit and the estimated expenditure. [Tribunal’s emphasis]

  1. The Tribunal acknowledges that, while it may be guided by governmental policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the more recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
  2. The father testified that he is [an occupation 1 with] [Employer 1] and in 2022 received $85,706, with reportable fringe benefits of $28,843. He works on a four week on/ four week off basis. He explained that he always worked on a part-time basis in order to spend time with the children. He also has a second job when in Sydney, where he earned $20,449 in the 2022 financial year. In his view, Child Support are just making their own interpretation of the law and adding back in his salary sacrifice which he believes is already included in his $85,706 base income.[4] Thus, Child Support have essentially added $16,000 erroneously to his taxable income, which is money that he simply did not earn. He submits that his 2024 financial year gross income will be $99,586.50, reflecting an increase following an enterprise bargaining agreement. He asks that his taxable income be applied to the administrative assessment and his reportable fringe benefits are disregarded for the purposes of determining his adjusted taxable income.
  3. The father was directed to provide all payslips from employment for the period 1 July to 31 August 2023. He failed to comply with this direction. Instead, he provided only one payslip from each of his employers from this period. The father’s failure to make a full and frank disclosure of his financial circumstances is unsatisfactory and leaves him open to adverse inferences being drawn: Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409.
  4. It is difficult to reconcile the father’s statement regarding his income with the [Employer 1] payslip for the fortnight ending 12 September 2023.[5] The payslip states that his annual salary is $150,000 (effective from 27 June 2023), and that he works on a part-time 0.65 basis ($97,500 per annum) earning $3,750 gross per fortnight. In addition, he receives a tax-free allowance of $80.25 per fortnight and an annual bonus of $15,000, suggesting an income of $114,587. It was put to the father that his year-to-date income of $34,593.79 indicates that his annual income would be in the vicinity of $170,000. The father stated that the year-to-date income includes backpay from 2015 to 26 June 2023; he estimated that it was about $10,000 and conceded that this would form part of his taxable income.
  5. At the time that the father lodged his departure application his child support liability was based on a decision made by a senior case officer which dictated that from 7 December 2021 until a termination event occurs the father’s adjusted taxable income was varied to $100,000. The senior case officer determined that the pre-tax deductions from the father’s salary inflated the father’s income beyond his actual capacity and therefore established a ground for departure.[6]
  6. The Tribunal has already determined that the father’s 2022 and 2023 adjusted taxable incomes were $130,404 and $124,735 respectively. In the 2023 financial year the father received gross payments of $102,904.89, with $17,198.20 in salary sacrifice, which is applied to his mortgage payments, and provision of a fuel card[7] and is grossed up as a reportable fringe benefit of $28,843.[8] The Tribunal is not persuaded that there is any cogent reason to determine that the father’s reportable fringe benefits should not be included in the calculation of his adjusted taxable income. Certainly, the father has not provided any compelling evidence to suggest that his salary sacrifice arrangement did not increase his financial capacity to support the child. That it was grossed up to its taxable value does not, in the Tribunal’s view, result in an unjust and inequitable determination of the level of financial support to be provided by the father. In reaching this conclusion the Tribunal considered the father’s argument that in including his reportable fringe benefits there was “double-dipping” but determined that there was no factual basis for such a conclusion.
  7. At hearing the father advised that he ceased working for his second employer, [Employer 2], as [an occupation 2] and has returned his [related work] authority to [the registration agency]. He resigned as the change in shift arrangements became “too hard” and so he decided not to maintain this employment as it was “too stressful” and the shifts were too long. By way of example, some of the [service programs] had been restricted and [his colleagues] were receiving abuse from customers and the father stated “I don’t need that”. The payslip in evidence from [Employer 2] for the pay period ending 4 October 2023 indicates that his gross income was $2,331.24.[9] The father states that from 15 July 2023 his only income is from [Employer 1].
  8. In the circumstances, it is necessary for the Tribunal to consider the father’s earning capacity. Subsection 117(7B) of the Act provides that when considering the earning capacity of a parent a decision maker is required to consider three tests:

(7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(a) one or more of the following applies:

(i) the parent does not work despite ample opportunity to do so;

(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii) the parent has changed his or her occupation, industry or working pattern; and

(b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i) the parent’s caring responsibilities; or

(ii) the parent’s state of health; and

(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

  1. It is not in dispute that the father resigned from his second employment. The Tribunal is satisfied that from 15 July 2023 the father has reduced his employment below the normal hours of work that constituted full-time work in that he now only works on a 0.65 basis for [Employer 1].
  2. At hearing the father confirmed that the change in his work arrangements was not justified based on his health or caring responsibilities. In his submissions received post-hearing (dated 12 December 2023) the father advised that he had [surgery] in June 2016 and requires annual [specialist] review. He stated that the “reduction in my work hours at [age] are for my health benefit in order to maintain my current [occupation 1 registration] and my [Employer 1] Job”.[10] Without any medical evidence, the Tribunal is not satisfied that the change to the father’s work arrangements was justified on the basis of his health. The father’s own evidence is that he has no contact with the children. Thus, the Tribunal is satisfied that the change to his work arrangements was not justified by his caring responsibilities.
  3. At hearing the father explained that he received a pay increase in June 2023 and so “I don’t need second job” as his income is about the same with the pay increase as when he was working the second job. Further, it is only fair that after living in a remote [area] for four weeks he can return home for four weeks and interact socially with his friends and family. Therefore, he submits, his decision to change his working pattern was not motivated by the impact that it would have on the administrative assessment. He reiterated his statements on this point in his post-hearing submissions.
  4. Having considered the father’s submissions and the documentary evidence, the Tribunal is not so persuaded. The father has decreased his work hours from full-time equivalent to 0.65 only. He claims that this will not result in a decrease to his total 2024 income. However, his payslip indicates that his 2024 income will be about $109,676 ($99,586.50 + $15,000 bonus - $4,910 (deductions as claimed in the 2023 financial year)), some $15,000 less than his 2023 adjusted taxable income. Further, the Tribunal is not satisfied that the father is unable to work with [Employer 1] on a full-time basis, which would result in an annual salary of about $160,090 ($150,000 + $15,000 bonus - $4,910 (2023 deductions)).
  5. It is evident that the father’s actual income and financial resources were not accurately reflected in the administrative assessment from 7 December 2021, the date from which the senior case officer varied the father’s adjusted taxable income. Application of his actual adjusted taxable income to the administrative assessment from 21 October 2022 (the date on which the father lodged his departure application) would increase the father’s annual rate of child support from $20,806 to around $28,568 while the middle child was still a child of the assessment, and then increase from $16,431 to $20,600 from 7 December 2021 when the middle child ceased to be a child of the assessment. Furthermore, from 15 July 2023 the father’s actual income does not reflect his earning capacity. Application of his earning capacity to the administrative assessment would increase his annual rate of child support to $23,066 per annum.
  6. As the father’s income, financial resources and earning capacity are not properly reflected in the child support assessment, there are special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. The Tribunal concludes that the ground provided for in subparagraphs 117(2)(c)(ia) and (ib) of the Act are established.

Just and equitable

  1. The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the parties’ respective earning capacities, the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula assessment. The Tribunal has considered all the factors outlined in subsection 117(4) of the Act but will only refer to those considerations pertinent to the application.
  2. The mother provided a Statement of Financial Circumstances dated 21 August 2023.[11] She declares receipt of jobseeker allowance of $381, family assistance of $132 and child support payments of $367 per week. She reports no real property, savings of $882, two motor vehicles valued at $13,000, household contents valued at $10,000 and $79,308 in superannuation. Her only liability is her fortnight’s rent of $250. Her weekly personal expenditure is nil, and her weekly household expenses are $815, of which about $280 relate to her care of the child. She states that the mental health support she receives is free of charge and her medication costs are minimal given her health care card.
  3. The father asserts that the mother has an unexercised earning capacity. The mother states that she has no capacity to work currently given her poor memory. The mother reported that she was in a motor vehicle accident in July 2020 where she received injuries to her back and neck. She did not seek compensation following the accident. She received three months at full pay and three months at half pay and then her employment was terminated. She secured lower paying work in January 2022 as an [occupation 3] in a [business 1]. Her annual full-time salary was $50,000. She was made redundant on 28 April 2023. She denies that there were any performance issues; rather that she was simply not needed anymore. Since then she has been fully reliant on Centrelink benefits; she is currently in receipt of jobseeker payment and is in the process of applying for disability support pension. The mother is of the view that she has no capacity to work on a part-time basis given her mental health conditions. She reported that she was recently an in-patient in a mental health facility for about 12 days. It is submitted that her employment prospects are negligible and she will not be in receipt of employment income at any time before the child support case terminates.
  4. The Tribunal finds on the basis of a medical certificate dated 18 September 2023 completed by [Psychiatrist A], psychiatrist, that the mother was diagnosed with major depression in 2020 and panic disorder in 2022. [Psychiatrist A] states that the mother is unfit for work or study during the period 19 September 2023 to 19 December 2023.[12] There is also in evidence an undated report completed by [Psychologist A], clinical psychologist, [from a named health service]. [Psychologist A] declares that the mother has a history of mental illness and has been a patient of the service since 2023. Though she has engaged in psychological therapy to address her major depressive disorder and panic disorder, which severely impact her functioning, there has been limited improvement. [Psychologist A] reports that the mother’s “symptoms mainly consist of low mood, irritability, poor memory, poor concentration, anhedonia, poor sleep, panic attacks, self-harm, suicidality, anxiety, dizziness, shaking and chronic pain”. He went on to state that the mother is “experiencing multiple psychosocial stressors including housing, financial, relationship/family, physical and mental health stressors. She has been unable to work due to her mental illness for a prolonged period of time. Her psychosocial impairment includes several domains including communication, social interaction, learning and self care”.[13]
  5. The Tribunal finds that the mother is not working despite ample opportunity to do so. Paragraph 117(7B)(a) of the Act is satisfied. The Tribunal finds on the basis of the psychiatric evidence that the mother is currently not fit to undertake any work. While the medical certificate in evidence states that she is unable to work from 19 September 2023 to 19 December 2023 the Tribunal accepts that the date of onset was from 2020 in respect of her depression and 2022 in respect of her panic disorder. The Tribunal finds that the mother’s decision not to work is justified on the basis of her health. Thus, the Tribunal is not persuaded that the administrative assessment should be based on the mother’s earning capacity.
  6. At hearing the mother explained that since July 2023 she had moved back into her ex‍-‍husband’s home. They share costs and she is exploring the possibilities of public housing. The Tribunal questioned the mother in respect to a cash deposit made into her bank account of $700. She explained that her mother had loaned her this money to meet her expenses.
  7. The father alleges that the mother must have received compensation from her motor vehicle accident. There is no evidence that she did so, and in the absence of such evidence the Tribunal is not so persuaded. The father also asserts that the mother received a fuel card when she was employed on a full-time basis at the [business 1]; apparently one of their children told him this. The mother denied this. Again, in the absence of corroborating evidence, the Tribunal is not persuaded that the mother had access to a financial resource that was not reflected in her adjusted taxable income.
  8. There is no dispute that the child attends a Catholic school, [named] (the school), and this was a unilateral decision made by the mother. The mother explained that the middle child was transferred to this school given her mental health and so the younger child followed her. The school fee statement in evidence indicates that the mother makes fortnightly payments of $40,[14] however it is not clear for which period these fees relate as it is apparent that the mother has been in arrears for a long period. The mother advised that the August to December 2023 fees were waived due to her health and financial distress.
  9. The fee statements in evidence indicate that the mother was provided with $4,506.25 in fee relief on 10 May 2021[15] in respect of the middle child and the child. The mother continued to pay $60 per fortnight and as at 21 June 2021 she was in arrears of $1,139. There are no invoices in evidence in respect of the 2022 and 2023 calendar years. In such circumstances, the Tribunal is unable to reach a conclusion as to the recent costs associated with the child attending the school. The 2023 school fee information indicates that the cost of the child attending the school in 2023 was at least $4,279 and a Year 12 student’s fees would be at least $4,588.[16]
  10. The Tribunal is satisfied that the child is being educated in the manner expected by the parents for the following reasons. The father advised that though he was notified after the fact that the child was attending the school, he accepts that it was a better school than the child was attending previously ([named school]) and he contributed to the costs of the school fees and these payments were credited to his child support liability. However, after the middle child advised him that he was paying all the costs of her schooling he stopped contributing. He could not be specific regarding the date. He stressed that he has not recently been asked to contribute to the cost and in any event, he has been told that the child’s school fees are subsidised because of her special needs. The Tribunal concludes that while the father was not involved in the enrolment of the child at the school, he indicated his willingness for the child to attend by meeting part of the cost of the child attending the school until recently.
  11. The mother did not lodge a cross application in respect of the costs associated with the child’s private schooling. Instead, a contribution from the father towards these costs was only raised at hearing. In such a context, the Tribunal is not persuaded that the father should contribute to the child’s schooling costs prior to the date of hearing. Further, as the mother’s oral testimony would suggest that the school fees were waived some time prior to hearing until the conclusion of the 2023 school year it cannot be established that the current costs of the child attending the school significantly affected the mother’s capacity to provide for the child. While the Tribunal accepts the mother’s evidence that the 2024 fees are likely to increase by about 10% and that this would significantly impact on the mother’s capacity to support the child, without evidence of the actual costs, the Tribunal is not persuaded it would be just and equitable to depart from the assessment on this basis. Of course, once these costs are known, the mother is at liberty to lodge a departure application.
  12. The mother submits that the child has been diagnosed with attention deficit hyperactivity disorder (ADHD), dyslexia and anxiety. She has paediatric review every three months, with out-of-pocket costs of about $480 per visit. The child was also seeing a private psychiatrist costing $140 per week in 2021. The child also requires medication. The mother advised that she has reached the Medicare safety net and so is not required to currently pay for the child’s medication. There is in evidence a statement from [Doctor A], consultant paediatrician, dated 20 March 2023.[17] [Doctor A] confirms that the child “has inattentive type of ADHD, Dyslexia with a very low IQ, generalised anxiety” and a shoulder condition. The child will require review in six months. The receipt in evidence indicates that the consultation cost $200,[18] with a likely rebate of about $71.70.[19]
  13. At hearing the father stated that he has never been advised that the child has special needs (contradicting his evidence about school fee reduction because of the child’s special needs) and suggests that his child support is sufficient to meet this cost and suggests that the mother is simply seeking an alternative way to get more money from him. He also stressed that he bought a computer and iPhone for the child some years ago and he paid for the orthodontics for an older child.
  14. The Tribunal considered the evidence regarding the costs associated with the child’s developmental and mental health disorders. For the same reasons given in respect of the private school fees, the Tribunal is not persuaded that the father should contribute to these costs prior to the date of hearing. The only evidence regarding the mother’s out-of-pocket costs relates to a paediatric appointment in March 2023. Without any recent expenses in evidence the Tribunal cannot be satisfied that the costs of the child’s special needs render the administrative assessment unfair. As with the school fees, the mother is at liberty of lodging a change of assessment application in respect of the child’s special needs when she has new evidence as to the associated costs.
  15. Section 3 of the Act stipulates that a parent’s duty to maintain their children has priority over all other commitments, other than their necessary commitments to support themselves. At the time the father lodged his departure application his child support liability was based on an adjusted taxable income of $100,000, whereas his actual income and financial resources were greater. The Tribunal concludes that the father’s adjusted taxable incomes should apply to the administrative assessment from the date he lodged his departure application. Therefore, his 2022 adjusted taxable income should apply from 21 October 2022 until 8 October 2023 as would occur if there was no departure decision in place.
  16. From 9 October 2023[20] the Tribunal is satisfied that the father’s 2023 adjusted taxable income should apply to the administrative assessment, noting that the father’s evidence is that despite his resignation from his second employer in July 2023 and the change in his salary sacrifice arrangements, his income will be commensurate with his 2023 adjusted taxable income. The Tribunal was not satisfied that his actual earning capacity ($160,090 per annum) should be reflected in the administrative assessment from 15 July 2023. Instead, the Tribunal determined that it was just and equitable that the father’s 2023 adjusted taxable income should apply to the administrative assessment from 9 October 2023 (as would occur in the normal course of events if the administrative assessment was not departed from) until a terminating event occurs. The Tribunal is satisfied that there would be certain hardship to the mother and the child should the father not contribute to the child’s costs commensurate with his adjusted taxable incomes.
  17. It is for the same reasons the Tribunal is satisfied that it is fair that the mother’s actual income is also reflected in the administrative assessment during this same period. The mother was employed with an annual salary of $50,000 per annum until she was made redundant on 28 April 2023. The Tribunal is satisfied that she received about six weeks of income following her redundancy and so varies her adjusted taxable income to $49,350 (allowing for similar deductions claimed in her 2022 income tax return)[21] from the date the father lodged his departure application until 9 June 2023. Thereafter, the mother’s adjusted taxable income is varied to $19,812 ($381[22] x 52 weeks) to reflect her actual income and financial resources, being receipt of income support payments. As it is unlikely that the mother will seek and secure employment prior to the administrative assessment ending, the Tribunal is satisfied that it is appropriate to vary her adjusted taxable income until a terminating event occurs. Should her income change, either party is at liberty to lodge a new departure application.
  18. This aspect of the decision will create arrears of child support of about $3,980. After examination of the father’s Statement of Financial Circumstances and given the findings already made in respect of his income and financial resources, the Tribunal concludes that the father will not suffer undue hardship in meeting these arrears over time. Certain hardship would be caused to the mother and the child were the father not to contribute to the extent that his income and financial resources allowed.
  19. The Tribunal is satisfied that the administrative assessment is unfair given the father’s income and financial resources. This results in an unjust and inequitable level of child support given the circumstances of each parent. For all these reasons it is just and equitable to depart from the administrative assessment.

Otherwise proper

  1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents, rather than the community, have the primary duty to maintain a child. The mother is in receipt of income-tested benefits. Departing from the administrative assessment will result in a more appropriate apportionment of financial responsibility between the parents and the community.
  2. The determination is otherwise proper.

DECISION

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

[1] At folio 422, being the last date of the child’s secondary schooling
[2] At folio 322
[3] https://guides.dss.gov.au/child-support-guide/2/6/14#salarypackaging
[4] At folio 341: This is incorrect. His 2022 income tax return shows gross employment income from [Employer 1] of $106,155
[5] At folio A27
[6] At folio 80
[7] At folios 311 to 313
[8] At folio 342
[9] At folio A28
[10] At folio A33
[11] At folios B1 to B10
[12] At folio B12
[13] At folio B13
[14] At folio B21
[15] At folio B24
[16] At folio B19
[17] At folio B63
[18] At folio B73
[19] https://www9.health.gov.au/mbs/fullDisplay.cfm?type=item&q=116&qt=ItemID
[20] At folio 440: this is the date on which the father’s 2023 adjusted taxable income would apply to the assessment in the normal course of events
[21] At folio 330
[22] Weekly jobseeker payment as declared at folio B3

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