Boller and Boller (Child support)

[2018] AATA 3059

Boller and Boller (Child support) [2018] AATA 3059 (28 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC012979

APPLICANT:  Mr Boller

OTHER PARTIES:  Child Support Registrar

Mrs Boller

TRIBUNAL:Senior Member A Freeman

DECISION DATE:  28 June 2018

DECISION:

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

• For the period from 1 July 2017 to 30 June 2018, Mr Boller’s adjusted taxable income is varied to $64,000;

• For the period from 1 January 2017 to 31 December 2017, Mr Boller’s annual rate of child support payable is increased by an amount of $4,380.

CATCHWORDS

Child support – Departure determination – Special needs of the child – Ground for departure exists – Capacity of liable parent to contribute to costs of special needs and to education costs – 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 Boller and Mrs Boller are the parents of children, [Child 1] and [Child 2]. [Child 2] turned 18 in October 2017 and is no longer subject of the child support assessment. Mrs Boller’s care percentage in relation to [Child 1] is recorded as 100%.

2. Mrs Boller lodged a departure application with the Department of Human Services (the Department) on 11 July 2017 seeking a departure from the administrative assessment. At the time of Mrs Boller’s application, Mr Boller’s liability to pay child support was determined by a prior decision of the Department made on 21 August 2015.

3. On 31 August 2017, the Department made a decision to depart from the assessment in place as follows:

   ·         the annual rate payable by Mr Boller was increased by $3,637 for the period from 11 July 2017 to 31 December 2017 (as representing a contribution towards [Child 1]’s [specialist] costs);

   ·         the annual rate payable by Mr Boller was increased by $5,653 for the period from 1 January 2018 to 31 December 2018 (as representing a contribution towards [Child 1]’s [specialist] costs and private school fees);

   ·         the annual rate payable by Mr Boller was increased by $3,920 for the period from 1 January 2019 and 31 December 2019 (as representing a contribution towards [Child 1]’s private school fees);

   ·         Mr Boller’s income was varied to $100,000 for the period from 23 May 2017 to 28 August 2017;

   ·         Mr Boller’s income was varied to $170,000 for the period from 29 August 2017 to 31 December 2019.

4. The effect of that decision was to increase the annual rate of child support payable by Mr Boller from $4,244 to approximately $23,336.

5. Mr Boller objected to that decision and on 23 October 2017 an objections officer allowed the objection and varied the decision outlined above by varying Mr Boller’s adjusted taxable income (ATI) to $160,000 for a period from 29 August 2017 to 31 December 2018. Otherwise the decision made on 31 August 2017 remained the same.

6. Mr Boller has sought further review of this decision.

7. Mr Boller submits that the ATI determined by the Department in its decision of 23 October 2017 is not reflective of his actual income and should be less. He also contended that he does not have the capacity to contribute to [Child 1]’s [specialist] costs or private school fees.

8. The Tribunal hearing was conducted on 28 June 2018. Mr Boller appeared before the Tribunal by telephone conference and Mrs Boller elected not to attend the hearing at all. She instead made submissions to the Tribunal in writing prior to the hearing. In reaching its decision, the Tribunal has considered the sworn evidence given by Mr Boller at the hearing, together with the documentation provided by the Department (exhibit 1), the documentation provided by Mr Boller (exhibit 2) and the documentation provided by Mrs Boller, including her written submissions (exhibit 3).

CONSIDERATION

1. The Child Support Assessment Act 1989 (the Act) provides for an administrative assessment of child support payable by the liable parent. The Act also provides for a departure from the administrative assessment in certain circumstances.

2. A departure from an administrative assessment may be made pursuant to section 98C of the Act if the following matters are established:

   ·         One or more than one of the grounds for departure referred to in subsection 98C(2) exists;[1]

   ·         A departure is just and equitable as regards the children and each parent;[2] and

   ·         It is otherwise proper to make a departure decision.[3]

   [1] See subparagraph 98C(1)(b)(i).

   [2] See sub-subparagraph 98C(1)(b)(ii)(A).

   [3] See sub-subparagraph 98C(1)(b)(ii)(B).

3. At the time of Mrs Boller’s change of assessment application, Mr Boller’s liability in relation to child support was determined by a decision of the Department made on 21 August 2015. At that time, Mr Boller’s annual rate of child support payable was $4,244 based upon an ATI of $28,307 for Mr Boller and an ATI of $74,364 for Mrs Boller. This annual rate included a contribution by Mr Boller representing 50% of [Child 1]’s private school fees in the amount of $3,054 for the period from 1 February 2017 to 31 January 2018.

4. Mrs Boller’s change of assessment application made on 11 July 2017 was made on the basis that she sought an increase to the annual rate payable by Mr Boller as a result of private school fees payable for [Child 1] beyond 31 January 2018, [specialist] costs incurred in relation to [Child 1] and also in relation to Mr Boller’s income.

5. The Department found that a ground to depart from the previous assessment was established and made the decisions as outlined in paragraphs 3 and 5 of this decision.

6. Mr Boller’s main contention was in relation to the decision to vary his ATI, as these amounts did not reflect his actual income or his true financial position. He also contended that he did not have the capacity to contribute to private school fees or [specialist] costs.

7. Mrs Boller was content with the Department’s decision and submitted that it should remain in place.

Issue 1 – Grounds for departure

Costs of maintaining the child are significantly affected by the child’s special needs

1. Subparagraph 117(2)(b) of the Act provides as a ground for departure:

   (b)    that in the special circumstances of the case, the costs of maintaining the child are significantly affected…

   (ia)because of special needs of the child;….

2. One of the basis for Mrs Boller’s change of assessment application was that from 6 March 2017 [Child 1] had commenced [specialist] work and she was seeking a contribution from Mr Boller in relation to this cost.

3. A letter from [Region 1] [specialists] was provided dated 6 March 2017 which confirmed that [the] treatment was to commence on that date in relation to [Child 1] and the total cost was $6,600.

4. Mrs Boller provided material to the Tribunal which showed that on 6 March 2017 she paid an initial deposit of $2,200 towards these fees and has been paying $200 per month off the total amount since April 2017. As at 25 June 2018 there was $1,400 left to pay.

5. In its decision of 31 August 2017, the Department notes that Mrs Boller had advised that she was to receive a $1,400 rebate from her private health insurance fund. Therefore, the net cost to Mrs Boller is $5,200.

6. In order to find that this ground for departure is established it is first necessary for the Tribunal to be satisfied that [Child 1] has special needs. The term 'special needs' is not defined in the Act but it has been determined by courts previously that there must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child. They may result in costs that are essential or desirable for the child's welfare that are outside the ordinary costs of a child that can be met from an administrative assessment.[4]

   [4] See Lightfoot v Hampson (1996) FLC 92-663.

7. The [treatment for] [Child 1] for a period of 18 to 24 months as per the letter from [Region 1] [specialists] would in the Tribunal’s view fall within the definition of special needs given it is treatment that is desirable for the child’s welfare and is outside the ordinary costs of a child that would normally be met from the administrative assessment. The Tribunal also considers that the costs incurred by Mrs Boller for this treatment is significant when compared to the total annual rate payable by Mr Boller under the previous assessment of $4,244, in that it exceeds this annual rate by over $1,000.

8. Therefore, the Tribunal is satisfied that in the special circumstances of this case the costs of maintaining [Child 1] are significantly affected by his special needs being the [specialist] work required since March 2017 and a ground to depart from the previous assessment has been established.

9. The issue of whether Mr Boller has capacity to contribute to these costs and by what amount will be considered as part of whether a departure is just and equitable below.

Issue 2 – Would departure from the formula assessment be just and equitable?

1. Subsection 117(4) of the Act sets out the criteria that must be considered in determining whether it would be just and equitable as regards the children and the parents to make a departure order. This involves a consideration of the following:

   (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)him 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 incurrent 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 by the making of, or the refusal to make, the order.

Mr Boller’s circumstances

1. Mr Boller has worked in [a certain] industry as [an occupation] since 1990. He has no other qualifications or skills.

2. At the time of Mrs Boller’s change of assessment application, Mr Boller was working as a casual employee for [Company 1]. He worked in this capacity from 23 May 2017 to 28 August 2017 and was earning about $47.50 per hour. He left this position on 28 August 2017 and took up another position working for [Company 1] at [another] project which commenced on 19 September 2017. Mr Boller was paid a base rate of $75 per hour on this project.

3. Evidence before the Tribunal shows that between 1 July 2017 and 2 December 2017, Mr Boller’s gross earnings from this employment were $57,302.

4. Mr Boller told the Tribunal that he left this employment at the end of November 2017 because of some mental health issues that arose, being depression and anxiety. He provided to the Tribunal some medical certificates that had been provided to Centrelink which certified that from 29 November 2017 to 29 January 2018 and from 5 March 2018 to June 2018 he was unfit to perform his usually work because of depression and anxiety. These certificates note that it is a temporary condition.

5. From 24 December 2017 Mr Boller has received newstart allowance from Centrelink. These amount to about $439 per fortnight. Mr Boller told the Tribunal that he is not currently required to actively look for work by Centrelink as he has a medical condition.

6. Mr Boller told the Tribunal that in 2014 he was diagnosed with ADHD and had previously seen a psychiatrist [for] that condition. In relation to the depression and anxiety, he gave evidence that he was placed on a mental health plan by his general practitioner (GP) in December 2017 and as part of that he commenced seeing a psychologist. He attended three or four times between December 2017 and late January 2018 but then this psychologist went on sick leave and Mr Boller has not taken any steps to find another psychologist to continue his treatment.

7. Mr Boller told the Tribunal he takes antidepressant medication but sometimes he is not good at taking it regularly. He has not visited his GP recently and does not attend regularly.

8. Mr Boller stated that he was unlikely to return to work in the immediate future and there were no return to work plans devised for him at this stage.

9. Mr Boller is director and shareholder of a company called [Company 2]. This company was registered in 2016 at a time when Mr Boller was going to use it to try and get work. He told the Tribunal that it had not been used by him, nor had it generated any income or lodged any tax returns. There was a bank account opened but this was closed some years ago.

10. A review of Mr Boller’s bank account statements does not show any extra income being generated by this business.

11. Mr Boller’s bank account statements do show two withdrawals of $12,000 being made out of his bank account held with the Commonwealth Bank on 1 September 2017 and 28 November 2017, into another Commonwealth Bank account. Mr Boller told the Tribunal that this money was transferred into an account in another person’s name and then he used the funds to pay for his living expenses. Department checks with the Commonwealth Bank confirmed that Mr Boller does not have any other account with them apart from the one that he has produced statements for.

12. The genesis of the money transferred out of Mr Boller’s account was his income earned over the period from July 2017 to November 2017. There is no evidence of him receiving any other income. What Mr Boller does with this money is of course a matter for him. The difficulty that the Tribunal has is Mr Boller’s statement that this money has been since been spent.

13. Mr Boller in his Statement of Financial Circumstances completed on 12 November 2017, stated that his average weekly expenses amounted to about $225 per week. Mr Boller confirmed with the Tribunal that he lives with his mother and grandmother in his mother’s house and has done so since about 2015. He pays token rent of $20 per week to his mother and pays for food for the household when he can. He also has the costs of running his motor vehicle and his mobile telephone, all of which are included in his estimate of weekly expenses. A review of Mr Boller’s bank account statements does not reveal any other regular expenses apart from food, alcohol, car registration, fuel and telephone expenses.

14. Therefore, if Mr Boller’s weekly expenses are about $225, it would take him over 52 weeks (or 12 months) to expend $12,000. He has on his evidence somehow spent double that in the space of about two months. Alternatively, the Tribunal could draw an inference that he still has use of some of these funds now.

15. Regardless of which scenario applies however, the fact remains that this money was derived from his income which he earned over the period between July and December 2017 and therefore will be taken into account when his gross income is applied over that period for the purposes of assessing child support.

16. Since 24 December 2017, Mr Boller has been receiving about $439 per fortnight from Centrelink. This amounts to about $5,087 up to 16 May 2018 based upon his bank account statements. This figure taken up to the end of the financial year amounts to about $6,000. This combined with the income earned between July and December 2017 amounts to about $64,000 for the year.

Mrs Boller’s circumstances

1. Mrs Boller is a full-time employee working for a [company]. As at 11 December 2017, Mrs Boller’s gross weekly income was about $1,366 or $71,032 per annum. She also receives a carer allowance from Centrelink of $62 per week, thus taking her gross taxable income to about $74,256. A figure of $74,364 is currently being applied to the assessment of child support.

2. Mrs Boller provided to the Tribunal a recent payslip which indicated that her gross weekly wage is currently $1,600 per week and her year to date earnings were $32,381 as at 19 June 2018. This year to date figure divided by $1,600 per week amounts to 20 weeks at this higher pay. Therefore, the Tribunal infers from this evidence that since about February 2018, Mrs Boller has been in receipt of $1,600 per week instead of $1,366 per week gross.

3. Considering both rates of pay, Mrs Boller’s likely gross income for this financial year is about $74,000 plus her Centrelink allowance, making it about $77,000 per annum gross.

4. Mrs Boller estimates her average weekly expenses to be about $1,388. This amount includes $50 per week for entertainment, $50 per week for holidays and $38 per week for gifts which the Tribunal considers are discretionary expenses. When these are taken out, Mrs Boller’s week expenses amount to about $1,250. Mrs Boller’s net income based upon her recent payslip is about $1,210 per week.

5. Mrs Boller’s weekly expenses also include an amount of $174 per week for education expenses for the children. [Child 1] attends a private school and is in year nine this year. The 2018 fee schedule for the school indicates that tuition fees for year nine are $6,060 per annum. There are also levies in the amount of $1,760 per annum incurred. Mrs Boller indicated that she also pays about $700 per year for uniforms and other school related expenses. This amounts to about $8,520 per annum or $164 per week.

6. Mrs Boller also indicated on her Statement of Financial Circumstances that her other son [Child 2], who is now 18 years of age, remains living with her. He earns $515 gross per week. The Tribunal therefore takes into account his ability to contribute to the weekly household expenses, which would no doubt reduce to some extent the cost to Mrs Boller.

Consideration of whether a departure is just and equitable

(a) Mr Boller’s income and financial resources

1. As outlined above, Mr Boller is currently unemployed and receiving newstart allowance from Centrelink. It is unknown how long this is likely to remain the case and will depend on his mental health issues settling.

2. Prior to this he was working [and] earned about $57,302 gross over a 6-month period.

3. The Tribunal has found that for the current financial year, Mr Boller’s income is best represented by a figure of about $64,000, including his Centrelink payments.

4. Mrs Boller raises the issue of the $24,000 being transferred out of Mr Boller’s bank account in September and November last year and that this should be taken into account as a financial resource. The genesis of this money was however his income for that period, so it is already taken into account by virtue of the finding that his income for the current financial year is $64,000.

5. Mr Boller raised the fact that he had considerable expenses in driving to and from the [location] located near the [workplace] where he was working last year. He estimated it cost him about $300 in fuel per week to drive the nine hours from his home to the [location] and back again at the end of the week. At that time, he was working a one week on, one week off roster and the Department material notes that his employer had advised that they provided him with free meals and accommodation whilst on [location]. Therefore, the only cost Mr Boller would have had during this time was the fuel expenses driving to and from the [location]. Given this, the Tribunal does not consider it appropriate to take into account these travelling expenses for the purposes of assessing child support as they equate to what any other PAYG earner would have to expend on basic living expenses each week from their net income and are not out of the ordinary or significant.

1. The Tribunal therefore finds that Mr Boller’s income from 1 July 2017 to 30 June 2018 is best reflected by a gross figure of $64,000. This amounts to about $1,200 gross or $900 net per week from which Mr Boller has expenses of about $225 to meet, leaving him with about $675 per week to meet his child support obligations. Applying this income to the assessment of child support produces a weekly obligation of between $157 and $214 per week payable to Mrs Boller. Therefore, the Tribunal finds that Mr Boller has the capacity to meet the weekly child support payments that such an income produces.

2. Whist it is acknowledged that Mr Boller does not currently earn $900 per week net given he is receiving an allowance from Centrelink, as already observed, the Tribunal considers that Mr Boller’s very modest living expenses cannot account for where the $24,000 that was withdrawn from his income last year has gone. While it is a matter for Mr Boller as to what he spends his income on, his obligations to his children must take priority over any other discretionary spending and therefore the Tribunal considers it just and equitable to depart from the previous assessment and vary Mr Boller’s income to $64,000 over the period from 1 July 2017 to 30 June 2018 in these circumstances.

3. Mrs Boller has raised in her written submissions a contention that Mr Boller resigned voluntarily from his position at the end of 2017 in order to affect the assessment of child support. The Tribunal has therefore considered as part of this review application whether there should be a departure from the current assessment as a result of Mr Boller’s earning capacity. Mr Boller gave evidence that the reason he resigned from employment at the end of 2017 was because he developed depression and anxiety. He has produced two medical certificates which support this evidence. He also told the Tribunal that he was placed on a mental health plan by his GP in December 2017 and commenced seeing a psychologist for a short period of time. He also continues to take medication for his symptoms and receives newstart allowance from Centrelink. He is not required to actively look for work at the moment because of his mental health issues.

4. Mr Boller denied ceasing work in order to affect the assessment of child support.

5. When considering whether there should be a departure from the administrative assessment of child support as a result of a person’s earning capacity, the Tribunal must be satisfied that:

   a)    the parent:

   i.is not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or

   ii.has reduced his/her weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or

   iii.has changed his/her occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and

   b)    the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and

   c)    the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).

6. All three of the above criteria must be met before a departure determination can be made in relation to earning capacity.

7. It is not contested that from the end of 2017 there was a change in Mr Boller’s working pattern in that he stopped working altogether. Whilst the prognosis for Mr Boller’s mental health condition is uncertain and he has not been particularly proactive in addressing it, the Tribunal accepts that it was a factor that led to Mr Boller’s decision to stop work and therefore is satisfied that Mr Boller has demonstrated that it was not a major purpose of his decision to not work to affect the administrative assessment of child support such that it would not be appropriate to vary his ATI to reflect his earning capacity.

(b) Mrs Boller’s income and financial resources

1. Mrs Boller works full-time and currently earns about $1,600 gross per week.

2. As outlined above, the Tribunal finds that for the current financial year, her income is best reflected by an amount of $77,000 gross. The current assessment of child support uses an ATI of $74,364 for Mrs Boller. If an ATI of $77,000 was applied to the assessment of child support it would result in a difference of about $100 per annum. Given the marginal difference between the two incomes, the Tribunal does not consider it appropriate to make any changes to the assessment of child support at this time concerning Mrs Boller’s income and any increase in her income going forward will be adequately reflected by the income she reports to the ATO pursuant to her taxation obligations.

(c) Private schooling and [specialist] costs for [Child 1]

1. [Child 1] attends a private school and has done so since about 2012, prior to the parties separating. Mrs Boller also seeks a contribution by Mr Boller towards the cost of sending [Child 1] to private school. It has previously been found by the Department that there was a mutual expectation by the parties that [Child 1] would be privately educated at the time he commenced private schooling and since 2015, Mr Boller’s annual rate has been increased by 50% of the tuition fees incurred by virtue of prior decisions of the Department.

2. Mr Boller did not dispute that at the time [Child 1] started at the school, it was the expectation of both parents that he be privately educated but submitted that things have changed since then and he does not have the capacity to contribute to these costs now.

3. Thus, the issue for this review application is whether it is just and equitable to increase Mr Boller’s annual rate by an amount representing a contribution to these fees and if so, by what amount.

4. As noted above, the tuition fees for [Child 1] to attend the school this year are $6,060 per annum. Last year [Child 1] was in year eight. Based upon the 2018 fee schedule, the year eight tuition fees were $4,960 per annum. If 50% of these fees were added to Mr Boller’s annual rate for 2017, the following would result:

   ·         from 1 January 2017 to 30 June 2017, an annual rate of $3,670 results;

   ·         from 1 July 2017 to 2 October 2017, an annual rate of $13,566 results; and

   ·         from 3 October 2017 to 31 December 2017, an annual rate of $10,629 results.

5. In 2018 this increase would produce an annual rate of $11,180.

6. As already observed Mrs Boller’s income for 2016/2017 was about $74,000 per annum gross and is likely to be around $77,000 for the current financial year. This is greater than that of Mr Boller. The Tribunal also notes that Mrs Boller currently has the capacity to meet these costs in full as evidenced by her average weekly expenses including an amount of $174 per week for education expenses whereas Mr Boller will struggle to meet these costs in 2018 on a newstart allowance. The Tribunal notes that he is already in arrears with his child support payments by about $16,000 to date.

7. Therefore, the Tribunal does not consider it appropriate in the circumstances to increase Mr Boller’s annual rate for 2018 by a contribution to [Child 1]’s school fees.

8. In relation to 2017 however, the Tribunal does consider that Mr Boller had the capacity to contribute to 50% of the private school fees for [Child 1]. By virtue of a previous decision of the Department dated 21 August 2015, Mr Boller was already required to contribute 50% of the school fees for [Child 1] from 1 February 2015 to 31 January 2018. This was affected by increasing Mr Boller’s annual rate in 2017 by an amount of $3,054. As noted above, the Tribunal finds that 50% of the school fees for 2017 in fact amounts to $2,480. Therefore, the Tribunal considers it appropriate to vary the previous decision of the Department such that for the period from 1 January 2017 to 31 December 2017, Mr Boller’s annual rate of child support is increased by $2,480.

9. The effect of increasing Mr Boller’s annual rate by this amount is that he is liable to pay $71 per week in child support from 1 January 2017 to 30 June 2017 and between $205 and $260 per week from 1 July 2017 to 31 December 2017. The Tribunal considers that Mr Boller had the capacity to meet these payments considering his income in the first half of 2017 was about $29,307 and his annual expenses were about $11,700, leaving about $300 net per week to meet his child support obligations. Furthermore, from 1 July 2017, his net income was about $900 per week from which he had about $675 per week to meet such obligations.

10. Mrs Boller also seeks a contribution from Mr Boller in relation to [Child 1]’s [specialist] costs. The Tribunal finds for the same reasons outlined above regarding private schooling that in 2018 Mr Boller does not have the capacity to contribute to these expenses but in 2017 he did.

11. In 2017 Mrs Boller paid a total of $3,800 towards these costs. Given the parties incomes are of a similar level, the Tribunal considers a 50% contribution to these costs to be an appropriate apportionment between the parties which amounts to $1,900. If Mr Boller’s annual rate of child support is increased by a further $1,900 in 2017 (making it an increase of $4,380 in total), this produces a weekly obligation of $105 per week from 1 January 2017 to 30 June 2017 and between $242 and $297 from 1 July 2017 to 31 December 2017. Again, the Tribunal considers that Mr Boller had the capacity to meet these payments considering his net income as outlined above.

12. Therefore, the Tribunal finds that a departure from the previous assessment in relation to an increase in Mr Boller’s annual rate of child support in 2017 reflecting a 50% contribution to [Child 1]’s private school fees and [specialist] costs is just and equitable in the circumstances.

(d) Length of decision

1. Mrs Boller made her change of assessment application on 11 July 2017, but the Tribunal can consider a period of up to 18 months prior to this date without leave of the Court in relation to a departure from the previous assessment.

2. The Tribunal has found, based on the evidence before it, that Mr Boller’s income for the 2016/2017 financial year is best reflected by a figure of $64,000 per annum and proposes to vary his ATI to this amount for the period from 1 July 2017. The question is then when such a decision should come to an end. In the circumstances of this case, Mr Boller’s financial circumstances are uncertain given his mental health issues have yet to stabilise and his prognosis for the future is unknown. Therefore, the Tribunal intends to conclude the decision to vary his ATI to $64,000 on 30 June 2018 when the current financial year ends. Thereafter Mr Boller will be required to provide the Department with an update as to his financial circumstances and will be assessed accordingly.

Issue 3 – Is a change of assessment otherwise proper?

1. In considering whether a departure is otherwise proper, the Tribunal must take into account subsection 117(5) of the Act which requires the Tribunal to have regard to the nature and duty of a parent to maintain a child and the effect that the making of the order would have on any entitlement of the child or carer entitled to child support to an income tested pension, allowance or benefit or the rate of any income tested pension, allowance or benefit payable to the child or the carer.

2. Mrs Boller receives family tax benefits in respect of [Child 1]. The decision of the Tribunal has the effect of increasing the annual rate payable by Mr Boller when compared to the previous assessment in place at the time of the change of assessment application and therefore may result in a decrease to the family tax benefits payable and the cost to the community. The Tribunal is therefore satisfied that the departure decision proposed is otherwise proper in the circumstances of this case.

DECISION

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

·         For the period from 1 July 2017 to 30 June 2018, Mr Boller’s adjusted taxable income is varied to $64,000;

·         For the period from 1 January 2017 to 31 December 2017, Mr Boller’s annual rate of child support payable is increased by an amount of $4,380.