Bostwick and Bostwick (Child support)

[2018] AATA 4891

Bostwick and Bostwick (Child support) [2018] AATA 4891 (6 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014303

APPLICANT:  Mr Bostwick

OTHER PARTIES:  Child Support Registrar

Mrs Bostwick

TRIBUNAL:Member W Kennedy

DECISION DATE:  6 November 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Bostwick’s adjusted taxable income at $95,000.00 per annum for the period from 1 July 2016 to 31 October 2019.

CATCHWORDS

CHILD SUPPORT – departure determination – financial resources of both parents - business income – period of departure 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. This decision concerns an application for a departure from the formula assessment of child support.  Mr Bostwick and Mrs Bostwick are the parents of two children, being [Child 1], who was born in 2010; and [Child 2], who was born in 2011. There has been a child support assessment in place for the children made by the Child Support Agency of the Department of Human Services (the Department) since 20 May 2016.

2. At the time of Mr Bostwick’s original application to the Department for a departure from the formula assessment, in October 2017, the annual rate of child support payable by Mr Bostwick was $21,050.00, based on adjusted taxable incomes (ATI) of $116,720.00 for Mr Bostwick and $19,684.00 for Mrs Bostwick.  The ATI’s were derived from the parents’ 2017 income tax returns.  At the time of the original application Mrs Bostwick had 100% care of the children.

3. On 25 October 2017 Mr Bostwick applied to the Department for a departure from the formula assessment of child support based on reasons 8A, being the income, property and financial resources of one or both of the parents; and 8B, being the earning capacity of one or both of the parents.  In his application Mr Bostwick referred to Mrs Bostwick’s earning capacity and made the assertion that he should not have to pay child support on a joint marital asset.  On 4 December 2017 Mrs Bostwick cross-applied on the basis of reasons 8A and 8B, asserting that Mr Bostwick’s working arrangements were designed to minimise his taxable income and thus his child support.

4. On 7 March 2018 a delegate of the Child Support Registrar considered the departure application and decided that in respect of both parents’ application reason 8A had been established and decided to set Mr Bostwick’s ATI at $90,000.00 for the period from 1 August 2017 to 31 October 2018.

5. On 5 April 2018 Mr Bostwick lodged an objection to that decision.  On 6 June 2018 a Department objections officer partly allowed the objection, finding that in respect of both parents’ applications reason 8A had been established and decided to set Mr Bostwick’s ATI at $99,307.00 for the period from 1 July 2016 to 30 June 2017 and $90,000.00 for the period from 1 July 2017 to 31 October 2018.

6. On 12 June 2018 Mr Bostwick lodged an application for a review of the Department’s decision with this Tribunal.  The Tribunal had access to the statement and documents provided by the Department.  The documents are at folios 1 to 540 of the hearing papers and were provided to the parties in advance of the hearing.  At the hearing Mr Bostwick said that he had not received the papers numbered 495 to 540.  The Tribunal determined that those papers were not germane to the matter before the Tribunal and that Mr Bostwick did not suffer any disadvantage as a result of not receiving those papers in advance of the hearing. 

7. Before the hearing the Tribunal directed Mr Bostwick and Mrs Bostwick to provide various documents.  Mrs Bostwick provided additional documents in accordance with the Tribunal’s directions, which the Tribunal numbered B1 to B13 and provided to the parties.  Mr Bostwick refused to respond to the directions.  The matter was heard and determined in Sydney on 6 November 2018.  Mr Bostwick attended the hearing in person and gave his oral evidence under an affirmation.  Mrs Bostwick attended the hearing by telephone and gave her oral evidence under an affirmation.  The Child Support Registrar was not represented at the hearing.  At the commencement of the hearing the Tribunal advised Mr Bostwick that the Tribunal could make a finding adverse to him.  Mr Bostwick acknowledged that he understood the possibility.

CONSIDERATION

The legislative framework and issues for the Tribunal to determine

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Act).  This requires the application of a statutory formula which takes into account factors such as the number and ages of the children, the level of care provided and the income of each parent.

2. The liable parent or a carer may apply to the Child Support Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Act.  Section 98C of the Act provides that the Registrar may make a determination to depart from the formula assessment and establishes a three step process for considering applications to do so.  The Registrar, and the Tribunal standing in place of the Registrar, must be satisfied:

   ·         that one, or more than one, of the grounds for departure referred to in subsection 117(2) of the Act exists; and

   ·         that it would be just and equitable as regards the child, the liable parent and the carer entitled to child support; and

   ·         that it would be otherwise proper to make a particular determination.

3. The grounds for departure from the administrative assessment are set out in subsection 117(2) of the Act.  Each of the grounds, which for administrative purposes are referred to as reasons, require that special circumstances be established.  The term ‘special circumstances’ is not defined in the Act.  In Gyselman and Gyselman [1991] FamCA 93 the Full Court of the Family Court indicated that for there to be special circumstances the facts of the case must establish something which is special or out of the ordinary.

4. If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal must make one of the determinations prescribed in section 98S of the Act.  These include varying the annual rate of child support payable or a parent’s adjusted taxable income.

Issue one – Does a ground exist to depart from the administrative assessment?

1. The Tribunal’s first task is to determine whether a ground for departure from the administrative assessment can be established.  In his application to the Department Mr Bostwick asserted that there are two grounds (or reasons) for a departure from the administrative assessment.  In her cross-application Mrs Bostwick also asserted that there were the same two grounds for a departure. 

2. Mr Bostwick sought a departure from the administrative assessment on the ground that his income, property and financial resources are less than is reflected in the ATI used for him in the child support assessment in effect at the time of his application.  This ground for departure, which is known as reason 8A for administrative purposes, is set out at subparagraph 117(2)(c)(ia) of the Act:

   (c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   (ia)because of the income, property and financial resources of either parent; or

   …

3. Mr Bostwick has asserted that his 2016/17 taxable income is affected by the capital gain realised from the sale of a marital asset.  The capital gain amount was $57,642.00.  He states that this means that an ATI derived directly from his taxable income produces an unfair result.  Mrs Bostwick has stated that the asset involved is held in trust pending a property settlement and that she agrees with Mr Bostwick’s assertion that it should not be counted in the determination of his ATI for child support purposes.

4. The Tribunal finds that the inclusion in a parent’s ATI of a capital gain that is directed towards the property settlement makes the formula assessment unfair and that it is a special circumstance which would allow a departure from the formula assessment of child support under subparagraph 117(2)(c)(ia) of the Act.

Issue two – Would departure from the administrative assessment be just and equitable?

Relevant law and evidence

1. As the Tribunal is satisfied that there is a ground under subparagraph 117(2)(c)(ia) of the Act to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable to depart from the assessment.  In deciding whether it is just and equitable the Tribunal had regard to the following matters set out in subsection 117(4) of the Act:

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

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

   (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.

2. The Tribunal considered the evidence provided by the parties, including the documents that each party provided to the Tribunal, as well as the documents provided by the Department.

Assessment of evidence, findings of fact and application of the law

1. Section 3 of the Act states and the Tribunal accepts that it is the duty of both parents to financially support their children and that they should receive a proper amount of financial support from their parents in accordance with their capacity to contribute.

The children’s needs

1. Paragraph 117(4)(b) of the Act requires the Tribunal to consider the proper needs of the children.  At the hearing Mrs Bostwick said that one of the children had recently been diagnosed with [a condition] and that treatment options are still being investigated.  In the absence of relevant evidence the Tribunal finds that at this point the children have no special needs or costs that are unusual or out of the ordinary and which need to be taken into account in the assessment. 

The children’s incomes and earning capacities

1. Mrs Bostwick said that both children are full-time students and that neither of the children are working or have an independent income.

The income, property and financial resources and earning capacity of Mrs Bostwick and her necessary commitments

1. At the hearing Mrs Bostwick said that she has recently started work and is earning about $1,000.00 per fortnight.  She said that her income also comes from supporting parent benefit, family tax benefit and child support paid by Mr Bostwick.  Mrs Bostwick’s 2015/16 income tax return (ITR) (folios 191 to 198) shows taxable income of $8,304.00 while her 2016/17 ITR (folios 192 to 206) shows taxable income of $19,684.00.  Mrs Bostwick has also provided bank account statements which are consistent with her oral evidence. 

2. Mr Bostwick has previously said that Mrs Bostwick has skills and training and that she should be working full-time and that the Tribunal should establish her ATI by making a determination of her earning capacity.  At the hearing Mrs Bostwick said that she had not worked since late 2009, just before the birth of her first child but that she had been retraining and had recently obtained a part-time job.  She said that she could not work full-time due to her caring commitments.

3. In considering whether it could make a determination as to earning capacity the Tribunal considered subsection 117(7B) of the Act, which provides:

   (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.

4. Mrs Bostwick is now working to the extent that it is practical given the ages of the children.  As Mrs Bostwick did not work for some years prior to separation it cannot be said that she has reduced her hours or changed her working pattern.  Thus paragraph 117(7B)(a) of the Act is not satisfied and the Tribunal is unable to make an earning capacity determination in respect of Mrs Bostwick.

5. At the hearing Mrs Bostwick said that she does not have any unusual or out of the ordinary self-support expenses.  The Tribunal finds that Mrs Bostwick’s ITRs have and in the future are likely to reflect her income and as a result it is not necessary to make any provision for setting an ATI for her outside of the normal Department procedure.  The Tribunal finds that Mrs Bostwick is in a position to meet her necessary commitments.

The income, property and financial resources and earning capacity of Mr Bostwick and his necessary commitments

1. At the hearing Mr Bostwick said he has worked for [a business] for 15 years, both as a contractor and as a casual employee.  He said that although his hours vary he averages about four days’ work each week and that he earns about $88,000.00 per annum.  He said that he also has a [trade] business that he operates as a sole trader and that he earns about $10,000.00 per annum from that business. 

2. Mr Bostwick’s combative and uncooperative approach at the hearing made it difficult for him to articulate his position.  While he said that his only concern was to ensure that the capital gain assessed on his 2016/17 income tax was excluded from the child support assessment, in fact both the original decision maker and the objections officer have already excluded it as a result of their respective decisions.  It appears from his original application that Mr Bostwick wishes to have his ATI for 2016/17 set at $55,608.00, which he states is his taxable income for that year.  He has apparently reached this figure by deducting the capital gain of $57,642.00 from his actual taxable income of $113,250.00 (folio 261).  However Mr Bostwick’s 2016/17 ITR shows that his taxable income includes not only the capital gain but also a net investment loss of $19,058.00 (folio 296).  While the loss is an allowable deduction under the Income Tax Assessment Act 1997, it may not be used to reduce a parent’s ATI under the Child Support (Assessment) Act 1989.  Subsection 43(1) of the latter Act states:

   (1)      Subject to this Part, a parent's adjusted taxable income for a child for a day in a child support period is the total of the following components:

   (a)the parent's taxable income for the last relevant year of income in relation to the child support period, disregarding the parent's assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for that year of income;

   (b)the parent's reportable fringe benefits total for that year of income;

   (c)the parent's target foreign income for that year of income;

   (d)  the parent's total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;

   (e)  the total of the tax free pensions or benefits received by that parent in that year of income;

   (f)  the parent's reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.

3. While, like the original decision maker and the objections officer, the Tribunal finds it appropriate to disregard the capital gain the legislation requires that the net investment loss be included in order to establish an ATI.  Mr Bostwick’s ITR shows that his gross payment from salary and wages was $77,990.00 and that he earned $889.00 in interest, producing a total of $78,879.00. 

4. The Tribunal has before it three payslips, which are for the period from 13 March 2017 to 23 April 2017.  They show an hourly rate of $55.00 and fortnightly hours of 63.5, 72 and 69.  Depending on the assumptions as to leave the YTD figures shown on the payslips suggest that in the full 2016/17 year Mr Bostwick would earn between $77,000.00 and $79,000.00.  Thus the documentary evidence before the Tribunal supports the conclusion that Mr Bostwick’s ATI in 2016/17 should be in the region of $78,000.00.

5. However Mrs Bostwick has lodged a cross-application in which she claims that Mr Bostwick is also working cash in hand (folio 270).  Although she has provided no documentary evidence the Tribunal finds that there is reason to give serious consideration to the claim.

6. Since the case started on 20 May 2016 Mr Bostwick has lodged estimates of his income with the Department on 30 May 2016, 18 November 2016, 25 July 2017 and 22 November 2017.  Mrs Bostwick successfully appealed one of the estimates lodged by Mr Bostwick and, on another occasion, on reconciliation the Department penalised Mr Bostwick for underestimating his income.  The implication is that Mr Bostwick has provided the Department with incorrect estimates of his income.  Mr Bostwick has also previously lodged an application for a change of assessment on 25 May 2017, but he withdrew that application on 27 June 2017.  

7. In a discussion with the Department on 17 November 2017 Mr Bostwick is recorded as saying (folio 63):

   [Mr Bostwick] said that he reduced his business hours as he did not want to pay maintenance to [Mrs Bostwick] at previous rate, that if his maintenance was increased he would just go & sit on a beach.

1. The Department has also recorded that on 5 October 2017 Mr Bostwick told the Department that if they tried to collect his child support arrears from his employer he would quit his job (folio 158).  It is apparent from the documentation before the Tribunal that Mr Bostwick has energetically pursued the reduction of his ATI in order to reduce his child support liability.

2. In order to establish Mr Bostwick’s true financial circumstances the Tribunal directed Mr Bostwick to provide a completed SOFC and bank and credit card statements for a particular period.  The Tribunal was unable to contact Mr Bostwick at the time of the telephone directions hearing, but following the hearing the reason for requiring the documentation was explained to Mr Bostwick by Tribunal staff.  Despite this explanation Mr Bostwick refused to provide the documentation he had been directed to provide.

3. This appears to be consistent behaviour by Mr Bostwick.  Mr Bostwick is recorded by the Department as having said, on 5 October 2017, that he withdrew his earlier application for a change of assessment because he found that his finances would be investigated if he proceeded (folio 160).  Mr Bostwick’s original application to the Department contained no financial details, other than an assertion that his income was less than the amount the Department had previously determined (and less than the amount that the Department subsequently determined).  The original decision maker had no financial documentation relating to Mr Bostwick and simply relied on Mr Bostwick’s agreement that ‘a figure of $90,000 may be a more accurate assessment of the income he is earning’ (folio 317).  The objections officer commented that ‘Mr Bostwick has provided no information about his expenses.  As such, the full context of Mr Bostwick’s financial circumstances remain unknown.’

4. In Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409 FM Slack dealt with the issue of the disclosure of financial information in matters before the Tribunal. His Honour stated that the principle of full and frank disclosure applicable to proceedings in the Family Court was also applicable to proceedings before the Social Security Appeals Tribunal, the predecessor to the Social Services and Child Support Division of this Tribunal. His Honour stated as follows at paragraph 26:

   Although the SSAT has the power to obtain information (s.103K) and the power to require the Child Support Registrar to exercise powers under the Assessment Act and the Child Support Registration and Collection Act for the purposes of gaining information relevant to a review (s.103L), there nevertheless remains a primary duty and obligation on the parties to the review to make a full and complete disclosure of their financial affairs relevant to the matter before the hearing and a duty to assist the Tribunal to come to its determination in the application.

5. His Honour stated as follows at paragraph 31:

   In financial proceedings under the Family Law Act, the authorities make it clear that a Court should not be unduly cautious about making findings in favour of the other party if it is not satisfied that proper disclosure has been made (see Chang & Su (2002) FLC93-117). Such principles, in my consideration, have similar application to these matters before the SSAT.  

6. The only relevant documentation available to the Tribunal is Mr Bostwick’s 2015/16 ITR (folios 282 to 291) which shows a taxable income of $90,720.00, his 2016/17 ITR (folios 292 to 301) which shows a taxable income of $113,250.00 and three payslips (folios 100 to 102).       

7. As indicated above the 2016/17 ITR is affected by the capital gain as well as an investment loss.  Removing the impact of these factors produces an ATI lower than Mr Bostwick’s taxable income (although not as low as that apparently desired by Mr Bostwick).  However, given Mrs Bostwick’s assertion that Mr Bostwick has manipulated his income by working through a friend, Mr Bostwick’s record of threatening to take actions to minimise his child support, his history of providing low estimates and his refusal to provide documentation to either the Department or the Tribunal, the Tribunal must consider the reliability of the 2016/17 ITR as evidence.  The Tribunal directed Mr Bostwick to provide documentation for a later period so that he would be able to establish the truth of his evidence and the reliability of his 2016/17 ITR as an indicator of his actual financial circumstances, but he refused to provide that documentation.  As Mr Bostwick has declined to respond to the Tribunal’s directions it is unable to establish the extent to which his 2016/17 ITR truly represents the financial resources available to Mr Bostwick.  Accordingly, the Tribunal has decided to not rely directly on Mr Bostwick’s 2016/17 ITR.  The Tribunal will rely on:

   ·         Mr Bostwick’s 2015/16 ITR, which covers a period mostly prior to the child support case,

   ·         Mr Bostwick’s payslips from the 2016/17 financial year, and

   ·         the oral evidence that Mr Bostwick provided at the hearing.  

8. Mr Bostwick’s taxable income of $90,720.00 in 2015/16 establishes his financial resources in a previous year.  The payslips, which are for the period from 13 March 2017 to 23 April 2017, suggest that Mr Bostwick is employed five days per week, but the payslips cover a short period and the Tribunal has decided to accept Mr Bostwick’s oral evidence that he is employed for an average of four days per week.  That would produce a weekly income of $1,760.00 which annualises to $91,520.00.  As Mr Bostwick is casual staff he is not entitled to paid leave.  Allowing four weeks leave produces a total annual wage of $84,480.00.  This is consistent with Mr Bostwick’s oral evidence that he would earn ‘about’ $88,000.00 from his employment.  Mr Bostwick said that in addition to that he also earns about $10,000.00 per annum from his [trade] business.  Thus Mr Bostwick’s taxable income in 2015/16 was $90,720.00 and, on his oral evidence, his current annual income is about $98,000.00.  The Tribunal finds these figures credible and, given the continuity, a reliable basis on which to determine Mr Bostwick’s ATI.

9. There is no evidence before the Tribunal which suggests that Mr Bostwick is not working full-time.  As the Tribunal is intending to make a finding on the basis that Mr Bostwick is indeed working full-time it is not necessary to consider his earning capacity any further.

10. At the hearing Mr Bostwick said that he does not have any unusual or out of the ordinary expenses.  The Tribunal finds that Mr Bostwick is in a position to meet his necessary commitments.

The parents’ duty to support others

1. There is no evidence that either parent has a legal duty to support any other person, other than their children.

Hardship

1. The departure contemplated by the Tribunal will reduce Mr Bostwick’s child support assessment from the $21,050.00 that was in effect when he applied to the Department for a departure from the formula assessment of child support.  The Tribunal’s decision will result in a changed profile when compared with the decision of the decision of the objections officer, with Mr Bostwick’s child support liability being lower at the start of the departure period.  Overall there will be a relatively small increase from the decision of the objections officer.

2. Taking into account the parents’ primary obligation to support their children and the financial resources that the Tribunal has found are available to the parents the Tribunal finds that the decision contemplated by it will not cause hardship to either parent.

Terms and period of departure

1. Mr Bostwick said at the hearing that he earns about $88,000.00 per annum from his employment and about $10,000.00 per annum from his [trade] business.  Although the documentary evidence produces slightly higher figures, the evidence is slim and the Tribunal has decided to rely on Mr Bostwick’s oral evidence.  Allowing for a reasonable level of deductions the Tribunal finds that it would be fair to conclude that Mr Bostwick has access to financial resources of some $95,000.00 per annum.  Having regard to the matters in subsection 117(4) of the Act the Tribunal finds that it would be just and equitable to depart from the formula assessment by setting Mr Bostwick’s ATI at $95,000.00.

2. Mr Bostwick lodged his application on 25 October 2017.  In his application he requested that the departure commence on 1 July 2016 and that it end on ‘31/6/2017’ (folio 251).  In her cross application Mrs Bostwick also requested that the departure commence on 1 July 2016 but that it end on 14 December 2017, which was the day she signed the application (folio 270).  The Tribunal has some concern about backdating the departure to a date nearly 16 months prior to the application; however an ATI of $95,000.00 is less than 5% above Mr Bostwick’s taxable income for the previous year, which was derived directly from his ITR.  Considering the stated wishes of the parties and the documentary evidence before it the Tribunal has decided to commence the departure on 1 July 2016. 

3. In order to alleviate the need for an immediate subsequent application and to provide some certainty for the parents regarding child support payments the Tribunal finds that there are benefits in setting the departure for a relatively lengthy period.  At the same time the Tribunal is conscious that the income of both parents may change over the coming period.  Any changes to Mrs Bostwick’s income will be automatically incorporated into the changing assessment; however the Tribunal is intending to set Mr Bostwick’s ATI.  At the same time the Tribunal notes that Mr Bostwick’s income has been quite stable and at the hearing he said that his rate of pay has not changed for 15 years.  It is also apparent that Mr Bostwick has found the departure process trying and the Tribunal finds that it would not be desirable for him to be confronted with it again in the immediate future.  Balancing the competing factors the Tribunal has decided to depart from the formula assessment for a period that will extend one year into the future.  The Tribunal has decided to set the departure from the formula assessment to expire on 31 October 2019.  This will allow Mr Bostwick’s 2018/19 ATI to be taken into account in the assessment, and will allow both parents the opportunity to apply for a further departure should they think that warranted at the time.

Issue three – Is it otherwise proper to depart from the administrative assessment?

1. The final step for the Tribunal to undertake 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 following matters:

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

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

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

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

2. The child support law recognises that each parent has a primary duty to maintain their children.  In this case Mrs Bostwick receives supporting parent benefit and family tax benefit, both of which may be affected as a result of the Tribunal’s decision.  The Tribunal finds that that is entirely appropriate and consistent with the intent of the legislation.  The Tribunal is satisfied that it is otherwise proper to depart from the administrative assessment in this matter.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides to set Mr Bostwick’s adjusted taxable income at $95,000.00 per annum for the period from 1 July 2016 to 31 October 2019.