Browne and Sayle (Child support)

[2020] AATA 2674

Browne and Sayle (Child support) [2020] AATA 2674 (17 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017597

APPLICANT:  Mr Browne

OTHER PARTIES:  Child Support Registrar

Ms Sayle

TRIBUNAL:Member K Buxton

DECISION DATE:  17 June 2020

DECISION:

The decision under review is set aside and a decision substituted that:

·For the period 28 March 2019 to 31 July 2019 the rate of child support payable by either parent to the other is fixed at $nil;

·From 1 August 2019 the formula assessment will apply.

CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources of both parents - 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. Mr Browne and Ms Sayle are the parents of [Child 1], aged 12, and  [Child 2], aged ten. Mr Browne has sought review of a decision of the Child Support Agency (CSA) about the amount of child support which had been assessed as payable in respect of the children who are recorded as in the equal shared care of the parents.

2. In the child support case between the parents the administrative assessments of child support provided as follows:

   ·From 1 August 2019 to 31 October 2020, the annual rate of child support payable by Mr Browne was assessed at $144, based on his 2018/19 adjusted taxable income of $74,259 and Ms Sayle’s 2018/19 adjusted taxable income of $73,255;

   ·From 1 January 2019 to 31 July 2019, the annual rate of child support payable by Mr Browne was assessed at $2,620, based on his 2017/18 adjusted taxable income of $70,638 and Ms Sayle’s 2017/18 adjusted taxable income of $48,369; and

·From 1 August 2018 to 31 December 2018, the annual rate of child support payable by Mr Browne was $2,310, based on an income set for him at $67,990 as a result of a prior Administrative Appeals Tribunal (AAT) decision made on 4 October 2017. Ms Sayle was assessed on her 2017/18 adjusted taxable income of $48,369.

1. On 28 March 2019 Mr Browne applied for a change of assessment, under Part 6A of the Child Support (Assessment) Act 1989 (the Act), on the basis that Ms Sayle’s available earning capacity, income and financial resources were not fairly reflected in the assessment. On 6 August 2019 a delegate of the Child Support Registrar found that a departure ground existed and decided to vary the administrative assessment of child support as follows:

   ·For the period from 1 April 2019 to 31 July 2019 the adjusted taxable income amount for Ms Sayle is fixed at $73,255;

   ·For the period from 1 April 2019 to 31 July 2019 the adjusted taxable income amount for Mr Browne is fixed at $74,529; and

   ·For the period from 1 August 2019 to 31 August 2024 the rate of child support payable by Mr Browne is fixed at $nil.

1. Mr Browne objected to that decision and on 9 October 2019, an objections officer disallowed the objection. Mr Browne applied to the tribunal to have the objections officer’s decision reviewed.

2. The tribunal hearing took place on 16 June 2020 and at the hearing Mr Browne and Ms Sayle appeared by conference telephone and gave sworn evidence. In reaching its decision, the tribunal has considered the sworn evidence given during the hearing together with the documentation provided by the CSA (Exhibit 1), Mr Browne (Exhibit A) and Ms Sayle (Exhibit B) and the submissions received.

CONSIDERATION

The legislative framework

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. A formula is used which takes into account variables including each parent’s adjusted taxable income for the last relevant year of income, the number of children and the level of care provided by each parent. A parent may apply for a departure from the assessment, under Part 6A of the Act, in certain circumstances. However, the legislative intent is that the tribunal will not interfere with the administrative formula result in the ordinary run of cases. Under subsection 98C(1), a change of assessment can be made only if:

   a.    a ground (or more than one ground) for departure exists; and

   b.    departure from the administrative assessment would be:

   i.just and equitable as regards the children and each parent; and

   ii.otherwise proper.

2. 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 may make one of the range of determinations, prescribed in section 98S of the Act, which include varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.

Ground for departure

Income, property, financial resources and earning capacity

1. The Act provides, as grounds for departure from the administrative assessment of child support (in subparagraph 117(2)(c)(ia)):

(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.

1. The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. In Gyselman and Gyselman (1992) FLC 92-279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial positions.

Income and financial resources of the parents

Mr Browne

10.  Mr Browne is employed as an [Occupation 1] at a salary of $80,000 and, with reported tax deductions, his adjusted taxable income was $74,259 for the 2018/19 year. His adjusted taxable income was just over $70,000 in the previous year. Mr Browne stated in his written submissions that he has taken unpaid leave to have care of the children and this has led his income to reduce to around $75,000. Ms Sayle did not raise any issues about the income of Mr Browne. The tribunal therefore concludes that Mr Browne has had income and financial resources of about $74,000 from the 2018/19 year and continues to earn income at a similar level.

11.  Mr Browne prepared a statement of financial circumstances that he submitted to the tribunal. In that statement he reported weekly expenses that appeared to outweigh his reported income. His expenses included weekly home loan payments of $550 and he reported a home loan balance of just over $63,000 secured by a mortgage over his home, which he valued at $210,000. Mr Browne confirmed during the hearing that he elects to pay more than the minimum required principal and interest repayments in order to minimise his debt and be more financially secure. Mr Browne stated that his loan facility was $180,000 and that he therefore had significant funds available in his redraw facility, but that he did not wish to draw down against the equity in his home.

Ms Sayle

12.  Ms Sayle is employed as [an] [Occupation 2] and generally engaged by contracts entered into with her employer from time to time. Ms Sayle stated that, during the 2018/19 year, she entered into a total of nine different employment contracts of varying terms. She has, at times, received income support payments between periods of employment and, at times, has had periods of unemployment without income support payments whilst waiting for a new contract to commence. Her adjusted taxable incomes were $48,369 for the 2017/18 year and then $73,255 for the 2018/19 year. Ms Sayle’s income tax return for the 2018/19 year shows that she received total payments from her employer of $56,199 and, when added to interest, reportable fringe benefits and superannuation contributions, her adjusted taxable income was $73,255. However, in February 2020 an amended income tax return increased Ms Sayle’s taxable income by $1,261 on account of interest received but not initially reported in her 2018/19 tax return. Taking this into account Ms Sayle’s income was about $74,000 in the 2018/19 year.

13.  The tribunal notes that Ms Sayle purchased a home early in the 2019 year. In a statement of financial circumstances prepared by Ms Sayle and submitted to the tribunal she stated that the estimated value of her home was $375,000 and her home loan balance was $287,000, and she reported minimal savings. Given that she appears to have used savings as a deposit for her home she is unlikely to report substantial interest income in the 2019/20 year. Ms Sayle stated that she has made the minimum required repayments on her loan and does not, therefore, have the capacity to redraw on this loan. Ms Sayle stated that she has been unemployed from 10 May 2020 and is currently in receipt of Jobseeker payments but is excused from job-seeking activities due to her ill-health until late June 2020. The tribunal notes that Jobseeker payments have been at the level of $1,100 per fortnight during the period of the government’s Covid-19 stimulus package and are forecasted to reduce from September 2020 (to an as-yet undetermined level). Ms Sayle stated that she was hopeful, but unsure, as to when and whether she would regain employment.

14.  It is proper that Ms Sayle’s income and her financial resources are considered in the assessment of child support. Ordinarily, that occurs when the income and financial resources of a parent are reflected in their adjusted taxable income which applies to the child support case in the period following lodgement of the income tax return. The tribunal concludes from the available evidence that Ms Sayle’s available income for child support purposes, including from employment (from time to time), has, across the 2018/19 year amounted to about $74,000 per annum. Those resources were not reflected in the child support case until August 2019 when her income tax return for the 2018/19 year was available to the CSA to be reflected in the child support case intended by the child support formula.

15.  Ms Sayle’s income is not earned at a constant rate. Ms Sayle gave evidence during the hearing that, since May 2019, her income has fluctuated due to working in a higher paid position from then for about eight weeks, and then having two weeks without income between contracts in January 2020. She stated that her base rate of pay during other periods was $1,499 per week, or just under $78,000 per annum, until her unemployment on 10 May 2020. Having regard to that combination of factors, Ms Sayle’s income for the 2019/20 year is likely to reach either the same level as in the preceding 2018/19 year or less, but is unlikely to be higher. Her future income is uncertain. Her income during the 2018/19 year was derived from nine separate contracts and earned following a period of unemployment of about ten weeks that ended around June 2018.

16.  The tribunal notes that Mr Browne’s departure application nominated both the income of Ms Sayle and her earning capacity as departure grounds. However, no separate evidence was offered by Mr Browne about any unexercised earning capacity of Ms Sayle and, given that Ms Sayle has been working in her profession when work has been available, there is no statutory basis upon which the tribunal could consider unexercised earning capacity.

17.  The tribunal has considered whether the evidence supports the submission of Mr Browne that Ms Sayle has access to additional financial resources that should be considered in the assessment of child support.

18.  Ms Sayle receives payments of $250 per week for providing board and lodging to persons in her home from time to time through a “Homestay” arrangement. The Australian Taxation Office do not regard this as income, presumably as a result of the fact the costs of food and utilities are included and the boarders live within the family home. The tribunal takes a similar view and concludes that little or no net financial benefit flows from having a boarder within the family home when expenses, wear and tear and utilities are considered other than the improvement in cashflow. Ms Sayle stated during the hearing that she also incurs the costs of travel for Homestay students including those incurred to and from the airport, to schools and to places of interest. Ms Sayle did not quantify those costs but noted that she takes the students to generate cultural awareness in the children and that she does not profit from the process.

19.  Ms Sayle also received payments through a Paypal account in which she sells her personal belongings. It is not appropriate to regard money received through the disposition of one’s own belongings as income unless there is a business or commercial arrangement and no evidence of such an arrangement exists. The tribunal notes that Ms Sayle received about $8,000 before expenses for Homestay in the 2018/19 year and about $6,000 in the current year and the tribunal accepts her evidence that she does not receive any, or any substantial, net financial benefit. This is consistent with the approach to such payments taken by the Australian Taxation Office. The tribunal also accepts that the amounts received by Ms Sayle on her Paypal account of about $1,900 to 30 June 2019 and about $1,000 to 27 April 2020 do not constitute income for child support purposes. The tribunal notes that Mr Browne has stated that he also sold personal items since the child support case began and that the proceeds of such sales have not been included in his income for child support purposes. The tribunal is satisfied that this is the correct and preferable approach for both parents.

20.  Mr Browne submitted that Ms Sayle has claimed a deduction in the 2018/19 year of $448 for certain life insurances that do not generate an entitlement to a reduction in taxable income. He asserted this to be the case but did not provide supporting evidence. In any event the tribunal notes that this small sum remained as a tax deduction in Ms Sayle’s amended income tax return issued in February 2020 following an audit by the Australian Taxation Office and the inclusion of this amount does not result in an unfair assessment of child support.

21.  Mr Browne submitted that he should be the receiving parent. The function of the tribunal in determining this review application is to consider the grounds for departure from the administrative assessment of child support set out subparagraph 117(2)(c)(ia) of the Act rather than to make findings, expressly, as to who should be the receiving parent, or the paying parent.

22.  To further his submission that Ms Sayle has access to financial resources that should be considered in the child support assessment Mr Browne has requested, on a significant number of separate occasions, that the tribunal obtain a copy of the application made by Ms Sayle to her bank in early 2019 in order to obtain finance to purchase her current home. These requests were made during a directions hearing conducted by the tribunal in April 2020 prior to the substantive hearing, in a number of written requests made to the tribunal before the hearing, in Mr Browne’s written submissions and during the substantive hearing. Mr Browne submitted that the tribunal should exercise its power under section 161 of the Act to require Ms Sayle’s bank to disclose the loan application document. In his written submissions directed to the tribunal Mr Browne stated: “You must obtain the loan application document to determine what income was actually declared and the time of employment, these are not negotiable documents for the assessment and quite easily and reasonably obtained through a section 161.” Mr Browne took the opportunity to repeat the request in a document that Mr Browne was permitted by the tribunal to submit for a different purpose following the conclusion of the hearing.

23.  The purpose of obtaining the document, according to Mr Browne, was to determine what income was declared by Ms Sayle to her bank at the time of her loan application. Such information is not as useful to the tribunal as information that establishes Ms Sayle’s actual income. That information is contained in Ms Sayle’s income tax return for the 2018/19 year. A copy of that document is already available to the tribunal. The loan application document may have been of utility if there was insufficient evidence otherwise available to the tribunal in relation to Ms Sayle’s income at that time but, as the tribunal has already determined, that is not the case. Further, the tribunal is required to conduct a review in a way that is proportionate to the importance and complexity of the matter (section 2A of the Administrative Appeals Tribunal Act 1975). Where sufficient evidence of a fact in issue is already available to the tribunal it is not a proper exercise of the tribunal’s power to seek further evidence of the same fact. Here, the fact in issue is Ms Sayle’s income during the 2018/19 year, not what she may have disclosed to her bank as her income, and the tribunal has not found it necessary or appropriate to obtain the document sought by Mr Browne, despite his repeated requests.

24.  Mr Browne made a number of irrelevant and inflammatory submissions, some in writing and some during the hearing. Whilst it is not necessary for the tribunal to address these submissions in detail, I will refer to them briefly, particularly where it is clear from the material that similar issues have been raised repeatedly in the various departure applications initiated by Mr Browne over time:

·In his written submissions Mr Browne levelled various serious accusations at Ms Sayle in relation to her care of the children. He also detailed allegations about parenting issues, including contraventions of court orders. The tribunal notes that Mr Browne did not attempt to speak to these issues during the hearing and that Ms Sayle did not respond to them in her submissions, no doubt because of the irrelevance of them. However, the tribunal notes that there was no basis for such issues to be raised at all in the context of Mr Browne’s departure application and it is an improper use of the departure application and subsequent review processes, including the review application to this tribunal, for Mr Browne to seek to achieve the collateral purpose of raising those allegations.

·Mr Browne has expressly and repeatedly alleged fraud on the part of Ms Sayle and the CSA. In his written submissions he stated that Ms Sayle has “deliberately lowered her income” in a way that was “fraudulent”. Mr Browne was asked during the hearing about his evidence of this fraud and he pointed to the following evidence, summarised at page A19 of his written submissions:

·   CSA document 3/12/19 – report 9/10/2019 - Page 16 – 3rd paragraph from the bottom of page – CSA have not found Ms Sayle has deliberately misstated income. CSA has committed fraud;

·   CSA document 3/12/19 – CSA file note 19/6/2019 - Page 91 – Whole paragraph on the bottom of page – “Ms Sayle said her income has gone up and she applied for a housing loan based on a salary of $74,000.” CSA fraud this statement pre dates CSA assessments and decisions.

The evidence demonstrates that Ms Sayle was not obliged to provide updated income information until filing her 2018/19 income tax return which she did, promptly, in July 2019. The finding by the CSA referred to above is consistent with this. The file note on page 91 of the papers is of a conversation between Ms Sayle and the CSA toward the end of the financial year in which she plainly stated that her income has increased and in which she provided the information (much sought-after by Mr Browne) about the income she declared to the bank when seeking finance for her new home. This conversation took place after Mr Browne lodged his departure application in March 2019. The note is evidence of express disclosure by Ms Sayle of income information and the very serious allegations of fraud so freely and repeatedly made by Mr Browne throughout the documents are utterly unsupported by this evidence. Mr Browne was invited by the tribunal during the hearing to identify any other evidence demonstrating a time when Ms Sayle was obliged to make an accurate financial disclosure to the CSA but did not. Mr Browne did not identify any such evidence, and none can be found in the material before the tribunal. Mr Browne was permitted the opportunity to provide references to support his assertions immediately following the hearing. On the afternoon of the hearing, he made a submission in writing, identifying the decision of the CSA made on 28 August 2018, in relation to his departure application lodged on 4 July 2018 as the evidence from which the tribunal could infer fraud on the part of Ms Sayle. Those parts of the decision referred to by Mr Browne were Ms Sayle’s advice to the delegate that her income was not too dissimilar to her 2017/18 taxable income of $48,369 and that she has returned to work and that her gross income is in the vicinity of $54,000. Mr Browne sought to characterise these as fraudulent. At the time they were made, Mr Browne had failed to demonstrate that the statements were incorrect and has certainly not demonstrated fraud. There is no basis in the evidence for the assertion that Ms Sayle’s verbal statements were unreliable and the tribunal did not find them to be so.

·Mr Browne submitted that a decision should be made that favoured him because of historic mistreatment by government agencies which resulted in Mr Browne losing his house. It is not clear to which “mistreatment” Mr Browne is referring. However, the tribunal has power to deal only with the review application arising from his departure application lodged on 28 March 2019.

25.  When Mr Browne applied for a departure, in March of 2019, the administrative assessment of child support required Mr Browne to pay to Ms Sayle child support at the annual rate of $2,602 based on 2017/18 adjusted taxable incomes of $70,638 for Mr Browne and $48,369 for Ms Sayle. At that time, Mr Browne’s income from employment had increased from the previous financial year and by the time the financial year had come to an end he had earned an adjusted taxable income of around $74,000. At the same time Ms Sayle’s income from employment had also increased to about $74,000 when her interest income, gross payments and reportable fringe benefits were considered.

26.  The intention of the formula is that income be captured and applied to the child support case in the year after it was earned. That is provided for in the administrative assessment of child support from 1 August 2019 onwards which uses 2018/19 adjusted taxable incomes of $74,259 for Mr Browne and $73,255 for Ms Sayle.

27.  However, Mr Browne submitted that the formula should be departed from earlier in the 2018/19 financial year and submitted that the tribunal should consider his departure application with a retrospective effect. Ms Sayle is recorded by the CSA as having informed them when she regained employment and was told it was not necessary to take further steps. She submitted that it would be unjust and inequitable to back-date her income for child support purposes as she was unaware that she had to provide ongoing disclosure of this income and she was engaged with various applications, initiated by Mr Browne, in which her income was investigated as a result of Mr Browne’s allegations that she was committing “fraud” through non-disclosure of income.

28.  The information provided by the CSA indicates that Mr Browne lodged at least three departure applications between November 2016 and July 2018, before lodging the subject departure application in March 2019. A departure application lodged by Mr Browne on 22 November 2016 led to a decision being made by the AAT with the consent of the parties on 4 October 2017 setting the parents’ incomes for child support purposes as follows:

·For the period 16 January 2017 to 31 December 2018 Ms Sayle’s adjusted taxable income be varied to $54,000 and Mr Browne’s adjusted taxable income be varied to $67,990.

29.  The tribunal notes that Mr Browne raised the issue of Ms Sayle’s homestay payments in the context of this application. However, the decision (consented to by Mr Browne) incorporates only income from Ms Sayle’s employment from when she began working as [an] [Occupation 2].

30.  In a further departure application lodged by Mr Browne on 14 June 2017 the delegate decided, in October 2017, that there was no reason to depart from the administrative assessment of child support based on the decision made by the AAT with the consent of the parties. There is no record of any objection to this decision.

31.  When Ms Sayle’s circumstances changed in April 2018 she lodged a departure application and a delegate of the Child Support Registrar determined that, as she was no longer working, it was proper to cease the application of the AAT decision made on 4 October 2017 in respect of Ms Sayle’s income and decided to vary her income so that, for the period 14 April 2018 to 30 June 2018, Ms Sayle’s adjusted taxable income would be set at $16,422 per annum. From 1 July 2018 the administrative assessment used the most recent adjusted taxable income then available for Ms Sayle, being her 2016/17 adjusted taxable income of $36,754 applying until 31 July 2018 and, from 1 August 2018, her 2017/18 adjusted taxable income of $48,369.

32.  In a further departure application lodged by Mr Browne on 4 July 2018 the delegate decided, in August 2018, that there was no reason to depart from the administrative assessment of child support which, by then, was based on the decision made by the AAT with the consent of the parties and the further decision about Ms Sayle’s changed circumstances. During that process Ms Sayle stated that she had returned to work and was earning gross income of $54,000 per annum at that time. The delegate determined that was no basis to conclude that the incomes of the parents used in administrative assessments of child support made those assessments unfair. Mr Browne sought an extension of time and, when this application was refused, sought review of that decision with the AAT. The AAT affirmed the decision to refuse Mr Browne’s application to extend time within which to object. In doing so, the AAT observed:

20. As noted by the objections officer in the decision under review, there have been multiple previous decisions made on this case, in the course of which Ms Sayle’s income and financial resources have been closely scrutinised.

21. Mr Browne’s case centres on allegations that Ms Sayle is in receipt of some form of rental/homestay income, [online]sales, and a large deposit to her PayPal account of $186,218.31USD in April 2017. In support of these allegations, Mr Browne has submitted bank account statements for periods relating to the early part of 2017. All of these allegations were considered in the course of a change of assessment application by Department decision maker [a named officer] on 4 June 2018, and dismissed.

33.  The issues raised in the current application are the same as those raised in the departure application lodged on 4 July 2018. The only real difference is that, instead of a prospective application to depart from the administrative assessment of child support Mr Browne now submits that there is a retrospective basis to do so. It is not for the tribunal to reconsider the earlier departure applications and, in particular, the application lodged on 4 July 2018, but to instead consider whether, at the time Mr Browne lodged the subject departure application on 28 March 2019, in the special circumstances of the case, the 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 because of the income, property and financial resources of either parent.

Conclusions in relation to the departure ground

34.  The administrative assessment of child support in place around the time when the departure application was lodged in August 2018 required Mr Browne to pay to Ms Sayle child support at the annual rate of $2,620 based on his 2017/18 adjusted taxable income of $70,638 and on Ms Sayle’s 2017/18 adjusted taxable income of $48,369.

35.  The tribunal has found that, across the financial year beginning 1 July 2018, Mr Browne has had access to income and financial resources of about $74,000 per annum and Ms Sayle has also had access to income and financial resources of about $74,000 per annum. If the adjusted taxable incomes for Mr Browne and Ms Sayle were varied to reflect the tribunal’s findings, the annual rate of child support payable by Mr Browne for the children would decrease such that neither parent would be assessed as liable to transfer any, or any substantial, child support to the other. The administrative assessment of child support does not fairly reflect the income and financial resources available to the parents and the existence of these factors, and the marked difference in child support payable to Ms Sayle when they are considered, sets this case apart from others, making it special. 

36.  The tribunal is satisfied that the administrative assessment of child support produces a result which is unjust and inequitable having regard to the parents’ respective incomes and financial resources. The tribunal therefore finds that there is a ground to depart from the administrative assessment.

Just and equitable

37.  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 needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

Ms Sayle

38.  Ms Sayle lives with the children, when they are in her care, in a home she purchased relatively recently. At the time of the purchase Ms Sayle was assessed as entitled to receive child support from Mr Browne to assist her in meeting the needs of the children. This is a relevant factor in determining whether and, if so, to what extent it is just and equitable to depart from the administrative assessment of child support.

39.  Ms Sayle gave sworn evidence, and the tribunal accepts, that she does not enjoy the security of an ongoing employment contract. Rather, she works on a contract basis and stated that she is often not aware until the end of one contract whether, and on what terms, she will be re-engaged. Late in the 2017/18 year Ms Sayle was out of work for ten weeks. Her income was adjusted as a result of a departure application she lodged when her circumstances changed. When Ms Sayle was asked by the CSA early in the 2018/19 year about her income, she considered she would receive about $54,000 per annum and that this would not differ greatly from her taxable income of the preceding year. That was consistent with the level of taxable income she was receiving at the time, although it may not have included the reportable fringe benefits she was receiving through salary sacrificing. However, it is unclear how Ms Sayle could know whether she would have further periods of unemployment during the 2018/19 year and, if so, what the impact of that would be. She had just been out of work for ten weeks.

40.  When Mr Browne lodged his departure application on 28 March 2019 Ms Sayle was in a better position than she would have been earlier that year to determine her likely income for that financial year. She informed her bank that she was earning $74,000 per annum when purchasing her home in March 2019 and informed the CSA of this fact when enquiries were made of her in June 2019. Ms Sayle was aware from that time that a departure application had been lodged and it is therefore reasonable for her to assume that, from that time, more up-to-date income information for her may be used in the assessment.

41.  However, until that time, Ms Sayle had been entitled to rely on the assessments of child support in place. Ms Sayle was aware that Mr Browne’s departure application lodged in July 2018 had been refused and was entitled to consider that application as at an end. In the ordinary course, her 2018/19 adjusted taxable income was to be used in the assessment for the child support period that followed lodgement of her income tax return for that period. If Mr Browne had wished to object to the decision made in August 2018 refusing his departure application lodged in July 2018 then it was open to him to object within the statutory timeframe. The (unsuccessful) steps taken thereafter by him in seeking to secure an extension of time did not involve Ms Sayle and there is no evidence to suggest she was aware of those steps. The tribunal further notes that the 2018/19 year is the first time when Ms Sayle’s income was at a similar level to that of Mr Browne. It is reasonable to conclude from these facts that to create an overpayment for Ms Sayle that dates back earlier than 28 March 2019 may cause significant hardship to Ms Sayle and to the children whilst in her care. For these reasons the tribunal is satisfied that it would be just and equitable to consider the income and financial circumstances available to Ms Sayle from her employment from 28 March 2019, when the departure application was lodged, but not earlier.

42.  There is nothing in the evidence to suggest that the self-support amount allowed for by the child support formula (of approximately $25,000 per annum) is not an appropriate measure of Ms Sayle’s proper needs. Ms Sayle has the children in her 50% care and has not identified any special needs for the children above those to be expected of children of their respective ages.

Mr Browne

43.  Mr Browne lives in his home with the children, when they are in his care.  There is nothing in the available evidence to suggest that the self-support amount allowed for in the formula (of approximately $25,000 per annum) is not an appropriate measure of Mr Browne’s proper needs. Mr Browne has the children in his 50% care and has not identified any special needs for the children above those to be expected of children of their respective ages.

Conclusions as to what is just and equitable

44.  From the date of Mr Browne’s departure application, until 30 July 2019, the tribunal proposes to depart from the administrative assessment of child support by setting the rate of child support at $0 payable by either parent. At that time, the parents had shared care of the children and similar incomes.

45.  From 1 August 2019 the administrative assessment of child support has used the most recently available taxable incomes for the parents and the resulting child support assessment is not unfair to either parent or to the children. There is no basis to alter the administrative assessment of child support from that point in time and the tribunal has found that, from that time, Mr Browne was likely to earn about $74,000 per annum and, until recently, Ms Sayle was earning income of around $74,000 per annum. These may not match the income earned by a parent at every point in time, and that is not the statutory intent of the administrative assessment produced by the application of the formula. That formula is designed to apply in the majority of cases and has the benefit of allowing the parents to access administrative solutions, such as the lodgement of income estimates, should their circumstances change.

46.  Ms Sayle did not submit during the hearing that the objection decision, the effect of which was to set the rate of child support payable by Mr Browne from 1 August 2019 to 31 August 2024, was unfair. Therefore, the tribunal concludes that, although Ms Sayle ceased work and began receiving Jobseeker payments on 10 May 2020 it is not unfair for the administrative assessment based on her previous taxable income to apply until she lodges her 2019/20 income tax return. It is also open to Ms Sayle to simply lodge an estimate of income, rather than apply for a further departure, if she does not return to paid employment and her income has reduced by more than 15% as a result.

47.  Mr Browne stated that his current employment circumstance was uncertain due to the Covid-19 pandemic. He stated that his employer is receiving Jobkeeper payments for him but that he was continuing to work and was continuing to receive his full salary at the time of the hearing. He observed that many people were out of work and he therefore feared for his own job, but also stated that he was very busy and stressed with the high levels of work that would only increase with the beginning of the new financial year on 1 July 2020. If Mr Browne’s circumstances change and he ceases to be employed it is also open to him to lodge an estimate of income if his income reduces by more than 15%, rather than lodging another departure application.

48.  The tribunal is satisfied that, from 1 August 2019, the formula assessment has been operating as the legislation intended and leads to a just and equitable assessment of child support. Therefore, the tribunal does not propose any departure from the assessment from that date. Mr Browne described the parents’ financial situations as “dynamic” and stated that either parent may need to apply for a further departure application. It is the intent of this decision to make plain that, from 1 August 2019, the parents’ circumstances have not been special, and no ground to depart has existed from that date. There is no basis upon which it would be open to Mr Browne to again raise the issue of Homestay income for Ms Sayle, or Paypal income from the sale of Ms Sayle’s personal items, or perceived injustices generated by historic circumstances and decisions. It is the intention of this decision that the parents be relieved of the burden of participating in unnecessary departure applications where their incomes can be dealt with administratively.

49.  For the reasons set out above, the tribunal has decided to vary the administrative assessment of child support as follows:

·For the period 28 March 2019 to 31 July 2019 the rate of child support payable by either parent to the other is fixed at $nil;

·From 1 August 2019 the formula assessment will apply.

50.  The tribunal is not satisfied that any hardship is created for either parent or for the children as a result of that proposed departure, having regard to the findings of the tribunal as to the nature and quantum of financial resources available to the parents. The tribunal is satisfied that the proposed departure would create an outcome that is just and equitable having regard to the available evidence.

Otherwise proper

51.  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. Varying the rate of child support for a short period based on incomes and financial resources available to the parents, then reverting the administrative assessment of child support using the formula set out in the Act, will result in an appropriate apportionment of financial responsibility between the parents and the community. Such a result would be otherwise proper.

Conclusion

52.  Mr Browne lodged a departure from the administrative assessment of child support in March 2019. The tribunal has found a ground to depart from the administrative assessment and has decided that it would be proper to depart as follows:

·For the period 28 March 2019 to 31 July 2019 the rate of child support payable by either parent to the other is fixed at $nil;

·From 1 August 2019 the formula assessment will apply.

53.  The tribunal has found that a departure in those terms is just and equitable and otherwise proper. As the conclusion reached by tribunal differs from that arrived at by the objections officer in the decision under review, that decision is set aside and a decision substituted that gives effect to the tribunal’s findings.

DECISION:

The decision under review is set aside and a decision substituted that:

·For the period 28 March 2019 to 31 July 2019 the rate of child support payable by either parent to the other is fixed at $nil;

·From 1 August 2019 the formula assessment will apply.