Charman and Devall (Child support)

[2024] AATA 2015

Charman and Devall (Child support) [2024] AATA 2015 (25 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/HC026893

APPLICANT:  Mr Charman

OTHER PARTIES:  Child Support Registrar

Ms Devall

TRIBUNAL:Member S Irvine

DECISION DATE:  25 March 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period from 1 October 2022 to 30 June 2022, Mr Charman’s adjusted taxable income is set at $84,309.

CATCHWORDS

CHILD SUPPORT – departure determination – ground for departure – out of ordinary, necessary expenses – income, property and financial resources – an adjusted taxable income – recent increases in the cost of living – application for 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 Charman and Ms Devall are the parents of [Child 1] born in September 2009. A child support assessment commenced on 17 July 2019. Mr Charman is assessed as liable to pay child support to Ms Devall. [Child 1] is in Ms Devall’s 100% care. Mr Charman resides in [Country 1], while Ms Devall and [Child 1] reside in Australia. All references to monetary amounts in this decision are in Australian dollars unless otherwise specified.

2. On 27 October 2022 Mr Charman lodged an application for a departure determination with Services Australia – Child Support (Child Support), seeking a decrease in child support payments. Ms Devall did not agree that there should be a change to the administrative assessment. Mr Charman raised the following grounds for departure in his application:

   ·Mr Charman has out of ordinary, necessary expenses to support himself;

   ·The assessment does not correctly reflect Mr Charman’s income, property and/or financial resources

   ·Mr Charman has a responsibility to support a resident child.

3. At the time of Mr Charman’s application, the formula assessment amounts that applied were as follows:

   ·For the period 1 October 2021 to 22 September 2022 Mr Charman was assessed to pay an annual rate of $6,354, based on an adjusted taxable income for Mr Charman of $78,080, and an adjusted taxable income for Ms Devall of $65,442.

   ·For the period 23 September 2022 to 30 September 2022 Mr Charman was assessed to pay an annual rate of $8,900, based on an adjusted taxable income for Mr Charman of $78,080, and an adjusted taxable income for Ms Devall of $65,442 (and on the basis that [Child 1] had turned 13).

·For the period 1 October 2022 to 31 December 2023 Mr Charman was assessed to pay an annual rate of $12,131, based on an adjusted taxable income for Mr Charman of $98,011, and an adjusted taxable income for Ms Devall of $61,190.

1. On 18 March 2023 a Child Support decision-maker decided that no ground for a departure from the assessment had been established, and consequently refused to depart from the administrative assessment of child support.

2. On 14 April 2023 Mr Charman objected to the decision.

3. On 14 July 2023 a Child Support objections officer allowed the objection. The objections officer determined there would be a departure from the administrative assessment so that for the period 1 April 2022 to 30 August 2023 Mr Charman’s adjusted taxable income used in the administrative assessment was varied to $84,309.

4. On 10 October 2023 Mr Charman applied to this Tribunal for a review of the objection decision. A hearing was held on 25 March 2024. Mr Charman and Ms Devall attended by telephone and gave sworn evidence.

5. I had before me the statement and documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, numbered 1-358. I also considered additional documents provided by Mr Charman (marked A1 to A25) and by Ms Devall (marked B1 to B15) as a result of written directions issued on 22 February 2024.  

LEGISLATIVE FRAMEWORK AND ISSUES

1. The legislation relevant to this review is contained in the child support law, in particular the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act. This requires the application of a statutory formula, which takes into account factors such as the number and age of children, the level of care provided by each parent and the income of each parent. Either the liable parent or the carer entitled to child support may apply to the Child Support Registrar (the Registrar) for a determination to depart from the formula assessment under Part 6A of the Act (section 98B). Section 98C of the Act provides that the Registrar may make a determination to depart from the assessment and establishes a three-step process. The Registrar, and the Tribunal standing in place of the Registrar, must be satisfied that a ground for departure exists and that it is just and equitable and otherwise proper to make a particular departure determination.

3. The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Act. 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 any of the determinations prescribed in section 98S of the Act.

4. In the legislation, each ground for departure is prefaced by the words “in the special circumstances of the case”. When considering whether one or more grounds exist, the Tribunal must be satisfied that there are “special circumstances” in the case. The phrase “special circumstances of the case” is not defined I the legislation. The Family Court in the decision in Gyselman and Gyselman (1992) FLC 92-279, stated that the phrase:

   is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

CONSIDERATION

Is there a ground to depart from the administrative assessment of child support?

Reason 8 – Mr Charman’s income, property, financial resources

1. Subparagraph 117(2)(c)(a) of the Act provides for a ground for departure from an administrative assessment on the basis of a parent’s income, property or financial resources. The Act states as follows:

   (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.

2. Further in relation to that ground, subsection 117(7A) of the Act provides that in having regard to the income, property and financial resources of a parent:

   ·regard must be had to the capacity of the parent to derive income, including any assets of the parent that do not produce, but are capable of producing income; and

   ·the income of any person who is does not have a duty to maintain the child must generally be disregarded; and

   ·any entitlement of the child or the carer entitled to child support to an income test pension, benefit or allowance must be disregarded.

3. In the period from 1 October 2022 to 31 December 2023 the formula assessment uses Mr Charman’s overseas taxable income of $98,011 as Mr Charman’s adjusted taxable income. Mr Charman resides in [Country 1], and his overseas taxable income was determined pursuant to section 58C of the Act, which provides that the Registrar may determine an amount to be the parent’s overseas income for a year of income with reference to information and documents in the Child Support Registrar’s possession. It is not in dispute that the Registrar received information from the relevant child support authority in [Country 1] that in the 2020/21 [Country 1] financial year (which is a period from 1 April 2020 to 31 March 2021) Mr Charman’s income was [COUNTRY 1]$103,991. It is also not in dispute that, applying section 12 of the Child Support (Assessment) Regulations 2018 as to the exchange rate to be applied, this equates to an income of $98,011.

4. Mr Charman’s evidence is that in the 2020/21 [Country 1] financial year his income was inflated by additional benefits he received as part of [Country 1]’s response to the COVID-19 pandemic. Those benefits applied only to that financial year, and he did not continue to receive them after that – so he was no longer receiving that income by 1 October 2022. Mr Charman provided a copy of his proof of income from [Country 1 agency], which indicates that his taxable income in the period 1 April 2022 to 31 March 2023 was a total of [COUNTRY 1]$93,218.23. His income from employment in that period was [COUNTRY 1]$92,410.84.

5. I accept that during the period from 1 October 2022 to 31 December 2023 Mr Charman was assessed to pay child support based on an adjusted taxable income for him that was higher than the income he was actually receiving, by an amount of approximately [COUNTRY 1]$10,000. I am satisfied that the additional income that Mr Charman received in the [Country 1] 2020/2021 income year was due to benefits associated with the COVID-19 pandemic, and that those benefits were not available to Mr Charman after that time. That is a circumstance that is out of the ordinary and uncommon sufficiently to make it unjust or inequitable to determine the level of financial support to be provided under the administrative assessment of child support that was in place prior to Mr Charman making his application for a departure on 27 October 2022. Accordingly a ground for departure in subparagraph 117(2)(c)(ia) of the Act does exist and this ground is established on the basis that reliance on Mr Charman’s income as assessed under the provisions of the Act would not provide a just and equitable assessment of the level of financial support to be provided.

6. As I have determined that there is a ground to depart from the administrative assessment, I will consider the other matters raised by Mr Charman in his application in the context of whether a departure from the administrative assessment is just and equitable and otherwise proper.

Is a departure just and equitable?

1. As I am satisfied that there is a ground to depart from the administrative assessment, the next step is to consider whether a departure is just and equitable. In deciding whether it is just and equitable I have had regard to the matters set out in subsection 117(4) of the Act.

2. Section 3 of the Act provides that the parents of a child have the primary duty to maintain the child, and that that duty has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other person the parent has a duty to maintain.

3. Other than the matters considered above in determining whether a ground to depart is established, Mr Charman raised essentially three points in his application to reduce the amount of child support he is required to pay for [Child 1]. The first matter raised by Mr Charman is the terms of a court order entered into between the parents in [Country 2] in December 2013 (the [Country 2] order). Mr Charman pointed to point 5 of that order which says:

   The Respondent shall discontinue paying maintenance forthwith, but shall resume payment if ever Ms Devall loses her job or is unable to maintain the said child anymore.

4. Mr Charman submitted that the effect of that order is that he is only required to pay maintenance for [Child 1] if Ms Devall is unable to maintain him. Mr Charman submitted that, as Ms Devall is employed and earning an income, the effect of the [Country 2] order is that he is not required to pay maintenance.

5. The requirement under Australian law to pay child support for a child who resides in Australia (and in some cases for a child who resides outside Australia where a paying parent resides in Australia) is contained in the Act and the Registration Act. Essentially under the terms of the Act a child support assessment can be made for a child who lives in Australia in circumstances where one of the child’s parents lives in Australia and the other parent lives in a jurisdiction that is designated a reciprocating jurisdiction. Jurisdictions designated as reciprocating jurisdictions are listed at Schedule 2 to the Child Support (Registration and Collection) Regulations 2018, and include both [Country 2] and [Country 1].

6. It is recognised in the legislation that in some circumstances a child maintenance liability may also arise under the law of a different jurisdiction. The Registration Act allows for the registration in Australia of certain liabilities that are registrable overseas maintenance liabilities, as defined in section 18A of the Registration Act. In particular, subsection 18A(1) of the Registration Act provides that a liability is a registrable overseas maintenance liability if it is a liability of a parent or step-parent of a child to pay a periodic amount for the maintenance of the child, and it is an overseas maintenance liability. The term overseas maintenance liability is defined in section 4 of the Registration Act, and includes a maintenance order made by a judicial authority of a reciprocating jurisdiction. Section 30AA of the Registration Act provides, in effect, that if an Australian child support assessment has been made and registered under the Registration Act after the making of an overseas maintenance liability, the overseas maintenance liability ceases to have effect in Australia.

7. In this case, I am satisfied that the [Country 2] order is not a registrable overseas maintenance liability, as no liability for maintenance of [Child 1] arises under that order. However, even if that is not correct, a child support assessment was made and registered in respect of [Child 1] on 17 July 2019, and consequently pursuant to section 30AA of the Registration Act it would in any event have ceased to have effect for the purposes of Australian child support law.

8. I find that the [Country 2] order has no effect on Mr Charman’s liability to pay child support for [Child 1] under the Australian child support assessment, and consequently I will not consider the [Country 2] order in this decision.

9. The second matter raised by Mr Charman relates to his own necessary expenses. In essence Mr Charman submitted that he has substantial necessary expenses, and he cannot afford the level of child support that has been assessed under the administrative assessment. Mr Charman submitted a statement of financial circumstances to the Tribunal, and has listed weekly expenses for himself totalling [COUNTRY 1]$1,164 per week as follows (all expenses listed for Mr Charman are in [Country 1] dollars):

   Food   $40 (estimated)

   Mortgage payments      $616

   Household supplies       $20 (estimated)

   House repairs  $30 (estimated)

   Gas  $10

   Electricity  $75

   Water charges  $45 (estimated)

   Telephone   $20

   Council rates and levies                   $45

   Petrol  $50

   Motor vehicle maintenance               $10 (estimated)

   Motor vehicle registration                  $10 (estimated)

   Fares/car parking  $10 (estimated)

   Clothing and shoes   $10 (estimated)

   Medical, dental and optical                $10 (estimated)

   Insurance excl. health and life           $66

   Entertainment/hobbies  $10 (estimated)

   Holidays  $10 (estimated)

   Chemist/pharmaceutical  $5 (estimated)

   Gardening/lawn mowing  $20

   Gifts   $5

   Hairdressing/toiletries  $5

   Home Choice loan  $42

   Student loan  $40

10. In addition Mr Charman listed weekly expenses for the children of $1,164 and weekly expenses for his wife of $585.

11. The Statement of Financial Circumstances also reflects that Mr Charman has personal expenditure of $626 per week (excluding child support payments), comprised of income tax of $443, life insurance premiums of $21 and a credit card payment of $162.

12. Mr Charman also submitted to the Tribunal:

    ·A home loan summary showing a balance owing on the home loan as at March 2024 of $624,453.06, with fortnightly repayments of $2,260 per fortnight;

    ·A rates assessment and invoice from [local] Council showing total assessed rates on Mr Charman’s property of $2,303.25 for the 2023/24 year;

    ·A copy of a comprehensive car insurance premium in the amount of $1,594.90 for the period 3 June 2023 to 3 June 2024;

    ·A copy of a home and contents insurance premium showing an amount payable of $2,008.27 for the period 25 February 2024 to 25 February 2025;

    ·A certificate of pet insurance showing an amount payable for the period 20 February 2024 to 19 February 2025 of $886.91.

13. I note that Mr Charman has calculated his mortgage repayment attributable to himself at 60% of the total repayments, and has attributed the other 40% to his wife, on the basis that he earns a higher income and so contributes the larger amount. Other expenses that might be expected to benefit the whole household (such as electricity, water charges, council rates and levies, and insurance) have been attributed solely to Mr Charman.

14. I find that the expenses listed by Mr Charman are generally reasonable in amount. I note that some amounts, such as entertainment and hobbies, holidays, life insurance premiums, and pet insurance, are not expenses that could be considered necessary to enable to Mr Charman to maintain himself and the children, and are not in my view expenses that should take priority over his duty to contribute to [Child 1]’s maintenance, but I note that those expenses comprise only a small portion of Mr Charman’s listed weekly expenses.

1. Mr Charman lists his current income in his Statement of Financial Circumstances as [COUNTRY 1]$1,792 per week, including $3 per week in interest earned and $12 per week in dividends. At the hearing Mr Charman acknowledged that his income has increased slightly since he completed that statement, and his current gross income from employment is [COUNTRY 1]$3,812 per fortnight. Mr Charman also submitted to the Tribunal recent payslips from his employer which show gross fortnightly income as [COUNTRY 1]$3,790.67 per fortnight (or $1,895 per week) in the fortnight ended 6 February 2024 and [COUNTRY 1]$3,812.30 per fortnight (or $1,906.30 per week) in the fortnights ended 20 February 2024 and 5 March 2024.

2. Mr Charman’s evidence at the hearing was that he took out his mortgage to buy his current house in 2021. At the time the mortgage was affordable, however since then there have been a number of unexpected interest rate increases. Mr Charman said that his minimum mortgage repayments have increased from $1,386 per fortnight in February 2023 to the current rate of $2,260 per fortnight. He also took out a personal loan (the “Home Choice loan”) to undertake some renovations to the property – again this was done when interest rates were lower and the repayments were more affordable. His wife is working and also earning an income but it is less than his income as she works part-time in order to care for their younger children (I note Mr Charman’s Statement of Financial Circumstances lists his wife’s income at [COUNTRY 1]$904 per week).

3. I accept that Mr Charman has current necessary expenses to support himself in the amount of at least [COUNTRY 1]$1,611 per week, including income tax paid. I have excluded expenses for entertainment, holidays, life insurance and pet insurance. I have also excluded credit repayments as it is not clear how much of those payments overlap with Mr Charman’s weekly expenses (although I acknowledge that at least some of the credit card repayment may in fact represent an additional expense, at least in respect of interest on the credit card debt). That amount also does not taken into account any of the expenses for the children, although I note that Mr Charman does have a duty to maintain his two younger children and I note that their expenses are likely to be at least [COUNTRY 1]$360 per week taking into account the expenses listed in Mr Charman’s Statement of Financial Circumstances (and assuming that the child care costs listed at $150 per week relate to Mr Charman’s two younger children and not to his step-child). Those expenses slightly exceed Mr Charman’s fortnightly income from employment, and I accept that without adjustment to his current expenditure he has limited capacity to pay maintenance for [Child 1].

1. The third matter raised by Mr Charman is his duty to maintain a “resident child”. Mr Charman’s evidence is that his wife’s child from a previous relationship also resides with them, and Mr Charman is required to meet some of that child’s expenses as well as providing for his own children.

2. Subsection 117(4) of the Act provides that, in considering whether a departure from the assessment is just and equitable, I must have regard to the commitments of each parent that are necessary to enable the parent to support himself or herself and any other child or another person that the parent has a duty to maintain. In respect of the duty to maintain another person, the courts have held that the words “duty to maintain” are limited to a legal duty and do not include what is only a moral obligation to maintain a person (see Vick and Hartcher (1991) FLC 92-262). Mr Charman did not submit any evidence suggesting that he has a legal duty to support his step-child.

3. Paragraph 117(2)(aa) of the Act provides that there may be a departure from an administrative assessment if the capacity of a parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent. Subsection 117(10) provides that a child is a resident child only if:

   (a)   The child normally lives with the person, but is not a child of the person; and

   (b)   The person is, or was for 2 continuous years, a member of a couple; and

   (c)   The other member of the couple is, or was, a parent of the child; and

   (d)   The child is aged under 18; and

   (e)   The child is not a member of a couple; and

   (f)    One or more of the following applies in respect of each parent of the child;

   (i)The parent has died;

   (ii)The parent is unable to support the child due to the ill-health of the parent;

   (iii)The parent is unable to support the child due to the caring responsibilities of the child; and

   (g)   The court is satisfied that the resident child requires financial assistance.

4. Mr Charman’s evidence is that his wife, who is the mother of his step-child, is working, albeit only part-time due to her caring responsibilities for the younger children. Mr Charman also gave evidence that the step-child’s father is alive and is required to pay child support for the step-child. On that basis, I am satisfied the step-child does not meet the definition of a “resident child” as set out in subsection 117(10) of the Act.

5. I have also considered Ms Devall’s income, and her necessary expenses to support herself and her children. Ms Devall’s evidence is that she is a single parent. She has two other children besides [Child 1], one of whom has special needs.

6. Ms Devall provided a Statement of Financial Circumstances to the Tribunal, and has listed her weekly expenses for herself in the amount of $1,091 as follows:

   Food   $50 (estimated)

   Rent payments  $560

   Gas  $20

   Electricity  $20

   Water charges  $15 (estimated)

   Telephone   $50 (estimated)

   Petrol  $120 (estimated)

   Motor vehicle maintenance               $20 (estimated)

   Motor vehicle registration                   $10 (estimated)

   Clothing and shoes   $25 (estimated)

   Child minding  $141

   Medical, dental and optical                $10 (estimated)

   Insurance excl. health and life           $40

   Chemist/pharmaceutical  $20 (estimated)

7. In addition Ms Devall listed weekly expenses for the children of $400.

8. The Statement of Financial Circumstances also reflects that Ms Devall has personal expenditure of $745 per week, comprised of income tax of $282, superannuation of $148 per week, life insurance premiums of $40 and a credit card payment of $275.

9. I find that the expenses listed by Ms Devall are generally reasonable in amount. Life insurance premiums are not an expense that could be considered necessary to enable to Ms Devall to maintain herself and her children, and are not in my view an expense that should take priority over her duty to contribute to [Child 1]’s maintenance, but again I note that is only a relatively minor expense.

10. Ms Devall lists her current income as $1,346 per week. Ms Devall also submitted to the Tribunal recent payslips from her employer which show gross weekly income of $1,346.15  per week in the weeks ended 18 February 2024, 25 February 2024 and 3 March 2024. Ms Devall’s Statement of Financial Circumstances also sets out that she receives $300 per week in family tax benefit payments. Ms Devall has noted that the father of her two younger children is required to pay child support in the amount of $132 per week, but she does not actually receive any child support payments from him.

11. At the hearing Ms Devall submitted that while she acknowledged that Mr Charman had increased mortgage costs as a result of interest rate increases, she is required to pay rent which has also risen in recent months, and is similar in amount to Mr Devall’s share of his mortgage repayments.

12. I accept that Ms Devall has current necessary expenses to support herself in the amount of at least $1,773 per week, including income tax paid. I have excluded her superannuation payments on the ground that these appear to be employer superannuation contributions and not amounts Ms Devall is paying from her income. I have also excluded life insurance payments, and I have excluded credit card repayments as it is not clear how much of those payments overlaps with Ms Devall’s weekly expenses (although I acknowledge that at least some of the credit card repayment may in fact represent an additional expense, at least in respect of interest on the credit card debt). That amount also does not taken into account any of the expenses for the children. I am satisfied that Ms Devall’s current necessary expenses exceed her income, and she is in need of assistance to provide for [Child 1].

1. Mr Charman, during the hearing, submitted that in considering Ms Devall’s adjusted taxable income, I should take into account the child support and government benefits that she receives. As I explained to Mr Charman during the hearing, subparagraph 117(7A)(b)(ii) of the Act provides that in having regard to the income, property and financial resources of a parent of a child I am required to disregard any entitlement of the child or the carer entitled to child support to an income-tested pension, allowance or benefit, and on that basis I will not consider Ms Devall’s entitlement to family tax benefit for the children. It is also not appropriate to consider any child support Mr Charman is required to pay as part of Ms Devall’s adjusted taxable income.

2. In relation to [Child 1]’s proper needs, I note Ms Devall’s evidence that [Child 1] is healthy and has the usual financial needs of a boy of his age. [Child 1] does not have any special needs that have been identified.

3. After consideration of the commitments and liabilities of Mr Charman and Ms Devall and [Child 1]’s needs, I consider it is just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Act. Therefore I make the following departure determination:

   ·For the period 1 October 2022 to 30 September 2023, Mr Charman’s adjusted taxable income is set at A$84,309.

4. I note that the amount of A$84,309 is equivalent to an amount in [Country 1] dollars of $92,410. This is slightly lower than Mr Charman’s actual taxable income in that period commencing 1 April 2022, which according to the information he submitted from [Country 1] Revenue was [COUNTRY 1]$93,218. However, given Mr Charman’s current financial situation, I find that $84,309 is an appropriate income to be used for him in the assessment for that period.

5. I have also set that income for a slightly different period to that used by the Child Support objections officer. The objections officers set Mr Charman’s adjusted taxable income at $84,309 for the period from 1 April 2022 to 30 August 2023. I accept that the amount is equivalent to the amount the objections officer found was Mr Charman’s actual taxable income in [Country 1] for the period commencing on 1 April 2022. However, setting the new income from that date had the effect of increasing the annual rate of child support that Mr Charman was required to pay in the period from 1 April 2022 to 30 September 2022. On the basis that Ms Devall has not sought an increase in the child support payable, and taking into account the fact that Mr Charman already has difficulties meeting the assessed amount, I am not satisfied that it is just and equitable to increase the amount of child support payable for that period.

6. A new child support period commenced in the case on 1 October 2023, which means that without a departure from the assessment Mr Charman’s higher 2021/22 taxable income would be used in the child support assessment until 30 September 2023. I am satisfied that is just and equitable to set Mr Charman’s income until the end of the period ending on 30 September 2023, to avoid him being assessed on the higher income which he was no longer receiving.

7. The determination represents an annual decrease in the child support payable compared to administrative assessment that was in place prior to Mr Charman’s application made on 27 October 2022.  As the affected periods are all in the past, the effect of this decision will be a slight reduction in the arrears payable by Mr Charman. 

8. Subsection 117(4) of the Act requires me to take into account whether any departure determination or failure to make a departure determination will cause any hardship to the child, the carer, the liable parent or any other person the liable parent has a duty to support. I have considered the relative financial positions of Mr Charman and Ms Devall and acknowledge that both parents have necessary costs for the support of themselves and their children, and both have been affected by recent increases in the cost of living including increases in housing costs (both mortgage interest rates and rent payments). I acknowledge that meeting [Child 1]’s costs is difficult for both parents, however I consider that the determination I have made strikes a balance between the difficulties of both parents, and is just and equitable in the circumstances.

Is a departure otherwise proper?

1. The third step to consider is whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination.

2. The child support law recognises that each parent has a primary duty to maintain their children. In the case that they cannot, the government may assist in the form of family assistance payments. This decision may very slightly increase the amount of family assistance Ms Devall can receive in respect of [Child 1], although the effect is likely to be minimal. I am satisfied that a departure from the assessment will appropriately reflect the financial resources that have been available to both parents and ensure that the level of financial support provided by the parties for [Child 1] is determined according to their capacity to provide that support. I find that it is otherwise proper to make the determination.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that for the period from 1 October 2022 to 30 June 2022, Mr Charman’s adjusted taxable income is set at $84,309.