Danabie and Smailie (Child support)

[2024] AATA 2310

Danabie and Smailie (Child support) [2024] AATA 2310 (9 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC026934

APPLICANT:  Mr Danabie

OTHER PARTIES:  Child Support Registrar

Ms Smailie

TRIBUNAL:Member J Bakas

DECISION DATE:  9 May 2024

DECISION:

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

For the period 27 January 2023 until 30 November 2024, the adjusted taxable income for Mr Danabie is set at $45,000 per annum.

From 1 December 2024, the normal administrative provisions of the Child Support (Assessment) Act 1989 will apply.

CATCHWORDS

CHILD SUPPORT – departure determination – particulars of the administrative assessment – special circumstances – conditions to not apply adjusted taxable incomes – unjust and inequitable determination – changing the incomes to lower amounts – decisions 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. Ms Smailie and Mr Danabie are the parents of three children, [Child 1] born in 2010, [Child 2] born in 2012 and [Child 3] born in 2014 in respect of whom a child support assessment is in place. The child support case commenced on 4 January 2016 with the children being in the above primary care of Ms Smailie.

2. Mr Danabie applied for a change of assessment with Services Australia – Child Support (Child Support) on 5 November 2022 on the basis that he believed the assessment to be unjust and inequitable on account of his income, property and financial resources (Reason 8A).

3. At the time of the application, the child support assessment in place was as follows:

   For the period 1 September 2022 to 31 August 2023; an annual rate of $24,390 based on Mr Danabie’s adjusted taxable income (ATI) of $120,000 and Miss Smailie’s 2021-22 ATI of $32,097.

   The ATI of $120,000 for Mr Danabie was set in a Change of Assessment (COA) decision made by Decision Maker (DM) [deleted] on 18 March 2022 as follows: For the period from 18 March 2022 to 17 March 2025, the ATI for Mr Danabie is set at $120,000.

4. On 3 May 2023, Child Support made a decision that Reason 8A was not established and refused to change the assessment as follows.

5. On 30 May 2023, Mr Danabie objected to that decision. His grounds included that the ATI set by DM [deleted] was unfair as his business ([Business 1]) is going into receivership and he has personally not made any income.

6. On 2 October 2023, a Child Support objections officer made a decision to partly allow the objection and changed the assessment as follows:

   For the period 1 June 2023 until 31 October 2024, ATI for Mr Danabie is set at $45,000.

   From 1 November 2024, the normal administrative provisions of the Child Support (Assessment) Act 1989 will apply.

7. The impact on the assessment was as follows:

   The initial effect of the decision will be to decrease the rate of child support payable by Mr Danabie from $24,390 per annum to $4,842 per annum for the period 1 June 2023 to 31 August 2023. From 1 September 2023 the annual rate payable by Mr Danabie will reduce from $24,111 to $4,722.

   It will also result in a reduction to the maintenance arrears on Mr Danabie child support account by about $6,503

8. Mr Danabie sought review of the objections officer’s decision and on 20 October 2023 applied for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).  He was seeking to have his salary of $45,000 set from an earlier period.

9. Ms Smailie and Mr Danabie participated in a telephone directions hearing on 29 February 2024 and on 11 April 2024 they attended the hearing by way of MS Teams audio and gave evidence on affirmation.

10. Mr Danabie called his accountant, [Accountant A] of [business name], as a witness and the Tribunal heard affirmed evidence from him also.

11. The documentary evidence before the Tribunal consists of the ‘Section 37(1) Documents and Statements’ C1 to C520, Mr Danabie’s documents A1 to A105, and Ms Smailie’s documents B1 to B10.

ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988. 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 and the income of each parent.

2. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a departure from the administrative assessment in relation to a child.

3. Under section 98C of the Act, before making a departure determination on an application made under section 98B of the Act, the Registrar must be satisfied that in the special circumstances of the case, one or more grounds under subsection 117(2) of the Act exist, and that it would be just and equitable and otherwise proper to make a particular determination.

4. The issues for the Tribunal to determine in this case are therefore:

   15.1.Whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and, if so (and only if so),

   15.2.Whether it would be just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment of child support.

CONSIDERATION

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

Reason 8A

1. The legislative grounds corresponding to Mr Danabie’s application in relation to Reason 8A are set out in subparagraph 117(2) (ia). The test is whether:

   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: [paragraph 117(2)]

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

2. To establish this ground it is necessary to show that either Ms Smailie’s or Mr Danabie’s income, property or financial resources used in the assessment make the child support assessment unfair.

Mr Danabie’s income, property and financial resources

18.  Mr Danabie’s position, as expressed at the hearings and in his submissions and documentary evidence, includes the following:

18.1.He used to own and run a company, [Business 1]. He was unable to keep running [Business 1] and it was placed into liquidation.  He passed his client list to [Mr A] and [Mr B] in about January 2023 but due to licensing issues he could not formerly transfer the work out of the company. All of the [professional] licences were in his personal name and [Mr A] needed to undertake some courses before being able to take over the work in his own right. Mr Danabie has lost all of his licences and is not able to work [in occupation 1] anymore. On 15 September 2023 Mr Danabie and [Mr A] signed a Deed of Acknowledgment of [Business 1’s] business and assets from Mr Danabie to [Mr A] from 27 January 2023.

18.2.As of 1 June 2023 all activity ceased in [Business 1] and was transferred to a new company set up by [Mr A]. There was no remuneration from the transfer. As of 3 August 2023 [Business 1] was placed into liquidation under [named] Accountants. The liquidators completed their work on 16 October 2023.

18.3.At the time of liquidation of [Business 1] the company owed about $70,000.

18.4.He has not worked in [Business 1] since October 2022. He had a handshake agreement with [Mr A] to teach them what had to be done.

18.5.He ended up having a breakdown.  His business was an Australian wide business and COVID-19 and the associated travel restrictions caused him a lot of grief. Having his workers quarantined for two weeks after travelling to work sites cost him about $30,000. He could no longer afford the administrative assistance he had. He no longer had a viable business after COVID-19.

18.6.He lost his major work contract in Sydney and he lost much of his [specified] work because companies would start using the local people due to the travel issues.

18.7.As a result of the business issues he lost interest in it and lost heart to persevere. He was also upset he could not see his children. He stopped chasing people up for work. [Mr A] had to do all of the hard work to get a business back up and running. [Mr A] ended up losing all the jobs that Mr Danabie had given him.

18.8.He saw a doctor in about October 2022 and had further appointments throughout last year. He has been on medication for his depression for just under a year but has not been taking it for some time now.

18.9.All he wants is to see his children but Ms Smailie has moved house and he does not know where the children are. They are going through mediation. He lost interest in being an [occupation 1]. It is unsafe and he has lost his business.

18.10.He lost his [professional] licences after the liquidation. To regain them he has to go back to study refresher courses. The stress of getting them back is too great for him. Given this and his state of health he finds it all too much to deal with.

18.11.In the beginning of 2023 he was living off fish and kangaroos. His mum and dad and best mate also helped him out. He struggled a lot and could not get out of bed.

18.12.The business he now works for in Sydney is [Business 2]. The owner is about to retire in three to four weeks. He has been living in Sydney since starting this job which was about February 2024. The business pays for Mr Danabie’s accommodation and food. The business pays for an Airbnb accommodation where the workers stay all together. He does not have to pay utilities either.

18.13.Before this he worked as a [specified occupation 1] for about six months for [Business 3] from May 2023. It is a Victorian company that was wanting to break into [a new geographic market]. It was paying him about $850 a week but he was only working about 30 hours per week as he lives one and a half hours out of [City 1]. Some weeks he would only work three days. However, this business ended up getting caught for embezzling money and so he lost his job.

18.14.Before May 2023 he did not work at all. Between November 2023 and February 2024 he was not willing to go and chase jobs and travel so he did not go to Centrelink for assistance. He lives in a glorified shed and an ex-girlfriend lets him use her [streaming] account. His parents gave him about $3,000 for food.

18.15.He has a superannuation fund with his friend and the superannuation fund bought a property for him to live in in November 2023 for about $280,000. The fund was supposed to buy a [farm] but that fell through.

18.16.His parents are taking his brother on a cruise and taking his sister somewhere and they want to go to [Country 1] with him and his children.

18.17.He travelled to [Country 2] in October 2022. His friend is an [occupation 1] and paid for him to go.

18.18.He is moving back to [Town 1], Western Australia as soon as his current job is over to be able to see his children more. He was in [Town 1] in September 2023 to see his son for his [birthday] but Ms Smailie did not allow him to see his son.

18.19.He saves every cent he can to spend on his children when they visit him. He owes about $11,000 on his credit card. He did want to review the 18 March 2022 decision that set his ATI at $120,000. However, he had too much going on at that time. As such he lodged a new change of assessment application on 5 November 2022. He wishes to have the $45,000 income backdated to January 2023.

19.  Ms Smailie’s position, as expressed at the hearings and in her submissions and documentary evidence, includes the following:

19.1.She believes that Mr Danabie has money and that his friends are involved. He utilises cash and not his credit cards.

19.2.He currently lives in [City 1] but has the means to travel to Sydney. He was working for a job earning $45,000 a year but he could work in [Retailer 1] and earn more. If his employer wants him in Sydney then why is he not paying him more than $45,000 a year?

19.3.He has been off medication for about 12 months so if his mental health is better why is it that he cannot work more?

19.4.He is very good at his work.

19.5.She earns $90,000 a year.

19.6.The children have been visiting him in [City 1] twice a year. When they are there, they stay in hotels. He spends a lot of money on the children there. They return with expensive items like [specified clothing]. She queries how he can do this on his income.

19.7.The children visit Mr Danabie two to three times a year and at no point has he advised of any mental health issues.

20.  The evidence of [Accountant A] included the following:

20.1.A liquidator was appointed following an Australian Taxation Office (ATO) audit of [Business 1].

20.2.The ATO audit was finalised last year but went for quite some time which accrued additional costs commencing in October 2022 and finalised in January 2023.

20.3.There is a discrepancy between what was declared on the BAS and tax return for the 2021/22 year as an amended return needed to be lodged following the ATO audit. This also resulted in additional tax needing to be paid.

20.4.The company closed down in the 2022/23 year. The liquidator was appointed on 8 August 2023 and took over everything from that date. There were no distributions from the company after liquidation. Subcontractors needed to be paid and Mr Danabie had to sign off on the licences. The contacts were of no value. In any event, [Mr A] did assist with the liquidation fee of $10,000 and Mr Danabie did have audit insurance.

20.5.With what he was experiencing with his business and personally including the difficult time throughout the COVID-19 years and other mental health difficulties, it was more of a benefit to Mr Danabie’s clients that he undertook a handover to [Mr A]. In this way his clients would not be left in the lurch and someone could continue the work.

20.6.There was a $25,000 franked dividend to fix up the accounts as Mr Danabie owed money back to [Business 1] from drawings. But when liquidation occurred there were insufficient funds to pay him anything. The company was deregistered.

20.7.He was effectively trading insolvent for a while.

20.8.All of the business’s assets were sold as part of the winding up process.

20.9.Mr Danabie’s individual tax return for the 2022/23 year shows an income of $3,251. There was no distribution from his business.

20.10.[Business 1] did not have to submit a 2022/23 tax return as following the audit, the liquidators took over and the business closed down.

20.11.The updated financial statements of the 2021/22 year following the audit show a profit of about $96,000.

21.  The annual amount the objections officer fixed appears to be based on an ATI for Mr Danabie of $45,000 from 1 June 2023 to 31 October 2024 as the objections officer appears to be of the view that Mr Danabie had some ongoing financial benefit from [Business 1] prior to the formal transfer of the business. As such his ATI for the period from 18 March 2022 to 1 June 2023 was maintained at $120,000.

22.  Having considered all of the evidence regarding this ground the Tribunal is satisfied that the ATI of $120,000, which was in place at the time of the application by Mr Danabie, does not properly reflect Mr Danabie’s financial circumstances based on Mr Danabie’s income and the position of [Business 1] at the time his ATI of $120,000 was in place. The Tribunal finds that the circumstances constitute special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. The Tribunal is satisfied that Reason 8A is established.

23.  In addition, the Tribunal notes that Mr Danabie was not disputing his income of around $45,000 per annum. Rather he was seeking to have the $120,000 ATI stopped earlier than 1 June 2023.

A just and equitable departure from the administrative assessment of child support

1. As the Tribunal is satisfied that there is at least one ground to depart from the administrative assessment of child support (Reason 8A), 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 must have regard to the following matters set out in subsection 117(4) of the Act:

   (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.

25.  The Full Family Court, in the case of Gyselman and Gyselman [1991] FamCA 93 stated at [125] that:

some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section [117](2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2)

1. In the course of the hearing, the parents were invited to address the factors provided for in subsection 117(4) of the Act. The Tribunal has also taken into account the Statements of Financial Circumstances (SOFCs) completed by the parents. The Tribunal has taken into account all the matters provided for in subsection 117(4) of the Act, but specifically addresses the following.

Income, property and financial resources and earning capacity of each parent

Mr Danabie

1. Mr Danabie’s income, property and financial resources were discussed above. In terms of his earning capacity, the Tribunal notes that he has not worked full time since about October 2022.  He provided a Patient Health Summary from [a named] Medical Centre which shows that in October 2022 he saw his doctor and complained of a depressed mood since February 2022. The doctor also noted that Mr Danabie has no motivation to work and stopped playing sports.  Apart from his short contract in Sydney, he is living with a friend who is supporting him and he sees a psychologist. His doctor diagnosed him with depression and prescribed medication.  

1. He plans to move to [Town 1] shortly and hopes to find a job there.

2. The Tribunal considered Mr Danabie’s earning capacity.

3. Subsection 117(7B) of the Act further regulates the notion of the ‘earning capacity’ of a parent as follows:

   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. All three paragraphs of subsection 117(7B) above are required to be satisfied for there to be a determination that a parent’s earning capacity is greater than is reflected in their income.

5. The Tribunal considered that on Mr Danabie’s own evidence of recent changes to his working life, it is clear that he has made significant changes to his working pattern, following his transfer and closure of his business and that he has not been working full time since about October 2022. The Tribunal finds that the criteria set out in paragraph 117(7B)(a)(ii) and (iii) of the Act are therefore met.

6. The Tribunal notes there is limited information before the Tribunal regarding the impact of Mr Danabie’s mental health issues on his earning capacity. However, the Tribunal accepts on the evidence before it that Mr Danabie’s mental health has had an impact on his ability to work. Therefore, the Tribunal does not find the second criteria satisfied.

7. In any event, the Tribunal is satisfied that Mr Danabie’s mental health along with the impact of COVID-19 on his business and the subsequent ATO audit would have all impacted on him such that the reduction in his hours of work did not have as its major purpose to affect the administrative assessment of child support and therefore the ground at s 117(7B)(c) is not met. It follows that section 117(7B) of the Act has no application and no earning capacity decision can be made in relation to Mr Danabie

Ms Smailie

1. As to Ms Smailie’s income, the Tribunal notes that at the time of the original decision, child support was assessed on a 2021/22 ATI amount of $32,097. Since about February 2024 she has been working in a full-time salaried position earning $90,000 per annum. She did have a [specified] business but that ceased about 12 months ago.

2. She receives about $530 a fortnight from family tax benefit.

3. She had to sell her house because she could not afford the mortgage. She has about $220,000 that she is planning to use as a deposit after paying real estate fees and settlement fees.

4. Her mortgage was about $300,000 and the house sold for $650,000. When they finalised their property settlement, which was about eight to nine years ago, her house was worth $400,000 and she had no debt.

Other factors

1. Ms Smailie gave evidence that their daughter will be needing braces soon and that they had agreed on private schools. The Tribunal considers that as these are future costs, they will be subject to later assessments and review rights and therefore not relevant to consideration of the current matter before the Tribunal.

2. Mr Danabie and Ms Smailie are about to start a court process regarding him seeking increased access to the children as well as regarding school fees.

3. The Tribunal notes that Ms Smailie’s evidence included that she is already in hardship as Mr Danabie has not been paying the full amount of child support that he was supposed to.

4. Mr Danabie’s evidence included that he is hoping to be able to start afresh in Western Australia and that paying the outstanding child support liability will cause him hardship.

5. The Tribunal considered the parties’ evidence in relation to the other factors and notes that there was no further material evidence for the Tribunal to consider regarding the remaining factors in subsection 117(4) of the Act not already mentioned in these Reasons.

Proposed determination

1. The Tribunal has carefully considered the available evidence and the statements and contentions of both parents. The change of assessment process cannot resolve all of the strongly disputed issues which have been raised.

2. The Tribunal is satisfied that a change to the assessment should be made in relation to Mr Danabie. Mr Danabie is seeking to have his ATI of $45,000 backdated to 1 January 2023. The Tribunal notes that Mr Danabie’s tax return for the 2022/23 year showed an income of $3,251 and that his income in the 2023/24 year is actually more likely to be around $57,000 based on his current payslips. However, the Tribunal is mindful that Mr Danabie’s evidence was that this is in addition to free accommodation, food and utilities. This position was finishing soon. Also in the period May 2023 to October 2023 Mr Danabie was earning about $45,000 per annum. However he did not work at all between November 2023 and February 2024.

3. The Tribunal is satisfied that the amount of $120,000 should cease from 27 January 2023 as this is the date of transfer even though the Deed was not signed until 15 September 2023. The Tribunal is also satisfied that an ATI of $45,000 from that date fairly represents Mr Danabie’s income and financial resources and proposes that this amount be factored into his child support liability until 1 December 2024 after which the normal administrative provisions of the Act will apply. This will allow both parties sufficient time to lodge their respective 2023/24 tax returns.

4. If the amount of $45,000 is used in the child support assessment from 27 January 2023 this will result in child support payable of approximately $4,842 decreasing from around $24,390 per annum.

5. The Tribunal is satisfied that Mr Danabie can afford this level of child support as calculated above.

6. In relation to the relevant date to commence the change to the assessment, as stated above, Mr Danabie was seeking that should there be a departure, it should commence from 27 January 2023 as he did not have any benefits from the business after this date as found by the objections officer. The Tribunal is mindful that Ms Smailie was first notified of Mr Danabie’s change of assessment application in November 2022 and finds 27 January 2023 appropriate as parents should be able to rely upon the assessment of child support until such time as they are put on notice that it is being reconsidered and may change.

7. As such, taking into account all the matters provided for in subsection 117(4) of the Act, the Tribunal has considered that an approach that preserves most elements of the child support formula is appropriate, but it will adjust the components for income for Mr Danabie to reflect its findings on the evidence in this matter. However, Ms Smailie’s income will be maintained as her ATI for the relevant financial year.

8. The Tribunal considers this proposed determination is fair, just and equitable and that it balances the needs and financial capacities of both parents.

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 make the particular determination 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 Tribunal must consider whether the proposed departure is “proper” within the context of the public interest and welfare expenditure by the community. It is a prime objective of the child support legislation that parents should be obliged to support their own children to the extent of their real capacity, and that that obligation should not be unnecessarily left to the public welfare system when the parents themselves have the capacity to maintain their children.

3. The Tribunal is satisfied that Ms Smailie needs financial assistance to support the child and that Mr Danabie has the capacity to contribute to those costs to the extent that has been determined above.

4. Paragraph 117(5)(b) of the Act directs the Tribunal to have regard to the effect that the making of the order would have upon the rate of entitlement to any income-tested pension, allowance or benefit.

5. Ms Smailie is receiving a small amount of family tax benefit. A decrease in child support payments may impact the amount of family tax benefit that is paid. However, the Tribunal is satisfied that this is nevertheless otherwise proper.

6. Changing the administrative assessment means this could result in a higher family tax benefit entitlement and given there is a relatively significant change from around $24,000 to around $4,000 annual child support payable, that could therefore result in a higher impost upon the public purse. However, the Tribunal considers this higher entitlement is mitigated by the length of time (as only changing the ATI for just over four months), and this consideration isn't outweighed by the circumstances of the parents as the Tribunal has canvassed, so the Tribunal considers that it is otherwise proper to make the particular departure determination proposed.

7. Therefore, in the circumstances of this case the Tribunal considers that the proposed determination is just, equitable and otherwise proper.

DECISION

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

For the period 27 January 2023 until 30 November 2024, the adjusted taxable income for Mr Danabie is set at $45,000 per annum.

From 1 December 2024, the normal administrative provisions of the Child Support (Assessment) Act 1989 will apply.