Dunlop and Seabaugh (Child support)

Dunlop and Seabaugh (Child support) [2023] AATA 4461 (30 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026166
APPLICANT:  Ms Dunlop
OTHER PARTIES:  Child Support Registrar
Mr Seabaugh

TRIBUNAL:Member D Tucker
DECISION DATE: 30 October 2023
DECISION:

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

For the period 1 December 2022 to 31 October 2024, Mr Seabaugh’s adjusted taxable income is varied to $192,056, and
for the period 14 September 2023 until [Child 1] turns 18, Mr Seabaugh’s self-support is increased by $37,500 per annum, to accommodate his increased costs of travelling to Australia to spend time with [Child 1].

CATCHWORDS

CHILD SUPPORT – departure determination – income of the liable parent – self-support for the liable parent - high costs involved in enabling a parent to spend time with the child – 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Dunlop (the mother) and Mr Seabaugh (the father) are the parents of [Child 1] (the child), born [in] May 2013, aged 10 years.
The current child support assessment was accepted by Services Australia – Child Support (Child Support) from 18 July 2022, for private collection (it appears there was also a previous assessment[1].)
[1] Page 46 of the hearing papers.
The mother and the child live together in Australia. The father lives in [Country 1]. For child support purposes the mother has above primary care.

1 February 2023 – departure decision (1 December 2022–31 October 2023)

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula that applies variables including the parents’ adjusted taxable incomes and their percentages of care. The Act also provides for a departure from the administrative assessment in certain circumstances.
The previous assessment was based on the father’s adjusted taxable income (ATI) of $112,031, and the mother’s ATI of $367,591.
On 7 October 2022 the mother applied for a change of assessment based on Reason 2 (special needs), Reason 3 (private schooling), and Reasons 8A and 8B (the father’s financial circumstances and earning capacity).
On 1 February 2023 a Child Support decision maker (DM Wilson) found Reason 8A established and changed the assessment by increasing the assessment of the father’s ATI from $112,031 to $192,056 for the period 1 December 2022 to 31 October 2023.

22 May 2023 – mother’s objection disallowed

On 12 February 2023 the mother objected. She contended that Child Support was wrong to not find Reason 2, Reason 3, and Reason 8B established. In particular, she submitted that Child Support had not properly assessed the father’s assets.
A Child Support objections officer (DM Marshall) conducted a full merits review.
DM Marshall found that Reason 8A was established, agreeing with DM Wilson that the father’s income was approximately $192,056. Because this was significantly different from the $112,031 that had been reflected to him in the assessment, it was grounds for a departure.
DM Marshall also found Reason 2, Reason 3 and Reason 8B were not established. As her conclusions matched those of DM Wilson, her ultimate decision was to disallow the mother’s objection.

The mother’s application for independent review

On 25 May 2023 the mother applied for further review by this Tribunal.
The father and mother participated in a telephone directions hearing on 14 September 2023. The mother claimed that the assessment was unfair on the same grounds upon which she applied for a change of assessment: Reason 2, Reason 3 and Reasons 8A and 8B.
The father contested the mother’s claims and stated that the assessment was unfair due to Reason 1 (the cost of spending time with or communicating with the child, as it involves travel from [Country 1] to Australia).
The mother and the father complied with directions. On 26 October 2023 they participated in a further hearing via telephone.
The Tribunal considered written and oral submissions from the parents and relevant documents provided by Child Support.

ISSUES

The statutory provisions relevant to this review are outlined in section 98C of the Act, which states that a decision to depart from the administrative assessment may be made if the following three requirements are met:
(i)that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and
(ii)that it would be:
(A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(B) otherwise proper;
to make a particular determination under this Part.
Therefore, the issues which arise in this case are:
· Does a ground exist for departing from the administrative assessment? And if so,
· Would it be just, equitable and otherwise proper to do so?

CONSIDERATION

Does a ground exist for departing from the administrative assessment?

Once a reason for departing from an administrative assessment has been established, the Registrar, or the Tribunal, must consider the amount and duration of any proposed change and the factors listed in subsection 117(4) of the Act which are relevant to a particular case. These include the parties’ respective earning capacities, the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula assessment and any other relevant matters.

Reason 1

Subparagraph 117(2)(b)(i) of the Act provides a ground for departure if, in the special circumstances of the case, the costs of maintaining the child are significantly affected because of the high costs involved in enabling a parent to spend time with, or communicate with, the child.
Subsection 117(2B) of the Act states that the costs involved in enabling a parent to care for a child can only be high for the purposes of subparagraph 117(2)(b)(i) if the costs incurred during the relevant child support period total more than 5% of the amount worked out by dividing the parent’s adjusted taxable income for the period by 365 and then multiplying the quotient by the number of days in the period.
The father submitted that the costs of his travel to Australia to see the child are significant and should be considered within the assessment. The original decision-maker and the objection officer acknowledged these costs in their decisions of 1 February 2023 and 22 May 2023 respectively. However, they did not make allowance for them because the father did not raise them at that time, and the Family Court of Australia orders made the father solely responsible for them.
It is not in dispute that the mother and the father have never been married, or in a partnered relationship. The child was the product of in vitro fertilization and the initial agreement was that the mother would raise the child alone without any financial obligation upon the father. This changed on 15 June 2017 after the father obtained orders from the [relevant] Court in [Country 1] that recognised his parenting rights. These orders permitted the mother to relocate to Australia with the child on the proviso that she returned the child to [Country 1] twice per year to see the father, at her expense, as clarified in the court’s addendum judgement [in] August 2017.
After relocating to Australia [in] February 2019, the mother obtained orders from the Family Court of Australia which relieved her of the obligation to return the child to [Country 1] to see the father but maintained the father’s right to spend time with the child in Australia, at his expense. Specifically, the father could see the child in school holidays thrice yearly and for two long weekends at different times.
The Tribunal considered what would be a reasonable estimate of the cost of the father’s travel to see the child.
In response to the Tribunal’s directions the father provided a breakdown of his costs in travelling from [Country 1] to Sydney to spend time with the child in September 2023:
Airfares  [Country 1 amount deleted]    $8145
Accommodation  [deleted]         $5167
car hire  [deleted]  $1360
food, travel & entertainment               [deleted]         $2696
TOTAL  [deleted]         $17,367
In relation to his estimated future costs, the father provided screenshots of airfares he found online that were the cheapest available “premium economy” airfares (priced in between economy and business class). Based on these airfares, he estimated that the annual cost of him travelling to Australia three times per year to spend time with the child was £27,500, equivalent to around $52,000.
The father explained that he chose premium economy airfares because he had a recent history of health problems. He provided a letter from his doctor stating a history of pulmonary embolism and atrial fibrillation that required an ablation in 2021 and cardioversion. The doctor advised that these were chronic conditions and that the father should walk during the flight and have enough space to lie down to avoid any recurrence of embolism.
The mother argued that the father’s preference for premium economy airfares was excessive. She explained that she had previously developed an embolism as the result of a long-haul flight but doubted that any doctor would provide her with a similar opinion.
The father countered that his recent health problems went beyond a single embolism, as experienced by the mother. The father stated that he had suffered from double lung embolisms that required hospitalisation, three other blood clots, and two different cancers that entailed chemotherapy and surgery to remove 82% of his liver. Consequently, he has chronically low immunity and is prone to chest infections, which anecdotally he seems to contract after almost every long-haul flight to or from Australia.
Given the medical evidence the father has provided, the Tribunal accepts that he requires better than economy seating when travelling by air from [Country 1] to Australia, and that premium economy is a reasonable compromise.
The mother argued that the father’s travel costs should not be considered in the assessment, as he is extremely wealthy, given the value of his assets (discussed further below). The mother also argued that, if his travel costs were considered, they should not include his food and entertainment while in Australia, as he would incur these costs if the visitation was occurring in [Country 1]. Based on this, the mother argued that only the father’s airfares should be accepted as an additional cost of spending time with the child.
The Tribunal finds that the father’s airfares and casual accommodation expenses should be included as additional costs of the father seeing the child, given he has no alternative but to stay in a hotel when visiting Australia. The Tribunal also accepts that it is necessary for him to hire a car as the only practical means of local transport in the mother’s location. The Tribunal finds that the father’s estimate of these expenses is reasonable, noting that he is obliged to see the child during New South Wales school holidays when the costs of airfares and accommodation are at their peak.
Based on this, the Tribunal finds that the father’s additional costs of seeing the child are $15,000 per visit. The Tribunal acknowledges that this is an average figure that may vary significantly given that airfares and exchange rates are strongly affected by external factors.
Both parties agree that after the mother and child relocated to Australia in November 2017, the father travelled to Australia to see the child three times in 2018 and in 2019, once per year in 2020 and 2021 (the pandemic years) and twice per year in 2022 and 2023. The father told the Tribunal he intends to visit the child in Australia three times per year from now on.
It is a difficult task for anyone, including the father, to forecast with any certainty how often he will visit the child per year. He has clearly demonstrated his determination to exercise his parenting rights, but circumstances, such as his health, may force him to change his plans.
Forced to make an estimate, the Tribunal will use an average. Excluding 2020 and 2021 as aberrations, the father has travelled to Australia 10 times in four years. Based on this, the average cost to him per year has been $37,500. The Tribunal therefore finds it appropriate to find this amount as his annual costs.
The Tribunal finds that the relevant child support period was from 1 December 2022 to 17 October 2023 (320 days). Using the method prescribed by the Act (see paragraph 22) in this child support period, the father’s relevant adjusted taxable income was $168,377. The relevant 5% threshold for this periods was $8,418. The father incurred total travel costs exceeding this in a single trip.
The Tribunal therefore concludes that the ground provided for in subparagraph 117(2)(b)(i) of the Act is satisfied as, in the special circumstances of this case, the costs of maintaining the child are significantly affected because of the high costs involved in enabling the father to spend time with the children.

Would a departure from the administrative assessment be just and equitable?

Once a reason for departing from an administrative assessment has been established, the Registrar, or the Tribunal, must consider the amount and duration of any proposed change and the factors listed in subsection 117(4) of the Act which are relevant to a particular case. These include:
· the nature of the duty of a parent to maintain a child, and the proper needs of the child
· the income, earning capacity, property and financial resources of the child and of each parent

·   the commitments of each parent to support himself or herself, and any other child or person that they have a duty to maintain
·   the direct and indirect costs incurred by the carer entitled to child support in providing care for the child
·   any hardship that would be caused to the child, the parents or carers, or any other child or person that the liable parent has a duty to support, by the making of, or the refusal to make, a determination, and
·   any other relevant matters.

The Tribunal considered each of these factors. What follows discusses those which are pertinent to this application.

Father’s travel costs

As set out above, the Tribunal finds that Reason 1 is established as a special circumstance that warrants a departure from the formula assessment. Tribunal must also consider what changes should be made to the assessment to accommodate the father’s travel costs that are just and equitable in all the circumstances.
The Tribunal notes that the Family Court of Australia’s orders made [in] February 2019 include section 4.2:
The father will be solely responsible for meeting all costs associated with his travel to Australia and accommodation for the purposes of spending time with the child;
The Tribunal is mindful that it would be inappropriate to vary the assessment in a way that negated these orders. However, given that the father is obliged to absorb what is a substantial impost on his finances to exercise his parenting rights, it would not be just and equitable to simply ignore them when considering the overall assessment. The Tribunal notes that the Family Court placed a high value on him maintaining his relationship with the child and failing to consider his travel costs might limit his ability to do so. The tribunal is also mindful that since these orders were made, the father’s income has reduced significantly.
The Tribunal will accommodate these costs by adding $37,500 to the father’s self-support figure ($27,508 + $37,500 = $65,008). According to the Tribunal’s calculations, the net effect will be to reduce the father’s liability by less than $1,000 per annum.

Special needs

The mother states, and the father does not dispute, that the child has special needs due to his autism. The mother has provided a medical report dated 31 January 2018 to corroborate this. The mother explained that the child’s occupational therapist (OT) has recommended he participate in sport to help develop his fine and gross motor skills. However, because of the child’s social deficits due to his autism, he requires private tennis lessons (versus group lessons) which cost $570 per term, as indicated by an invoice she provided.
The father agreed that the child has special needs but asserted that the mother had provided limited evidence of her expenditure on these. He observed that the mother referred to tennis lessons, however he paid for them. In addition, he has paid for 50% of the child’s dental bills, his [musical instrument], and an iPad at the mother’s request, and provided invoices to demonstrate this.
At hearing, the mother did not provide any new evidence about the costs of meeting the child’s special needs but explained that many of these needs were being addressed by the child’s participation in programs at his school. His participation in drama was assisting him with his speech and social skills, and his involvement in various physical education activities were improving his fine and gross motor skills.
The father suggested that the child’s special needs should be reassessed, given that his last assessment was when he was three years old and his situation and requirements are now very different. The mother responded by informing the Tribunal and the father that she regularly consulted with an OT she was referred to by the child’s general practitioner.
The Tribunal is satisfied that the child does have special needs due to his autism, but is not persuaded that these are causing a significant additional cost of caring for him at this time. Participation in sports is a normal cost of caring for a child. Private lessons, which the child needs, cost extra. However, even if these extra costs were met outside of the child’s school fees, the Tribunal finds there is insufficient evidence to establish they would be significant in the overall assessment. Consequently, the Tribunal finds that Reason 2 is not established.

Costs of private schooling

Since the beginning of 2022 the child has been attending a private school –[School 1]. The mother contends that the father should contribute to the cost of the school fees on the basis that it was the shared expectation and intention of both parents that the child would be privately schooled.
The mother provided an enrolment application for the child for a private school – [School 1], that appears to be signed by the father.
This enrolment form is accompanied by an email she sent to the father on 16 May 2013 which refers to the enrolment form and asks the father to sign it. There is also an email from the registrar at [School 1] to the mother on the same date explaining how to lodge an application. The mother contended that this was evidence of the father’s agreement that the child would be privately schooled.
The father states that he has no recollection of ever signing this enrolment form for [School 1]. The father suggested that the form was completed entirely in the mother’s handwriting. While the Tribunal is not an expert in handwriting analysis, it appears that on the form the father’s business address, telephone number and email address were written by a second person in a different ink that matches the father’s purported signature.

The father argued that it was unlikely he would have signed this form because at that time the child was an infant and there was no plan or agreement for him to play a role in the child’s life or contribute financially. In any case, the form was signed more than 10 years ago, and the circumstances of everyone involved have changed dramatically.
The Tribunal finds it likely that the father did sign the [School 1] enrolment form, but due to the passage of time is unable to recall it. This suggests that he may have attached little importance to it at the time.
However, the Tribunal places little weight on this enrolment form as evidence of a shared intention for private education. The Tribunal considered the undisputed fact that the mother and father were never married or coupled and that the father donated his sperm for IVF on the agreement he would have no part in the child’s upbringing or obligation to provide financial support. Given the [School 1] form was signed a week after the child’s birth and there is no dispute that this was the arrangement in place, it is difficult to see how it could reflect the father’s expectation of and commitment to the child’s private schooling. If this form had been signed after 2017, when the father had obtained orders to establish his parenting rights, the Tribunal would find differently.
The Tribunal also notes parents submit enrolment forms for exclusive private schools to preserve their educational options, without any guarantee of being offered enrolment, or commitment to take up such an offer if it is made.
The mother also provided emails showing that on 2 September 2014 the father, in reference to private schools in [Country 1], expressed his view that he would like the child to secure a position in one.
In his response to the Tribunal’s directions, the father submitted that:
[Ms Dunlop] has despite the thousands of text messages and emails between us only turned up one text that discusses [Country 1] schools all of which are virtually impossible to get into ([examples] etc ) and I would suggest the full context is probably a somewhat irrelevant cynical response to a question she asked about private schooling. It is interesting that she kept a copy of this text suggesting that should there have been any other relevant texts she would definitely have kept copies.
The mother also provided emails from November and December of 2021 showing that she and the father discussed the child’s enrolment at [School 1]. The mother emphasised one exchange in particular:
Mother: I assume you are still going to dispute any contribution to school fees?
Father: Not at all. Why would you think that? I was just interested in my son’s education.
The mother’s position is that the father’s comment in this exchange constitutes an agreement to contribute to the costs of the child’s schooling at [School 1].
The Tribunal put it to the mother that it could be inferred from this exchange that the father had previously disputed contributing to school fees. The mother explained that her reference to the father previously disputing contributions was about his failure to contribute to the child’s costs when he was in [pre-school] in [Country 1].
The father’s position is that he has never agreed to the child being privately schooled or contributing to the cost of it. In relation to the email exchanges of November 2021 referenced by the mother, the father explained that he avoided explicitly stating his disagreement because he feared that doing so would jeopardise his impending visit to Australia, for which he had already purchased expensive airfares. He felt that the mother had chosen to raise the issue of the costs of the child’s schooling at that time because it gave her additional leverage.
The father contends that the mother enrolled the child at [School 1] without his agreement or signature on the enrolment forms and that he never agreed to contribute to the school fees. The father contended that the child’s needs would have been better served by remaining at the public school where he had made friends, and which was better equipped to provide ongoing care for his condition.
The father noted that the mother raised the question of the child’s schooling only a few months before he was due to start in term 1 of 2022. He questioned why the mother would have not raised it sooner given she had applied for enrolment a long time before. The father questioned why, if the mother thought he was supportive of private schooling, did she not obtain his signature on the [School 1] enrolment form?
The mother explained that when she lodged an application for enrolment at [School 1] there was no direct communication between herself and the father as they were embroiled in family court proceedings.
The father also argued that because the child attended a government school before the mother and the child relocated to Australia in 2017, this was evidence that there was not an intention for private schooling. The father also argued that the mother had chosen to live in [Suburb 1] when she relocated to Australia so she could enrol the child in the well-regarded [named] Public School.
The mother countered that the intention had always been for the child to attend private school commencing in Year 3, or as soon after that as possible. She observed that both she and the father commenced their private schooling during primary years (rather than earlier) and it was always her expectation the same would apply to the child.
After weighing all the available evidence, and considering the arguments of both parties carefully, the Tribunal is not satisfied there is sufficient evidence of a mutual expectation or intention for the child to be privately schooled. The Tribunal’s conclusion is partly due to the arrangement between the parents when the child was born, as this allows little weight to be put on the [School 1] enrolment form. The only other evidence is the conversations between the parties over many years, which are inconclusive.

The father’s income

The mother asserted that the father had a history of hiding his income and assets to avoid his child support liabilities. She noted that the father had stated he was working 2–3 days per week, which was more than the one day a week he had claimed at another point in time. The mother also speculated that he was concealing his income in a [specified] business (private company). At the Tribunal’s directions hearing the mother observed that the father had not provided his 2022/23 income tax return, and that this was necessary to demonstrate his entire income.
The father contended that his 2021/22 tax declaration accurately reflects his income, and that he does not receive bonuses, or work any more than one day per week. He explained that he was paid to work one day per week, which he often exceeded, and that his duties were typically spread over several calendar days per week.
The father provided Child Support with letters of employment dated 22 June 2021 and

1 November 2022 and payslips that corroborate his stated employment and earnings.
In response to the Tribunal’s directions, the father provided various documents to verify his income, including his 2022/23 income tax return showing that he earned around [Country 1 amount], which is not significantly different to the $192,000 ATI applied by Child Support.
The mother speculated that the father had understated how often he worked, and that he received income from shares that had not been considered. The mother also pointed out that the father had $13 million in assets which should be considered.
The father stated that he did have stock options but had not derived any income from them, and the mother did not dispute this.
The father also provided bank statements for two accounts for the period 21 April 2023 to 20 July 2023, and statements for his credit card, showing the following expenditure:
August 2023               [Country 1 amount]
July 2023  [Country 1 amount]
June 2023                  [Country 1 amount]
AVERAGE per month [Country 1 amount], equivalent to AU$13,220
The father told the Tribunal that he typically met his day-to-day expenses using his credit card, which was then paid off from his other bank accounts. The Tribunal notes the father’s level of personal expenditure (around $158,640 per annum) is consistent with his declared income.
The Tribunal could find no evidence of the father obfuscating in relation to his income, apart from the mother’s speculation. The father appears to have met every request from Child Support for financial documents and has likewise complied with the Tribunal’s directions. While the mother opines that the father has undisclosed income, she has not pointed to any evidence of this.
The mother argued that the father has substantial assets, which include a house in [Country 1] and a holiday apartment in [Country 2]. She observed that he is a single person living in a five-bedroom house, and that this lifestyle choice should be considered in relation to his child support obligations.
The mother also argued that the father’s holiday house in [Country 2] could be rented out to generate income, instead of sitting idle. The mother also contended that the father had not been honest about his financial circumstances, and it was likely he had additional income that he had not disclosed (this issue is discussed in relation to Reason 8 below).
The father countered that he purchased the house in which he lives 15 years ago, and it has since increased greatly in value in line with the real estate market in [Country 1]. He did not think he should be obliged sell his primary residence to fund his child support obligations. Regarding his holiday apartment in [Country 2], he purchased this more than 10 years ago when he had a higher income. It is not possible for him to rent it out to generate income, as this is prohibited in [Country 2] without a licence. Further, the apartment is not lying idle as his siblings and extended family also use it for holidays.
The father agreed that he owns significant assets, including his house in [Country 1], an apartment in [Country 2], and motor vehicles. Together these assets were valued at approximately $8.5 million. However, these assets are not used to derive any income.
The Tribunal accepts the mother’s claim that the father has substantial assets. However, they are fixed in nature and include his principal home. If the father was without income, while retaining substantial unused assets, the Tribunal would be more receptive to an argument that he should liquidate them for the purpose of child support. However, that is not the case here. The evidence provided by the father to the Tribunal is consistent with the evidence he previously provided to child support. The Tribunal is satisfied that his ATI has been correctly assessed at $192,056.

The mother’s income

The available evidence indicates that the mother is paid a salary form a single employer. She is assessed on an ATI of $367,591 based on her tax assessment. In the absence of any evidence to the contrary, the Tribunal finds that her income is correctly assessed.

The father’s earning capacity

The father submitted that he worked the equivalent of one day a week, but this consisted of meetings that were scattered throughout his working week. He claimed that the main purpose of his decision to work part time was to be free to travel to Australia to visit the child and was not motivated by a desire to reduce his child support liability. The father also stated that a previous diagnosis of cancer was one of the reasons he now works part time.
Before determining that a parent’s earning capacity is greater than reflected in his or her income for the purposes of the Act, the Tribunal must be satisfied that all three of the criteria in subsection 117(7B) are satisfied:
1. The parent is either:
·   not working despite ample opportunity to do so; or
·has reduced his or her weekly hours of work to below full-time work; or
·has changed his or her occupation, industry or working pattern.
2. The parent’s decision about his or her work arrangements is not justified by either:
·   his or her caring responsibilities; or
·   his or her state of health.
3. The parent has failed to show that their decision about their work arrangements was not substantially motivated by the effect this would have on the child support assessment.
The intention is to address circumstances where a parent has taken deliberate steps to change their work arrangements to reduce their income to change the assessment for their benefit.
As found by DM Marshall, the Tribunal also finds that since the start of the assessment on 21 December 2018 the father’s income has reduced. However, the Tribunal accepts that the father’s health problems were a factor in his decision to reduce his work commitments. Because the father’s employment skills are well remunerated, he can earn a substantial income through part-time work. It is understandable that he might wish to spare himself the stress entailed in full-time employment given his history of debilitating and life-threatening health problems.
In the Tribunal’s view, the criteria of subsection 117(7B) of the Act are not intended as a mechanism for micromanaging parents’ employment choices, but to prevent parents opting for unemployment to avoid their child support responsibilities. It would be difficult to characterise the father in this way, given that he still has a substantial income and has been paying more child support than he is assessed to pay. As found by DM Marshall, and not disputed by the mother, the father was assessed to pay $8,082 per annum according to the formula assessment but instead paid $13,984 per annum, the amount he was liable for when his income was $356,739. In addition, the father has previously absorbed the significant costs of his travel to Australia to spend time with the child.
The Tribunal is not satisfied that the father’s change in employment was substantially motivated to reduce his child support liability, given the father’s health problems, age, and his determination to spend time with the child in a foreign country. As the third criteria for establishing Reason 8B is not satisfied, the Tribunal finds that Reason 8B is not established.

Other matters

There is no question of the child having income or financial resources.
The Tribunal is satisfied that no hardship would be caused to the child or the parents, or any other child or person that the liable parent has a duty to support, by the making of, or the refusal to make, a determination.
After carefully considering all the relevant circumstances of the case, the Tribunal is satisfied that this is a just and equitable sharing of the financial cost of meeting the children’s needs.

Conclusion

To ensure the assessment remains fair the Tribunal will vary the father’s income until 31 October 2024, by which time his income tax assessment should be available for 2023/24. From this date the usual formula assessment will apply, and the father’s most recent tax lodgement will be used in the calculation.
Parents should be able to rely upon the formula assessment until they are put on notice that a departure is being considered. It would therefore not be fair to backdate this change prior to the father raising Reason 1 at the Tribunal’s hearing of 14 September 2023.
The mother told the Tribunal that she and the father found coparenting difficult and that this was unlikely to improve. For this reason, she asked the Tribunal to set a departure period that would include all the child’s school years, or last at least until the child was 16 years old. She forecast that if the Tribunal sets a shorter departure period, she and the father would be likely to bring further disputes to the Tribunal. The father stated that he did not have a preference about what would be an appropriate departure period.
The Tribunal notes that setting a long departure period would not prevent the parents from applying for further changes to the assessment or exercising their appeal rights during it. However, the Tribunal appreciates that such processes are time-consuming and stressful and that setting a longer departure period may give the parties greater certainty.
The Tribunal also notes that the mother and father have spent a great deal of energy contesting the father’s income. As noted by the objection officer, varying the father’s ATI, even by significant amounts, has relatively little impact on the overall assessment, given the parents’ respective incomes. Similarly, considering the father’s travel costs has a modest impact on the overall assessment relative to each of the parent’s income. The parents may wish to reflect on this when contemplating the potential outcomes of future applications for changes to the assessment.
The Tribunal also notes that should the incomes of either party change, this can be notified to Child Support and considered in an assessment without the necessity of a departure decision.

Is it otherwise proper to make a change to 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.
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. The mother is not in receipt of income-tested benefits so departing from the administrative assessment will not affect the apportionment of financial responsibility between the parents and the community. The determination is otherwise proper.

DECISION

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

For the period 1 December 2022 to 31 October 2024, Mr Seabaugh’s adjusted taxable income is varied to $192,056, and
for the period 14 September 2023 until [Child 1] turns 18, Mr Seabaugh’s self-support is increased by $37,500 per annum, to accommodate his increased costs of travelling to Australia to spend time with [Child 1].

[2023] AATA 4461

30 October 2023

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Family Law

Administrative Law

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Judicial Review

Jurisdiction

Remedies

Statutory Construction