Gaba and Kaasa (Child support)

[2020] AATA 4773

Gaba and Kaasa (Child support) [2020] AATA 4773 (12 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018870

APPLICANT:  Ms Gaba

OTHER PARTIES:  Child Support Registrar

Mr Kaasa

TRIBUNAL:Member K Buxton

DECISION DATE:  12 October 2020

DECISION:

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

• for the period 15 April 2019 to 30 June 2019, the adjusted taxable income of Mr Kaasa is varied to $102,000 per annum;

• for the period 1 July 2019 to 30 October 2022, the adjusted taxable income of Mr Kaasa is varied to $115,000; and

• for the period 1 September 2020 to 31 August 2021, the adjusted taxable income of Ms Gaba is varied to $70,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – a ground for departure established – decision to depart – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. Ms Gaba and Mr Kaasa are the parents of [Child 1], born September 2009 and [Child 2], born September 2012. Ms Gaba has sought review of a decision of the Child Support Agency (CSA) about the amount of child support which she has been assessed to pay in respect of the children. [Child 1] is recorded as in the 22% care of Ms Gaba and the 78% care of Mr Kaasa, and [Child 2] is recorded as in the 78% care of Ms Gaba and the 22% care of Mr Kaasa. Therefore, one child ordinarily lives with each parent and spends regular time with the other parent, effectively balancing the care of the children equally between the parents.

2. The administrative assessment of child support required Ms Gaba to pay child support to Mr Kaasa for the children, assessed as follows:

   ·From 22 January 2019 to 13 May 2019, Ms Gaba was assessed to pay an annual rate of child support of $3,134 based on her 2017/18 adjusted taxable income (ATI) of $50,650 and Mr Kaasa’s 2017/18 adjusted taxable income of $21,637;

   ·From 14 May 2019 to 30 September 2019, Ms Gaba was assessed to pay an annual rate of child support of $2,382 based on the same income amounts as above, following a change in recorded care for the children; and

   ·From 1 October 2019 to 31 December 2020, Ms Gaba is assessed to pay an annual rate of child support of $1,379 based on her 2018/19 adjusted taxable income of $40,155 and Mr Kaasa’s 2018/19 adjusted taxable income of $17,476.

3. On 15 April 2019 Ms Gaba applied for a change of assessment, under Part 6A of the Child Support (Assessment) Act 1989 (the Act), on the basis that Mr Kaasa’s available income, financial resources and earning capacity were not fairly reflected in the assessment. Mr Kaasa cross-applied for a departure on the basis of income and financial resources available to Ms Gaba. On 17 December 2019 a delegate of the Child Support Registrar determined that a departure ground had not been established and that the departure application should be refused.

4. Ms Gaba objected to that decision. On 3 April 2020, an objections officer decided to depart from the administrative assessment as follows:

   ·For the period 13 May 2019 to 30 June 2019, the self-support amount applied in the assessment for Mr Kaasa is set at $0;

   ·For the period 13 May 2019 to 30 June 2019, the adjusted taxable income amount for Ms Gaba is set at $40,155;

   ·For the period 1 July 2019 to 26 April 2020, the adjusted taxable income amount for Mr Kaasa is set at $38,000;

   ·For the period 27 April 2020 to 26 October 2020, the adjusted taxable income amount for Mr Kaasa is set at $52,300;

   ·For the period 27 October 2020 to 31 December 2021, the adjusted taxable income amount for Mr Kaasa is set at $38,000; and

   ·For the period 1 July 2019 to 30 November 2020, the adjusted taxable income amount for Ms Gaba is set at $61,024.

5. Ms Gaba applied to the tribunal to have the objections officer’s decision reviewed. The tribunal hearing took place on 7 October 2020. Mr Kaasa and Ms Gaba appeared by conference telephone and gave sworn evidence. In reaching its decision, the tribunal has considered the sworn evidence given during the hearing together with the documentation provided by the CSA (Exhibit 1), Ms Gaba (Exhibit A) and Mr Kaasa (Exhibit B).

CONSIDERATION

The legislative framework

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

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

   b.    departure from the administrative assessment would be:

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

   ii.otherwise proper.

2. If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the tribunal may make one of the range of determinations, prescribed in section 98S of the Act, which include varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.

Ground for departure

Income, property, financial resources and earning capacity

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

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

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

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

Ms Gaba’s income and financial resources

10.Ms Gaba is employed on a full-time basis and stated that she currently earns gross income of about $70,000 per annum in a new role that she began in August 2020. In the 2018/19 year her adjusted taxable income was $40,155 and in the 2019/20 year it was $58,767. These amounts reflected her income from employment during those periods. Ordinarily a parent’s adjusted taxable income will be applied to the child support assessment for the child support period after the related income tax return is filed. Neither parent submitted that this course should be departed from with respect to the income of Ms Gaba.

11.The tribunal concludes from the available evidence that Ms Gaba’s income from employment is being reflected in the child support case from time to time as intended by the child support formula.

Mr Kaasa’s income and financial resources

12.When Ms Gaba applied for a departure, on 15 April 2019, child support was calculated using adjusted taxable income for Mr Kaasa of $21,637 based on his reported income for the 2017/18 year. Mr Kaasa has since reported adjusted taxable incomes of $17,476 for the 2018/19 year and $32,711 for the 2019/20 year.

13.Ms Gaba submitted that the taxable incomes of Mr Kaasa do not reflect all of the available income and financial resources available to him as a result of his involvement in the family [business], financial support provided by his family and, in particular, his work as a private [Occupation 1] and she pointed to arrangements entered into by his family which, she submitted, concealed his true income.

14.Mr Kaasa declared in a statement of financial circumstances provided prior to the hearing, and to the tribunal when giving sworn evidence during the hearing, that he is employed as a [Occupation 2] by [COMPANY 1], [details deleted] and that this employment is now his only source of income. He previously received income support payments from Centrelink to supplement his casual work, but he ceased to receive those payments in July 2020 as his income from casual work had increased. Mr Kaasa also stated that he received two meals per day provided by his employer, although it does not appear that he reports any fringe benefit for these regular meals.

15.Mr Kaasa accepted that his parents provide him with significant financial support. Both his family (wife and the children, when in his care), his brother’s family and his parents live on a large property in Northern [State 1]. Mr Kaasa lives in the original five-bedroomed family home, his brother in a home previously occupied by his grandparents and his parents in a new home they have built. Mr Kaasa stated that he is also able to use two vehicles, a Mustang and a 4WD, each maintained by his father’s business. He stated that his family eat regularly with their parents, and that he has few living expenses. Considering he also eats at the factory where he is employed, the tribunal notes that his own living expenses would be minimal, and of a discretionary nature. Mr Kaasa must meet the expenses of the children whilst they are in his care, and he stated that he has always easily been able to do so.

16.Mr Kaasa also works as [an] [Occupation 1], [driving vehicles] both owned by [Mr A], who is the director of both [COMPANY 1] (where he works as a [Occupation 2]) and a company called [Company 2] that is the owner of his various [vehicle]. Mr Kaasa stated that he receives no income from this work.

17.Mr Kaasa’s father is paid, on average, about $6,000 per month by [Company 2] for “[vehicle] services”. Mr Kaasa stated that he does not receive any of this income and gave sworn evidence during the hearing that his father mostly uses the money to meet the legal expenses associated with the family’s [business]. Mr Kaasa did not state that his father uses any of the income to offset any expenses that his father might incur in generating any of the income. Indeed, despite the tribunal providing Mr Kaasa with a number of opportunities, both before and during the hearing, to provide evidence as to what, if any, contribution his father makes to the generation of that income, the evidence remains scant and inconsistent. For the reasons expressed below, the tribunal is not satisfied that any of that income, or any substantial part of it, is attributable to services provided by Mr Kaasa’s father. It is clear that Mr Kaasa provides services as [an] [Occupation 1], and that [Company 2] pays his father (but not Mr Kaasa directly) for those services. It is not clear whether any other services are provided.

18.The tribunal directed Mr Kaasa to produce to the tribunal documents showing what work is undertaken by him and by his father in return for the regular “[vehicle] services” income received by Mr Kaasa’ father. No such documentation was produced. Instead, Mr Kaasa stated that his father controlled those documents and that his father refused to produce them. Mr Kaasa also provided to the tribunal a letter he had sent by email on 31 August 2020 to his father’s accountants, the effect of which was to inform the accountants that he considered the tribunal’s direction to produce such documents to be an overreach and, expressly, “out of line”. He asked the accountants to confirm that the documents were not to be produced. Unsurprisingly, in circumstances where Mr Kaasa had asked his father’s accountants to confirm that they could not provide him with a copy of certain documents, the accountants’ reply email dated 1 September 2020 provided such confirmation, as expressly sought by Mr Kaasa, that the documents could not be produced by them as they did not have permission to disclose them.

19.However, there is no adequate explanation as to why Mr Kaasa did not simply ask the accountants for the documents (rather than asking them to refuse to produce them) or, even more simply, obtain the documents from his father, with whom he lives and, according to the evidence of Mr Kaasa discussed below, who provides “[vehicle] services” of some kind to [Company 2]. Mr Kaasa stated that his father had refused to give him the documents, citing his father’s dislike of Ms Gaba as the motivating factor in this refusal. However, Mr Kaasa confirmed that his father was aware that the issue of his income as [an] [Occupation 1], and the connection between [Company 2] and his father, was to be considered by the tribunal and it would have been a simple matter for his father to provide documents, if they existed, showing his father’s genuine role, if he had one, in the generation of the relevant income. This leaves open to the tribunal the conclusion that information does not exist which would support Mr Kaasa’s case, particularly as to the issue whether any of the income received by Mr Kaasa’s father is for “services” other than those undertaken by Mr Kaasa. The tribunal notes that Mr Kaasa also requested, in the same email to his father’s accountants, that they confirm that his father’s business affairs were in “no way connected” to his own. Tellingly, the accountants did not provide any such confirmation in their 1 September 2020 reply.

20.When asked by the tribunal during the hearing about “[vehicle] services” undertaken for [Company 2] by his father, Mr Kaasa gave vague and changeable evidence that his father variously provided [various services]. Curiously, Mr Kaasa also stated during the hearing that he sometimes performs [specified] duties himself. Mr Kaasa confirmed that the [specified vehicle] has always remained at the [specified venue] where it is maintained and serviced and only the older [vehicle]was stored at the Kaasa family property for a few months during 2018. During the period 2017 to 2019 the amounts paid to Mr Kaasa’s father did not vary greatly, and those amounts were first paid in January 2017 when Mr Kaasa began work as [an] [Occupation 1]. Certainly, there is no evidence that would support a contention that additional amounts were paid by [Company 2] in months when the Kaasa family stored a [vehicle] when compared to other months.

21.In July 2019 the CSA directed a notice to [Company 2] to produce to the CSA information about the services. [Mr A], as director of [Company 2], provided the following information in response:

·[Company 2] Trust owns [vehicle]s. [Company 2] Trust has an ongoing contract with Kaasa’s father (ABN [deleted]) and pays a monthly retainer to provide ongoing [vehicle] services and [vehicle] storage.

·Mr Kaasa is the endorsed [Occupation 1] of the relevant [vehicle]. It is the understanding of [Company 2] that there is an arrangement between Mr Kaasa and [his father] and [Company 2] are not aware of the specifics of this arrangement.

·There were no fixed hours for Mr Kaasa to provide services as [an] [Occupation 1] and he may have to use his own vehicle to provide services as [an] [Occupation 1].

22.The tribunal notes that, other than the reference to storage of the [vehicle] which took place for a few months during 2018 and which did not result in any, or any significant, increase in the payment made by [Company 2], the services identified by the person paying for those services appear to be limited to the services of [an]  [Occupation 1] for [vehicle] owned by [Company 2]. Those services are undertaken only by Mr Kaasa. Even [Mr A] acknowledged the likely existence of a private arrangement between Mr Kaasa and his father in relation to the income earned by him as [an]  [Occupation 1], and his father’s accountants did not refute the existence of a connection between the business interests of father and son even when expressly asked to do so.

23.Despite Mr Kaasa providing vague evidence about his father’s involvement in the provision of [vehicle] services, Mr Kaasa was significantly more forthcoming when asked by the tribunal during the hearing to describe his work as [an ] [Occupation 1] for [Company 2]. Mr Kaasa provided detailed sworn evidence as to how he came to work as [an] [Occupation 1] for [Mr A] and, subsequently, also became employed by his company as [an]  [Occupation 2]. Having observed Mr Kaasa providing detailed and truthful evidence about his work, the tribunal concludes that the limited evidence he provided about his father’s involvement in the generation of income was not given in the same truthful and forthright manner, and the tribunal finds that evidence unconvincing.

24.Mr Kaasa stated during the hearing that his father met [Mr A] through his brother who worked in a [workplace] frequented by [Mr A]. Mr Kaasa senior then provided [services] to [Mr A]. In the course of that business [Mr A] informed Mr Kaasa that he was considering hiring a new [Occupation 1]. He owned a [vehicle] and was considering the purchase of a [vehicle]. He already employed [an] [Occupation 1] but, for various reasons, was looking for a change. [Mr A] was introduced to Mr Kaasa by his father during 2016 and they began discussions about Mr Kaasa becoming [Mr A]’s replacement [Occupation 1].

25.In late 2015 Mr Kaasa had moved from [City], where he and Ms Gaba had lived prior to separation. He left his employment as [an] [Occupation 1] in [City] and began working for [Company 3]  during 2016. By late 2016 he had ceased working for [Company 3] and in early 2017 he began working as [an] [Occupation 1] for [Mr A]. Mr Kaasa was initially sent to Adelaide [for training], at the expense of the company. Mr Kaasa immediately began to [work] for [Mr A]. In mid-2017 [Company 2] acquired a [vehicle] and Mr Kaasa was trained and licensed to [work] at the expense of [Company 2]. He began to [take] [Mr A] from his home to work each day at a factory owned by [Company 1], another [family] company, in [State].  

26.Mr Kaasa would [park] the [vehicle] at a site about one kilometre from the [COMPANY 1] factory and a vehicle was available at that site to drive [Mr A] to the factory, and then the vehicle was available for use by Mr Kaasa until [Mr A]’s return [vehicle] trip home. Mr Kaasa stated that he initially had time on his hands and used that time to go for a run or otherwise keep fit, but in August 2017 [Mr A] offered him a job at the factory so that he could keep busy until [Mr A] required Mr Kaasa to [drive] him home. During 2018 the [vehicle] was sometimes kept at the property where Mr Kaasa lived (with his parents).

27.In January 2019 [Company 2] sold its [vehicle] and a replacement [vehicle] was purchased in April or May of 2019. Mr Kaasa was trained and licensed to [drive] that [vehicle] at the expense of [Company 2]. Mr Kaasa stated that [Mr A] had completed the construction of an appropriate [place] at his home and the new [vehicle] had not [parked] or been stored at his home. Mr Kaasa continues to [drive] [Mr A] regularly in this [vehicle] by driving to and from his property each day that [Mr A] requires his services.

28.For the duration of this arrangement Mr Kaasa has also [driven] the [vehicle] that has been stored at the [specified venue]. Mr Kaasa explained that this [vehicle] [is] used for longer trips. Mr Kaasa stated that when Mr Kaasa travels with [Mr A] his expenses, including for high-quality accommodation, are met by [Mr A]. These trips include time spent at [events] when, in addition to the meeting of accommodation and other expenses, Mr Kaasa receives the benefit of VIP access to [events]. Mr Kaasa stated that this enhanced his lifestyle further and is a source of great enjoyment for him.

29.Mr Kaasa accepted that the financial investment by [Company 2] in his [training], [provided] a further significant financial benefit to him as [Occupation 1]s would ordinarily be required to meet these expenses from their own resources and, in his case, these have run to many tens of thousands of dollars.

30.The tribunal finds that, from the time of lodgement of Ms Gaba’s departure application, Mr Kaasa has access to financial resources that significantly exceed his reported taxable incomes. The tribunal finds that the payments made by [Company 2] to Mr Kaasa’s father are for the engagement of Mr Kaasa as [an] [Occupation 1], as needed by [Mr A], for his [vehicles]]. The tribunal has not been provided with reliable or consistent evidence about any other services that are provided by Mr Kaasa’s father, or anyone other than Mr Kaasa, that might lead the tribunal to conclude that someone other than Mr Kaasa has generated that income. Mr Kaasa has chosen to direct that income to his father. In doing so he is either voluntarily alienating his income to his father or using his father to disguise income actually received by him. The average income paid by [Company 2] to Mr Kaasa’s father has been about $6,000 per month, or $72,000 per annum, from early 2017.

31.Mr Kaasa stated that he did not receive any cash, but the tribunal notes he received financial support from his parents that far exceeds his essential costs, including by providing him with a large home and two motor vehicles. In his statement of financial circumstances, and during the hearing, Mr Kaasa stated that he now pays board to his parents. However, he also stated during the hearing that this was not a regular payment and he did not wish to “pretend” that it was. The tribunal finds that Mr Kaasa does not make any regular payments of board to his parents. If Mr Kaasa is not paid in cash from the proceeds of the [services] paid for by [Company 2] that is through a choice made by Mr Kaasa to alienate that income to his father. Alternatively, in order to meet the living costs met by his parents Mr Kaasa would need to earn before tax income in the order of $72,000 per year.

32.In addition, Mr Kaasa has been enriched by the benefits of substantial professional development costs met by [Company 2]. Whilst these benefits may not equate to cash from which Mr Kaasa can contribute to the expenses of the children, they are nonetheless benefits that will allow him to continue to generate significant income as [an]  [Occupation 1] into the future.

33.Mr Kaasa submitted that [details deleted]. This may explain why [Company 2] has arranged to pay Mr Kaasa’s father, rather than him directly, but does not lead the tribunal to conclude that the income shouldn’t be regarded as a financial resource available to Mr Kaasa.

34.Mr Kaasa also earns income as [an] [Occupation 2], and from income support, which was around $20,000 until 30 June 2019 and has been about $33,000 from 1 July 2019 onwards. He stated that his income from this source is likely to continue at about this level and the tribunal notes that, for part of 2020, Mr Kaasa has received income from the JobKeeper payments for his work at the factory.

35.Mr Kaasa’s parents have owned and operated [a] business from their farm. Mr Kaasa previously stated that he was a director of that business some years ago but has maintained that he did not receive payment for this work. Ms Gaba submitted that he should be regarded as having access to the income of that business. However, there is insufficient evidence before the tribunal from which to conclude that payments have been made to Mr Kaasa from that business at any time material to the review application before the tribunal.

36.This arrangement has been in place since the date of the departure. Mr Kaasa was declaring annual income from his factory work of about $20,000 prior to 1 July 2019 and about $33,000 from 1 July 2019. Mr Kaasa received additional benefits from his employers which result in significant cost savings to him, both in terms of his professional qualification and in terms of regular meals provided to him. Without the benefit of precise evidence, the tribunal considers it reasonable to conclude that these benefits together would represent a benefit to Mr Kaasa of at least $10,000 annually and it is proper to include this amount in the calculation of financial resources available to Mr Kaasa. When the amount of $72,000 per annum for his work as [an]  [Occupation 1] is added to those annual figures, the tribunal concludes that Mr Kaasa had income and financial resources of about $102,000 per annum from the date of the departure application until the end of the 2018/19 financial year and at about $115,000 in the 2019/20 year.

37.The tribunal is unable to predict Mr Kaasa’s future income and financial resources with absolute accuracy but considers it reasonable to conclude that, for the foreseeable future, Mr Kaasa will continue to have access to income and financial resources at about the same level as that in the 2019/20 year, being about $115,000 per annum.

Conclusions in relation to the departure ground

38.The administrative assessment of child support does not take account of all the financial resources available to Mr Kaasa, including through the financial scheme supported by his father relating to the [Occupation 1] services he provides to his employer. The administratively assessed rate of child support payable by Mr Kaasa, in place around the time when the departure application was lodged in September 2018, required Ms Gaba to pay child support to Mr Kaasa at the annual rate of over $3,000 per annum at a time when the tribunal has found that he had access to substantially higher income and financial resources from the work he was undertaking and where the parents were equally sharing the caring responsibilities for the children.

39.The tribunal has found that Mr Kaasa also had access to income and financial resources of about $102,000 per annum prior to 1 July 2019 and about $115,000 from 1 July 2019 onward.

40.If child support was calculated using an income of $102,000 per annum for Mr Kaasa and $40,115 for Ms Gaba, having regard to their incomes and financial resources when the departure application was lodged, the annual rate of child support payable by Mr Kaasa for the children would increase to about $7,000 per annum. The administrative assessment of child support does not fairly reflect income and financial resources available to Mr Kaasa at that time, or since, and the existence of these factors, and the marked difference in child support payable to Ms Gaba when they are considered, sets this case apart from others, making it special.

41.The tribunal is satisfied that the administrative assessment of child support produces a result which is unjust and inequitable having regard to the parents’ respective incomes and financial resources, particularly having regard to the disparity between the annual rate of child support calculated in the administrative assessment and that arrived at with regard to the actual income and financial resources available to Mr Kaasa. The tribunal therefore finds that there is a ground to depart from the administrative assessment.

Just and equitable

42.The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

Mr Kaasa

43.Mr Kaasa lives in a home funded by his parents. The tribunal is satisfied that the self-support amount allowed for in the formula (of approximately $26,000 per annum) is an appropriate measure of Mr Kaasa’s proper needs and the tribunal has set out its findings above in relation to the income and financial resources available to Mr Kaasa.

Ms Gaba

44.Ms Gaba lives with her partner and the children, when they are in her care. She works as a safety officer and her statement of financial circumstances indicates that she contributes to her own expenses and those of the children from her available income. During 2020 her income had been affected by economic changes due to Covid-19. Her 2019/20 taxable income was approximately $58,767. However, from August 2020 she has obtained a new role and earns about $70,000 per annum. There is nothing in the evidence to suggest that the self-support amount allowed for by the child support formula (of approximately $26,000 per annum) is not an appropriate measure of Ms Gaba’s proper needs.

Conclusions as to what is just and equitable

45.The tribunal proposes to vary the income used for Mr Kaasa in order to calculate child support payable by Mr Kaasa to Ms Gaba for the children to $102,000 per annum for the period 15 April 2019 to 30 June 2019 and to $115,000 for the period 1 July 2019 to 30 October 2022 in order to provide certainty for the parents for a reasonable period of time into the future. The tribunal proposed to vary the income for Ms Gaba to $70,000 per annum from 1 September 2020 to 31 August 2021 to capture her increased income from her new role and to allow her to lodge an income tax return for the 2020/21 year for subsequent use in the formula calculation of child support thereafter.

46.The proposed departure will create arrears for Mr Kaasa when compared with the administrative assessment. The tribunal is not satisfied that any hardship is created as a result of those arrears having regard to the nature and quantum of financial resources available to Mr Kaasa and the extent to which he has sought to quarantine his true financial resources from the administrative assessment of child support. It is proper that he is assessed on his actual income and financial resources. The tribunal is satisfied that the proposed departure will not cause hardship to either parent or to the children.

Otherwise proper

47.The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents rather than the community have the primary duty to maintain a child. Varying the income for the parents, on which child support is calculated, from that used in the administrative assessment, based on his income and financial resources which are not reflected in the administrative assessment will result in an appropriate apportionment of financial responsibility between the parents and the community. Such a result would be otherwise proper.

Conclusion

48.Ms Gaba sought a departure from the administrative assessment of child support in April 2019. The tribunal has found a ground to depart from the administrative assessment and has decided to vary the income used for Mr Kaasa in order to calculate child support payable by Mr Kaasa to Ms Gaba for the children to $102,000 per annum for the period 15 April 2019 to 30 June 2019 and to $115,000 for the period 1 July 2019 to 30 October 2022, and to vary the income used for Ms Gaba to $70,000 for the period 1 September 2020 to 31 August 2021. The tribunal has found that a departure in those terms is just and equitable and otherwise proper.

49.As the tribunal has reached conclusions that differ from those in the decision under review, that decision is set aside and a decision substituted that reflects the tribunal’s findings.

DECISION

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

• for the period 15 April 2019 to 30 June 2019, the adjusted taxable income of Mr Kaasa is varied to $102,000 per annum;

• for the period 1 July 2019 to 30 October 2022, the adjusted taxable income of Mr Kaasa is varied to $115,000; and

• for the period 1 September 2020 to 31 August 2021, the adjusted taxable income of Ms Gaba is varied to $70,000.