Gebhard and Ibbott (Child support)

[2021] AATA 1686

Gebhard and Ibbott (Child support) [2021] AATA 1686 (6 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019903

APPLICANT:  Mr Gebhard

OTHER PARTIES:  Child Support Registrar

Ms Ibbott

TRIBUNAL:Member W Budiselik

DECISION DATE:  6 April 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – costs of special needs of child – cost of educating child – a ground for departure established – income, property and financial resources of the liable parent – business income – change is just and equitable – decision to depart – decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1. Mr Gebhard (the applicant/father) and Ms Ibbott (the mother) are the parents of [Child 1] (the child) (born October 2010) who is the subject of an administrative assessment of child support. The case commenced on 4 January 2011. Services Australia (the Agency) records the child as being in the mother’s care for 100% of the time. The father has a duty to maintain two other children (born in 2014 and 2019).

2. On 26 March 2020, the Agency received an application from the mother to depart from the administrative assessment of child support. She cited three reasons to depart from the administrative assessment: the child’s special needs, the child’s schooling costs and the father’s income.

3. The administrative assessment in place when the mother sought the departure was:

   For the period 1 January 2020 to 30 June 2020 the father was assessed to pay an annual rate of child support of $8,433. This assessment was based on a Registrar-varied 2018–19 adjusted taxable income (ATI) amount of $80,000 for the father, and a Registrar-varied 2018–19 ATI amount of $71,000 for the mother.

4. On 27 June 2020, an officer from the Agency found the reasons cited by the mother in her application to be established and decided to depart from the existing administrative assessment such that the father’s ATI was set at $317,716 for the period 26 March 2020 to 31 March 2023 and that for the period 26 March 2020 to 31 March 2023 the father’s child support liability was to be increased to take into account the child’s special needs and education costs.

5. On 8 July 2020, the father objected to the Agency’s decision. On 15 September 2020, an objections officer from the Agency considered the father’s objection and part allowed it. The objections officer set out:

   ·For the period 26 March 2020 to 31 December 2022 the father’s ATI amount is set at $109,000.

   ·For the period 26 March 2020 to 31 December 2022 the mother’s ATI amount is set at $131,800.

   ·For the period 26 March 2020 to 1 July 2020 the annual rate of child support payable by the father is increased by $3,819 to reflect his share of the child’s special needs costs and private school fees.

   ·For the period 2 July 2020 to 31 December 2020 the annual rate of child support payable by the father is increased by $5,600 to reflect his share of the child’s special needs costs and private school fees.

   ·For the period 1 January 2021 to 1 July 2021 the annual rate of child support payable by the father is increased by $5,621 to reflect his share of the child’s special needs costs and private school fees.

   ·For the period 2 July 2021 to 31 December 2021 the annual rate of child support payable by the father is increased by $3,840 to reflect his share of the child’s` special needs costs and private school fees.

   ·For the period 1 January 2022 to 31 December 2022 the annual rate of child support payable by the father is increased by $2,009 to reflect his share of the child’s private school fees.

6. On 21 September 2020, the father lodged an application for a review of the objections officer’s decision with the Administrative Appeals Tribunal (the tribunal).

7. On 18 January 2021 the tribunal conducted a telephone directions hearing (TDH) with the parents in preparation for a hearing into the matter. Prior to the TDH the Agency provided a bundle of documents to the parents and to the tribunal (folios 1–501). Following the TDH the tribunal issued directions to the parents.

8. A hearing into the father’s application was conducted on 16 March 2021. The parents participated in the hearing via telephone conference. Prior to the hearing the Agency provided supplementary documents to the tribunal (folios 502–508). The parents provided additional documents prior to the hearing in accordance with the directions issued following the TDH (the father provided documents folioed A1–A158 and the mother provided documents folioed B1–B9).

9. In the normal course of events when a parent provides additional documents to the tribunal which are accepted for a hearing, the documents are paginated and provided to each parent. In error, the tribunal did not provide to the mother the documents folioed A42–A158 provided by the father and it did not provide a paginated set of these documents to the father.

10. The tribunal put to the parents that in the circumstances it could adjourn the hearing and reconvene it to a later date. The parents chose to continue with the hearing. In the circumstances the tribunal agreed. Following the hearing the tribunal provided folios to both parents and invited further comment. Neither parent provided additional comments.

11. Documents provided by the parents have been provided to the Agency.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The tribunal also referred to the Agency’s online Child Support Guide (the Guide). The tribunal is not bound by law to apply the Agency’s policy as set out in the Guide, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, to follow it (Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

3. The three issues to be determined by the tribunal are:

   a)   whether a ground is established to depart from the administrative assessment of child support; and if so,

   b)   whether it is just and equitable to make a particular departure determination; and if so,

   c)   whether it is otherwise proper to make a particular departure determination.

CONSIDERATION

1. The rate of child support payable by a liable parent is usually based on an administrative assessment calculated using the relevant formula under Part 5 of the Act. This involves the application of a statutory formula which takes into account factors such as the adjusted taxable income of each parent, the number of children and the level of care provided. A parent’s adjusted taxable income for a given year is calculated according to a formula that includes a parent’s previous year’s taxable income (see section 43 of the Act).

2. Part 6A of the Act allows for a departure from an administrative assessment. The liable parent or a carer entitled to child support may apply to the Child Support Registrar (the Registrar) for a determination to depart from the child support administrative assessment under Part 6A of the Act.

3. Section 98C of the Act provides that the Registrar (and the tribunal in the Registrar’s place) may make a determination to depart from the administrative assessment if satisfied that a ground exists and that it would be just and equitable and otherwise proper to make a particular determination. The tribunal may make one of the determinations set out in section 98S of the Act.

4. The grounds for departure from the administrative assessment are set out in subsection 117(2) of the Act. Each ground for departure is prefaced by the words, “in the special circumstances of the case”. Therefore, when considering whether a ground exists, the tribunal must be satisfied that there are “special circumstances” in the case. The phrase “special circumstances” is not defined in the Act. The Full Family Court, in the case of Gyselman and Gyselman (1992) FLC 92-279, held that:

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

Issue 1: Is there a ground for departure?

The child’s special needs and the child’s education costs

1. Subparagraph 117(2)(b)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because of special needs of the child.

2. Subparagraph 117(2)(b)(ii) of the Act provides a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents.

3. The father said he did not dispute the child has special needs or dispute the costs associated with addressing these needs. He did not dispute that he had agreed to the child attending a private school.

4. The father’s grievances with the Agency’s decision (and the mother) about the child’s special needs and schooling costs were:

• The mother excluded him from exercising his parental responsibilities in relation to the child and consequently he did not have a good understanding of the child’s special needs and treatment.

• He did not agree with the (Catholic) school chosen for the child. He had been rushed into agreeing to the child’s private education.

1. The mother disputed that the father did not have opportunities to be involved in the child’s upbringing and in decisions about pursuing appropriate courses to treat the child’s special needs.

2. The mother referred to documents in the Agency’s papers (folios 124 to 128) where she set out her consideration of the child’s future schooling and where she wrote to the father via a communication book asking the father for suggestions if he did not wish the child to attend the Catholic school she was considering having the child attend and where the father signed the relevant enrolment form.

3. On 17 November 2016, the tribunal (differently constituted) reviewed an Agency departure determination and found among other things the parents had a mutual intention the child would be educated privately in the Catholic system (see folio 60 of the Agency’s papers). The tribunal is satisfied the child is being educated in a manner expected by the parents.

4. The tribunal’s concern is whether the child has special needs and whether the costs of maintaining the child are significantly affected because of those special needs and whether the costs of maintaining the child are significantly affected because of the costs of educating the child.

5. The Agency’s decision sets out the costs and these costs were not challenged by the father in the hearing. The father’s issue concerned his capacity to pay the portion of these costs that had been attributed to him by the Agency.

6. The objections officer’s decision sets out an increase in the father’s child support liability from 26 March 2020 to 31 December 2021, reflecting 50% of the child’s special needs and education costs and from 1 January 2022 to 31 December 2022 reflecting an anticipated 50% of the child’s education costs.

7. The tribunal notes that in the child support context, 50% of a child’s education costs is limited to those costs that are associated with private schooling (tuition fees and compulsory levies). The tribunal understands these are not all the costs associated with a child’s education.

8. The tribunal finds that there are special circumstances in this case and the costs of maintaining the child are significantly affected because of special needs of the child.

9. The tribunal finds there are grounds for departure.

Issue 2: Is it just and equitable to depart from the administrative assessment?

1. To decide whether it is just and equitable to depart from the administrative assessment, the tribunal must consider the matters required by subsection 117(4) of the Act, plus any other matters raised in the change of assessment application. Factors relevant to the circumstances of this case identified in subsection 117(4) of the Act are now considered in turn.

Duty of a parent to maintain a child

1. Section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain.

2. The tribunal notes that the Family Court of Australia has been prescriptive about the types of expenses that can be considered ‘necessary’ expenses and that there are only a few expenses that can be considered to take priority over a parent’s primary duty to support their child(ren). This includes expenses such as a reasonable amount for payment of rent or mortgage, food, utilities and some loans. In Mee and Ferguson [1986] FMCCA 3 (Mee and Ferguson) the Full Court of the Family Court stated at [128]:

   Some of the items obviously have to be taken into account before maintenance is arrived at; for example, the cost of reasonable transport, food and clothing, and other like expenses are necessary to the continued reasonable existence of a parent, and, barring legislative direction to the contrary, it would not accord with the understanding in this jurisdiction to suggest that those items should be put out of consideration before child maintenance is determined. On the other hand there is no doubt that one of the primary responsibilities of a parent is the continued support of children to the extent to which the parent continues to be able to do so and that may in appropriate circumstance mean making financial sacrifices or cutting one's cloth to meet that commitment during the years when it applies.

The proper needs of the child

1. In determining the proper needs of the child(ren) it is necessary to consider the manner in which the parents expected the child(ren) to be cared for, educated or trained, and any special needs of the child(ren).

2. In this case the child’s proper needs have already been considered.

3. The tribunal’s view is that the costs associated with the child’s special needs and education warrant a departure from the administrative assessment in place.

4. The father did not disagree with this conclusion. In respect to these matters he contended that he did not have the financial resources to contribute to these costs to the extent the Agency was demanding. The father’s argument about his incapacity to contribute to these costs will be considered further when the tribunal deals with hardship.

Income, earning capacity, property and financial resources of the parents

1. When the tribunal considers the parents’ income, earning capacity, property and financial resources, paragraph 117(7A)(b) of the Act requires the tribunal to disregard the income, earning capacity, property and financial resources of a person who does not have a duty to maintain the child or is not a party to the proceedings, unless in the special circumstances of the case it is appropriate to have regard to them.

2. The tribunal’s analysis about the parents’ capacity to pay child support is shaped by cases dealt with in the Family Court, including Carey and Carey [1994] FamCA 74; (1994) FLC 92-489 where it was noted at paragraph 17:

   The aim of the legislation is to avoid the necessity of litigation and to make the amount to be paid predictable and readily assessable. The legislation however realises that, whilst the simplest method of calculating child support is to use existing taxation records, the use of taxable income as the sole basis for child support could lead to some inequities and injustices. For a start, the financial position of many members of the community is not accurately reflected in their taxable income; either they manage to evade or avoid their taxation liabilities or they can so structure their affairs so that they are capital rich and income poor.

41.The Guide at chapter 2.6 deals with changing assessments in special circumstances and subchapter 2.6.14 deals with parents’ income, property and financial resources. In part, the subchapter sets out:

Although a parent’s most recent taxable income is used in the child support formula, the Registrar can look beyond the parent’s taxable income when considering an application for a change of assessment. Income, earning capacity, property and financial resources which do not necessarily form part of a parent’s taxable income can be added to or excluded from a child support assessment (Carey and Carey (1994) FLC 92-489).

The mother’s income, earning capacity, property and financial resources

1. The mother provided the tribunal with a Statement of Financial Circumstances. In the statement she set out:

   a)   Average weekly income is $688 (jobkeeper payment since April 2020)

   b)   Value of property owned $768,000

   c)   Liabilities $248,000

   d)   Superannuation $8,000

2. The mother is self-employed. She is not seeking a reduction in the ATI determined for her by the objections officer ($131,800).

3. The father indicated he wished to challenge the Agency’s assessment of the mother’s financial circumstances.

4. The father pointed the tribunal to administrative assessments of child support where the mother’s ATI was less than the self-support amount ($25,038) (see folios 407–420). The assessments pointed out by the father cover the period 1 July 2020 to 31 January 2022.

5. The Agency’s objections officer’s decision (folio 421) addressed these periods and set the mother’s ATI at $131,800. The administrative assessments (folios 440–457 of the papers) supersede the assessments provided in the papers between folios 407–420. This is evident because the dates of the assessment are later. The later assessments are based on the objections officer’s decision of 15 September 2020 (where the mother’s ATI is set at $131,800), and which is the subject of this review.

6. The tribunal was not presented with evidence by the father the objections officer’s decision in respect of the mother’s ATI ($131,800) was incorrect. The objections officer’s analysis of the mother’s 2019/20 tax return is set out in detail in the objections officer’s decision (see folios 13 and 14 of the Agency’s papers).

7. The tribunal accepted the Agency’s analysis and finding in respect of the mother’s income.

8. The father did not assert the mother had unexercised earning capacity.

The father’s income, earning capacity, property and financial resources

1. The father provided a Statement of Financial Circumstances dated 7 October 2020. In the statement he set out:

   a)   Average weekly income $750 (jobkeeper payment since July 2020)

   b)   Value of property owned $50,000

   c)   Liabilities $4,000 ([Bank 1] credit card)

   d)   Superannuation $320,000

2. The father’s Statement of Financial Circumstances set out his partner’s weekly income is $430 per week (about $22,500 p.a.). The father added an extra $80 a week to his income in recognition of the value he derives from having a company vehicle.

3. The father set out personal expenditure totalling $500 per week (credit card debt is listed as $4,000), income tax $100 per week, child maintenance $120 per week, credit card repayments $150 per week and health insurance premiums $130 per week).

4. In the average weekly expenses part of the father’s Statement of Financial Circumstances he sets out the total household expenditure is $1,905 per week ($765 for him ($39,780 p.a.), $290 for the children ($15,080 p.a.) and $790 ($41,080 p.a.) for his partner.

1. That is, on a combined income of $61,500, the father has set out a pattern of expenditure that totals approximately $96,000 per annum.

2. The mother asserted the father derives benefits from his businesses, that he has not fully disclosed his assets, he runs his businesses out of a property he owns and that his business pays his child support.

3. The father agreed he derived benefits from his businesses (personal use of a business vehicle, mobile phone). He said his partner and brother owned the property that housed his businesses. He agreed the business had paid child support further to an arrangement he made with it.

4. The father said he had fully disclosed his assets.

5. The father argued the Agency’s analysis of his business affairs was incorrect. The tribunal asked the applicant to be specific and address the objections officer’s analysis as it is set out in the decision, where it states:

   A review of Mr Gebhard’s business links show [Company 1] received a gross income of $1,153,242 and incurred expenses totalling $1,297,875. This produces an overall loss of -$144,633. The business itself claimed a number of expenses that can be considered to provide benefit to Mr Gebhard by offsetting his actual personal costs, or producing cash resources within the business that are not applied to actual expenses. I note the business claimed depreciation of $34,887 however incurred a loss and did not retain any earnings amounts as a result. Depreciation is a legitimate expense for taxation purposes, however generally will not result in physical expenditure in the year. it is claimed, as the expense generally reflects assets purchased in previous income years that reduce in value over time.

   Mr Gebhard has provided the financial statements which show the breakup of depreciation as $10,845 belonging to the general pool of assets, while the remaining $24,042 applies to immediate write offs. I will only consider the $10,845 amount as the other expenses reflect assets purchased within the same year, and are therefore actual costs.

   The company also claimed $28,345 in motor vehicle costs which would likely cover the costs of Mr Gebhard`s personal motor vehicle use. Mr Gebhard has not provided any response to Ms Ibbott` claims in this regard and without a detailed response, I conclude he would receive such benefits. I propose to add back 30% of this expense ($8,504) to Mr Gebhard`s income to reflect the personal benefit provided received.

6. The father said he believed being attributed with the value of the business’s vehicle was unreasonable because the vehicle cannot be used as a family vehicle (because it does not have infant seats fitted) and while it is his to use, he can only use it for personal errands. The mother pointed out that when the father has picked up the child for access visits, he has always done so in a company vehicle.

7. The objections officer also considered other businesses owned by the father. The officer wrote:

   [Company 2] has a gross turnover of $286,759 in 2018-19, with expenses totalling $263,001 which produced an overall profit of $23,758. The majority of business expenses are contractor/subcontractor and these equate to $262,160. The only other expense is $841 in All other expenses. Overall, given the costs incurred by this business are contractor expenses and only $841 in other expenses, I do not consider this to be of a personal benefit to Mr Gebhard.

   Turning to [Company 3], in 2018-19 the business had turnover of $408,136 and expenses of $428,688 resulting in an overall loss of -$20,552. The business expenses are listed as $183,261 for cost of sales, $64,062 in contractor/subcontractor costs, $807 in depreciation, and $180,558 in All other expenses. The ATO supplied tax return does not provide a breakdown of the All other expenses and without being provided the financial statements I cannot make an accurate determination of what costs applied. I will therefore consider 15% ($27,084) of this to be of personal benefit to Mr Gebhard which is a reasonable amount without more detailed evidence.

   Overall, there would be $23,758 in profits from [Company 2] to consider, $6,532 in income from [Company 3], and a further $19,349 in benefits from [Company 1]. In total these benefits equate to $49,639 and this is not reflected in Mr Gebhard`s 2018-19 ATI of $59,426. Adding this income to Mr Gebhard`s ATI produces an income of approximately $109,000 for the purposes of child support. As this is significantly greater than both the previous determination of $80,000 as Mr Gebhard`s income, and the ongoing amount of $59,426 I am satisfied this renders the assessment unfair.

1. The tribunal obtained more information from the objections officer to better understand the calculation that attributed $6,532 in income from [Company 3] to the father (see folios C1 and C2).

2. The tribunal concluded the father does derive benefits from the businesses that would not be available to a person who was not a business owner.

3. The tribunal accepted the approach taken by the objections officer in analysing the father’s financial situation as an appropriate way to attribute additional income to him for child support purposes. The tribunal satisfied itself the calculations made by the objections officer are correct. The father provided a set of financial statements for the 2019/20 financial year for the tribunal’s consideration.

4. [Company 1] (draft company tax return for 2019/20) showed a reduction in gross income from $1,153,242 (2018/19) to $946,098 (2019/20) with declared losses of $144,633 and $15,396, respectively.

5. [Company 2] showed a reduction in gross income from $286,759 (2018/19) to $219,834 (2019/20) with overall profits reduced from $23,758 to $567, respectively.

6. [Company 3] showed an increase in gross income from $408,136 (2018/19) to $497,970 (2019/20) and expenses increasing from $428,688 to $500,296, respectively, with losses of $20,552 and $2,326, respectively.

7. Having accepted the approach taken by the objections officer, the tribunal replicated the objections officer’s rationale in analysing the 2018/19 financial statements to the 2019/20 financial statements. Noting the depreciation costs in 2019/20 are all immediate write offs and [Company 2]’s revenue matches contractor expenses, the tribunal calculated the additional income applicable to the father is the value of the use of the vehicle ($11,441) and additional income from [Company 3] (15% of other expenses at $281,622 = $42,243 less the year’s loss) (i.e. $42,243 - $2,326) as $39,917.

8. The applicant’s income tax return for 2019/20 shows a gross income of $64,000. When the financial benefit from the business is added ($51,358) the total income attributable to the father for child support purposes is $115,358.

9. The tribunal used a child support calculator and satisfied itself there will be an increase of about $500 per annum in child support if an ATI of $115,358 is utilised instead of $109,000. In the overall context of this case the tribunal did not consider the resultant change was significant to warrant departure from the Agency’s assessment.

10. The mother did not assert the father had unexercised earning capacity.

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

1. The father has two children whom he has a duty to maintain.

2. The father argued to the tribunal that the child support formula is wrong because the formula favoured the child of the assessment at the expense of his other children.

3. The tribunal explained that in this case the child of the assessment had extra costs because of his special needs and because of the expectations he and the mother had about the child’s schooling.

4. It is also apparent in this case that the father bears a greater responsibility for the child who is the subject of this review’s costs because the mother provides 100% of his care. That is, all things being equal if the parents had a 50/50 care arrangement and child support was based solely on the parents’ ATIs, the mother would pay the father child support of more than $2,500 per annum.

5. The tribunal also notes that it is a ground to depart from the administrative assessment if in the special circumstances of the case, the capacity of either parent to provide support for the child is significantly reduced because of the special needs of any other child the parent has a duty to support (see subparagraph 117(2)(a)(ii) of the Act).

6. The father said his younger children did not have special needs.

7. The father understood these arguments and restated his concern was about his incapacity to pay child support at the Agency-determined rate.

8. The child support formula takes into account the father’s relevant dependent children and his self-support costs. The tribunal decided the tribunal did not need to further take into account the father’s commitments to support his younger children.

Hardship resulting from the departure determination

79.The tribunal is required to consider hardship that would be caused to the child, the carer entitled to child support, to the liable parent and the child or people the liable parent has a duty to support.

1. The mother did not argue she would experience hardship if an order was not made changing the child support amount she received.

2. The father did not dispute the child’s special needs costs or education costs. His argument is solely that if he is required to pay additional child support because of these costs, he and his family will experience hardship.

3. The father’s business arrangements are intertwined with that of his partner and other family members. For example:

   a)   The father’s business ([Company 1]) had been under the directorship of his brother for a period but it is now transferred back to the father. The tribunal asked the father about this and whether the business had been sold to the brother and then purchased back. The father said the business was without value and that it had been transferred to his brother and back to him without consideration. The tribunal notes the father attributed a value of $40,000 to the business in his Statement of Financial Circumstances.

   b)   The business’s premises, in [Suburb 1], are owned by his brother and his partner. The records show in 2018/19, [Company 1] paid $36,000 in rent. In 2019/20 the business paid $20,000 in rent.

   c)   The father’s personal income tax return claimed a deduction associated with motor vehicle usage for a [vehicle of specified make and model] ($2,380), which the tribunal presumes is the father’s partner’s car because it is not listed as an asset in his statement of financial circumstances or the make of vehicle the father told the tribunal the business provided to him.

   d)   The father told the tribunal the house he lives in is valued at about $1,000,000 and it is owned by his partner. He said he contributes to the mortgage.

4. The father told the tribunal he considered it unfair that his partner’s income and resources were being considered by the tribunal. However, paragraph 117(7A)(b) of the Act (see paragraph 39 of these reasons for decision) is relevant when the tribunal considers the father’s income, earning capacity, property and financial resources, not when it considers hardship.

5. Given the father’s income, the benefits he derives from his businesses and his partner’s income and property, the tribunal was satisfied neither the father nor the father’s children will experience hardship if the Agency’s assessment is affirmed.

What determination should be made taking into account the above factors?

1. For the reasons set out above the tribunal intends to affirm the Agency’s decision (see paragraph 5 of the reasons for decision).

Issue 3: Is it otherwise proper to depart from the administrative assessment?

1. The tribunal considered the impact of its decision on the balance of support provided by the parents on one hand and the taxpayer on the other. It is necessary to decide whether this is a proper outcome given that parents have the primary responsibility to support their children.

2. In this case the mother receives family tax benefit for the children. This decision will not result in an increase in the amount of family tax benefit she receives.

3. The tribunal was therefore satisfied that this decision is otherwise proper in the circumstances of the case.

DECISION

The decision under review is affirmed.