Goodman and Goodman (Child support)

[2020] AATA 2675

Goodman and Goodman (Child support) [2020] AATA 2675 (5 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC017777

APPLICANT:  Mr Goodman

OTHER PARTIES:  Child Support Registrar

Ms Goodman

TRIBUNAL:Member M Martellotta

DECISION DATE:  5 June 2020

DECISION:

The tribunal sets aside the decision under review so that:

For the period 8 May 2018 to 31 December 2020 Mr Goodman’s adjusted taxable income is varied to $83,000.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – failure to provide full and frank financial disclosure - 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. Mr Goodman and Ms Goodman are the parents of two children[1] who are children for the purposes of the administrative assessment of child support subject to this review. Mr Goodman is the parent liable to pay child support.  Mr Goodman and Ms Goodman are recorded as having shared care of both children.

   [1] [Child 1] (14 October 2005) and [Child 2] (15 July 2008).

2. On 10 December 2018 Mr Goodman lodged a change of assessment application with the Department of Human Services[2] – Child Support. His application was on the grounds of reasons 1, 7 and 8A and 8B.[3]

   [2] Now known as Services Australia.

   [3] At hearing Mr Goodman stated he had lodged his application in August 2018 however the application on file is dated 6 December 2018 (page 104).

3. In terms of the grounds reason 1 requires Mr Goodman to show that costs incurred to spend time with the children significantly affect the costs of maintaining the children, reason 7 requires Mr Goodman to show that his necessary costs of self-support reduce his ability to support the children. Reason 8A requires Mr Goodman to demonstrate that the parent’s income, property and financial resources make the assessment unfair. Reason 8B requires Mr Goodman to show that the assessment does not reflect Ms Goodman’s earning capacity.

4. At the time of Mr Goodman’s change of assessment application, according to Child Support the relevant assessments had been in place:[4]

   ·     For the period 4 November 2017 to 30 November 2018 the assessment was based upon an adjusted taxable income (ATI) of $210,00[5] for Mr Goodman and Ms Goodman’s derived 2016/17 ATI of nil (annual liability $23,894).

   ·     For the period 1 December 2018 to 31 December 2018 the assessment was based upon an ATI of $210,00[6] for Mr Goodman and Ms Goodman’s 2017/18 ATI of $18,821 (annual liability $24,308).

   ·     For the period 1 January 2019 to 3 April 2019 the assessment was based upon a provisional 2017/18 ATI of $49,097 for Mr Goodman and Ms Goodman’s 2017/18 ATI of $18,821 (annual liability $4,486).

·     For the period 4 April 2019 to 31 August 2019 the assessment was based upon a derived 2017/18 ATI of $nil for Mr Goodman and Ms Goodman’s 2017/18 ATI of $18,821 (annual liability $nil).

·     For the period 1 September 2019 to 31 December 2019 the assessment was based upon an ATI of $120,000 for Mr Goodman and Ms Goodman’s ATI of $40,000. [7](annual liability $14,330).

·     For the period 1 January 2020 to 30 June 2020 the assessment was based upon an ATI of $120,000 for Mr Goodman and Ms Goodman’s ATI of $40,000 [8] (annual liability $15,156).[9]

[4] According to Department records there have been a number of previous change of assessment applications lodged by the parents. The assessments in place at the time of Mr Goodman’s’ application were the result of an agreed outcome reached by the parents in relation to a change of assessment application determined by Child Support on 31 August 2017. The underlying administrative assessment based on two previous CoA decisions that were in place before the latest CoA application which was lodged on 10 December 2018 included a COA decision by DM Young dated 16 February 2018 and a COA decision by DM Ninyette made on 21 May 2018,

[5] This was the result of a previous change of assessment decision (16/2/18).

[6] This was the result of a previous change of assessment decision (16/2/18).

[7] The change to both parties’ ATI was the result of another change of assessment (21/5/18).

[8] The change to both parties’ ATI was the result of another change of assessment (21/5/18).

[9] The differences in the annual liability was a result of the various COA decisions including reductions to the assessment.

1. On 23 July 2019 Child Support decided that a ground under reason 8A had been established and departed from the assessment so that the previous change of assessment decisions concluded on 31 December 2018 and thereafter:

   ·For the period 1 January 2019 to 31 August 2019 the annual rate of child support is nil.

   ·For the period 1 September 2019 to 30 June 2020 the assessment is based on an ATI of $120,000 per annum for Mr Goodman and an ATI of $40,000 for Ms Goodman.

   ·For the period 1 September 2019 to 31 December 2019 the annual rate of Mr Goodman is reduced by $2,474 (on account of school fees).

2. Mr Goodman objected to the decision.  On that objection Child Support decided to make a different determination:

   ·     The previous departure decisions dated 16 February 2018 cease to have effect on 7 May 2018.

   ·     Mr Goodman’s ATI is varied to $83,564 from 8 May 2018 to 31 December 2019.

   ·     For the period 1 September 2019 to 31 December 2019 the annual rate is reduced by $826.

   ·     The decision to vary Ms Goodman’s ATI to $40,000 for the period 1 September 2019 to 30 June 2020 is set aside.

   ·     Mr Goodman’s ATI is varied to $120,000 for the period 1 January 2020 to 30 June 2020.

3. Mr Goodman lodged an application seeking independent review by the tribunal. The tribunal convened a telephone direction hearing and issued directions.  On 20 May 2020 Mr Goodman and Ms Goodman participated in a hearing by conference telephone and each gave their evidence under affirmation.  The tribunal deferred making a decision as it issued further directions requiring Mr Goodman to provide financial information that was not provided by Mr Goodman prior to hearing. Documents relevant to the issues to be determined had been provided by Child Support (539 pages); Mr Goodman (A1–A336) and Ms Goodman (B1–B76).

ISSUES

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

2. Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[10]

   [10] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The issues for the tribunal to determine in this case are:

   ·     Does a ground for departure exist? if so,

   ·     Would it be just and equitable as regards the children, the liable parent, and the carer entitled to child support determination to depart from the administrative assessment of child support?

   ·     Is it otherwise proper to make a particular departure determination?

CONSIDERATION

Issue 1 – is there a ground to depart from the administrative assessment?

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 number of children, the age of each child, the level of care provided and the income of each parent. The income used in the calculation has a number of components making up the adjusted taxable income, which is worked out using section 43 of the Act.  The general approach is that the Child Support Registrar (the Registrar) will utilise a parent’s ATI as assessed by the Australian Taxation Office (ATO) for the last relevant year of income.

2. Part 6A of the Act allows for a departure from an administrative assessment (a process commonly known as a change of assessment). The liable parent or a carer may apply to the Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Act (section 98B).  Section 98C of the Act provides that the Registrar may make a determination to depart from the formula assessment and as noted, establishes a three step process.

3. The grounds for departure from the administrative assessment are set out in subsection 117(2) of the Act.  Only one ground is required in the special circumstances of the case to depart from the administrative assessment and thereby satisfy the requirements of subsection 117(2) of the Act.[11]  In this matter the only ground contested at hearing was whether a ground for departure is established pursuant to reason 8A.

Reason 8A – income, property and financial resources of the parties

Mr Goodman

[11] The phrase “special circumstances of the case” is not defined in the Act. However, the Family Court has held that “it is intended to emphasise that the facts of the case must establish something special or out of the ordinary” (Gyselman and Gyselman (1992) FLC92-279). Likewise, in Phillippe and Phillippe (1978) FLC 90-433 the Court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”. 

1. Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, application of the provisions of the Act relating to the 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 because of the income, property and financial resources of either parent.

2. At hearing Mr Goodman submitted that his main reason for seeking review was related to the decision made by Child Support in relation to his income.  He said he agreed with the original decision to set his income at zero but it did not remove arrears which is why he lodged an objection.  He does not agree with the outcome of the objection, he also says that the decision also fails to take into account Ms Goodman’s correct income and financial resources.

3. As noted the decision maker 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 and as such form part of the legitimate and necessary inquiry.

4. The tribunal was able to ascertain the following information from Mr Goodman:

   a)    Prior to separation in 2017 he operated a [business] through several private companies and a family trust.

   b)    All those entities apart from that which relates to a self-managed fund no longer trade and ASIC is either in the process or has deregistered these entities.[12]. These entities included [Company 1] which is the consultancy business, [Company 2] which held client monies in trust and [Company 3] which was the entity which held the regulatory licences which allowed the consultancy to operate.

   [12] A search on the ASIC website shows this to be the case.

   c)    Post separation he continued to work in the business.  He entered into a consultancy agreement with a [Country 1] based company [Company 4] who would in effect act as his sponsor for an Australian work visa.

   d)    His circumstances changed in May 2018 where for various reasons [Company 4] withdrew their sponsorship and he lost his working rights in Australia in August 2018.  As a result, Mr Goodman was not able to remain in Australia on the same visa conditions. He moved into wealth management in the ‘off shore space’ and was based in [Country 2] where he entered into a commission based arrangement with [Company 5]. He spent a period travelling between [Region] and Australia.

   e)    He was associated with [Company 5] until January 2019.  Whilst he was owed commissions he was never paid and the only remuneration he received was the reimbursement of some travel costs.

   f)     He returned and based himself back in Australia in January 2019.  He started work in February 2019 with a law firm, [Name] but left in March 2019 having earned about $1,600 in that time.

   g)    Subsequent to this he was the subject of a fraud investigation relating to previous activities and he was not regularly employed apart from doing some occasional work for previous clients.

   h)    He does not qualify for any social security assistance due to his visa conditions.

   i)   Since March 2020 he has been employed on a casual basis by a company called [Company 6]. He earns about $650 per week.

   j)   Since May 2018 he has lived mainly off savings and from financial gifts provided by family and friends. Since then he thinks he has been gifted about $45,000–$50,000. He lives in a property that is owned by friends.  Whilst the rent on the property is $850 he has not paid any rent since about November 2018.  His friends have allowed him to remain in the expectation that at some point he will repay what he owes.  He also does some free work managing a holiday accommodation property for them in exchange for his rent.  His girlfriend also meets many of his day-to-day costs and expenses and he said she pays his bills.

   k)    His financial circumstances have dramatically changed in the last two years and he is no longer earning income at the level he once was.  He is now largely reliant upon the goodwill and support of his girlfriend, family and friends.

   l)   He believes that Ms Goodman has under-declared her income from her business and that given [a work-related circumstance] that her income must be much higher.

5. As part of its directions the tribunal directed Mr Goodman provide copies of his personal tax returns for the last two financial years and copies of bank statements and credit card statements for the period 1 July 2019 to 31 December 2019. This was not provided prior to hearing and Mr Goodman stated this was due to a misunderstanding of the directions.  The tribunal provided Mr Goodman a further opportunity to provide relevant financial information and issued further directions post hearing.  Those directions also required Mr Goodman to provide copies of his overseas bank account statements.

6. In response Mr Goodman provided copies of personal income tax returns which are dated 30 May 2020 and also provided copies of some Australian bank and credit card statements for the requested period. He advised he was still in the process of requesting overseas bank accounts however these were not received by the date specified in the post hearing directions.

7. According to the tax returns, Mr Goodman declared the following income in 2017/2018, $25,000 derived as director’s fees, less car and work-related deductions of $4,100 leaving a total income of $20,900. In 2018/19 he declared $15,998 income from consultancy with nil deductions. He further advised in a written statement that in 2019/20 to date he has earned $11,662.50 from employment and $10,500 from self-employment.

8. The tribunal reviewed the bank and credit card statements that had been provided according to that information:

   [Bank account]

17/18 FY	Deposits	18/19 FY	Deposits	19/20 FY	Deposits
Feb – April 2018	$69,564	June – Aug 2018	$16,586	June – Aug 2019	$7,000
Aug – Oct 2018	$6,616	Aug – Oct 2019	$4,325
Oct – Dec 2018	$2,237	Oct 2019 – Dec 2019	$155
Dec 2018 – Feb 2019	$14,362
Totals	69,564	39,801	11,480

1. In January 2019 Mr Goodman’s credit card had an opening balance of $11,006. In the statement period ending 24 February 2019 he made payments and credits totalling $12,648 and purchases and cash advances totalling $8,893. This included purchase of discretionary items such as [Brand name] purchases, dining out and entertainment spending in locations identified in Western Australia, Victoria and New South Wales.

2. According to authorities a financial resource refers to something that is not property but from which a financial benefit is or may be gained.  The term is to be broadly defined and refers to any financial benefit that would enhance the capacity of a parent to provide a proper level of support for their children.  Mr Goodman in effect submitted that since May 2018 he has survived on a limited income and has largely been reduced to relying upon his partner, friends and family to financially survive.

3. On the available evidence however, it appears to the tribunal that Mr Goodman has access to financial resources or income above that represented in his two most recent tax returns, given the pattern of deposits and also his pattern of discretionary spending and his ability to make payments on his credit card.  As noted, the tribunal did not have access to other bank and credit card statements. The tribunal notes authorities regarding the duty of parties to provide full and frank disclosure regarding their financial affairs and that this duty extends to presenting information in a way that can be reasonably and readily understood and examined.[13] It is open to the tribunal to draw adverse inferences from a party’s failure in this regard.

   [13] Humphries & Berry [2008] FMCA fam 409

4. In his evidence Mr Goodman says that he has received cash gifts which have enabled him to meet his expenses.  He also stated that has been able to live in a friend’s property rent free, he says the rent on that property is $850 per week.  In his Statement of Financial Circumstances, Mr Goodman states that his weekly household costs are $1,598 ($83,096 per annum). Based on available evidence, the tribunal concluded that Mr Goodman has access to either income or financial resources which allow him to meet those costs and that these amounts are not represented in his personal tax returns.

Ms Goodman

1. Ms Goodman told the tribunal that she believed the objection decision was the correct decision.  She noted that Mr Goodman had failed to fully disclose his financial details and that information available demonstrated that despite asserting that he was without any significant income he has been able to maintain a lifestyle and undertake discretionary spending at odds with that assertion.

2. In terms of her own circumstances she said that in 2017 she set up a [business] which she operates as a sole trader. Ms Goodman said that any income she has earned in that business is reflected in her personal income tax returns. The tribunal reviewed financial documents provided by Ms Goodman which included banks statements and tax returns. Her 2017/18 return declares a taxable income of $18,821 and in her 2018/19 returns, an income of $21,000. 

3. The tribunal reviewed income and deductions claimed for the business and was satisfied that the income tax return and financial statements provided by Ms Goodman painted an accurate picture of her financial circumstances. The tribunal was satisfied that Ms Goodman does not derive any additional benefit from those business-related deductions.  In this matter, on the presented evidence the tribunal was satisfied that Ms Goodman’s income, financial resources and property is that as reflected in her personal income tax returns.

4. As noted at the time Mr Goodman made his application for a change in assessment, Child Support had been utilising an agreed ATI of $210,00 for Mr Goodman.

5. In this matter the tribunal has concluded that the appropriate amount to be utilised in the assessment (which takes into account each of the parties’ relevant income, financial resources and property) is $83,096 for Mr Goodman and for Ms Goodman her last relevant income tax return.  Utilising these amounts in the assessment would result in a significant change in the level of child support payable by Mr Goodman.

1. For this reason, the tribunal concludes that a ground of departure exists because in the special circumstances of the case, application of the provisions of the Act relating to the 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 children because of the income, property and financial resources of Mr Goodman and Ms Goodman.

Issue 2 – Is it just and equitable to make a particular departure determination?

1. As the tribunal is satisfied that there is a ground to depart from the assessment of child support as set out above, the next step for the tribunal is to consider whether it is just and equitable as regards the children and the parental parties to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act.  This in turn requires the tribunal to consider the matters set out in subsection 117(4) of the Act: which is discussed in the following paragraphs.[14]

Proper needs of the children

[14] The tribunal notes the Federal Magistrates Court case of Tyagi & Meares [2008] FMCAfam 886 which directs that in considering the matters set out in subsection 117(4) the section need not be ‘slavishly followed, each of the relevant factors listed in … should be considered’.

1. In determining the proper needs of the children it is necessary to have regard at a broad level to the manner in which the children are being, and in which the parents expect the children to be, cared for, educated or trained, and also any other needs of the children. No specific submissions were made at hearing in relation to this, other than for Ms Goodman to confirm that the children attend a private school and that since 2019 Mr Goodman has not made a contribution to those fees.  From what the tribunal can ascertain neither party is currently meeting the education costs. The tribunal notes that adjustments to the assessment were made pursuant to a previous change of assessment decision[15] and on the basis of the presented evidence and submissions; it concluded that there was no basis to further vary the assessment.

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

[15] COA decision dated 21 May 2018

1. In having regard to the income, earning capacity, property and financial resources of the children the tribunal must disregard any entitlement of the children or the carer entitled to child support to an income tested pension, allowance or benefit (subparagraph 117(7)(b)(ii) of the Act).

2. There was no evidence presented to the tribunal that the children have any income or unused earning capacity that needs to be taken into account in the child support assessment and as such the tribunal concludes that there is no basis for any adjustment pursuant to this consideration.

Other party receiving money, goods and property for the benefit of the children

1. Neither party made submissions in this regard nor as such the tribunal concludes there is no basis for any adjustment pursuant to this consideration.

The income, property and financial resources of each parent who is a party to the proceeding

1. In this matter the tribunal has concluded that the appropriate amount to be utilised in the assessment (which takes into account each of the party’s relevant income, financial resources and property) is $83,096 for Mr Goodman and for Ms Goodman her last relevant income tax return. 

2. According to his Statement of Financial Circumstances Mr Goodman describes himself as self-employed and earning gross income of $500 per week, as noted in evidence he stated he estimates his current weekly income to be about $650. He states he owns no assets. He states his liabilities include credit card debt, a [car loan] and rent owed to friends (total of $98,490).  He states that his weekly household costs total $1,598.  As noted, Mr Goodman stated that he receives financial support from his girlfriend, family and friends. He said he is currently working for a friend and does not pay the rent which he has stated to be $850 per week.

3. According to Ms Goodman’s Statement of Financial Circumstances her average weekly gross income is $900 per week. She does not own any significant assets (apart from a car). She estimates that the total household expense is about $1,200 per week. The tribunal noted that included in this amount is a cost of $260 per week for car registration, the tribunal concluded that this most likely represented an annual figure which would bring her total household expenses down to about $1,000 per week.

Earning capacity

1. A ground for departure exists if, in the special circumstances of the case, the 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 because of the earning capacity of either parent (subparagraph 117(2)(c)(ib)).  In written submissions Mr Goodman stated he believed that Ms Goodman had a greater earning capacity than that disclosed by her.

2. Subsection 117(7B) of the Act provides:

   (7B)         In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a) one or more of the following applies:

   (i)  the parent does not work despite ample opportunity to do so;

   (ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii) the parent has changed his or her occupation, industry or working pattern; and

   (b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i)  the parent's caring responsibilities; or

   (ii) the parent's state of health; and

   (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child

3. In this matter Ms Goodman’s evidence is that she established her business post separation in 2017 and has conducted the business since then in a similar manner apart from the recent interruptions caused by COVID-19. The tribunal was satisfied that there was no basis to consider earning capacity in any proposed departure.

The commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support himself or herself, or any other child or another person that the person has a duty to maintain

1. Whilst this was a ground raised by Mr Goodman as part of his change of assessment application, no specific submissions were made at hearing. The tribunal is satisfied taking into account the relevant costs of self-support utilised in the assessments and based upon evidence provided at hearing that neither party has extraordinary costs of self-support that are relevant to the assessment.

Any hardship that would be caused

1. As noted the tribunal can vary the rate of child support payable or it can vary some of the variables that are used in the administrative formula.  Mr Goodman says his financial circumstances have dramatically changed since May 2018. He cannot pay child support at the assessed rate as he does not have that level of income. Ms Goodman says that Mr Goodman has the financial resources to meet his child support obligations as demonstrated by his spending patterns and lifestyle.

2. In this matter it appears to the tribunal that is apparent that on the available evidence Mr Goodman had a change in his circumstances.  However there is also evidence that despite those changes he has been able to maintain meeting his weekly costs of expenditure.  On the financial information provided by Mr Goodman it is not entirely clear how this is occurring but on his own evidence it appears he receives financial support from a range of persons. It also appears that the deposits made into his personal bank account (particularly for the 2017/18 and 2018/19 financial years) if taken on an annualised basis, exceed the amounts he has declared in his personal income tax returns for those years.

3. The tribunal is proposing to make a determination which varies Mr Goodman’s ATI at $83,000 for the period commencing 8 May 2018 to 31 December 2020. Utilising this amount and Ms Goodman’s last relevant income tax return results in a weekly assessment of about $180 per week. The tribunal is satisfied that on the available evidence Mr Goodman has the capacity to meet this level of child support. Setting the assessment for this period reflects that there is evidence of changes in Mr Goodman’s circumstances from May 2018 as it appears that he is no longer earning the level of income at which he was previously assessed, however the tribunal is not satisfied that his financial resources are limited to the income amounts he has suggested in his evidence.  The tribunal also notes that Mr Goodman states he is currently working and it is apparent from his evidence that his costs of accommodation and many of his day-to-day expenses are being met by third parties.

4. The tribunal concluded that for all of the above reasons, in the special circumstances of this case, it was just and equitable to make a departure determination from the administrative assessment issued in accordance with the Act so that for the period 8 May 2018 to 31 December 2020 Mr Goodman’s adjusted taxable income is varied to $83,000. The assessment should utilise Ms Goodman’s ATI as assessed by the ATO for the last relevant year of income.

5. In coming to this view the tribunal seeks to clarify the following aspects. As noted the underlying administrative assessment relevant to this review are based upon two previous change of assessment decisions. Namely the decision made on 16 February 2018 to vary Mr Goodman ATI to $210,000 for the period 4 November 2017 to 31 October 2019 and then a subsequent decision made on 21 May 2018 to vary the assessment so that for the period 1 January 2018 to 31 December 2018 the annual rate payable by Mr Goodman is reduced by $2,356 and for the period 1 January 2019 to 31 December 2019 the annual rate payable by Mr Goodman is reduced by $2,474 (due to Reason 3 – school fees).

6. The original change of assessment decision directly relevant to this review as made on 23 July 2019 was set aside on objection. The objection decision under review however also ended the change of assessment decision made on 16 February 2018 to an earlier date (7 May 2018). The decision on objection also appears to have overlapped with part of the change of assessment decision made on 21 May 2018 (pertaining to the school fees) by determining that for the period 1 September 2019 to 31 December 2019 the annual rate of Mr Goodman is reduced by $826 (on account of school fees).

7. In deciding to set aside the decision and substitute a new decision in this matter, the intention of the tribunal is that the departure decision made on 16 February 2018 ends on 7 May 2018 and the departure decision made on 21 May 2018 (pertaining to school fees) is fully retained.

Issue 3 – Would it otherwise be proper to make a particular departure determination?

1. The final step is for the tribunal to determine whether it is ‘otherwise proper’ to make a particular departure determination.  Subsection 117(5) requires the tribunal to take into account whether the proposed departure is proper in the context of public interest and welfare expenditure of the community.  A prime objective of the legislation is that parents are obliged to support their own children to the extent of their real capacity and such obligation should be unnecessarily abrogated to the public welfare system.

2. According to her Statement of Financial Circumstances Ms Goodman is not in receipt of family tax benefit and the proposed departure from the administrative assessment will not impact upon any entitlement to government assistance.  In this case the tribunal finds that the requirements under paragraph 117(5)(a) of the Act are met.  The tribunal concludes that it is otherwise proper to depart from the administrative assessment.

DECISION

The tribunal sets aside the decision under review so that:

For the period 8 May 2018 to 31 December 2020 Mr Goodman’s adjusted taxable income is varied to $83,000.