Gunton and Zeal (Child support) - [2023] AATA 1659

Gunton and Zeal (Child support) [2023] AATA 1659 (26 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/AC022706
APPLICANT:  Ms Gunton
OTHER PARTIES:  Child Support Registrar
Mr Zeal

TRIBUNAL:Senior Member K Dordevic, Presiding
Member M Douglas

DECISION DATE: 26 April 2023
DECISION:

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

Mr Zeal’s adjusted taxable income is varied to:
o $30,736 for the period 3 March to 26 July 2021; and
o $46,547 for the period 27 July 2021 to 30 September 2023;
Mr Zeal’s self-support amount is decreased by $10,000 per annum from 11 January 2021 to 31 December 2025.

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 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

The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment in certain circumstances.
Ms Gunton and Mr Zeal are the parents of one child, [Child 1], born [in] February 2019. This case was registered with Services Australia – Child Support (Child Support) on 11 January 2021 and was collectable from that date. The child is recorded as being in Ms Gunton’s sole care.
On 1 April 2021 Ms Gunton lodged a departure application. On 17 July 2021 a senior case officer varied Mr Zeal’s adjusted taxable income to $36,387 for the period 3 March 2021 to 31 December 2022. Ms Gunton objected to that decision in a timely manner. On 19 October 2021 an objections officer decided to vary Mr Zeal’s adjusted taxable income to $30,736 for the period 1 April to 26 July 2021 and to $44,964 for the period 27 July 2021 to 31 December 2022. On 11 November 2021 Ms Gunton sought further review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). Following a directions hearing, the matter was heard on 8 April 2022. On the same day the Tribunal (differently constituted) set aside the decision under review and substituted a new decision varying the annual rate of child support payable by Mr Zeal to $7,500 for the period 1 April 2021 to 2 February 2024 (hereafter referred to as the first Tribunal decision).
Mr Zeal lodged an appeal with the Federal Circuit and Family Court. On 25 November 2022 the Court ordered, by consent, that the Tribunal’s decision of 8 April 2022 be set aside and that the matter be remitted to the Tribunal for re-determination according to the law.
A directions hearing was held on 28 February 2023. Directions were issued on the same day requiring compliance by 28 March 2023, with the hearing scheduled to take place on 18 April 2023. On 1 March 2023, in accordance with subsection 95J(1) of the Act, the Tribunal asked the Child Support Registrar to exercise its powers to request that the AUSTRAC provide transactions reports for all accounts in the name of Mr Zeal from 1 July 2021 to 28 February 2023. A response was received on 5 March 2023.
The hearing took place on 18 April 2023. Ms Gunton and Mr Zeal appeared by MS Teams audio. Mr Zeal was represented by [Ms A], barrister who was instructed by [Mr B], solicitor. The Tribunal also had the benefit of an interpreter in the Mandarin language. The Tribunal also considered the documentation provided by Child Support (folios 1 to 523), Ms Gunton (folios A1 to A95) and Mr Zeal (folios B1 to B85) and the response from the Child Support Registrar (folios C1 to C3). It is noted that [Ms A] advised that she did not have the benefit of hearing papers 1 to 170 and 433 to 523 at hearing. The Tribunal explained to [Ms A] that Mr Zeal was advised at the directions hearing to contact Child Support to secure a full set of hearing papers. [Ms A] did not seek to defer the matter on the basis that she did not have the benefit of a full set of hearing papers.
The Tribunal deferred the matter to undertake legal research and reached its decision on 26 April 2023.

ISSUES

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

RELEVANT HISTORY

The first Tribunal decision

As outlined above, by decision dated 8 April 2022, the first Tribunal varied Mr Zeal’s annual rate of child support to $7,500 per annum. The first Tribunal reached that conclusion on the basis of findings that Mr Zeal owns two properties in [Country 1] and lives in an unencumbered home. The first Tribunal also found that Ms Gunton also owns a property in [Country 1] in which she does not live. The first Tribunal concluded that it was likely that both parents were in receipt of undeclared rental income.
The first Tribunal next considered both parents’ stated personal and household expenses and extrapolated from this their likely adjusted taxable income. It concluded that Mr Zeal’s income and financial resources was in the vicinity of $82,500 and Ms Gunton’s adjusted taxable income was about $50,000 and, after applying a reduction on the basis that both parents were in receipt of loans from their parents, the first Tribunal determined that Mr Zeal had capacity to contribute $7,500 towards the child’s costs per annum and that such a liability would not cause him undue hardship given his income, property and financial resources.
At the hearing before the first Tribunal Ms Gunton gave her evidence, without Mr Zeal being present. Mr Zeal then gave his evidence without Ms Gunton being present. The first Tribunal did not put to each party the evidence provided by the other party, thereby neither party was appraised of the other party’s oral testimony and so were denied an opportunity to respond to the evidence provided and so were denied procedural fairness. It was on this basis that the Federal Circuit and Family Court ordered that the first Tribunal’s decision was infected by legal error.

CONSIDERATION

A ground for departure

Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure of the administrative assessment where the assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent because of either party’s income, property or financial resources.
The central issue in this matter is whether the administrative assessment accurately reflects Mr Zeal’s income, property and financial resources.
Ms Gunton contends that Mr Zeal has not made a full and frank disclosure of his financial resources, including his real property interests in [Country 1]. Ms Gunton acknowledged that she and Mr Zeal consented to the Federal Circuit and Family Court of Australia making orders on 17 March 2022 to adjust their interests in their property and that these orders included a notation that they each owned real estate in [Country 1] which they each asserted they hold on trust for their parents.[1] She said that she had no option but to agree to that notation in the property orders, as she had no funds available to continue to litigate the matter. She also highlighted this notation did not provide evidence of her agreeing that Mr Zeal owned property in [Country 1] on trust for his parents, but merely that this is what he asserted. She recalls that upon their marriage she and Mr Zeal visited three properties in [Country 1] which were “handed over” to Mr Zeal from his family; she clearly remembers they were 90, 120 and 100 m2 each, with one having a water leakage. When they were looking to purchase a property in Australia, she recalls a discussion about selling a property in [Country 1] to fund the purchase. She was not aware of Mr Zeal receiving rental income during their marriage, however she stressed that he controlled their finances and so she was simply not aware of his income sources. She speculates that there may be other properties; these three properties were able to be located as they were within the scope of the local housing authority. She went on to state that even though she has not provided certificates of ownership the documents she has provided in evidence, in [Country 1] at least, show Mr Zeal’s actual ownership of the properties. She contends that Mr Zeal’s capacity to meet his legal costs, in addition to his declared weekly expenses, is only possible if he is also in receipt of additional income that does not form part of his taxable income. She estimates that Mr Zeal’s income is in the vicinity of $80,000 per annum. It is on this basis that she seeks an annual child support payment of $16,200, which she submits is commensurate with the child’s actual costs.
[1] Insofar as these orders and notations pertain to the issues in this proceeding, they are extracted at [18]
From the date of registration of the child support assessment Mr Zeal was liable to pay $4,474 in child support per annum based on his provisional income of $52,638 and Ms Gunton’s 2020 adjusted taxable income of $4,955. From 3 March to 31 July 2021 Mr Zeal was liable to pay the minimum annual rate of $446 per annum based on his derived income of $11,627 until 11 July 2021 and from 12 July 2021 based on his 2020 nil income tax declaration and Ms Gunton’s 2020 adjusted taxable income. For the period 1 August 2021 to 31 October 2022 the annual rate of child support payable by Mr Zeal increased to $751 based on his 2021 adjusted taxable income of $30,736 and Ms Gunton’s 2021 provisional income of $5,094.
The Tribunal finds that Mr Zeal’s 2021 to 2022 taxable incomes were $30,736 and $46,547 respectively and these accurately reflect all income and financial resources derived by Mr Zeal in Australia. The Tribunal reached this conclusion on the following basis. In the 2021 financial year Mr Zeal was in receipt of income support payments and undertook casual fruit picking work from 29 October 2020 to 24 May 2021. He was then employed on a full-time basis as a factory worker at [Business 1] from 27 July 2021. The [Business 1] payslips in evidence indicate that Mr Zeal works on a full-time basis, in addition to undertaking regular overtime.[2] His year-to-date income as at 5 March 2023 was $35,859.[3] It is on this basis that the Tribunal is satisfied that Mr Zeal does not have an unused earning capacity.
[2] At folios B17 to B19 and B44 to B48
[3] At folio B48
On 17 March 2022 the Federal Circuit and Family Court of Australia ordered, noting the consent of the parents, that it was just and equitable to order the terms of the property settlement reached by consent. Notations attached to the consent order state that the parents married on 17 May 2017, separation took place sometime between 20 August 2019 and 3 January 2020 and they divorced on 14 June 2021.[4] It goes on to state that:
…
[4] At folio B23
I.Both parties are the registered proprietors of real estate in [Country 1] and both parties assert that such property is held on trust for their parents.
J. Both parties have agreed to resolve matters in accordance with these orders upon the basis that their interests in property in [Country 1], whatever they may be, are retained by each of them.
K. Both parties have agreed that they will not seek or make or pursue any claim for property or alteration of property interests in [Country 1] and that they will each accept the terms of this Order as being in full and final settlement of any claim for property or alteration of property interests whether in Australia, [Country 1], or any other jurisdiction.
BY CONSENT IT IS ORDERED
…
1.8That henceforth (subject to any specific terms of these Orders) the property in the following: (sic)
…
1.8.5     the Applicant’s interest in real property in [Country 1]; and
…
shall vest in …the Applicant absolutely free of all further claim, demand, right or entitlement of the Respondent.
…
1.9That henceforth (subject to any specific terms of these Orders) the property in the following:
…
1.9.4     the Respondent’s interest in real property in [Country 1]; and
…
shall vest in …the Respondent absolutely free of all further claim, demand, right or entitlement of the Respondent. (sic)
It was submitted that Mr Zeal seeks no variation to the decision made by the objections officer on 19 October 2021. Whilst Mr Zeal considers that varying his income to $44,964 from 27 July 2021 somewhat inflates his income, he accepts that the decision generally reflects his employment income, which he submits is his sole source of income. He contends that it is his employment income by which his capacity to support the child must be based. Any suggestion that he has property in [Country 1] or income from another source, including from rental properties in [Country 1], is refuted. Even if it was the case that he did hold properties in [Country 1], the consent orders reflect that any such property is held on trust for Mr Zeal’s parents. It was also pointed out that since the commencement of the child support case Mr Zeal’s income has increased and his current income reflects his earning capacity and he has no capacity to earn greater income, despite his formal qualifications. As to Ms Gunton’s assertion that he is in receipt of undeclared income Mr Zeal stated that he met his legal costs, totalling $46,809.25, during the period 29 March 2021 to 14 February 2023 largely from his savings[5] which is consistent with the bank statements in evidence.[6] His mother also transferred funds of about $177,000 to Ms Gunton in satisfaction of his liability to Ms Gunton following the parents’ property settlement.
[5] At folio B49
[6] At folio 144 on 5 May 2021 Mr Zeal held $31,215.53 in an [bank] account
It is not in dispute that sometime in 2017 Mr Zeal sold a property in [Country 1] and transferred about ¥800,000 which was applied to the purchase of the [Suburb 1] land and house build; the land was purchased for $279,000 and settlement occurred on 13 March 2018.[7] The Tribunal notes Mr Zeal withdrew [amount] from [bank in Country 1][8] on 1 September 2017 and [amount] on 9 October 2017[9] from [another bank in Country 1], the withdrawals being consistent with initial deposit and balance amounts outlined in the [Suburb 1] sale contract in evidence.[10]
[7] At folio 254
[8] At folio A73
[9] At folio A74
[10] At folios 440 to 441
Mr Zeal also testified that he borrowed a further $300,000 from his mother to complete the purchase and build of the home. He had about $30,000 remaining after the completion of the house build which he used to meet his legal expenses (as outlined above). He estimates that he has repaid his mother about $10,000 in the last two years in satisfaction of this loan. On this point the Tribunal drew Mr Zeal’s attention to the AUSTRAC report which indicates that during the period 9 August 2021 to 6 January 2023 he transferred $8,000 in four transactions out of the country.[11] At hearing Mr Zeal confirmed that these transfers evidenced repayments to his mother in respect of this loan.
[11] At folio C3
The Tribunal finds that Mr Zeal entered into a “house online signing contract” on 15 October 2013 for the property [Address 1].[12] There is also in evidence a registration of Transfer of House Ownership Application Form/Approval Letter dated 19 November 2007 located at [Address 2] listing Mr Zeal as the applicant and certificate presenter.[13]
[12] At folios A58 to A59
[13] At folios A56 to A57 and A60 to A61
Mr Zeal vehemently denies ownership of these two properties. He testified that his mother purchased the [Address 2] property in 2007 and registered it in his name. He stated that the purchase took place soon after he had graduated from university and he made no contribution to the purchase of the property. His mother then sold that property in 2011. He has not returned to [Country 1] for some years and so has been unable to secure documents to corroborate his evidence regarding the sale of this property.
As to the property in the [Address 1] Mr Zeal confirmed that he did sign the contract in 2013, but stressed that the purchase was funded by his mother. He explained that given his mother’s age (57 years at the time of purchase) he signed the contract on her behalf. He went on to state that Ms Gunton has not provided the certificate of ownership of the property, as this has not yet been issued. He went on to explain the policy in [Country 1] is that a certificate of ownership is only issued after the whole property development has been completed. In any event, when he returns to [Country 1] his mother, or he, can apply for ownership; whether his mother’s name would be placed on the certificate, or his own name, or their joint names “depends on what we want”. It was submitted that the arrangement was analogous to the purchasing of real property in Australia; he signed the purchase contract but, upon completion, his mother will be the registered legal owner of the property. His parents have lived in the property for 10 years, which suggests to the Tribunal a right to reside in the property without the benefit of a certificate of ownership.
Mr Zeal was unable to explain to the Tribunal’s satisfaction why his mother’s age prevented her from signing the [Address 1] contract or, given that his real property interests have been in contention since April 2021, he has not provided evidence that the [Address 2] property was sold in 2011. Furthermore, Mr Zeal’s own testimony was that, when he next returns to [Country 1] it will be determined whether he, or his mother, or both, will have the certificate of ownership issued in their name/s. He also testified that his parents currently live in the [Address 1] property and have done so since 2013. It is for these reasons that, on balance, the Tribunal prefers the documentary evidence over Mr Zeal’s assertions to the contrary and so finds that Mr Zeal’s assets include the [Address 1] and [Address 2] properties. There is no evidence that Mr Zeal is in receipt of rent or other income in respect of the [Country 1] properties or indeed what rent he could receive for these properties. His uncontested evidence is that his parents live in one of these properties. Nevertheless, there is the potential for Mr Zeal to receive rental income, at an indeterminate amount, and this is a relevant factor in determining the appropriate rate of child support to be paid: Abela and Abela (1885) FLC 92-568 and Bendeich and Bendeich (1992) FLC 92-355.
Furthermore, given Mr Zeal’s straitened financial circumstances it was open to him to divest himself of one of these properties and apply part of the proceeds towards the costs of the child. It is noted that in Cazet & Faulkner & Anor (SSAT Appeal) [2011] FMCAfam 1157, Halligan FM, as he was then, stated at [35]:
It may be that actual or imputed income from capital assets is included in arriving at a parent’s proper income figure on which to base the calculation of periodic child support. It may be that the level of capital assets compared to the actual or imputed income from them, together with any other income, is such that the calculation of a proper level of child support that ensures “that children have their proper needs met from reasonable and adequate shares in income, earning capacity, property and financial resources of both of their parents” requires that the capital directly influence the quantification of the amount of child support.

Child support is intended to meet the needs of a child. The Tribunal accepts that though Mr Zeal holds real property in both [Country 1] and Australia, he has low income. It is possible that Mr Zeal could restructure his affairs so that he may receive income from the properties in [Country 1], or divest himself of one or both properties and so increase his capacity to support the child. It is for all these reasons that the Tribunal concludes that Mr Zeal’s financial resources are not properly reflected in the child support assessment, and so there are special circumstances such that the application of the administrative assessment would result in an unjust and inequitable determination of child support payable. The Tribunal concludes that the ground provided for in subparagraph 117(2)(c)(ia) of the Act is established.

Just and equitable

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 child, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula assessment.
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. This means that Mr Zeal and Ms Gunton have the primary duty to financially support the child. Neither identified anyone, apart from the child [Child 1], whom they have a legal duty to maintain.
Ms Gunton’s 2021 and 2022 notices of assessment indicate that her taxable incomes were nil. Ms Gunton provided two Statements of Financial Circumstances dated 24 November 2021 and 20 March 2022. In both she states that she is unemployed and her only source of income is child support: $120.56 per week in 2021 and $60 per week in 2022. At hearing she explained that due to her caring responsibilities she has not returned to the workforce since returning to live in [Country 1]. Given Ms Gunton’s historical earnings, the Tribunal is not satisfied that a major purpose of her decision not to work was to affect the administrative assessment.
Ms Gunton reports that she lives with her parents, whose average weekly income is $580. In 2021 her assets included real estate valued at $22,650, savings of $25.12, a motor vehicle valued at $5,500 and household contents and other personal property valued at $425. Her liabilities were a personal loan of $65,900 and a short-term loan of $480. She noted a financial resource of $300 following the sale of a ring and necklace. In the 2022 Statement she declared a real estate holding valued at $77,000 (explaining at hearing that this represents her third share of the home that she bought with her parents), savings of $56 and household contents of $300. Her liabilities included a mortgage of $40,000, a personal loan of $62,296 and credit card debt of $11,760. In 2021 she reported total personal expenditure of $503 per week in credit card repayments; this reduced to repayments of $349 per week in 2022. In 2021 Ms Gunton declared average weekly expenses of $889.10, of which $514.45 related to her care of the child. In 2022 her declared household expenses had increased to $1,192, of which $641 related to her care of the child. At hearing Ms Gunton explained that the claimed rental expense of $400 per week was not in fact a cost she incurred; instead she made the declaration on the basis that she anticipated renting out her property and renting another cheaper property; this never eventuated as she could not find a property to rent that was less than what she anticipated she could receive in rent from her property. It was noted that Ms Gunton declared weekly education expenses of $159 and $39 in holidays. Given the age of the child and that he is not in formal day care, the Tribunal is not persuaded that these are necessary expenses for the welfare of the child.
Mr Zeal and Ms Gunton both testified that they are in good health and have no out of the ordinary costs that would render the administrative assessment unfair. Ms Gunton reports that the child is in good health. There is also no evidence to suggest that the child has independent income, property or financial resources or an unexercised earning capacity or that either parent has received money, goods or property for the benefit of the child that would render the administrative assessment unfair or unjust. The Tribunal accepts Ms Gunton’s evidence that she had enrolled the child into pre-school but given recent outbreaks of influenza in her local area she has elected not to send the child to pre-school.
Mr Zeal provided two Statements of Financial Circumstances dated 23 November 2021 and 13 March 2023. His employment at [Business 1] has continued, with his average weekly income increasing from $850 per week in 2021 to $860 per week in 2023. It is noted that this is his base wage, but he frequently works overtime. In 2021 his assets included his home valued at $815,000, savings of $32,000, a motor vehicle valued at $25,000, superannuation of $3,000 and household assets valued at $10,000. In the 2023 Statement he declared that his savings and motor vehicle had reduced to $13,678 and $20,000 respectively and his superannuation balance was now $10,453; otherwise, his assets had remained constant. In both statements he had declared a liability to his mother of $300,000. In 2021 he reports total personal expenditure of $253 per week, made up of an income tax expense of $110, superannuation of $77 and child support liability of $66. In his 2023 Statement he declared $183 per week, made up of an income tax expense of $120 and a child support liability of $63. In 2021 Mr Zeal declared average weekly expenses of $1,053, which included household expenses of $553 and $250 in repayments to his mother and estimated $250 per week in legal fees. The Tribunal is satisfied that some of the expenses listed by Mr Zeal overstate his actual household costs and in particular his personal loan repayments. In 2023 Mr Zeal declared household expenses of $465 and that in addition he repays $250 per week to his mother.
It is difficult to reconcile Mr Zeal’s testamentary evidence and his declarations in these statements regarding the personal loan to his mother. His Statements of Financial Circumstances indicate that he has not made any repayments in respect of the personal loan from 2021 to date,[14] though this is contradicted by his testimony at hearing where he states that he transferred $8,000 out of the country during the period 9 August 2021 to 6 January 2023 (515 days or 73 weeks) in satisfaction of that loan. At hearing Mr Zeal confirmed that he is not repaying the loan at $250 per week; indeed, if that was the case, he should have repaid $18,000 over the same period. Instead, he appears to be repaying it at about $110 per week. There is no loan agreement or repayment plan in evidence which suggests that Mr Zeal is required to repay $250 per week (or any other amount). Furthermore, there is nothing to suggest that this loan is immediately repayable. In any event this loan repayment does not take precedence over his duty to support the child.
[14] Folios B6 and B40
The Tribunal finds that Mr Zeal owns an unencumbered property in Australia, notwithstanding the fact that he has testified that the purchase of the property was funded by an undocumented personal loan between him and his mother. It is on this basis that the Tribunal is satisfied that Mr Zeal has the benefit of living in an unencumbered property, which significantly reduces his necessary self-support expenses.
The documentary evidence reveals that Mr Zeal purchased the [Address 1] and [Address 2] properties and for the reasons earlier provided the Tribunal finds that Mr Zeal presently owns these properties. In these protracted child support proceedings Mr Zeal has not provided any evidence to suggest that he does not hold any interest in the [Address 1] and [Address 2] properties. There is also no evidence to suggest that he receives any income from these properties, notwithstanding the fact that his real estate holdings may enhance his capacity to support the child. It is not in dispute that his parents reside in one of these properties and there is no evidence to suggest that he could replace them with tenants, and if he did, what rental income he could receive. In circumstances where there is no evidence to suggest that Mr Zeal does receive rental income or other financial resources from the [Country 1] properties, the Tribunal was not persuaded that it was just or equitable to depart from the administrative assessment on this basis.
The Tribunal has already determined that Mr Zeal has a limited employment income. Ms Gunton registered the child support liability on 11 January 2021 and lodged her departure application on 1 April 2021. From 3 March to 11 July 2021 Mr Zeal was liable to pay an annual rate of $446 based on his 2020 derived income of $11,627 and later his 2020 declared income of $0. However, it is clear that in the 2021 financial year Mr Zeal’s taxable income was $30,736. The Tribunal is satisfied that it is appropriate to vary Mr Zeal’s adjusted taxable income to $30,736 from 3 March 2021, the date from which he was liable to pay the minimum annual rate. In the circumstances where Ms Gunton lodged her departure application within 28 days of this change to the assessment, the Tribunal is satisfied that departing from the administrative assessment on this basis does not place Mr Zeal in a position of undue hardship. This aspect of the decision will create arrears of $35, given that Mr Zeal has paid his child support liability consistently with the objection decision under review.
The Tribunal is satisfied that it is appropriate that from the date on which Mr Zeal commenced his employment with [Business 1] (27 July 2021) his 2022 adjusted taxable income of $46,547 should be applied to the administrative assessment. To find otherwise would result in the child not receiving adequate financial support, commensurate with Mr Zeal’s capacity. The Tribunal is satisfied that Mr Zeal’s adjusted taxable income should apply to the assessment until 30 September 2023. The Tribunal is satisfied that from 1 October 2023 it is likely that Mr Zeal’s 2023 adjusted taxable income will be accurately reflected in the administrative assessment. This aspect of the decision will create arrears of about $390 when compared to the decision under review.
Mr Zeal lives in an unencumbered property, notwithstanding the fact that he has historically repaid on average $110 per week to his mother in respect of a personal loan she provided to partly fund the property. The Tribunal is satisfied that, as a consequence, Mr Zeal’s self-support costs are significantly reduced, even when taking into account his personal loan repayments. His most recent Statement of Financial Circumstances suggests he has about $100 remaining each week after meeting this repayment cost and his necessary expenditure based on his earnings net of overtime. Reducing Mr Zeal’s self-support amount by $10,000 (about $200 per week) to reflect the provision of an unencumbered home will increase his child support liability from about $2.05 per day to $7.05 per day ($751 to $2,577 per annum) whilst his 2021 adjusted taxable income is applied to the assessment. Amending his self-support amount from 27 July 2021, when applying his 2022 adjusted taxable income to the assessment, would see his child support liability increase from $8.60 to $13.33 per day (about $1,700 per annum). Amending the assessment by reducing Mr Zeal’s self-support amount by $10,000 per annum from 11 January 2021, the date the administrative assessment began (less than three months before Ms Gunton lodged her departure application) up until the date of hearing would create arrears of about $3,950. As at 7 March 2023 Mr Zeal’s child support account was in credit of $1,823.86. The Tribunal is satisfied that Mr Zeal can meet these arrears (and the other arrears outlined above) and this will not place him in a situation of financial hardship, particularly given his necessary expenses and income and his capital holdings. Furthermore, these funds are necessary for Ms Gunton to adequately support the child. It is appropriate to depart from the assessment on this basis until 31 December 2025. This will provide certainty to the parties and minimise the need for repeat proceedings.
The Tribunal is satisfied that the administrative assessment is unfair given Mr Zeal’s income, property and financial resources. This results in an unjust and inequitable level of child support given the circumstances of each parent. For all these reasons it is just and equitable to depart from the administrative assessment.

Otherwise proper

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. Neither Ms Gunton nor Mr Zeal are currently in receipt of income-tested benefits. Departing from the administrative assessment will have no impact on the apportionment of financial responsibility between the parents and the community.
The determination is otherwise proper.

DECISION

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

Mr Zeal’s adjusted taxable income is varied to:
o $30,736 for the period 3 March to 26 July 2021; and
o $46,547 for the period 27 July 2021 to 30 September 2023;
Mr Zeal’s self-support amount is decreased by $10,000 per annum from 11 January 2021 to 31 December 2025.