Hartwell and Thomas (Child support)

[2018] AATA 2416

Hartwell and Thomas (Child support) [2018] AATA 2416 (6 June 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012896

APPLICANT:  Mr Hartwell

OTHER PARTIES:  Child Support Registrar

Ms Thomas

TRIBUNAL:  Member J Cuthbert

DECISION DATE:  6 June 2018

DECISION:

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment by varying:

·         Mr Hartwell’s adjusted taxable income to $110,000 from 26 May 2017 until the child support assessment for [Child 2] ends;

·         Ms Thomas’s adjusted taxable income to $65,000 from 28 May 2018 to 30 September 2019.

CATCHWORDS
Child support - Departure determination - Income and financial resources of parents - Business income - Earning capacity - 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

HISTORY

1. This review concerns an application for a change to a child support assessment made by Ms Thomas on 26 May 2017.

2. Ms Thomas and Mr Hartwell are the parents of [Child 1] (born 2000), [Child 2] (born 2002) and [Child 3] (born 2006). There has been a child support assessment in place, made by the Department of Human Services – Child Support since 2015. The child support assessment is currently based on Ms Thomas having care percentages of 100% for [Child 2] and [Child 3]. For a period from January 2017 to February 2018 [Child 2] was in the care of Mr Hartwell. Mr Hartwell had a care percentage of 14% for [Child 3] until 15 March 2018. The assessment for [Child 1] ended on 6 May 2018.

3. A departure decision made by the Department on 11 February 2016 set Ms Thomas’s adjusted taxable income and increased the annual rate of child support payable by Mr Hartwell to 14 December 2016. Mr Hartwell’s application for an extension of time to lodge an objection to that decision was refused by the Department on 29 November 2016. His application to this tribunal for a review of that decision was dismissed on 6 March 2017.

4. From 23 January to 30 June 2017 Mr Hartwell was assessed to pay child support of $1,718 a year based on his 2015/16 adjusted taxable income of $33,677 and an estimated income of $13,992 for Ms Thomas. The assessed liability reduced to nil for the period 1 July to 3 July 2017 and then reverted to $1,718 until 28 February 2018.

5. On 26 May 2017 Ms Thomas applied to the Department for a departure from the assessment on the grounds that Mr Hartwell’s income, property and financial resources were not properly reflected in the assessment. Mr Hartwell lodged a cross-application raising issues about Ms Thomas’s income, property, financial resources and earning capacity and the costs he has for his own support.

6. On 27 July 2017 a decision was made to depart from the child support assessment by varying Mr Hartwell’s adjusted taxable income to $78,000 from 26 May 2017 to 25 May 2019.

7. Ms Thomas lodged an objection to that decision. On 31 October 2017 her objection was allowed. The objections officer set aside the earlier decision and decided to depart from the child support assessment by varying:

   ·         Mr Hartwell’s adjusted taxable income to $106,633 from 26 May 2017 until the assessment for [Child 2] ends; and

   ·         Ms Thomas’s adjusted taxable income to $25,984 from 26 May 2017 to 31 October 2018.

8. On 5 November 2017 Mr Hartwell lodged an application for a review of the objection decision with the tribunal.

9. The matter was heard on 6 June 2018. Mr Hartwell and Ms Thomas both attended the hearing by telephone. The Child Support Registrar was not represented at the hearing. The tribunal had access to the statement and documents provided by the Department (folios 1 to 488 and 489 to 570); documents provided by Mr Hartwell (folios A1 to 164 and A165 to A174); and documents provided by Ms Thomas (B1 to B52 and B53 to B61).

CONSIDERATION

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided and the income of each parent.

2. A liable parent or a carer may apply to the Child Support Registrar (the Registrar) for a determination to depart from the child support assessment under Part 6A of the Assessment Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process. The Registrar, and the tribunal standing in place of the Registrar, must be satisfied:

   (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;

3. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Assessment Act. 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 in section 98S of the Assessment Act. That section permits a range of determinations, including varying the annual rate of child support payable or a parent’s adjusted taxable income.

Issue One – Does a ground exist to depart from the administrative assessment?

1. Ms Thomas sought a departure from the administrative assessment on the ground that Mr Hartwell’s income, financial resources and property were greater than reflected in his adjusted taxable income.

2. The grounds for departure are set out in subsection 117(2) of the Assessment Act. Subparagraph 117(2)(c)(ia) provides as a ground for departure:

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

   …

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

3. The term ‘special circumstances’ is not defined in the Assessment Act. In Gyselman and Gyselman (1992) FLC 92-279, the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.

Mr Hartwell’s income, property and financial resources

1. Mr Hartwell is a financial adviser. He is the sole director and shareholder of [Company 1] which has operated a [specialist] business since 2015. [Company 1] operates from [Suburb 1] in [State 1], but since early 2018 has also had an office in [Suburb 2] in [State 2]. Mr Hartwell said that he plans to close the [Suburb 1] office when the current lease ends on 30 June 2018.

2. Mr Hartwell’s 2016/17 adjusted taxable income of $36,564 is made up of wages of $19,864 and director’s fees of $17,000, less work related expenses claimed of $300. Recent payslips provided show that Mr Hartwell is paid a gross income of $1,486 a fortnight (a net amount of $1,300). However, the bank statements which show that a ‘drawdown’ of $1,500 is paid to Mr Hartwell each fortnight are not consistent with the payslips. The payslips provided do not indicate that Mr Hartwell is paid an hourly rate.

3. There are currently four employees of [Company 1] apart from Mr Hartwell. His partner, [Ms A], has been employed as a [occupation 1]since August or September 2015. He said that she runs the offices; liaising with [stakeholders]. [Company 1] also employs a customer service officer at both offices and has a part-time marketer on contract in [Suburb 1]. Mr Hartwell told the tribunal that the full-time customer service officer is paid about $36,000 a year.

4. Mr Hartwell told the tribunal that he and [Ms A] started living together in January 2018 but separated shortly after the directions hearing in April 2018. He said that she intends to leave [Company 1] from 30 June 2018. However, Mr Hartwell also told the tribunal that [Ms A] has said that she will give a month’s notice. Mr Hartwell said that he would be looking to employ another [person for occupation 1] and would talk to his accountant about the rate of pay to be offered. He said that he has not yet advertised to replace [Ms A].

5. Mr Hartwell told the tribunal that [Ms A] had previously worked for [employment history deleted]. He said that since 2015 she may have completed two subjects towards a [Profession 1] certificate.

6. Bank statements show that [Ms A] is paid net wages of $3,000 a fortnight. Mr Hartwell said that the salary had been decided in consultation with his accountant. Her PAYG summary shows that she received taxable income of $71,278 from [Company 1] in 2016/17. However, Mr Hartwell said that [Ms A] will receive taxable income of $56,000 to $57,000 from [Company 1] in 2017/18 and that the remainder of the payments she received is the return of capital that she has put into the business. The tribunal notes that the balance sheet for [Company 1] for 2016/17 shows that [Ms A] had invested $10,000 in the company and bank statements indicate that she had made further loans.

7. The tribunal notes that [Ms A] had no previous experience in the [Profession 1] sector and that her wage does not appear to have been set in accordance with an hourly rate. The tribunal also has no evidence to support Mr Hartwell’s statement that [Ms A] will no longer be working for [Company 1]. The tribunal finds that the arrangement whereby [Ms A] is employed by [Company 1] is not at arms’ length and provides an opportunity for Mr Hartwell to alienate some of his income he would otherwise receive. The tribunal finds that the ability to do this provides him with a financial resource.

8. The tribunal notes that the expenses of [Company 1] and Mr Hartwell’s personal expenses are intermingled. [Company 1] makes payments for expenses incurred on Mr Hartwell’s credit card. His credit card statements for the four month period December 2017 to March 2018 show total spending of $18,141 (or about $54,000 a year). Despite his attempts to assure the tribunal that his accountant is able to identify which are business or private expenses the tribunal was not convinced particularly as Mr Hartwell suggested that all claims for restaurants, cafes and fast food related to business expenses incurred when meeting clients. The credit card statements for an account held by [Company 1] also include private expenses for monies paid to a jeweller, a hairdresser and clothing stores as well as cash withdrawals. The tribunal finds that it is likely that some of Mr Hartwell’s personal expenses are claimed as business expenses by [Company 1].

9. In 2015/16 [Company 1] made a profit of $14,426. In 2016/16 the profit was $26,821. Although Mr Hartwell told the tribunal that it was not possible to distribute profits to him as the business needs a cash flow in order to operate, the tribunal notes that in the 2016/17 year [Company 1] paid $20,652 to Mr Hartwell by way of a return of shareholder advances. This indicates that at least that amount could have been paid to him by way of a dividend.

10. Depreciation of $13,392 was claimed in 2016/17. Mr Hartwell acknowledged that no capital items had been purchased in that year, or since 1 July 2017, that will not be able to be written off directly. The tribunal finds that were it not for the depreciation claimed in relation to prior year expenses, [Company 1] would have made a profit of $40,213 in 2016/17.

11. Mr Hartwell told the tribunal that the business figures are tracking the same for 2017/18. The tribunal notes that business activity statements provided indicate sales of $201,768 for six months of the current financial year, similar to the turnover of $397,328 in 2016/17.

12. [Company 1] was previously paying rent for a property in [State 1] in which Mr Hartwell lived. In 2016/17 [Company 1] claimed an expense of $37,738 for rent, $23,178 of which was paid for the [Suburb 1] office. [Company 1] now pays rent of $400 a week for the property in [State 2] where he is living. The tribunal finds that the payment of rent by [Company 1] is a significant financial resource for Mr Hartwell.

13. The premises rented by [Company 1] in [State 2] were purchased in January 2018 by a superannuation fund set up by Mr Hartwell and [Ms A]. The property was purchased for $230,000. Mr Hartwell said that he put in $27,000 from his previous superannuation fund and [Ms A] contributed $87,000. A loan of $126,000 was obtained through [a financial provider]. Mr Hartwell told the tribunal that [Company 1] is paying rent of $1,312.50 a month according to a market value provided by his solicitor.

14. Mr Hartwell uses a [Car 1] purchased by [Company 1] on hire purchase for $40,425. In 2016/17 he made a fringe benefits tax contribution of $3,925. Mr Hartwell said he estimated that his private use of the vehicle would be about 20%. However, he acknowledged that he has never maintained any records. He said that the vehicle usually travels about 64,000 kilometres a year. [Company 1] also owns a [Car 2] which was purchased on hire purchase for $24,672. Mr Hartwell said that the [Car 2] is garaged at the business premises and is used by the employees, including [Ms A].

15. The tribunal notes that in 2016/17 [Company 1] claimed motor vehicle running expenses totalling $21,540 as well as interest of $28,211, some of which would have related to the finance on the two vehicles. The tribunal finds it likely that the provision of a vehicle for his private use provides Mr Hartwell with a far greater benefit that any fringe benefits tax contribution that he makes.

16. Mr Hartwell stated that [Company 1] may also have paid for the electricity in the house that was rented in [State 1]. He said that [Company 1] has also been paying for the landline at his home and pays for his mobile telephone.

17. It is not possible to make a precise calculation of Mr Hartwell’s income and financial resources due to the intermingling of expenses between him and [Company 1] and the income paid to [Ms A]. The tribunal finds that Mr Hartwell has income and financial resources available to him from the operation of [Company 1] far greater than suggested by his adjusted taxable incomes.

18. After consideration of the income and expenses of [Company 1] and Mr Hartwell the tribunal considers that he has income and financial resources similar to a person with an adjusted taxable income of at least $110,000 a year, including profits that could have been distributed and financial resources provided by way of the provision of a motor vehicle, the payment of rent, electricity and telephone costs and other private expenses. The tribunal does not accept Mr Hartwell’s suggestion that his total income and financial resources (including the rent paid on his behalf and the private use of a vehicle) are equivalent to an adjusted taxable income of about $70,000 a year.

Mr Hartwell’s earning capacity

1. The tribunal also considered Mr Hartwell’s earning capacity and the three criteria in subsection 117(7B) of the Assessment Act. At the time of his separation from Ms Thomas, Mr Hartwell was working as an employed financial adviser on a salary of $80,000 a year, plus use of a motor vehicle. While he left that job and started to operate [Company 1] shortly after the separation, the tribunal notes Ms Thomas’s evidence that it had been his plan to do so and that he had previously suggested that she could work for the business. Mr Hartwell also stated that his employer had wanted him to relocate to [another area]. The tribunal accepts that he did not resign from his job in order to affect the child support assessment which had started the month previously.

2. However, Mr Hartwell told the tribunal that when [Child 2] came to live with him he reduced his hours to between 20 and 30 hours a week. He said that [Child 2] (who was 14 years old at the time) was having problems and needed close attention. He said that he did not seek counselling or any other treatment for [Child 2]. Mr Hartwell said that he had also been diagnosed with depression and anxiety. However, he said that once diagnosed he had chosen not to pursue any medical treatment. The tribunal has no medical evidence to support Mr Hartwell’s contention that his ability to work has been affected by his caring responsibilities for [Child 2] or his own health.

3. Mr Hartwell also suggested that his ability to work is now affected by the need for ongoing professional development. However, the tribunal has no evidence that the level of study required would affect Mr Hartwell’s ability to work on a full-time basis.

4. The tribunal finds that Mr Hartwell has altered his work pattern so that he is working less than full-time hours. The tribunal finds that the decision to work less than full-time hours is not justified on the basis of his caring responsibilities, health, or the requirements of ongoing professional development. The tribunal is not satisfied that the decision Mr Hartwell has made to work less than full-time hours was not made in order to affect the child support assessment. The tribunal finds that the three criteria of subsection 117(7B) of the Assessment Act are satisfied and as a consequence the tribunal is able to determine whether Mr Hartwell has any unused earning capacity. At the hearing he told the tribunal that, if he was working full-time as a financial adviser, he could earn between $70,000 and $120,000 a year.

Do the existing assessments provide a result which is unjust and inequitable?

Ms Thomas’s income, property, financial resources and earning capacity

1. In order to determine whether Mr Hartwell’s income, property and financial resources result in child support assessments which are an unjust and inequitable determination of the financial support he should provide for the children, the tribunal considered whether Ms Thomas’s adjusted taxable income is indicative of her income, property, financial resources and earning capacity.

2. Until very recently Ms Thomas has been in receipt of newstart allowance as well as family tax benefit (which is not taken into account in the calculation of child support). Her 2016/17 taxable income was $11,214. Ms Thomas provided the tribunal with a copy of her notice of assessment but not a copy of her income tax return, as directed. However, on the evidence she provided the tribunal is satisfied that her income was less than the self-support amount used in the child support assessment formula.

3. Ms Thomas has a [business] which she runs under the name [Business name deleted]. The tribunal accepts her evidence that although she advertised the business in March 2017 as part of a TAFE course, she did not commence operations until the last half of 2017. She told the tribunal that she has not earned any income from the business since March 2017 after [Child 2] moved back to her home and she no longer has a room set up for clients. She provided a copy of a report showing EFTPOS sales totalling $576 from 1 July 2017 to 25 April 2018. Ms Thomas denied Mr Hartwell’s assertion that she also accepted cash. The tribunal found her explanation that she insisted on EFTPOS payments in order to identify herself as a legitimate business to be plausible.

4. Ms Thomas told the tribunal that she had started a full-time job as an [occupation] with [Company 1] on 28 May 2018. She said that she is on probation but that she expects to earn a gross amount of $1,250 a week (about $65,000 year). She said that she also had part-time work for three weeks in October and November 2017, earning a net amount of about $460 a week.

1. The tribunal accepts Ms Thomas’s evidence that she has had no income from the sale of a book that she wrote a number of years ago.

2. Ms Thomas has savings of about $150,000, a car and household contents as well as a small amount of superannuation. The tribunal finds that there is no evidence that she has any other financial resources or property of significant value which is capable of providing her with any significant income.

3. Mr Hartwell suggested that Ms Thomas had potential to earn more income after separation. He did not dispute that she was not in paid employment when they separated in early 2015. Ms Thomas provided evidence of job applications for both full-time and part-time work. The tribunal accepts her evidence that she had been working with a job service provider and has been trying to find work or set up her own business in order to earn income.

4. In August 2017 Ms Thomas enrolled in a Diploma of [Study details deleted] with [College 1]. Ms Thomas told the tribunal that she has almost completed the course which is full-time but is conducted online. She said that she spends perhaps 15 to 21 hours a week on her studies.

5. The tribunal finds that the three criteria in subsection 117(7B) of the Assessment Act are not satisfied in Ms Thomas’s case as the tribunal accepts that Ms Thomas has been actively seeking work and that the decisions she has made to work part-time for a period and to start a business were not motivated by a desire to affect the child support assessment. As a consequence the tribunal is unable to determine that Ms Thomas has any unused earning capacity.

Are there special circumstances for which to depart from the assessment?

1. Taking into account the objects of the Assessment Act (section 4), including that children should share in the standard of living of both their parents, the tribunal finds that the income and financial resources of Mr Hartwell provide special circumstances for which to depart from the assessment. Mr Hartwell would be liable to pay far more child support if the assessment was based on his income and financial resources rather than his adjusted taxable income. The tribunal finds that the assessment is unfair to Ms Thomas and to the children for that reason, and that a ground is established to depart from the assessment under subparagraph 117(2)(c)(ia) of the Assessment Act.

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

1. As the tribunal is satisfied that there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable to depart from the assessment having regard to the matters set out in subsection 117(4) of the Assessment Act.

2. Section 3 of the Assessment Act states that it is the duty of both parents to financially support their children. In accordance with the objects set out in section 4 of the Assessment Act, the children should receive a proper amount of financial support from their parents in accordance with their capacity to contribute.

The children’s needs

1. [Child 1] is now 18 years old, [Child 2] is 16 and [Child 3] is 11. [Child 1] left school at the end of 2016 and was enrolled at TAFE in the first half of 2017. She has since obtained an [apprenticeship].

2. [Child 3] is in Year 6 at a public primary school in 2018 and is not yet enrolled to attend a high school in 2019. Ms Thomas said that she may go to a public high school.

3. [Child 2] attends [School 1] and is in Year 10 in 2018. In 2017 Mr Hartwell enrolled him at [School 2] and provided evidence to the Department that he paid fees of $1,900 in May and June 2017. However, Mr Hartwell did not provide any evidence of the fees payable for 2017 as directed by the tribunal. The total term fees payable by Ms Thomas to [School 1] for 2018 are $1,046 after a significant fee reduction. She told the tribunal that she pays $49.85 a fortnight. Mr Hartwell told the tribunal that he considered that the school fees paid by either parent should not affect the assessment. Ms Thomas said that in light of the fee relief that she receives she was not looking for any assistance from Mr Hartwell in relation to the fees paid for [Child 2]. In the circumstances the tribunal finds that it would not be just and equitable to make any variation to the assessment due to the cost of [Child 2]’s attendance at a fee-paying school.

4. Apart from the costs mentioned above, the tribunal is satisfied that the costs related to the care of the children are not out of the ordinary range of expenses for children of their ages.

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

1. The tribunal has no evidence that [Child 2] and [Child 3] have any income, property or financial resources or any unused earning capacity that needs to be taken into account in the child support assessment.

2. [Child 1] commenced her apprenticeship on 24 July 2017. The tribunal accepts that she had worked [on] a casual basis from March 2017. Payslips provided by Ms Thomas show that [Child 1] has a current income of $22,152 a year and is working 21 hours a week (including attendance at TAFE for seven hours a week). At 13 April 2018 she had earned $7,157.

3. Mr Hartwell alleged that [Child 1] also receives cash from her employer as well as youth allowance. He suggested that the cash received was the reason [Child 1] now has a debt with Centrelink. The tribunal found Ms Thomas’s explanation, that [Child 1] has a Centrelink debt as she misreported her weekly earnings as fortnightly earnings and not due to the receipt of cash, to be plausible.

4. The tribunal is satisfied that although [Child 1] was working prior to the assessment for her ending on 6 May 2018, she was not in a position to support herself and was reliant on the support of Ms Thomas. The tribunal finds that the level of income earned from her employment, just over $7,000 from 1 July 2017 to 13 April 2018, and any youth allowance received should not affect the child support assessment.

The parents’ duty to support others

1. The tribunal finds that Mr Hartwell and Ms Thomas do not have a duty to support any other person apart from [Child 2] and [Child 3] (and previously [Child 1]).

The income, property, financial resources and earning capacity of Ms Thomas

1. The income, property, financial resources and earning capacity of Ms Thomas have been discussed above.

Ms Thomas’s necessary commitments

1. Ms Thomas lives with the children in a house she rents for $380 a week. The tribunal is satisfied that Ms Thomas has previously relied on her savings to meet the reasonable and necessary expenses that she has for herself and the children of about $876 a week. She now has a full-time job and is also receiving board of $100 a week from [Child 1]. The tribunal notes that although [Child 1] now shares the household expenses, the board paid would not cover her share of expenses for rent, food, utilities, etc.

The income, property, financial resources and earning capacity of Mr Hartwell

1. The income, property, financial resources and earning capacity of Mr Hartwell have been discussed above.

Mr Hartwell’s necessary commitments

1. Mr Hartwell’s rent is paid by [Company 1]. He claims to live alone, after living with [Ms A] from January to April 2018. His bank statements and other evidence he provided do not indicate that he is unable to meet his reasonable and necessary costs as well as some discretionary expenses.

Terms and period of departure

1. Ms Thomas made her departure application on 26 May 2017 more than five months after the previous departure from the assessment ended on 14 December 2016. For that reason the tribunal finds that it would be just and equitable to depart from the assessment by varying Mr Hartwell’s adjusted taxable income from 26 May 2017 and not from an earlier date.

2. Ms Thomas expressed a desire that any departure should affect the assessment for as long a period as possible. Mr Hartwell stated that he thought the matter should be assessed annually. To provide some certainty to the parties in light of Mr Hartwell’s income and financial circumstances and his earning capacity, the tribunal finds that it would be just and equitable to depart from the assessment by varying Mr Hartwell’s adjusted taxable income to $110,000 from 26 May 2017 until the child support assessment for [Child 2] ends.

3. The tribunal finds that it would also be just and equitable to depart from the assessment by varying Ms Thomas’s adjusted taxable income to $65,000 from 28 May 2018 when she started her full-time job until 30 September 2019 after which her adjusted taxable income for the 2018/19 year (which should reflect her current employment) can be used.

4. The tribunal finds that the proposed variations result in a child support liability (about $400 a week from 28 May 2018) which reflects a reasonable level of support for the children given the differences between their parents’ incomes, property and financial resources.

Hardship

1. The child support payable on the basis of the decision proposed should assist Ms Thomas to meet [Child 2] and [Child 3]’s proper needs.

2. On 1 December 2017 Mr Hartwell owed child support arrears of just over $3,000. The proposed decision will result in an increase to the arrears. However, in light of the findings made about his income and financial resources, the tribunal finds that the proposed decision will not result in hardship to Mr Hartwell.

Issue Three – Is it otherwise proper to depart from the administrative assessment?

1. The final step for the tribunal to undertake is to determine whether it is ‘otherwise proper’ to depart from the administrative assessment. Subsection 117(5) of the Assessment Act requires the tribunal to take into consideration the following matters:

   (a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

   (b)    the effect that the making of the order would have on:

   (i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or

   (ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

2. The child support law recognises that each parent has a primary duty to maintain their children. Ms Thomas receives family tax benefit. The tribunal is satisfied that it is otherwise proper to depart from the administrative assessment in this matter and to properly reflect both parents’ income and financial resources.

DECISION

The tribunal sets aside the decision under review and substitutes a decision to depart from the child support assessment by varying:

·         Mr Hartwell’s adjusted taxable income to $110,000 from 26 May 2017 until the child support assessment for [Child 2] ends;

·         Ms Thomas’s adjusted taxable income to $65,000 from 28 May 2018 to 30 September 2019.