Herson and Bankert (Child support) - [2021] AATA 5210

Herson and Bankert (Child support) [2021] AATA 5210 (19 November 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC021550
APPLICANT:  Mr Herson
OTHER PARTIES:  Child Support Registrar
Ms Bankert

TRIBUNAL:Member R Anderson, Member J Longo
DECISION DATE: 19 November 2021
DECISION:

The tribunal sets aside the decision and, in substitution decides that:

The annual rate of child support payable by Mr Herson in respect of the period
1 December 2020 to 31 December 2020 is varied to $15,200;
The annual rate of child support payable by Mr Herson is to increase by $1,392 in respect of the period 1 December 2020 to 31 December 2020;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2021 to 31 December 2021 is varied to $15,650;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2022 to 31 December 2022 is to be calculated on the basis of 65% of the capped maximum costs for a child less than 13 years of age, in accordance with the 2022 Costs of the Children Table; and
There is to be no further adjustment to the annual rate of child support payable by Mr Herson in respect of the period 1 January 2021 to 31 December 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – costs of spending time with or communicating with child – costs of education – manner expected by both parents – income, property and financial resources of both parents – a ground for departure established – decision to depart – decision under review set aside and substituted

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

REASONS FOR DECISION

BACKGROUND

Mr Herson and Ms Bankert are the separated parents of [Child 1]. According to the records of Services Australia – Child Support (the Agency), the child support assessment was registered on 9 January 2019. The Agency has been responsible for the collection of child support from Mr Herson since that time. The care attributed to Mr Herson and Ms Bankert in respect of [Child 1] has been 33% and 67% respectively throughout the relevant period under review.
Several change of assessment (departure) applications have been lodged in respect of this case since registration. The most recent, which is the subject of this review, was lodged by Ms Bankert on 21 October 2020. At that time, the administrative assessment was a previous departure decision made on 29 October 2019 which was to cease on 30 November 2020. This decision had varied the adjusted taxable income of Mr Herson to $536,820, while the adjusted taxable income of Ms Bankert was based on an estimate accepted by the Agency in respect of the 2019/20 year of nil. Furthermore, Mr Herson was to contribute 50% of [Child 1]’s private education costs in each calendar year from 2019 to 2022.
While Mr Herson appealed the decision to the Administrative Appeals Tribunal (differently constituted), he later withdrew his application prior to hearing. Mr Herson then lodged a departure application in July 2020 that was subsequently refused. No objection followed.
On 1 December 2020, the administrative assessment reverted to the child support liability being calculated on the basis of the most recently lodged tax returns of both parties. As neither party had yet lodged their 2019/20 tax return, the relevant year was 2018/19. Therefore, the adjusted taxable income used in the administrative assessment for Mr Herson and Ms Bankert was $65,715 and nil respectively.
Ms Bankert’s departure application of 21 October 2020 was lodged on the basis that the administrative assessment produced an unfair outcome due to the costs incurred in educating [Child 1] in the manner expected by both parents significantly impacting on his overall costs (Reason 3), the income, property and financial resources available to Mr Herson and his earning capacity (Reason 8A and 8B) and also due to the costs of [Child 1] being significantly affected by the high costs of childcare (Reason 6).
Mr Herson also raised further grounds on the basis of Reasons 8A and 8B in respect of Ms Bankert’s earning capacity and financial circumstances and that the administrative assessment was also unfair because of the high costs incurred in enabling him to spend time with [Child 1] (Reason 1).
On 14 December 2020, a delegate of the child support registrar decided to depart from the administrative assessment by varying the annual rate of child support payable by Mr Herson to Ms Bankert in respect of [Child 1] to $18,804 from 1 December 2020 to 31 December 2022. The annual rate incorporated a 50% contribution by Mr Herson to [Child 1]’s private education costs from 1 December 2020 to 31 December 2022 in the amount of $1,392 per annum.
On 23 December 2020, Mr Herson lodged an objection to the decision of 14 December 2020. Subsequently, on 23 April 2021, an objections officer decided to allow the objection and made the following decision, substituting the decision of 29 October 2019 in respect of Mr Herson’s contribution to [Child 1]’s private education costs in the calendar years 2021 and 2022:
·     In the period 1 December 2020 to 31 December 2023 the adjusted taxable income of Mr Herson is varied to $266,585;
·     In the period 1 December 2020 to 31 December 2023 the adjusted taxable income of Ms Bankert is varied to $47,370; and
·     The annual rate of child support payable by Mr Herson is to increase each calendar year to reflect a 90% contribution to [Child 1]’s private education costs as follows:
-    2021 $2,583
-    2022 $2,664
-    2023 $2,747
Mr Herson lodged an application to this tribunal on 20 May 2021, requesting an independent review of the Agency’s decision. The directions hearing was conducted by telephone with Mr Herson and Ms Bankert on 11 August 2021. At the directions hearing Ms Bankert confirmed that she was no longer seeking a departure from the administrative assessment on the basis of childcare costs. Following this hearing, directions were made to both parties requiring them to provide further information and documents.
The hearing was held on 12 October 2021. Both parties participated by conference telephone and gave oral evidence on affirmation. The tribunal considered information in the documents provided by the Agency in accordance with the Administrative Appeals Tribunal Act 1975 numbered 1 to 729, documents lodged by Mr Herson numbered A1 to A453 and documents lodged by Ms Bankert numbered B1 to B160. All of the documents were provided to all parties prior to the hearing.
The tribunal acknowledged at the directions hearing and also at the full hearing the existence of numerous issues between the parties. The tribunal also made it clear that despite some of these issues being important and challenging, that this tribunal was not the forum to deal with all of them. The tribunal stated clearly that this review was confined to the relevant issues, being the financial circumstances of each of the parties, their respective costs of self-support and the costs and needs of [Child 1]. The tribunal also reiterated the relevant issues on numerous occasions during the hearing. Despite the constant reminders of the relevant issues, Ms Bankert and Mr Herson continued to engage and discuss irrelevant issues, which ultimately led to highly emotive responses from both parties. The tribunal adjourned on several occasions in the course of the proceedings to allow time for the parties to gather their thoughts and to proceed with the hearing in an appropriate manner. After resuming the hearing for a third time, it became abundantly clear that given the behaviour of both parties, it was not possible to proceed with the hearing in an appropriate manner.
Consequently, the tribunal decided to terminate the hearing and defer making a decision in this matter, in order to allow additional time for both parties to put forward any further submissions or evidence in writing. The tribunal received a written submission from Mr Herson on 13 October 2021, numbered A454, in respect of Reason 3. On 15 October 2021, the tribunal wrote to the parties, noting its observations from the papers relating to the grounds that were not discussed at hearing (being Reason 8 in respect of Mr Herson and Reason 1) and inviting any further submissions and/or evidence. The tribunal notes that Reason 8 in relation to Ms Bankert and Reason 3 were discussed at hearing. However, the tribunal also allowed the opportunity for either party to provide any further submissions and/or evidence in regard to the issues already discussed.
In response, documents numbered A455 to A468 were received from Mr Herson and documents numbered B161 to B175 were received from Ms Bankert. As advised at the directions hearing, the tribunal redacted irrelevant information in the submissions from the parties. In the case of the B documents, Ms Bankert continued to provide submissions on issues that were not relevant to the matter under review. Consequently, those parts of her submission were redacted before exchange with the parties for further comment and were not considered by the tribunal. Further responses from Mr Herson, numbered A469 to A470 and from Ms Bankert, numbered B176 to B177 were received by the tribunal. As the submissions from both parties included irrelevant information, those parts were redacted before exchange with all parties. As the submissions did not contain any new information, the documents were exchanged with the parties for information only. The tribunal then proceeded to make a decision.

ISSUES

When calculation of the rate of child support is based on the usual administrative formula it also takes into account, relevantly, factors such as the number of children, the level of care provided, the costs of the children, the costs of self-support of each parent and the income of each parent. Section 98C of the Child Support (Assessment) Act 1989 (the Act) allows for a decision maker to depart from the usual manner of calculating the rate of child support payable by one parent to the other parent for a child after considering the following issues:
·         whether a ground exists to depart from the administrative assessment; and if so
·         whether any proposed departure is fair to Mr Herson, Ms Bankert and [Child 1]; and if so
·         whether any proposed departure is fair to the public.

CONSIDERATION

Mr Herson told the tribunal that he considered the Agency decision under review was unfair, largely because of the lack of consideration of the true income of Ms Bankert. He maintains that while the costs of [Child 1] for child support purposes are capped at the maximum rate, when Ms Bankert’s adjusted taxable income is significantly lower than her actual income, the assessment produces an unfair outcome. It is noteworthy that Ms Bankert’s income used in the administrative assessment was nil based on her 2018/19 tax return and 2019/20 estimate, until such time as her 2019/20 tax return is lodged and a reconciliation can proceed. Mr Herson pointed out that the objections officer varied the adjusted taxable income for Ms Bankert to $47,370, which has now been shown to be well below her actual 2019/20 adjusted taxable income. He asserted that the child support liability calculation in accordance with the formula is unfairly skewed against him. Furthermore, Mr Herson stated that in his view, the objections officer’s decision of 23 April 2021, whereby his adjusted taxable income was varied to $266,585, is not reflective of his current earnings.
Ms Bankert gave oral evidence that she is relying on the four issues outlined in her written submission. That is, that the system is fundamentally flawed, Mr Herson has failed to provide evidence to support that there has been a change in circumstances since the decision of 29 October 2019, that Mr Herson has weaponised the system to have “another bite at the cherry” and the process of this appeal is an abuse of the system, wasting resources that Mr Herson should otherwise make available to support [Child 1].
As noted above, the tribunal reiterated the relevant issues at the directions hearing and on numerous occasions throughout the hearing, being the financial circumstances of each of the parties, their respective costs of self-support and the costs and needs of [Child 1]. While it is open to Ms Bankert to hold a view in regard to whether or not the administrative process is flawed or whether it allows system abuse, the tribunal, the Agency and the parties are bound by the legislation.
The legislation allows either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. It is noteworthy that the application for a change of assessment was lodged by Ms Bankert on 21 October 2020, as is her right under the legislation. It is also the legal right of either parent to lodge an objection to a decision made under section 98S of the Act, as did Mr Herson. In accordance with subsection 98S(3B) of the Act, it is also the legal right of either party to seek backdating of a departure decision to a maximum of 18 months prior to the date of lodgement of a change of assessment application if there has been a significant change in circumstances compared to those upon which the original decision maker based the decision. If so, the tribunal is also required to consider all of the circumstances to determine whether it is just and equitable to do so. It is not for the tribunal to determine whether the legislation is right or wrong, it must simply apply it.
In this case, there is no question that the financial circumstances of Ms Bankert in 2019/20 are significantly different to those accepted by the decision maker on 29 October 2019 that Ms Bankert’s adjusted taxable income was nil and form part of the basis upon which the decision was made. This issue is discussed later in these Reasons for Decision.

Issue 1 – Does a ground exist to depart from the administrative assessment?

The grounds for departure are set out in subsection 117(2) of the Act. Each ground is prefaced by the words ‘in the special circumstances of the case’. The meaning of this expression is not defined in the Act. However, the tribunal was guided by the courts, which have concluded that the expression relates to the facts peculiar to each case such that those facts are ‘out of the ordinary’ and set the case apart from the usual case (Gyselman and Gyselman (1992) FLC 92-279 (Gyselman) and Philippe and Philippe (1978) FLC 90-433).

Reason 1 – The costs of spending time with or communicating with [Child 1]

Subparagraph 117(2)(b)(i) of the Act provides a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because of the high costs involved in enabling a parent to spend time with, or communicate with, the child.
In addition, subsection 117(2C) of the Act also provides that if a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection 117(2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child. Regular care is defined in subsection 5(2) of the Act as having at least 14% care but not more than 35% care. In this case, Mr Herson has 33% care of [Child 1], or regular care. Consequently, consideration of costs incurred to spend time with [Child 1] are limited to travel costs.
Mr Herson submitted that he is required to make four round trips per month between [City 1] and the [City 2] to collect [Child 1], equating to 17,280 kilometres per annum. He asserted that an appropriate method of calculating the travel costs is to use the cents per kilometre calculation method of $0.72 per kilometre, as provided by the ATO from 1 July 2020, which equates to $12,441. The tribunal pointed out to Mr Herson that the ATO limits the use of the cents per kilometre method to 5,000 kilometres, or $3,600 per annum. Prior to 1 July 2020, the rate was $0.68 per kilometre, which equates to $3,400 per annum. As Mr Herson provided no further evidence or submission in relation to the calculation of his travel costs incurred in spending time with [Child 1], the tribunal finds that his costs approximate $3,400 per annum to 30 June 2020 and $3,600 per annum from 1 July 2020. Over a 457-day child support period this equates to $4,257 and $4,507 respectively.
To determine whether the travel costs enabling contact with [Child 1] were “high”, subsection 117(2B) of the Act provides that a parent’s costs involved in enabling the parent to care for a child can only be high if the costs that have been or will be incurred during a child support period total more than 5% of the amount worked out by dividing the parent’s adjusted taxable income by 365 and then multiplying the quotient by the number of days in the child support period.
For the purposes of subsection 117(2B) of the Act, the relevant adjusted taxable income is that used in the administrative assessment. If necessary, the relevant child support periods are divided into sub-periods. Mr Herson lodged his cross-application in respect of Reason 1 in respect of the decision made on 14 December 2020, in response to the original application by Ms Bankert on 21 October 2020. The table below sets out the adjusted taxable incomes of Mr Herson in respect of the relevant child support periods and the corresponding 5% thresholds as calculated by the tribunal.

Sub Period

Adjusted taxable income (ATI) as per administrative assessment
$

Calculation of adjusted taxable income for child support period
$

threshold

01/11/19 -31/1/21
(457 days)

536,820 to 30/11/20
65,715 to 31/01/21

536,820/365 x 395 = 580,942
65,715/365 x 62 = 11,162
Combined ATI = 592,104

29,605

01/02/21 – 30/04/22
(457 days)

63,828

63,828/365 x 457 = 79,916

3,996

It is clear that the costs incurred by Mr Herson fall well short of the 5% threshold in the child support period ending 31 January 2021 and therefore these costs cannot be considered as “high”. However, in the child support period 1 February 2021 to 30 April 2022, the costs of $4,507 exceed 5% of Mr Herson’s adjusted taxable income and therefore can be considered “high”. As such, in the special circumstances of the case, the ground for departure under subparagraph 117(2)(b)(i) of the Act is established in respect of the period 1 February 2021 to 30 April 2022.

Reasons 8A and 8B – the income, property and financial resources and earning capacity of each parent

Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, use of the administrative assessment would result in an unfair level of child support payable by Mr Herson because of the available income, property and financial resources available to the parents. The Act goes on to state in subsection 117(7A) that the decision maker must have regard to “the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of the parent that do not produce, but are capable of producing, income” and disregard “the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child”. Mr Herson’s partner, [Ms A], clearly has no legal duty to provide for [Child 1].
It is a well-established principle in the Family Court that the taxable income of a person who is involved in their own business may not be an accurate reflection of their earning capacity, income, benefits and financial resources for child support purposes (DJM and JLM [1988] FamCA 97; Scott and Scott (1994) FLC 92-457; Carey and Carey (1994) FLC 92-489). The tribunal reiterates that the Court has observed on numerous occasions that the tribunal is not required to undertake a “forensic audit” or major investigation of the financial circumstances of a party (Podmore & Pillai [2011] FMCAfam 952 and Frost and Frost [2011] FMCAfam 1311). Rather, the tribunal must be satisfied on the balance of probabilities as to the party’s income, property and financial resources available to the parties for child support purposes, such that a fair decision can be made in respect of the child support liability (Shearer & Benson (SSAT Appeal) [2011] FMCAfam 623).

The tribunal considered the circumstances of Mr Herson. It was evident that Mr Herson is involved in multiple companies and trusts, some of which are no longer operating and some that have only recently been set up. For the purposes of this review the tribunal will limit its discussions to those entities known to the tribunal that provide an income and/or financial resource to Mr Herson. Based on the available evidence, the tribunal is satisfied that [Company 1] provides the main source of funds to Mr Herson and that Mr Herson is the joint director with an independent third party. Mr Herson and the other director hold equal shares through their respective Trusts, Mr Herson’s being [the Shareholding Trust]. In addition to wages, [Company 1] pays superannuation contributions for Mr Herson in excess of the superannuation guarantee charge of 9.5% to [Company 2]), Mr Herson’s self-managed superannuation fund of which he is the sole member.
[Company 2] also holds the commercial property which is rented by [Company 1] as their office premises. The property was sold to [Company 2] in 2018/19 from [a] Trust, a related entity which no longer operates.
The tribunal accepts the written evidence of Mr Herson that the business operations of [Company 3] Trust are winding down and consist only of remaining trail income on prior year agreements which will soon expire. In prior years Mr Herson’s [vehicle] was owned by [Company 3] and all of the associated costs, including finance payments were met by [Company 3]. Funds from sale of the [vehicle] in the amount of $41,107 were also received by [Company 3] [$16,433 (written down value) + $24,674 (profit)]. It is apparent that transfers from [Company 1], recorded through the Shareholding Trust loan account were transferred to [Company 3] to meet the final finance pay out in 2020 of $37,871, leaving a residual financial resource of $3,236. Mr Herson confirmed after the hearing that his current vehicle, a [car], while registered in his own name, has the finance repayments met by [Company 3], for convenience.
[Company 4] owns the property at which Mr Herson resides. It appears that rent is simply a book entry while a significant amount of funds during 2019/20, far in excess of the annual rent, were transferred to [Company 4] from [Company 1] through the Shareholding Trust loan account. Mr Herson provided a written statement that the property undertook renovations that were funded through a drawdown from the mortgage facility. It is apparent that the renovations undertaken in 2019/20 were in excess of $600,000. According to the 2019/20 balance sheet, the NAB mortgage reduced in 2019/20 by around $10,000. However, the mortgage statement records an increase to over $2,000,000 by August 2021. It is also evident that the transfers from [Company 1] alone in 2019/20 exceeded the nominal rent of $26,000 by some $289,000. This has clearly contributed to the significant renovations and additional furniture and fittings recorded on the balance sheet in 2019/20 of almost $650,000, which are likely to have increased significantly again in 2020/21 through use of the NAB loan facility.
The tribunal is satisfied that the Shareholding Trust is essentially for the purpose of receiving dividends and distributions from various related entities. With the exception of [a] Trust, in which the Shareholding Trust holds 25% of the units, the tribunal is satisfied that the remaining related entities are controlled by Mr Herson. Based on the financial reports before the tribunal, the Shareholding Trust redistributes the dividends and distributions received to other entities (more recently to the newly incorporated [Company 5]) controlled by Mr Herson and/or to [Ms A]. While various entities record outstanding loans to and from the Shareholding Trust, they are noticeably absent on the balance sheet of the Shareholding Trust. This is despite a general ledger account recording significant drawings allocated to the Shareholding Trust loan account in [Company 1]. Regardless, as noted above, given that it is Mr Herson who controls the other entities, it is really of no concern to the Tribunal which of them receives funds from [Company 1] or to which entity they are redistributed, as they all result in a benefit and/or financial resource available to Mr Herson.
Mr Herson submitted that in the last few years [Company 1] has been negatively impacted by changes in demand and competition from the market. The tribunal accepts that [Company 1]’s income declined during COVID-19 and as such was compensated through cashflow bonuses and jobkeeper payments. Mr Herson further stated that going forward he does not expect the trading conditions to change. Based on the business activity statements, the 2020/21 year had gross income from consulting and commissions in excess of $1m. While sales clearly declined in the quarters ending 30 September 2020 and 31 December 2020, it was also evident that gross sales increased significantly in the March 2021 quarter and the June 2021 quarter, the latter quarter annualising to well exceed the sales in 2018/19 and also 2019/20. As such, the tribunal is not persuaded that the trading conditions of [Company 1] will not continue to recover and improve in 2021/22, despite the projected budget.
It is noteworthy that [Company 1] has continued to pay excess superannuation contributions for both partners and despite the difficult conditions of COVID-19 and the common practice of reducing commercial rent, the rent paid to [Company 2] has increased. The 2021/22 budget also allows for increased entertainment and depreciation costs.
Mr Herson’s 2018/19 and 2019/20 individual tax returns were before the tribunal, recording a taxable income of $65,715 and $63,828 respectively. It is noteworthy that accounting fees previously expensed through [Company 3] were expensed through Mr Herson’s individual tax return in 2019/20. Regardless of the entity, the tribunal is satisfied that the accounting fees will continue as an annual expense. While Mr Herson is yet to complete his 2020/21 tax return, the payroll summary report from [Company 1] records his gross wages of $95,192.
Upon examination of the financial information in respect of the various entities throughout the relevant periods, noting that this was not completed in the capacity of a forensic auditor, the tribunal estimates that Mr Herson receives income and financial resources from the following sources at least to the level set out in the table below, noting that the 2020/21 information has not been finalised and much of the information in respect of 2021/22 is not yet available.

SOURCE	2018/19 $	2019/20 $	2020/21 $	2021/22 $
[Company 1]
Wages	68,596	75,981	95,192	90,000
Superannuation exceeding SGC of 9.5%	18,000	14,340	14,973	unknown
Drawings transferred through a variety of entities controlled by Mr Herson	199,614	226,020	138,365	45,000 to 31 August 2021
Individual tax return accounting expenses	(2,881)	(8,898)	est. (8,898)	est. (8,898)
[Company 3]
Net income from business operations (excluding [vehicle] sale)	(4,173)	18,496	12,798 sales (exc. GST) - estimated expenses of 1,500	6,500 As estimated by Mr Herson
Net income from sale of [vehicle]	n/a	3,236	n/a	n/a
Add back depreciation in excess of principle finance repayments	11,934	n/a	n/a	n/a
[A named trust]
Net income distributed to the Shareholding Trust	5,552	4,213	0 (As estimated by Mr Herson)	0
TOTAL	296,642	333,388	256,495

The tribunal notes that the net drawings of Mr Herson in 2019/20 have been offset by a journal entry on 30 June 2020 in the significant amount of $123,586, more than likely in respect of the dividend issue to the Shareholding Trust to address the debit loan issue in [Company 1], in accordance with Division 7A of the Income Tax assessment Act 1936. The dividends, together with distributions received from [Company 3] and [a trust] were subsequently distributed to [Ms A] and [Company 5]. It is noteworthy that the $148,000 distributed to [Company 5] also remains outstanding. It was clearly a book entry, Mr Herson accessing the funds directly through drawings from [Company 1]. Therefore, the tribunal concludes that the actual drawings available for Mr Herson’s use in 2019/20, either through his other entities or personally, may well approach $350,000.
In respect of 2021/22, Mr Herson’s most recent payslips verify his more recent wages of $90,000 per annum. As noted above, [Company 1] continues to pay excess superannuation contributions for him. Furthermore, the drawings in respect of 2021/22 are difficult to estimate. Mr Herson submitted that he and his business partner have recently injected $95,000 each to support [Company 1]. It is also evident that Mr Herson has drawn $45,000 in the two months to 31 August 2021. The tribunal recognises that annualisation of the drawings to 31 August 2021 is not an accurate method of estimating the overall drawings for 2021/22. However, the costs to meet rent and interest payments in respect of the private residence of Mr Herson and repayment of finance costs of his [car] alone will likely exceed $100,000 per annum. This is in addition to the likelihood of further transfers of funds.
Mr Herson clearly receives the benefit of the motor vehicle expenses being met by [Company 3] and the benefit of the costs in relation to his private residence being met by [Company 4]. However, these benefits are paid for through regular transfers of funds from [Company 1], which are already accounted for as drawings attributed to Mr Herson.
Based on the discussion above, the tribunal estimates the income, benefits and financial resources available to Mr Herson in 2018/19, 2019/20, 2020/21 and 2021/22 are likely to be at least $296,642, $457,000, $256,495 and $300,000 respectively and finds accordingly.
A parent’s earning capacity can only be taken into account in limited circumstances, as set out in subsection 117(7B) of the Act. This section requires the tribunal to consider three matters in determining that the parent’s earning capacity is greater than is reflected in his or her income used in the administrative assessment:
·Whether the parent is:
o   not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
o   has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
o   has changed their occupation, industry or working pattern (subparagraph117(7B)(a)(iii)); and
·If the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and
·If the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).
There is no evidence to suggest that Mr Herson has reduced his working hours or changed his occupation or working pattern. Accordingly, it is not open to the tribunal to determine an earning capacity in respect of Mr Herson.
The [Company 2] Member Statement at 30 June 2020 records Mr Herson’s balance of $113,182. While the 2020/21 statements are yet to be completed, the tribunal accepts Mr Herson’s estimate of his balance in June 2021 of $150,000. As discussed above, Mr Herson has received contributions in excess of the mandated 9.5%, and currently 10% superannuation guarantee charge.
The tribunal considered the assets and liabilities of Mr Herson. According to his Statement of Financial Circumstances completed on 6 June 2021, his assets consist of funds in the bank ($1,548), the [car] discussed above ($90,000) and household contents ($30,000), totalling $121,548. Despite being met by [Company 3], Mr Herson is personally liable for [a named bank] finance on the [car], which he estimates at $90,000. Therefore, the tribunal finds that Mr Herson’s personal asset base is minimal at around $31,000. However, his property assets held through various entities are substantial.
Mr Herson resides with his partner and their young daughter. In addition [Ms A]’s three children also reside with them and [Child 1] for 33% of the time. Based on the revised average weekly expenses page of the Statement of Financial Circumstances provided after the hearing, Mr Herson meets weekly household expenses of $3,508, including $700 for rent and discretionary spending such as holidays and gifts. In addition he meets private health insurance premiums of $100 per week. There is no evidence to suggest that there are any special circumstances relating to Mr Herson that result in it not being appropriate to apply the self-support amount used in the administrative formula and the tribunal so finds.
The tribunal considered the financial circumstances of Ms Bankert. According to her 2018/19 and 2019/20 tax returns, Ms Bankert’s sources of income consist of bank interest earned and net income through the provision of services [through] her sole trader business. Ms Bankert told the tribunal that she pays [fees] to the service entity of [Company 6], in which she is a one sixth shareholder.
In respect of the 2018/19 year, Ms Bankert’s sole trader business recorded a net loss of $19,316. It was unclear what the significant “other expenses” in the amount of $62,708 included. This resulted in her adjusted taxable income for child support purposes being nil.
In respect of the 2019/20 year, Ms Bankert’s income consisted of bank interest earned and net income from the sole trader business in the amount of $103,700, totalling $104,112. The business expenses were fully disclosed and were unremarkable. However, after the 2018/19 losses were offset against the taxable income, the adjusted taxable income used for child support purposes was $84,688. The tribunal notes that the Agency accepted an estimate from Ms Bankert in respect of the 2019/20 year of nil, which was later reconciled under the normal administrative assessment process.
Ms Bankert is yet to complete her 2020/21 income tax return. According to the 2020/21 business activity statements, Ms Bankert’s sole trader business income, exclusive of GST, totalled $86,300. After applying the same expenses to income ratio as in 2019/20, the tribunal estimates the expenses to be $20,713, resulting in net income of $65,588. In addition, it was evident from the 2020/21 tax return and financial statements of [Company 6] that Ms Bankert received dividends and franking credits in the amount of $5,338. Ms Bankert gave oral evidence that this was possible largely due to the government grants received during COVID-19. Therefore, the tribunal estimates the income and financial resources available to Ms Bankert in 2020/21 to approximate $71,000. This was undisputed by Ms Bankert.
Mr Herson maintains that Ms Bankert is in receipt of income and/or financial resources from a family trust. If Ms Bankert was to receive a distribution it is required to be declared in her tax return. There has been no such evidence in the relevant period. Furthermore, it is unlikely that Ms Bankert’s level of debt would have increased to its current level nor would she have been required to apply for deferral of payments under hardship if additional funds were available to her from the capital of a family trust. In the absence of evidence to the contrary, the tribunal is satisfied that Ms Bankert has not received financial resources from a family trust during the relevant period.
The tribunal also considered the issue of earning capacity in relation to Ms Bankert, an issue raised by Mr Herson. As set out in paragraph 42 above, a parent’s earning capacity can only be taken into account in limited circumstances, as set out in subsection 117(7B) of the Act. All three criteria must be met before a departure determination can be made to account for whether a party has a greater earning capacity.
Mr Herson maintains that Ms Bankert has reduced her working hours and points to her reduced income in comparison to the 2017/18 year where her taxable income was $161,491. Ms Bankert acknowledged to the Agency in the previous departure application that her hours reduced in 2018/19 because of [Child 1]’s commencement at school and ongoing court matters in respect of the separation.
The child support assessment was registered on 9 January 2019. At that time, Ms Bankert’s gross business income was $47,296. Ms Bankert’s gross business income in 2019/20 and 2020/21 was $137,350 and $86,300 respectively. Given the impact of COVID-19 in 2020 and 2021, these figures do not suggest that Ms Bankert has reduced her working hours in the relevant period under review. Therefore, as the first criterion is not met, all of the required criteria cannot be met and it is not open to the tribunal to determine an earning capacity in respect of Ms Bankert. In any event, as the increase in Ms Bankert’s income since 2018/19 serves only to reduce the child support liability of Mr Herson, it would be difficult to establish the third criterion in this case.
Ms Bankert gave oral evidence that she is not in receipt of family tax benefit (FTB), nor has she lodged a claim. In any event, even if she were to lodge a successful claim, pursuant to subparagraph 117(7)(b)(ii) of the Act, for child support purposes FTB is not considered to be a part of her adjusted taxable income.
The tribunal accepts the oral evidence of Ms Bankert that she currently holds approximately $142,564 in her [Super] account. She further stated that she has made no contribution since 2018.
The tribunal considered the assets and liabilities of Ms Bankert. According to her Statement of Financial Circumstances, completed on 29 June 2021, her assets consist of her residence ($1.222m), bank funds ($2,540) and a [motor] vehicle ($54,000). The liabilities recorded consist of a mortgage in the amount of $842,000 which is currently almost $23,000 in arrears. Ms Bankert also has an outstanding income tax debt in the amount of $33,478 and an outstanding Centrelink debt in respect of childcare subsidies received in excess of her entitlement in the amount of $12,262. Both of these liabilities have a payment arrangement in place. Outstanding credit card liabilities approximate $26,000 and the [vehicle] finance liability is approximately $40,000. Ms Bankert also asserted that she had outstanding legal fees of approximately $150,000. Therefore, the tribunal calculates that Ms Bankert currently has an asset base in the vicinity of $150,000 and so finds.
Ms Bankert told the tribunal that she shares her residence with [Child 1] for 67% of the time. In respect of expenses, it is expected that mortgage payments will recommence imminently. After adjustments discussed at hearing in respect of legal fees which are currently not occurring, Ms Bankert estimated the current average weekly household expenses to be $2,268, of which $802 is attributed to her. Ms Bankert also meets private health insurance premiums in the amount of approximately $100 per week. While the expenses exceed the 2021 self-support amount of $26,319, there is no evidence to suggest that there are any special circumstances relating to Ms Bankert that result in it not being appropriate to apply the self-support amount used in the administrative formula and the tribunal so finds. While Ms Bankert’s expenses are more than her income and financial resources, including child support, in the past year, she has also had the benefit of deferred payments due to COVID-19.
Based on the findings above, it is clear that there is a significant discrepancy between the income and financial resources available to Mr Herson and Ms Bankert and the adjusted taxable incomes used to calculate the child support liability payable by Mr Herson. While the administrative assessment to 30 November 2020, based on the prior departure decision of 29 October 2019, results in a child support liability of $17,412 (excluding the additional contribution to private school fees), based on the tribunal’s findings, the child support liability in respect of the 2019/20 year is more in the vicinity of $14,500. In respect of the period commencing 1 December 2020, based on the income recorded on the parents’ respective tax returns, the administrative assessment calculates the child support liability payable by Mr Herson to approximate $4,000 prior to reconciliation of Ms Bankert’s 2019/20 estimate, reducing to less than $2,000 following the reconciliation process. In comparison, based on the tribunal’s findings in respect of the income and financial resources available to the parents in 2020/21, the child support liability payable by Mr Herson approximates more than $14,500. There is little change from 2019/20 to 2020/21 because the income and financial resources of both parties declined during COVID-19.

Consequently, the tribunal is satisfied that the administrative assessment has not produced a fair outcome. Accordingly, the tribunal finds that special circumstances do exist in this case. As such, the tribunal is satisfied that a ground for departure is established in relation to subparagraph 117(2)(c)(ia) of the Act. It is also noteworthy that due to Ms Bankert having the majority care of [Child 1], the rate of child support is impacted far less by a discrepancy in the adjusted taxable income of Ms Bankert.

Reason 3 – Costs related to the child’s care, training or education in the manner expected by the child’s parents

Subparagraph 117(2)(b)(ii) of the Act provides a ground for departure exists where, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
In this case there is no dispute that [Child 1] commenced his education at Prep level at [School 1] in 2019. [School 1] is a Catholic primary school. The [School 1] statements of fees and levies incurred and paid in 2019, 2020 and 2021 were before the tribunal. As discussed at hearing, the tribunal considers that “additional levies”, in respect of excursions, sports, library and the like, in addition to a parents and friends levy are equivalent to similar types of costs required to be met in government schools and as such do not create special circumstances. This is regardless of whether or not they are compulsory. Therefore, the tribunal will consider the school fees and capital levies payable in each of the four terms of 2019, 2020 and 2021. The tribunal calculates them to be $1,758, $1,848 and $1,908 respectively.
The term ‘significantly affected’ is not defined in the Assessment Act. In the case of Potter & Burbage (SSAT Appeal) [2010] FMCAfam 1009, Riethmuller FM stated that when considering whether the costs of maintaining the child are “significantly affected”, it is necessary to take into account not only the rate of child support but also the income of the parents.
The rate of child support is based on the costs of the child, as estimated using the Costs of the Children Table. Given the findings of the tribunal discussed above in respect of the income and financial resources available to Mr Herson and Ms Bankert, there is no question that the costs of [Child 1] are capped at the maximum costs of children on account of the level of combined child support income of the parents. As can be seen from the table below, the costs of educating [Child 1] at [School 1] are less than 8% of his total costs.

Calendar year	School fees and capital levies	Percentage of maximum costs of [Child 1] based on respective Costs of the Children Tables
2019	1,758	$1,758/$22,911 = 7.6%
2020	1,848	$1,848/$23,401 = 7.8%
2021	1,908	$1,908/$24,082 = 7.9%

As discussed at hearing, after removing the costs of education and legal fees, [Child 1]’s average weekly expenses (both necessary and discretionary) as estimated by Ms Bankert are $1,033 or more than $53,700 per annum. Additional costs incurred by Mr Herson were not available. Therefore, the tribunal concludes that [Child 1]’s private school fees currently represent less than 3% of his total costs, as estimated by Ms Bankert. Furthermore, the assessed child support liability throughout these years at the very least has exceeded $15,000 per annum, at which rate the private school fees of [Child 1] represent just over 1%.
Based on the findings set out under Reason 8 in respect of the income and financial resources available to Mr Herson, the cost of [Child 1]’s education is clearly negligible. However, as stated by Riethmuller J in Mee v Ferguson [1986] FamCA 3, “the mere fact that a parent can afford to pay the fees, … is not in itself a reason for imposing that liability”. In respect of the income and financial resources available to Ms Bankert, also discussed under Reason 8, the costs also remain at less than 1% in 2020 and less than 3% in 2021.
In such circumstances, where the parents’ combined income is significant and the child support liability is also significant, the tribunal concludes that when based on the maximum cap for a child of less than 13 years the private education costs of [Child 1] of less than $2,000 per annum do not significantly affect the overall costs of maintaining him. Therefore, the tribunal finds that the ground at subparagraph 117(2)(b)(ii) of the Act is not established.
The tribunal notes that there was significant dispute between the parents in respect of whether [Child 1]’s education at a Catholic primary school was “in the manner expected by both parents”. Given the finding above that the costs to educate [Child 1] do not currently significantly impact on his overall costs, it was unnecessary for the tribunal to consider this issue any further.

Issue 2 – Is it fair or ‘just and equitable’ in relation to Mr Herson, Ms Bankert and [Child 1] to make a particular departure determination?

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 fair as regards the parents and the children 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 have regard to a range of factors, including but not limited to those set out in subsections 117(4) and (6) to (8) of the Act, such as the needs of the children, the parents’ assets, liabilities, income and commitments and any hardship that would be caused by departing or not departing from the formula. The tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application (Gyselman).

The needs of the children

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 (Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250). In this case Mr Herson and Ms Bankert have the primary duty to financially support [Child 1] and that contributing to his costs should take priority over all other costs other than their “necessary” costs of self-support. While Mr Herson also has a legal duty to contribute to the needs of his daughter with [Ms A], he has no legal duty to contribute to the needs of [Ms A]’s other children.
In determining the proper needs of the child, subsection 117(6) of the Act also requires the tribunal to have regard to the manner in which the parents expected the child to be cared for, educated and trained as well as a consideration of any special needs of the child.
It was undisputed that other than optometry needs, [Child 1] is in good health and has no special needs. The tribunal found earlier in these Reasons for Decision that while [Child 1] attends a Catholic primary school, special circumstances do not exist in this case to warrant any change to the administrative assessment in respect of the corresponding private education costs.
After adjustments discussed at hearing in respect of legal fees which are currently not occurring, Ms Bankert estimated the weekly costs she incurs in respect of [Child 1] to be $1,110. This included discretionary costs in respect of private education ($77 per week) and activities, entertainment, gifts, books and magazines ($174 per week). Mr Herson was unable to estimate the costs of [Child 1], other than $600 per week as an average cost for food for all five children.
Based on the estimated adjusted taxable incomes of Mr Herson and Ms Bankert discussed above, the Costs of the Children Table estimates that [Child 1]’s costs are capped at the maximum cost for a child less than 13 years. In 2020 and 2021 this is $23,401 and $24,082 respectively. This is significantly less than the costs of [Child 1] as estimated by the parents and indicates that his needs are prioritised and that his “necessary” and “discretionary” needs are being comfortably provided for.
There is no evidence before the tribunal to indicate that Mr Herson’s young daughter has any special needs or that the relevant dependent child allowance used in the administrative assessment is not appropriate.

The earning capacity, income, property and financial resources and commitments of each parent

The tribunal found earlier that Mr Herson likely had access to income, benefits and financial resources of at least $460,000 in 2019/20 and likely approaching $300,000 or more in 2020/21 and 2021/22.
In respect of Ms Bankert, the tribunal found earlier that she likely had access to income, benefits and financial resources in the vicinity of $105,000 per annum in 2019/20 and $71,000 in 2020/21 and was likely to increase into 2022.
Going forward, the economic climate as a result of COVID-19 makes it difficult to predict the financial circumstances of both parties with a reasonable degree of accuracy.
Mr Herson has a reasonable asset base from which to draw, generally through his various entities. His debt is largely tied up in his residence through [Company 4]. He submitted that there is little or no surplus at the end of every week after meeting the household expenses. Mr Herson provided no evidence of [Ms A] earning an income. The tribunal notes that Mr Herson has no legal duty to provide for [Ms A] or her other three children and there is no evidence to suggest that they are not generally in good health.
In contrast, Ms Bankert holds significant debt in addition to her mortgage. It appears that she is struggling to manage to meet the weekly household expenses with both her mortgage and credit card liabilities currently frozen on account of hardship.
As discussed in paragraph 26 above, the tribunal was satisfied that the ground for departure under subparagraph 117(2)(b)(i) of the Act was established in respect of the high costs incurred or that will be incurred by Mr Herson to communicate with [Child 1] during the child support period 1 February 2021 to 30 April 2022. As also noted, subsection 117(2B) of the Act requires consideration of the adjusted taxable income used in the administrative assessment.
Based on the findings of the tribunal in respect of the actual income and financial resources of Mr Herson in the relevant child support period being in the vicinity of $375,616 ($300,000/365 x 457), the 5% threshold increases to $18,780. It is clear that costs of $4,507 fall well short of the 5% threshold. Consequently, when considering the actual income and financial resources available to Mr Herson, the tribunal finds that it is not just and equitable to depart from the administrative assessment in respect of costs incurred by Mr Herson to communicate with [Child 1].

Conclusion

After consideration of the income, resources, benefits and assets together with the commitments and liabilities of Mr Herson, Ms Bankert and the needs of [Child 1], the tribunal considers it is just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Act. The tribunal may make one of the determinations set out in section 98S of the Act. Section 98S sets out a range of determinations, including varying the annual rate of child support payable, the adjusted taxable income of a parent, or the costs of self-support.
It is clear that Ms Bankert requires the assistance of Mr Herson to meet the needs of [Child 1]. It is also open to both parties to prioritise the “necessary” needs of [Child 1], noting that he incurs discretionary expenses in relation to swimming, Auskick, tutoring in maths and coding and coverage under private health insurance.
The tribunal may not make a determination in respect of any period more than 18 months earlier than the date on which the application for a change in the way the child support liability is calculated was made (subsection 98S(3B)). In this case, the tribunal is limited to considering any backdating to 21 April 2019. Furthermore, given that the administrative assessment at that time was a previous departure decision, the tribunal must also be satisfied that there has been a significant change in the circumstances relied upon to make the previous departure decision.
The decision maker in October 2019 based her decision on the premise that Ms Bankert’s income was nil. The tribunal found that her income in 2019/20 was more than $100,000. As such, the tribunal is satisfied that the financial circumstances of Ms Bankert are significantly different from those upon which the decision maker in October 2019 based the decision. The difference in the findings of the tribunal in respect of the income and financial resources available to Mr Herson in 2019/20 have no impact on the child support liability to 30 November 2020, while if the actual income and financial resources available to Ms Bankert in 2019/20 were to be used in the administrative formula, it results in a reduction in the child support liability payable by Mr Herson.
However, the tribunal must also be cognisant of whether either party has rested on their rights in not pursuing an objection or appeal process and also whether backdating or overriding any part of the previous departure decision would cause prejudice to either party in the form of overpayment or additional arrears. In April 2020, Mr Herson withdrew his appeal to the decision of 29 October 2019 at the AAT level and no objection was lodged in respect of the Agency’s refusal to depart from the administrative assessment following a change of assessment lodged by Mr Herson in mid-2020. There is also the generally accepted principle that the parties should be able to rely on the child support assessment in making financial decisions until such time as they are put on notice of a possibility of a change.
The tribunal considered the circumstances of the parties and on balance, decided that it was not appropriate to disturb the previous departure decision of 29 October 2019 in respect of Mr Herson’s adjusted taxable income, Ms Bankert’s adjusted taxable income or in respect of Mr Herson’s contribution to [Child 1]’s private education costs for the school years of 2019 and 2020, which were largely completed at the time of the departure application in October 2020. This means that part of the decision of 29 October 2019 relating to an increased child support liability for the period 1 January 2021 to 31 December 2021 in the amount of $1,435 per annum and for the period 1 January 2022 to 31 December 2022 in the amount of $1,480 per annum is set aside. Otherwise, the tribunal proposes to depart from the administrative assessment commencing on 1 December 2020.
In relation to an end period, the tribunal is cognisant of the preference of the parties for a degree of certainty going forward. The tribunal is also cognisant of the uncertainty in respect of the business operations of both parties as the economy comes out of the COVID-19 pandemic. In circumstances where one or both parties are self-employed, the necessity for ongoing change of assessment applications unfortunately remains. Accordingly, the tribunal proposes to end the departure decision on 31 December 2022. At this time the 2021/22 financial circumstances of the parties should be available for scrutiny.
As discussed at hearing, based on the income and financial resources of the parties, the costs of [Child 1] for child support purposes are capped at the maximum rate. Consequently, the central issue in this review is to determine what a fair contribution by each parent to those costs should be.
Based on the tribunal’s estimates of the income and financial resources available to the parties in 2019/20 and 2020/21, Mr Herson’s 33% care of [Child 1] and his obligation to provide for his young daughter with [Ms A], Mr Herson’s contribution to the costs of [Child 1] exceeds 60%. The tribunal is also cognisant of the tax benefit received by Mr Herson in accessing a significant level of drawings without a requirement to pay tax on the full amount, acknowledging that the Division 7A requirements and the flow-through effect to other entities results in some tax being payable.
In this case, in respect of all of the circumstances discussed above relating to both parties and [Child 1], the tribunal is satisfied that a contribution by Mr Herson in line with 65% of the capped maximum costs for a child less than 13 years of age, in accordance with the relevant Costs of the Children Table, on the balance of probabilities is a fair reflection of an appropriate contribution to the costs of [Child 1] by both parties. As noted above, that part of the 29 October 2019 departure decision continues to apply in respect of Mr Herson’s contribution to private education costs from 1 December 2020 to 31 December 2020 in the amount of $1,392 per annum.
The tribunal proposes to continue to assess Mr Herson to contribute 65% of the maximum costs of [Child 1] in accordance with the Costs of the Children Table, in the period 1 July 2021 to 31 December 2022.
Subsection 117(4) of the Act requires the tribunal to consider whether any departure determination or failure to make a departure will cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support.
According to Agency records, Mr Herson’s child support arrears on 15 September 2021 were $7,865. Assuming he has paid his assessed child support to date and made no additional contributions to the arrears, the tribunal calculates that his arrears will reduce by 31 December 2021 by approximately $2,900. While Mr Herson submitted that he has no surplus at the end of each week, the tribunal is satisfied that he has access to sufficient income and financial resources to meet a weekly child support liability in respect of [Child 1] of around $300 per week, in addition to the reduced arrears, without incurring any hardship. The tribunal notes again Mr Herson’s legal duty to prioritise the needs of [Child 1] over those of [Ms A] and her children from a different relationship.
The tribunal acknowledges that on account of her debt levels, Ms Bankert’s financial circumstances are difficult. However, it is open to her to prioritise the “necessary” costs of [Child 1], as it is for Mr Herson to do, and to also seek assistance through FTB at those times when her annual income falls below the upper threshold. Despite her debt levels, the tribunal does not consider that the reduction in the child support payable by Mr Herson will cause hardship to Ms Bankert or to [Child 1].

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

The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be ‘otherwise proper’ to make a departure determination.
At the time of writing neither party was, nor had been in receipt of FTB throughout the relevant period. As such, the tribunal’s decision will have no impact on the public purse. Therefore, the tribunal considers that it is otherwise proper to make the particular proposed determination.
It is open to either party to lodge a further change of assessment application should the future circumstances of either party change significantly from the circumstances upon which this decision is based. In particular, in respect of the business operations of both parties going forward. This is particularly so in the current climate with the impact of the COVID-19 pandemic being anything but predictable.

DECISION

The tribunal sets aside the decision and, in substitution decides that:

The annual rate of child support payable by Mr Herson in respect of the period
1 December 2020 to 31 December 2020 is varied to $15,200;
The annual rate of child support payable by Mr Herson is to increase by $1,392 in respect of the period 1 December 2020 to 31 December 2020;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2021 to 31 December 2021 is varied to $15,650;
The annual rate of child support payable by Mr Herson in respect of the period
1 January 2022 to 31 December 2022 is to be calculated on the basis of 65% of the capped maximum costs for a child less than 13 years of age, in accordance with the 2022 Costs of the Children Table; and
There is to be no further adjustment to the annual rate of child support payable by Mr Herson in respect of the period 1 January 2021 to 31 December 2022.