Horler and Horler (Child support)

Horler and Horler (Child support) [2021] AATA 4797 (27 October 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021611
APPLICANT:  Mrs Horler
OTHER PARTIES:  Child Support Registrar
Mr Horler

TRIBUNAL:Member S Hoffman
DECISION DATE: 27 October 2021
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

From 25 March 2020 to 30 June 2020, Mr Horler’s adjusted taxable income is varied to $57,000.
From 1 July 2020 to 30 June 2021, Mr Horler’s adjusted taxable income is varied to $71,000.
From 1 July 2021 to 31 October 2022, Mr Horler’s adjusted taxable income is varied to $72,850.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – ground to depart established – decision under review set aside and substituted

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

REASONS FOR DECISION

BACKGROUND

This review is about the child support assessment in respect of [Child 1], [Child 2] and [Child 3], aged 14, 9 and 8 years old respectively.
The case was registered with Services Australia – Child Support (the CSA) on 29 March 2017. The CSA has been involved with the collection of child support since 29 April 2020. Initially the mother was assessed to pay child support to the father but following change of assessment decisions, the father is required to pay child support to the mother.
On 25 March 2020 the mother applied for a change of assessment. As of that date, the mother was assessed to pay child support of $1,376 a year, based on her estimate of income for 2019/20 of $40,325 and an adjusted taxable income for 2017/18 of $22,136 for the father. The care of [Child 2] and [Child 3] was shared equally between the parents and [Child 1] was in the mother’s 100% care.

On 26 May 2020, a senior case officer from the CSA decided to vary the father’s adjusted taxable income to $66,521 for the period from 1 October 2019 to 30 September 2021 (the original decision).
On 16 February 2021, the father objected to the original decision. His objection was lodged outside the 28-day timeframe for lodging objections. The father requested and was granted an extension of time (EOT) by the CSA to lodge his objection. The EOT was granted on 19 March 2021.
On 24 May 2021, an objections officer from the CSA decided to vary the father’s adjusted taxable income to $67,000 for the period from 25 March 2020 to 31 December 2021.
On 27 May 2021, the mother lodged an application for review with the Administrative Appeals Tribunal (AAT).
A directions hearing was held on 22 September 2021 after which directions were issued. The main hearing was held on 27 October 2021. The mother attended via conference telephone and gave sworn evidence.
The CSA had provided documents numbered 1 to 586, the mother submitted documents numbered A1 to A49 and the father submitted documents numbered B1 to B6. Copies of these documents were sent to both parties before the hearing.
The father did not fully comply with the directions issued after the directions hearing. The tribunal will now address some of the procedural issues arising from that.

Date of the hearing and submission of documents

The date of the substantive hearing was agreed at the directions hearing. The member suggested a date – 27 October 2021 – and the parties agreed to that date. The tribunal has listened to the recording of the directions hearing. The father said at the time that he would “have to talk to work but they were pretty understanding at the moment” and that it may be best if he took the day off. A hearing date of 27 October 2021 was agreed by the parties on 22 September 2021.
On 14 October 2021, the father contacted the AAT registry to advise that he would not be able to attend a hearing on 27 October 2021 as he could not take the time off work. He did not give any further details. After close of business on 18 October 2021, the father emailed to request that the hearing be rescheduled to another date. His request was refused. He asked for the reason his request was refused and the registry sent him a copy of the Practice Directions for the Social Services and Child Support Division of the AAT.
The Practice Directions set out that the AAT will not postpone a scheduled hearing unless there are good reasons to justify the postponement. The Practice Directions also state that a person should make the request for the postponement as soon as they become aware that they need the postponement, explain why they need it and send in any supporting documents.
In this case the father requested a postponement late on 18 October 2021 which was in the week before a hearing that had been listed some weeks earlier. His only explanation for the request was that he could not take the time off work. No further explanation was provided.
The tribunal is required to follow the Practice Directions.
During the directions hearing, as well as agreeing on the date and time of the substantive hearing, there was a discussion around the documents each party was to provide and the due date for these documents which was 6 October 2021. The father was directed to provide a completed Statement of Financial Circumstances (SFC); his personal tax returns, including any schedules, for 2019/20 and 2020/21; and documents evidencing out-of-pocket expenses he had incurred in relation to childcare.
It was apparent from the CSA documents that the father’s 2019/20 tax return had already been lodged with the Australian Taxation Office. At the directions hearing, the father said in relation to providing his 2019/20 tax return “yeah, yeah, no worries”. In relation to his 2020/21 tax return, he said that he had handed over his paperwork to his accountants and was waiting for them to complete it. He did point to the possibility of his 2020/21 tax return not being completed by the due date. He was requested to keep the AAT informed if there was a delay. The father did not say there was anything preventing him from providing documents to do with childcare and his SFC by the due date.
By 6 October 2021, the father had not submitted any of the documents he had been directed to provide by that date. He did not contact the AAT. The registry contacted him. He said he needed another two weeks. He also said that he did not want his personal information to be exchanged with the applicant.
The tribunal would note that during the directions hearing, the process of exchanging documents was explained and/or referred to at three different points in the hearing, and at no stage did the father raise any objection or concern about documents he submitted being provided to the mother.
On 14 October 2021, the father submitted a completed SFC. He wrote “Please do not share any personal details with the other party.”[1] Also on 14 October 2021, the registry responded by email as follows:
Hi [Mr Horler]
Thank you for the Statement of Financial Circumstances (SoFC) .
In your covering email you have written "Please do not share any personal details with the other party." Can you please clarify that you are telling us not to send a copy of your SoFC to the applicant. And if this is the case, the member will not be considering the information in your SoFC. This applies to any other documents you provide. Unless you agree they can be exchanged with the applicant, the member won’t be considering them.
Please clarify.
Thanks
[1] It was in this email that the father first advised he could not attend the hearing listed for 27 October 2021.
In an email dated 20 October 2021, the father wrote “Once I have time I intend on making submissions that can be seen by the other party, in the case of personal information I am unwilling to do so.”
On 22 October 2021, the father sent in a six-page submission which could be shared with the mother. This was accepted as a submission. It was made up of CSA documents that the mother would have received directly from the CSA. The father also wrote that a new hearing date set for late November 2021 will allow him time to prepare further documentation. The father may have forgotten that at the directions hearing, the mother said she was due to give birth in about eight weeks; around the middle of November 2021. This would make a hearing date in late November 2021 impractical for her.
Of the four sets of documents the father had been directed to provide by 6 October 2021, he submitted only his SFC, and that was on 14 October 2021, which he stated could not be shared with the other party. While there may have been a reason for a delay in providing his 2020/21 tax return, no explanation was given as to why the father could not provide his 2019/20 tax return and the childcare information as requested by the due date. As the father had stated that he did not want personal information shared with the mother, even if he had provided this information, it could not be used by the tribunal as part of the review process.
The tribunal is of the view that the father has been given plenty of opportunity to make written submissions. He has failed to comply with directions. The submission he made on 22 October 2021 was accepted.
The tribunal notes that the objections officer wrote in the decision of 24 May 2021 “Mr Horler did not specifically address his income circumstances in either the COA [change of assessment] process or during the objection process”.
The tribunal is satisfied that the father has been afforded procedural fairness in relation to documents and the date of the hearing but has chosen not to engage in the review process in the manner expected of parties.
Also at the directions hearing, the father said that he had wanted to make an application for review but was told by the AAT there was no need as the mother had already lodged an application for review of the objection decision. The tribunal was unable to find any record of this.
The tribunal observes that even if he was given wrong information by the AAT, the father has not been disadvantaged for the following reason.
When both parents lodge an application for review of an objection decision, two cases are opened up, with each parent an applicant for one and the second party for the other. The two cases are linked. The process from then is identical with what would occur if only one party had lodged an application for review. A directions hearing is held and then the substantive hearing is held. Whether one or two applicants or one or two cases, the parent parties are directed to provide evidence by a particular date and attend the hearing at the date and time agreed at the directions hearing.
Put another way, there can only be one review conducted of an objection decision. This is why, in cases where both parents apply for a review, their applications are linked and the review proceeds as if it was a single application.
Once the process is underway, the only difference between the rights of an applicant and a second party is if the applicant withdraws the application for review. The review is treated as being dismissed and the second party has 14 days to make a request for it to be reinstated, which may or may not be successful. In this case the applicant (the mother) has not requested that her application is withdrawn. Therefore, even if the father was given wrong information about lodging an application for review, this has not disadvantaged him in any way.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Act). The Act provides for an administrative assessment of child support to be paid. Pursuant to section 98C of the Act, a decision to depart from the administrative assessment may be made if the following three requirements are met:
i.A ground is established; and
ii.It would be just and equitable as regards the child, the liable parent and the carer entitled to child support to make a particular determination; and
iii.It would be otherwise proper to make a particular determination.

The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.
If the tribunal is satisfied that the three requirements are met, it may make one of the determinations prescribed in section 98S of the Act, which include variations to the annual rate of child support payable, or to the adjusted taxable incomes of the parents and/or carer, or to other components of the statutory formula used to calculate child support.

CONSIDERATION

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

Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination of the rate of child support because of the income, property and financial resources of either parent.

The father’s income

As the mother lodged her change of assessment application on 25 March 2020, the relevant tax years for this review are 2019/20, 2020/21 and the current financial year. The father’s taxable income for 2019/20 was $44,077. As the father has not provided his tax return for 2020/21 his taxable income for that year is not known.
As already noted, the father did not provide documents as directed that could be made available to the mother, and did not attend the hearing. These were both opportunities for him to clarify his financial situation and for the tribunal to gather evidence about his income, property and financial resources.
The tribunal had regard to principles noted in a Federal Magistrates Court decision as follows:[2]
In financial proceedings under the Family Law Act, the authorities make it clear that a Court “should not be unduly cautious about making findings in favour of the other party if it is not satisfied that proper disclosure has been made (see Chang & Su (2002) FLC93-117).” Such principles, in my consideration, have similar application to these matters before the SSAT.
[2] Conway & Child Support Registrar & Vlivery (SSAT Appeal) (No.2) [2008] FMCAfam985.
The tribunal is satisfied that the father has not made proper disclosure, and therefore will not be unduly cautious about making findings in the mother’s favour. When considering an appropriate income for him for child support purposes, the tribunal has largely relied on records obtained by the CSA and included in their documents, and answers to questions the father gave at the directions hearing. The father is employed on a full-time basis as an electrician by [Business 1]. He has worked for them for about three years.

The father’s income for 2018/19

By way of background, the tribunal will first consider the father’s income for 2018/19. In a letter to the CSA dated 17 June 2019, the father wrote that for the first half of this financial year (which can only have meant 2018/19), he was self-employed. He wrote that that was not successful and for the rest of the year he was employed.
According to his 2018/19 tax return, the father’s taxable income was $22,136. He was paid $36,693 from his employer. Based on the ABN in the tax return, his employer then was the [Trust 1] trading as [Business 1]. The father had income of $20,530 from his own business, and expenses of $34,282, giving a loss from the business of $13,752. The loss can be attributed to depreciation expense of $18,827.
The father’s 2018/19 tax return is consistent with him telling the CSA that he was self-employed for half of 2018/19 but made a loss and then became employed. According to a letter dated 20 May 2020 from [Mr A], Director, the father started work at [Business 1] on 5 November 2018. Gross pay of $36,693 from 5 November 2018 to 30 June 2019 (238 days) suggests an annualised income of $56,272 a year (36,693 / 238, then multiply by 365).

The father’s income for 2019/20

The father’s 2019/20 taxable income was $44,077. He said at the directions hearing that as well as working full-time as an employee, he also works on a self-employed basis and this work has been run at a loss for the last two years.
In a conversation with the CSA on 16 July 2019, the father said that he was a full-time employee and his income was in the high sixties and he would have deductions of about $10,000.[3]
[3] Page 139 of the CSA documents.
According to the letter from [Mr A], around May 2020 the father was employed as either a trainee [Occupation 1] at $36 an hour or as a [Occupation 2] at $43 an hour. The father was then being paid for 30.4 hours a week because of the impact of COVID-19 on the business but it was anticipated that his hours would increase to 38 hours a week.
The CSA had obtained payslips for the period between week ended 2 March 2020 to week ended 18 May 2020. According to payslips covering the period from week ending 2 March 2020 to week ending 30 March 2020, when the father was paid for 38 hours a week, his gross salary was $1,368 a week or $71,136 a year.
For most of the later weeks until week ended 18 May 2020, the father was paid $1,094.40 for working 30.4 hours a week. That is equivalent to $56,909 a year. As the father was unable to work full time as an employee because of COVID-19, the tribunal considers it unlikely that the father would take on additional work on a self-employed basis during that period which would result in him incurring a loss. In other words, why, when his income was already reduced, would he take on work that would leave him further out-of-pocket.
Given the foregoing, in relation to the period from 25 March 2020 to 30 June 2020, the tribunal considers it reasonable to assume the father was being paid for 30.4 hours a week because of COVID-19 restrictions, and therefore it is appropriate to use an income for him of $56,909 – say $57,000 – for child support purposes.

The father’s income from 1 July 2020

The CSA documents included [Bank 1] bank statements in the father’s name which show regular deposits of his net wages from September to December 2020. The tribunal will rely on these to work out an appropriate income for the father from 1 July 2020.
From 28 September 2020 to 19 October 2020, the father was paid $1,058 net a week and from 2 November 2020 to 21 December 2020, he was paid $1,078 net a week.
Using an online tax calculator, the tribunal has calculated that net weekly pay of $1,058 is equivalent to $1,335 a week gross or $69,420 a year.[4]
[4] The tax calculator can be accessed at
Net weekly pay of $1,078 is equivalent to $1,368 a week gross or $71,136 a year.
Therefore, based on his net pay information included in the bank statements, the tribunal estimates the father’s gross pay from employment for 2020/21 to be $70,512, as follows.
1 July 2020 to 31 October 2020, $1,335 a week for say 18 weeks: $24,030
1 November 2020 to 30 June 2021, $1,368 a week for say 34 weeks: $46,512
$70,512
Based on the payslips for the period from March to May 2020, for most of the time, the father was paid at the rate of $36 an hour, being the trainee [Occupation 1] rate. The mother said that she believed the father had been promoted but she did not know for sure.
If he was paid at the trainee rate of $36 an hour for 38 hours a week, the father’s weekly gross income would be $1,368 and his annual gross income would be $71,136. It is apparent from the bank records that during November and December 2020, the father was still being paid at the trainee rate.
If he was paid at the [Occupation 2] rate of $43 an hour for 38 hours a week, his weekly gross income would be $1,634 and his annual gross income would be $84,968.
It may be the case that the father’s income was less than $71,000 during the period from 1 July 2020 to 27 September 2020. It is equally possible that he is currently being paid more than the trainee rate of $36 an hour. It is also possible that his income was affected by COVID-19 related restrictions. The tribunal is of the view that the father being assessed on an annual income of $71,000 for the 2020/21 financial year strikes a reasonable balance.

The tribunal also considers it reasonable that the child support inflation factor for 2021 of 2.6% is applied from 1 July 2021, giving an income for child support purposes of $72,846, rounded to $72,850.[5]
[5] Information about the child support inflation factor can be found here percentages can be found in the table headed “Basic values used in calculating child support assessments”.

The mother’s income

According to CSA records, the mother’s taxable income was $52,107 for 2018/19 and $47,080 for 2019/20. She submitted her tax return for 2020/21 which recorded a taxable income of $45,618.
The mother was employed as a [Occupation 3]. She said that during 2020/21 she was working part- time for two employers, an [Workplace 1] and a [Workplace 2], which she had done for a few years. Then an opportunity came up to work full-time at a [location], but that did not work out. She found that work very difficult and left, and needed to see a counsellor for a while. She then started work as a [Occupation 3] at a [Workplace 3] which was a casual position in [specified field].
The mother said that she stopped work on 31 August 2021 to go on maternity leave. At the time she was being assessed on an income of $47,080 a year. She lodged an estimate of nil income which applied from 12 October 2021.
The mother said that as she was a casual employee, she did not get any leave paid out when she stopped working.
The mother said she expects to go back to work when the baby is about six or eight months old. There was discussion around her lodging an income estimate then to reflect her income from employment.
The tribunal is of the view that the administrative assessment adequately reflects the mother’s income, property and financial resources for the period under review.

How does the administrative assessment compare with an assessment of child support using the tribunal’s income figures for the father?

The following rates of child support are based on assessment notices already issued by the CSA or are the result of the tribunal’s calculations, in which case they are only estimates. The CSA will provide accurate notices of assessment in due course.
On 25 March 2020 the mother applied for a change of assessment. At that time, she was assessed to pay child support of $1,376 a year, based on her estimate of income for 2019/20 of $40,325 and an adjusted taxable income for 2017/18 of $22,136 for the father.
The tribunal has formed the view that $57,000 better reflects the father’s income at that time, in which case the father becomes liable to pay child support to the mother, at an annual rate of $4,367.
Given the difference between the mother having a child support liability of $1,376 a year and the father having a child support liability of $4,367 a year, the tribunal is satisfied that in the special circumstances of this case, the administrative assessment does result in an unjust and inequitable rate of child support, and that a ground for departure from the administrative assessment has been established pursuant to subparagraph 117(2)(c)(ia) of the Act.

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

As the tribunal is satisfied that there is a ground to depart from an administrative assessment of child support, the next step is to consider whether it is just and equitable as regards the children, the father and the mother to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the tribunal to consider a variety of factors, as set out in subsection 117(4) of the Act.[6]
[6] The tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi and Meares (SSAT Appeal) [2008] FMCAfam 886.
Section 3 of the Act makes it clear that parents have the primary duty to maintain their children, 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. In this case the father and the mother have the primary duty to financially support the children of this case.

Income, property and financial resources – the father

The father provided the AAT with a SFC but stated he did not want the mother to see it. The tribunal cannot comment on the contents of it. The mother said that the father and his partner built a house together and that they have an investment property – a town house near the beach – that they rent out.

Income, property and financial resources – the mother

The mother’s SFC was dated 8 June 2021.She recorded weekly income of $1,024, made up of weekly pay of $947 and family tax benefit (FTB) of $45.36. As noted earlier, since then the mother has stopped work.
The mother is married. According to her tax return, her spouse’s income is $76,000 a year. She said that they rent their home. The SFC did not record any liabilities and the only asset recorded was $6,617 in superannuation.
The “average weekly expenses schedule” which is used to record household expenses and expenses incurred for all adults and children in the household did not record any expenses for the spouse. It appeared to be incomplete.
When asked to characterise her overall financial situation, the mother said that she was able to pay bills as they arrived although they had to budget. There was no indication of her experiencing severe financial hardship.

Other issues pertaining to the parents’ incomes, property and financial resources

Subsection 117(7B) of the Act prescribes the circumstances in which a parent’s earning capacity may be taken into account; certain criteria have to be met. These include that the parent has failed to demonstrate that decisions made about their work arrangements were not substantially motivated by the effect they would have on the rate of child support.
The father has worked for the same employer for about three years. There is no evidence that he has made decisions about his work arrangements that were substantially motivated by the effect they would have on the rate of child support.
The mother’s income has been similar over the last two years. She has recently stopped work as she is due to have another child.
The tribunal is satisfied that the mother has not made decisions about her work arrangements that were substantially motivated by the effect they would have on the rate of child support. The tribunal concluded that it need not consider the application of subsection 117(7B) of the Act in relation to either parent any further.
The tribunal is required to have regard to the commitments of each parent that are necessary to enable the parent to support himself or herself, or any other child or another person that the person has a duty to maintain (paragraph 117(4)(e) of the Act). There was no evidence before the tribunal of either parent having extra self-support costs or of having the duty to maintain another child or person. That will change with the birth of the child that is expected in November 2021, in which case the mother should notify the CSA accordingly.

Costs related to the children

In determining the proper needs of the children, it is necessary to have regard to the manner in which they are being, and in which the parents expected them to be, cared for, educated or trained, and any special needs they may have (subsection 117(6) of the Act).
The issue of childcare costs had been raised during the change of assessment process. Childcare costs incurred by a parent are not considered high unless they are more than 5% of the parent’s adjusted taxable income for the child support period (section 117(3B)). The duration of a child support period is variable according to the particular circumstances but cannot exceed 15 months.
The CSA documents include documents provided by the father that relate to childcare for the two younger children for July 2019. The provider was [Childcare service 1]. The mother said that the father’s partner works at [Childcare service 1] as the [Occupation 4].
The father did not provide evidence of his out-of-pocket childcare expenses during the period relevant to this review, from March 2020 onwards.
On the basis of the father’s income for child support purposes being $57,000, 5% of that is $2,850. On an income of $71,000, 5% is $3,550.
According to [Mr B], operations manager for [Childcare service 1], the father’s out-of-pocket costs each week were $130.20 during term time and $227.90 a week during school holidays for the two youngest children. Assuming 40 weeks a year of school and 12 weeks a year of vacation, the cost is $7,942 for the year for both children
The father and mother each provide 50% of the care for the two youngest children which suggests that each parent’s share of childcare costs is $3,921 but the tribunal has insufficient data to be sure if this is accurate. The mother indicated there were periods when the father took the children on holiday and he may not have had to pay childcare costs for those weeks.
It may be the case that the father’s childcare costs are high enough to consider whether his child support liability should be reduced. However not enough information has been provided. Invoices and other records for the one month of July 2019 are not sufficient to make an adjustment to a child support determination that starts from 25 March 2020.
The mother provided information about the childcare costs she incurred for three days of one week during September 2021. She said that she would not pursue the out-of-pocket childcare costs she incurred if the father’s childcare costs were not factored into the child support assessment.
That being the case, the tribunal will not consider the costs of childcare any further, apart from referring the parents to Chapter 2.6.12 “Reason 6 - high costs of child care” of the Child Support Guide which sets out the CSA policy in regard to these costs and will assist each parent if they want to pursue this particular issue.[7]
[7] Child Support Guide (2021) 2.6.12 Reason 6 - high costs of child care which can be accessed at
The mother had raised the costs associated with the oldest child’s special needs. She submitted a letter dated 15 September 2021 from [Dr C], a consultant paediatrician. According to this letter, the child suffers from anxiety, ADHD and ODD, and has learning difficulties and social skills deficits.
The mother said that due to the pandemic, [Dr C] has only been providing telehealth consultations, and she had not been incurring out-of-pocket costs for these during the relevant period. However, she expected that in-person consultations would resume from about January 2022 and she would start to incur costs from then in relation to the oldest child’s special needs. The mother said she was considering making a new change of assessment application at that time.
The mother also submitted a pharmacy receipt for [Medication 1] and [Medication 2], both prescribed for the oldest child. The [Medication 1] cost $41.30 a month and the [Medication 2] cost $28.96 for three months’ supply. The cost per month is therefore about $50 or $600 a year. If the cost was to be shared equally between the parents, each would contribute $300 a year or about $6 a week.
The tribunal does not consider this cost on its own is sufficient to warrant a change to the child support assessment. However, that could change if the medication costs are considered together with the paediatrician’s fees, if the mother starts to incur the latter costs.
With regard to general costs associated with the children, the tribunal considers it appropriate to rely on the Costs of the Children Table available from the CSA’s website.[8]
[8] For the parents’ information, a Costs of Children Table is available at the Services Australia website which can be found at align="left">Hardship
1. The tribunal is required to consider any hardship its determination might cause and is guided by Gyselman and Gyselman[9] in this respect:
  This requires the Court to balance the “hardship” which the parents or the children may suffer as a result of either making or refusing to make the order. It is a recognition of the circumstance that in this area there is likely to be hardship both ways and the Court is required to take into account the balance of that hardship and give it the weight which is appropriate to the circumstances of the individual case.
  [9] [1991] FamCA 93.
2. The mother said that she managed to cover her household bills. Now that she has stopped working, the household finances have reduced. She said she was in the process of applying for parenting payment and if she was successful, that would be about $18,000 a year. If the mother receives income in the range $nil to $26,000 a year, the child support assessment will not change.
3. The tribunal is unable to assess the father’s situation with regard to financial hardship as he has not provided relevant documents or written or oral submissions. Based on CSA records, as at 30 June 2021, the father was up to date with his child support payments.
4. The tribunal estimates that the effect of this decision will reduce the father’s child support liability for the period from 25 March 2020 to 30 June 2020 by about $600 and increase his child support liability by about $900 a year for the 16 months from 1 July 2020 to 31 October 2021. These figures are just estimates because of the complexity of the child support calculations.
Any other relevant matters
100.The tribunal may take into account any other matters it considers relevant in making a particular departure determination (subsection 117(9) of the Act).
101.The father has observed that whereas the CSA made changes to his adjusted taxable income, no such changes were made to the mother’s adjusted taxable income during the change of assessment process. The tribunal will now provide an explanation for this.
102.The tribunal has made its determination taking into account the effect a particular change will have on the rate of child support. For example, if the tribunal was to vary the mother’s adjusted taxable income to reflect her actual income, then she would be assessed on nil income from 1 September 2021 rather than from 12 October 2021 which was when she lodged her estimate of nil income. That would increase the father’s child support liability by about $40 a week from 1 September 2021 to 12 October 2021; about $240 in total. However, as the mother could have lodged her estimate of nil income on 1 September 2021 but failed to do so, the tribunal considers it appropriate to not make any adjustments for that. This benefits the father by about $240.
103.The tribunal notes that the mother’s taxable incomes for 2019/20 and 2020/21 were very similar. During the period relevant to this review she was assessed on an estimate of income of $40,325 between 25 March 2020 and 30 June 2020 which was less than her 2019/20 taxable income. This benefited the mother by about $11 a week for 14 weeks, totalling $154 which partly offsets the $240 benefit to the father, with the difference being $86. The tribunal considers this to be immaterial given the rate of child support at the current time ($7,992 a year based on the objection decision which will increase to an estimated $9,104 a year when the tribunal’s determination is given effect).
104.Generally, the start date of a departure determination is the date a parent lodged their change of assessment application, which in this case was 25 March 2020. The mother said she was prompted to lodge her change of assessment application after the father applied to the CSA for it to collect child support. Before then, a private collect arrangement was in place. It was open to the mother to lodge a change of assessment application at an earlier date but she did not do so. The tribunal is satisfied that 25 March 2020 is the appropriate start date for its determination.
105.The tribunal will end its determination on 31 October 2022 to give the parents some certainty into the future.
106.As already noted, the mother indicated she might lodge a further change of assessment, possibly in January 2022, when in-person consultations with the paediatrician are expected to resume. It is open to either parent to apply for a change of assessment if their circumstances change at any time.
Issue 3 – Is it otherwise proper to make a particular departure determination?
107.The requirement to consider whether a departure determination would be otherwise proper is concerned with what is fair to the community; it is preferable for a child or children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Act means that the tribunal must consider whether the level of a benefit, in particular FTB, received by the party caring for a child or children, may be affected by the level of child support.
108.Based on her SFC, the mother is in receipt of FTB. The tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and the community and would be otherwise proper.
DECISION
The tribunal sets aside the decision under review and, in substitution, decides as follows:
- From 25 March 2020 to 30 June 2020, Mr Horler’s adjusted taxable income is varied to $57,000.
- From 1 July 2020 to 30 June 2021, Mr Horler’s adjusted taxable income is varied to $71,000.
- From 1 July 2021 to 31 October 2022, Mr Horler’s adjusted taxable income is varied to $72,850.

[2021] AATA 4797

27 October 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Remedies

Judicial Review

Statutory Construction