Lanachan and Lanachan (Child support)
[2025] ARTA 940
•1 April 2025
Lanachan and Lanachan (Child support) [2025] ARTA 940 (1 April 2025)
Applicant/s: Mrs Lanachan
Respondent: Child Support Registrar
Other Parties: Mr Lanachan
Tribunal Number: 2024/PC028050
Tribunal: Senior Member S Trotter
Place:Brisbane
Date:1 April 2025
Decision:The Tribunal varies the decision under review so that for the period 1 July 2023 to 30 June 2024 the income used in the assessment for Mrs Lanachan is to be decreased by $10,457.
CATCHWORDS
CHILD SUPPORT – departure from the administrative assessment – income, property and financial resources – financial capacity of a child – under-utilised earning capacity – tax on withdrawn superannuation monies – ground for departure – adjusted taxable income reduced – decision under review varied
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 pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
Mrs Lanachan and Mr Lanachan are the parents of [Child 1], [Child 2] (born 25 October 2005) and [Child 3] (born [in] December 2007). A child support case was registered with Services Australia – Child Support (Child Support) in relation to the children in 2016. This application relates to the child support liability in relation to [Child 2] and [Child 3] only as at all times relevant to this application, the case in relation to [Child 1] had ceased as she had already turned 18. Notably, the case in relation to [Child 2] also ceased when she turned 18 on 25 October 2023, however, part of the relevant period in relation to this application relates to before [Child 2] turned 18.
From 19 November 2022 to 25 October 2023, [Child 2] was recorded as being in the 100% care of Mr Lanachan. Child Support’s records show that the care of [Child 3] has changed a number of times with [Child 3] sometimes being in the 100% care of Mrs Lanachan and sometimes being in the 100% care of Mr Lanachan with the result that Mrs Lanachan’s and Mr Lanachan’s roles as child support paying parents and child support receiving parents vary from time to time depending upon whose care [Child 3] is in from time to time.
The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The Act also provides for a departure from the administrative assessment (commonly termed a change of assessment) in certain circumstances.
On 24 October 2023, Mrs Lanachan lodged a departure application with Child Support seeking a change of assessment on the basis that there were special needs for [Child 2], namely orthodontic expenses, that were not recognised in the usual administrative assessment of child support (a Reason for departure commonly referred to as Reason 2) in relation to which she obtained early release of superannuation funds to pay for the cost such that her income, property and financial resources were not properly taken into account (a Reason for departure commonly referred to as Reason 8A).
On 23 February 2024, Child Support decided that Reasons 2 and 8A had been established and decreased Mrs Lanachan’s adjusted taxable income by $7,111 for the period 24 October 2023 to 31 August 2024. This decision resulted in a reduction of approximately $491[1] in the child support then assessed to be payable by Mrs Lanachan.
[1] Page 611 of Exhibit 1
Mrs Lanachan objected to this decision and, on 8 May 2024, a Child Support objections officer partly allowed the objection determining that the period during which Mrs Lanachan’s adjusted taxable income was to be reduced by $7,111 was varied to the period 1 July 2023 to 30 June 2024. This decision resulted in a further reduction of approximately $635[2] in the child support then assessed to be payable by Mrs Lanachan.
[2] Page 611 of Exhibit 1
Mrs Lanachan applied to the Tribunal on 6 June 2024 seeking independent review of Child Support’s decision stating as follows (unedited):
The COA- objection Assessor, [named], was excellent. I was assured all was done to make the situation equitable. My yearly taxable income to include the super withdrawn (and the tax) was increased to cover my daughter’s dental costs, and that income was spread across the whole financial year. I am applying because half of the cost for the dental still sits as a NAP, as the other party didn’t agree that the braces and dental work needed to happen. This dental cost is the second super withdrawal I have made to fix my daughter’s teeth. In filling out his form today, I am listing myself as the receiving parent for the first time since early in our separation. We had a 50/50 shared care arrangement obtained in FCWA, but this did not transpire. As our youngest is turning 18 in 12/25, it looks unlikely that the NAP will be reconciled. I have a debt which is similar amount to the NAP, and I hoped in light of this a review of the monies owed. Could they potentially cancel each other out? I would appreciate a revision of the whole dental costs process, if it’s possible, as the first application I was not in the best form. I can’t recall the details re the first extra costs dental claim. Im not sure whether my taxable income was increased to include the first super payment and the tax loading. If a reason is needed for the lateness of requesting a review of the first dental claim, there are a few. I would not have considered an AAT review due to capacity and opportunity. I am doing this claim now (for the second dental claim) as it was suggested by my Case Manager as an option. I include the first dental claim her as an opportunity to reconcile both orthodontic claims.
At a directions hearing on 30 September 2024, directions were made in relation to the conduct of the matter and the provision of further documents from the parties prior to hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The hearing took place on 5 December 2024. Mrs Lanachan and Mr Lanachan both participated in the hearing by conference telephone and gave sworn oral evidence. The Child Support Registrar did not seek leave to participate in the hearing and did not attend but provided relevant documents from the Child Support file. The matter was adjourned following the hearing including because the Tribunal was advised of subsequent decisions made by Child Support of potential relevance to the application and because of receipt of additional information from the parents. A further directions hearing was listed for 24 February 2025 following Mrs Lanachan advising that there was additional information she wished to provide, however, this directions hearing was vacated following Mrs Lanachan subsequently advising that she had no further documents to provide.
I have taken into account the sworn oral evidence and submissions of Mrs Lanachan and Mr Lanachan at hearing and the following documents (which have been copied to all parties):
(a)documentary material provided by Child Support on 26 June 2024 (Exhibit 1, pages 1 to 630);
(b)supplementary documentary material provided by Child Support on 25 November 2024 (Exhibit 1, pages 631 to 683);
(c)further supplementary documentary material provided by Child Support on 18 December 2024 (Exhibit 1, pages 684 to 696);
(d)further supplementary documentary material provided by Child Support on 16 January 2025 (Exhibit 1, pages 697 to 772);
(e)further supplementary documentary material provided by Child Support on 3 March 2025 (Exhibit 1, pages 773 to 794);
(f)documents received from Mrs Lanachan (Exhibit A, pages A1 to A72); and
(g)documents received from Mr Lanachan (Exhibit B, pages B1 to B37).
ISSUES
12. The statutory provisions relevant to this review are contained in the Act.
I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.
14. A parent can apply to the Child Support Registrar for a determination to depart from the administrative assessment of child support (a process known as a change of assessment). Such an application is made under Part 6A of the Act. Under section 98C, a decision-maker can make a change of assessment only if satisfied that:
(a)a ground for a change of assessment has been established;
(b)a change of assessment would be just and equitable as regards the children and each parent; and
(c)a change of assessment would be otherwise proper.
15. There are 10 possible grounds for a change of assessment set out in section 117 of the Act. Under the legislation, each ground for departure is prefaced by the words ‘in the special circumstances of the case’. It is not possible to define with precision the meaning of that term. It is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman (1992) FLC 92-279 (Gyselman), it was held that ‘special circumstances’ were ‘facts peculiar to the particular case which set it apart from other cases’. My approach to the interpretation and application of the particular grounds in subsection 117(2) must be guided by that qualification.
16. If one ground is established, it is sufficient for the Tribunal to proceed to the next step even though the application may have raised more than one ground for departure (Marsh & Eccles [2008] FMCAfam 1417).
17. If satisfied that a ground or grounds exist, and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.
18. It follows that the issues to be determined by me are as follows:
(a)Does a ground, specified in subsection 117(2), exist to depart from the administrative assessment?
(b)Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support? And
(c)Would it be otherwise proper to make a particular departure determination?
CONSIDERATION
19. Mrs Lanachan provided a written submission to the Tribunal dated 26 September 2024 (Exhibit A, pages 9 to 11) outlining that she seeks the following:
(a)to explore ways of paying down the prescribed private payments (PPPs) raised due to dental costs;
(b)that her adjusted taxable income for the 2023/24 financial year be reduced by $10,457 rather than $7,111 as decided by Child Support, to reflect the true costs to her including tax payable upon withdrawing the monies from superannuation to pay for dental costs for [Child 2]; and
(c)to adjust her Child Support liability for the 2021/22 financial year in relation to income reconciliation following an estimate.
20. Mrs Lanachan’s evidence was that she has paid previous dental costs for [Child 2] which have been accepted as prescribed non-agency payments. In the 24 October 2023 change of assessment application, the subject of this review, Mrs Lanachan sought an adjustment to her income referable to early release of superannuation monies of $7,111 which she used to pay for further dental expenses of $7,111 for [Child 2]. Mrs Lanachan’s application also referred to $840 orthodontics paid for by her for [Child 2].
21. Mrs Lanachan said that she currently has approximately $2,000 child support arrears. She was hoping that the debt would be offset by the crediting of non-agency payments that have been accepted as prescribed payments but because of the way the non-agency payments are credited, it hasn’t worked out that way and her debt still exists.
22. Mr Lanachan’s position is that he has also had to access superannuation previously, just to pay for basic provisions for the children, and he also had tax to pay on that and considers the law should apply fairly in the same way to all. His understanding is that there is a tax implication for all persons meeting the criteria for early release of superannuation.
Issue 1 – Does a ground exist to depart from the administrative assessment?
23. Subparagraph 117(2)(b)(ia) of the Act, commonly referred to as Reason 2, provides a ground for departure where:
(b) ... in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(ia) because of special needs of the child …
24. The term “special needs” is not defined in the legislation. Clearly there must be some evidence that the needs of the child relate to a condition or disability that is out of the ordinary. These special needs can be because of a physical, mental or learning disability or because of a special talent or ability of the child (Lightfoot v Hampson (1996) FLC 92-663).
25. The Child Support Guide (the Guide) at section 2.6.8 gives examples of the types of matters that might be considered in relation to Reason 2 and notes that ‘The costs of orthodontic treatment that is considered to be essential or desirable for a child’s welfare may be significant enough to affect the costs of maintaining the child’.
It is not in dispute that Mrs Lanachan paid $7,111 for dental costs for [Child 2] from the early release of superannuation funds on 24 October 2023 as confirmed by a letter from Mrs Lanachan’s superannuation fund of that date (Exhibit 1, page 413) and a Statement of Account from [Dentists 1] dated 24 October 2023 (Exhibit 1, page 414). Further, it is not disputed that Mrs Lanachan additionally paid for orthotics for [Child 2] totalling $1,000 on 12 June 2023 and 20 October 2023 respectively (Exhibit 1, pages 414 and 415).
27. I am satisfied on the evidence, and it is not disputed, that the dental and orthotic costs are referable to the special needs of [Child 2] not otherwise recognised in the usual costs of children in the administrative assessment.
28. In the context of the costs of [Child 2] recognised in the administrative assessment being in the vicinity of $6,347 per annum (see for example Exhibit 1, page 395), I am satisfied that in the special circumstances of the case, the costs of maintaining [Child 2] are significantly affected by dental costs of $7,111 and orthotic costs of $1,000 because of the special needs of [Child 2].
29. On this basis I find that there is a ground for a departure from the administrative assessment of child support pursuant to subparagraph 117(2)(b)(ia) of the Act is established.
30. As observed by the objections officer, Mrs Lanachan in her change of assessment application also referred to Reason 5, however, did not pursue that reason for departure from the administrative assessment.
Issue 2 – Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support?
Having found that a ground exists to depart from the administrative assessment on the basis of Reason 2, consideration is required of whether it would be just and equitable to make a particular determination pursuant to subparagraph 98C(1)(b)(ii) of the Act. Relevantly, subsection 117(4) of the Act requires that regard must be had to the following in determining whether it would be just and equitable to do so:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.
32. I am not limited by the matters listed in subsection 117(4) and may consider any other relevant matters (subsection 117(9) of the Act).
33. The Full Family Court, in the case of Gyselman, stated that:
some of the matters listed in sub-section [117](4) may overlap with matters already considered under sub-section [117](2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).
34. I have considered all matters set out in subsection 117(4) of the Act but will only specifically refer to those considerations pertinent to the application.
The nature of the duty of a parent to maintain a child
As regards paragraph 117(4)(a) of the Act, I recognise that Mrs Lanachan and Mr Lanachan have a duty to maintain the children. Further, I note the statements contained in sections 3 and 4 of the Act to the following effect:
(a)The duty of a parent to maintain his or her child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person that the parent has a duty to maintain.
(b)The level of support should be determined in accordance with the costs of children, and according to the parents’ capacity to provide financial support.
The proper needs of the child
36. In determining the proper needs of the child for the purposes of paragraph 117(4)(b) of the Act, subsection 117(6) of the Act requires me to have regard to the manner in which a child is being, and in which the parents expect them to be, cared for, educated or trained and any other special needs they may have.
37. Other than the special needs of [Child 2] in relation to dental and orthotic costs as already canvassed, there is no evidence before me to suggest that the current proper needs of the children are other than the usual costs of providing for children of their respective ages.
The income, earning capacity, property and financial resources of the child
38. Mr Lanachan’s evidence at hearing was that [Child 3] (who will turn 18 in December 2025) commenced working full-time as [an occupation 1] in September 2024. He had some time off work due to injuring his finger quite badly, for which he received some workers’ compensation, but is now back working full-time. He is expected to commence [an] apprenticeship in 2025. Mr Lanachan said he is not aware of [Child 3’s] current hourly rate or take-home pay as he considers that is [Child 3’s] own business – he expected it might be $500 or $600 per week – whatever the lowest level is for [an occupation 1], however, he understands that [Child 3’s] pay will decrease once his apprenticeship commences by $100 to $150 per week.
39. Mr Lanachan said that [Child 3] has occasionally contributed some cash towards food but has also been paying off some of his own debts. He also sometimes buys his own clothes.
Since the hearing of this matter on 5 December 2024, I note that Child Support has made a separate change of assessment decision, on 17 December 2024, following a 14 October 2024 application by Mrs Lanachan for a departure from the administrative assessment of child support on the basis that the child support assessment was unfair because of the income, earning capacity, property and financial resources of [Child 3]. Child Support found that a reason to depart from the usual assessment of child support existed in relation to [Child 3’s] income and determined that the amount of income [Child 3] was receiving was sufficient for him to be able to meet the costs of his own self-support such that he no longer required ongoing support from either Mrs Lanachan or Mr Lanachan. A decision was made to set the amount of child support payable by Mrs Lanachan and Mr Lanachan at the minimal annual rate during the periods from 14 October 2024 (the date [Child 3’s] income significantly exceeded a threshold amount such that he could meet his own costs), that either have a child support liability (depending upon the changing care position from time to time of [Child 3]). It was noted that despite the finding that [Child 3’s] income from 14 October 2024 was sufficient to meet his own needs, that it was not possible to reduce the assessed child support to below the minimum annual rate. It was further noted that the effect of the decision would be to decrease Mrs Lanachan’s outstanding child support liability by approximately $1,350.
The income, property and financial resources and earning capacity of each parent who is a party to the proceeding
Mrs Lanachan
Mrs Lanachan works as [an occupation 2]. Her 2022/23 taxable income of $70,317 was utilised in the assessment of child support from 7 September 2023 (reduced by $7,111 between 1 July 2023 and 30 June 2024 pursuant to Child Support’s decision in relation to this application). Thereafter estimated 2023/24 income of $71,370 ?? was being utilised. On 20 December 2024, Child Support wrote to the parents advising that as Mrs Lanachan’s income for a past period had been determined to be higher than the estimate utilised (with her 2023/24 taxable income being $95,106[3] as compared to her estimated income of $71,370), Mrs Lanachan owed additional child support of $4,786 for the period 1 July 2023 to 30 June 2024.[4] I am satisfied that Mrs Lanachan’s income available for self-support and child support is appropriately reflected in her adjusted taxable income from time to time.
[3] Later amended to $95,555, Exhibit 1, page 769
[4] Exhibit 1, page 740
As disclosed in Mrs Lanachan’s most recent Statement of Financial Circumstances dated 6 November 2024 (Exhibit A, pages 43 to 50), I accept Mrs Lanachan has no significant property nor financial resources that should be taken into account for child support purposes additional to her income from time to time.
Mr Lanachan
43. Mr Lanachan works part-time as [an occupation 3] and is also studying and in receipt of Centrelink payments. His 2021/22, 2022/23 and 2023/24 adjusted taxable income amounts of $20,123, $37,783, $39,498 respectively have been utilised in the assessment of child support from time to time.
44. Mrs Lanachan submitted that Mr Lanachan had the option of delaying his studies and working additional hours to assist with the costs of the children in the past but chose not to work additional hours when he could have.
45. The legislation provides that a person’s earning capacity is greater than is reflected in his or her income if the requirements of subsection 117(7B) of the Act are satisfied. That subsection states as follows:
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a) one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent’s caring responsibilities; or
(ii) the parent’s state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
46. All three subparagraphs of subsection 117(7B) are required to be satisfied for there to be a determination that a parent’s earning capacity is greater than is reflected in their income.
47. Mr Lanachan’s evidence was that his decisions about employment and study have never been motivated by the impact upon child support. Mr Lanachan detailed his employment history and health and other circumstances that have impacted his employment over the years, the details of which it is not necessary to repeat. In short Mr Lanachan said there had been significant changes in his work and health over the years and he is now studying to better improve his work prospects in the future, including to better provide for the children. Mr Lanachan stated that although the child support case will soon be terminated with all children soon to be over the age of 18, he expects to continue to assist his children as much as possible. He said that he could not simply defer his studies and work more, including because of the difficulties in being offered a place in [his study] program. He said that he has previously increased his [occupation 3 work] hours over semester breaks and had previously worked very long hours but even if not currently studying [his specific course] he could not continue to do that because of the impacts of working long hours.
48. I am satisfied that Mr Lanachan has demonstrated that his decisions in relation to work and study are not motivated to affect the child support payable. It follows that no earning capacity of Mr Lanachan additional to as reflected in his adjusted taxable income from time to time can be taken into account. I am satisfied that Mr Lanachan’s income available for self-support and child support is appropriately reflected in his adjusted taxable income from time to time.
49. As disclosed in the Statement of Financial Circumstances dated 6 July 2024 of Mr Lanachan (Exhibit B, pages 1 to 10), and I accept, Mr Lanachan has no significant property nor financial resources that should be taken into account for child support purposes additional to his income from time to time.
The commitments of each parent
50. Mrs Lanachan’s Statement of Financial Circumstances sets out her approximate income and expenses. Mrs Lanachan said she struggles to meet all expenses – she said her income and expenses are finely balanced but she prioritised [Child 2’s] dental needs by accessing superannuation. She said that a reduction in her assessed child support to take into account the tax cost to her of accessing that superannuation would assist her in catching up on child support arrears. Mrs Lanachan further noted that because of the way things work, she expects she also will end up not receiving the benefit of non-agency payments that she has made which have been accepted, because those parts that had not been credited by the time the child support case ends would evaporate. She noted that the change she is seeking will not have the practical effect of Mr Lanachan having to pay more; rather it would reduce her arrears which she is struggling to pay.
51. Mr Lanachan’s evidence was that he operates week to week with income and expenses and that prior to [Child 3] commencing employment, he needed whatever child support he could receive to assist with [Child 3’s] expenses when he was living with him.
Proposed departure
52. Mrs Lanachan seeks that her adjusted taxable income be reduced by $10,457 rather than $7,111 as per the 8 May 2024 objection decision on the basis that the cost of her withdrawing superannuation monies early was not just the amount withdrawn, but additionally also the tax she had to pay on withdrawing those monies.
53. Mr Lanachan’s position is that he has also had to access superannuation previously, just to pay for basic provisions for the children, and he also had tax to pay on that and considers the law should apply fairly in the same way to all. His understanding is that there is a tax implication for all persons meeting the criteria for early release of superannuation.
54. Details of what previous superannuation access Mr Lanachan has had are not before me, however, I accept that he also had a tax liability in relation to superannuation monies he accessed earlier. It was a matter for him at the time if he sought recognition of that for child support purposes. The fact that he did not does not detract from the position that the true cost of Mrs Lanachan meetings the cost of [Child 2’s] special needs is not just the $7,111 superannuation monies which were accessed early, but also the tax cost of that which I accept was an additional $3,346 for a total cost to Mrs Lanachan of $10,457. I consider it appropriate that this amount be recognised with Mrs Lanachan’s adjusted taxable income being reduced by $10,457. As to the duration of that change, I consider it appropriate that it be for the period 1 July 2023 until 30 June 2024. Mrs Lanachan’s child support liability during that period will reduce by approximately $600 to $800 (depending upon other variables). I note that this period ends before the other subsequent change of assessment decision relating to [Child 3’s] income and is therefore not impacted by it. I am satisfied that the proposed departure will not result in hardship to Mr Lanachan.
55. Having regard to all matters, I consider it just and equitable as regards the children and each parent to depart from the administrative assessment of child support by reducing Mrs Lanachan’s adjusted taxable income otherwise utilised in the period 1 July 2023 to 30 June 2024 by $10,457 representing the superannuation monies withdrawn by her to meet [Child 2’s] dental needs plus the tax component upon that early withdrawal.
Issue 3 – Would it be otherwise proper to make a particular departure determination?
56. I considered 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) of the Act sets out the matters that must be considered when deciding whether it would be ‘otherwise proper’ to make a departure determination. Subsection 117(5) focuses on the balance of support between parents on the one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Act means that I must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for a child may be affected by the level of child support.
57. Decreasing Mrs Lanachan’s adjusted taxable income and decreasing the child support to be paid by her may impact either parent’s entitlement, if any, to government payments which in the circumstances canvassed is otherwise proper.
DECISION
The Tribunal varies the decision under review so that for the period 1 July 2023 to 30 June 2024 the income used in the assessment for Mrs Lanachan is to be decreased by $10,457.
| Dates of directions hearing: Date of hearing: | 30 September 2024 5 December 2024 |
Representative for the Applicant: | Self-represented |
Representative for the Other party: | Self-represented |
0
3
0