Maher and Cheetham (Child support)

[2018] AATA 955

Maher and Cheetham (Child support) [2018] AATA 955 (5 March 2018)

DIVISION:       Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012147

APPLICANT:  Mr Maher

OTHER PARTIES:    Child Support Registrar

Ms Cheetham

TRIBUNAL:    Member J Cuthbert

DECISION DATE:     5 March 2018

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS
Child support – Departure determination - Earning capacity of parent – All three criteria met - Obligation on the parties to make a full and complete disclosure of their financial affairs - Decision under review affirmed

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

REASONS FOR DECISION

HISTORY

1. This review concerns an application for a change to a child support assessment made by Ms [Cheetham] on 18 January 2017.

2. Ms [Cheetham] and Mr [Maher] are the parents of [Child 1] (born 2010), [Child 2] (born 2009) and [Child 3] (born 2002) as well as two adult children. There has been a child support assessment in place, made by the Department of Human Services – Child Support (the Department), since 2012. The child support assessment is currently based on Ms [Cheetham] having care percentages of 100% for [Child 1] and [Child 2] and Mr [Maher] having a care percentage of 100% for [Child 3].

3. From 11 January 2017 Ms [Cheetham] was assessed to pay child support of $6,131 a year based on her 2015/16 adjusted taxable income of $87,416 and a provisional income of $19,745 for Mr [Maher]. The annual rate payable by Ms [Cheetham] reduced to $4,382 on 12 January 2017 as she estimated her income to be $69,007. The annual rate decreased to $3,444 from 22 February 2017 as she reduced her estimated income to $59,178.

4. On 18 January 2017 Ms [Cheetham] applied to the Department for a departure from the assessment on the grounds that Mr [Maher’s] income, property, financial resources and earning capacity were not properly reflected in the assessment.

5. On 7 April 2017 a decision was made to depart from the child support assessment by varying Mr [Maher’s] adjusted taxable income to $150,800 from 1 January 2017 to 31 March 2020.

6. Mr [Maher] lodged an objection to that decision. On 16 June 2017 his objection was disallowed. On 18 July 2017 Mr [Maher] lodged an application for a review of the objection decision with the tribunal.

7. The matter was heard on 1 March 2018. Mr [Maher] and Ms [Cheetham] both attended the hearing in person. Mr [Maher] was represented by counsel, Ms [A], instructed by Mr [B]. Ms [Cheetham] was represented by Mr [C]. The Child Support Registrar was not represented at the hearing.

8. The tribunal had access to the statement and documents provided by the Department (folios 1 to 344 and 345 to 386), documents provided by Mr [Maher] (folios A1 to A138) and documents provided by Ms [Cheetham] (B1 to B869).

CONSIDERATION

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

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

   (i) that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and

   (ii)    that it would be:

   (A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (B)otherwise proper;

   to make a particular determination under this Part; …

3. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Assessment Act. If satisfied that a ground exists and that it would be just and equitable and otherwise proper to make a particular determination, the tribunal may make one of the determinations in section 98S of the Assessment Act. That section permits a range of determinations, including varying the annual rate of child support payable or a parent’s adjusted taxable income.

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

1. Ms [Cheetham] sought a departure from the administrative assessment on the grounds that Mr [Maher’s] income, financial resources, property and earning capacity were greater than reflected in the provisional income used for him in the assessment.

2. The grounds for departure are set out in subsection 117(2) of the Assessment Act. Subparagraphs 117(2)(c)(ia) and (ib) provide as grounds for departure:

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

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

   (ib)because of the earning capacity of either parent

   …    

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

Mr [Maher’s] income, property and financial resources

1. Mr [Maher] receives income support payments from Centrelink (parenting payment). He was previously employed as a [occupation 1], but claims not to have worked since 2009 apart from a three month period in 2012. He has not lodged an income tax return since 2011/12 when his adjusted taxable income was $0. The tribunal accepts that Mr [Maher] lived in [Country 1] for a period from 2010 to 2012. He later returned to [Country 1] and came back to Australia towards the end of 2013. He has travelled to [Country 1] since, including a few months in 2016 and [number] days in 2017.

2. Ms [Cheetham] contends that Mr [Maher] is working in addition to receiving Centrelink payments.

3. Mr [Maher] acknowledges that he has maintained a [licence] which allows him to work as [an occupation 1]. He said that he has done so as he would be unable to regain his licence if it lapsed as he [has a specified condition]. The tribunal notes that to retain his licence he has paid fees. A fee of $489 was paid for a three year licence in October 2013 and presumably a similar fee in 2016.

4. Mr [Maher] provided the tribunal with some bank statements, but did not provide copies of bank statements for all of his accounts for the entire period 1 January to 31 October 2017 as directed. Mr [B] said that Mr [Maher] had provided him online access to his accounts, but that certain statements were not available online. Mr [Maher] claimed that the bank had told him that the statements could not be provided because of an order made by the Family Court. The tribunal was hampered by Mr [Maher’s] failure to provide documents that would assist to determine his financial position.

5. In Humphries & Berry (SSAT Appeal) [2008] FMCAfam 209 Federal Magistrate Slack dealt with the issue of the disclosure of financial information in child support matters before the former Social Security Appeals Tribunal. His Honour stated that the principle of full and frank disclosure applicable to proceedings in the Family Court was also applicable to proceedings before the tribunal. He stated at [31]:

   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).

6. Also, in Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 Federal Magistrate Halligan stated:

   If the SSAT is satisfied that a parent has made a deliberate non-disclosure of his or her financial circumstances, it should be reasonably robust in assessing the non-disclosing parent’s financial circumstances adversely to that parent and in favour of the other parent. That is not to say that it may arrive at an entirely arbitrary result, but rather that it may draw generous inferences adverse to the non-disclosing party about that parties financial circumstances.

7. The tribunal does not accept that Mr [Maher] was unable to obtain copies of the statements. It notes that one of the statements which were not provided relates to a period from a date as recent as 7 October 2017 which should have been available online. The tribunal does not accept that there is any order which prevents the bank from providing Mr [Maher] with copies of his bank statements. The tribunal infers that there may be transactions on the statements which were not provided that would allow the tribunal to make findings adverse to Mr [Maher].

8. In late 2012 Mr [Maher] purchased a residential property at [Suburb 1] for $630,500. Contracts were exchanged on 27 October 2012 and settlement took place on 26 November 2012. Mr [Maher] did not provide the tribunal with a copy of the settlement adjustment sheet as directed. Despite agreeing that the document was available at a direction hearing, he told the tribunal that his previous solicitor was unable to provide him with a copy.

9. Mr [Maher] claims to have funded the purchase with a loan from his [Relative A] in [Country 1] and a mortgage from [Bank 1]. He states that he utilised part of US$300,000 borrowed from his [Relative A], [named], in June 2011. However, Austrac records obtained by the Department do not indicate that any funds totalling that amount were transferred to Mr [Maher] in Australia. The records show that Mr [Maher] transferred $75,000 to himself on 26 October 2012, a further $10,000 on 30 October 2012 and $40,000 on 20 November 2012. The letter he provided evidencing the loan is undated. It states that no repayments were made up from 27 June 2011 to 27 July 2017. The tribunal finds that the letter was prepared sometime after 27 July 2017 and is not satisfactory evidence of the existence of a loan made in 2011.

10. Mr [Maher] borrowed $504,000 from [Bank 1] to purchase the [Suburb 1] property. In support of his loan application he provided the bank with a letter from [Business 1], dated 25 November 2012, which confirms his employment from 17 January 2010 at a gross wage of $2,090 a week. Mr [Maher] states that he was overseas from 2010. He gave evidence that he only worked for [Business 1] for three months from his return from [Country 1] in late 2012 until early 2013. The tribunal finds that the letter he provided to the bank in order to obtain a loan contained information that was incorrect.

11. In the absence of a copy of the settlement adjustment sheet and the lack of evidence concerning the loan of US$300,000 the tribunal is unable to verify Mr [Maher’s] evidence that he used funds loaned from his [Relative A] to assist in the purchase of the property at [Suburb 1].  The tribunal notes that the funds Mr [Maher] transferred to himself from [Country 1] in the period October to November 2012 (totalling $125,000) were sufficient to provide the balance needed to purchase the property.

12. Mr [Maher] refinanced in December 2014 so that he has two home loans, one fixed and one variable. As at 29 September 2017 amounts of $111,091 and $339,308 were owed (a total of $450,399), indicating that since 2012 Mr [Maher] has been able to meet the interest on his home loans as well as to reduce the amount owed. The statements show that at the end of 29 September 2017 there were funds of more than $25,000 available to be redrawn. Previous statements show in excess of $64,000 available to be redrawn in October 2015.

13. Mr [Maher] made a further loan application to [Bank 1] in 2016. He told the tribunal that he sought an equity loan in order to repay monies owed to his [Relative A] and brothers. However, although the loan was approved he decided to sell the property rather that draw on the loan. He suggested that the bank approved a loan for $450,000 in the knowledge that he was not working and had no ability to repay the loan because he would only be drawing on his equity in the property. In the copy of the loan application held by [Bank 1] it states that Mr [Maher] had been employed full-time with [Business 2] since 31 December 2010. The bank also hold a copy of a payslip from [Business 2] which states that Mr [Maher] was paid a gross amount of $2,901 for the week ending 1 February 2016 and had year to date income of $87,030.

14. Mr [Maher] told the tribunal that the loan officer was aware that he was receiving Centrelink payments. He said that the officer told him that he should get some evidence of income, perhaps from a family member who operates a company. Mr [Maher] denies providing the payslip to the bank but acknowledged that he told the bank that his brother owned [Business 2].

15. The tribunal does not accept Mr [Maher’s] suggestion that the payslip, for a company owned by his brother, somehow appeared in the bank files and was not instigated by him. The tribunal finds that the existence of the payslip reflects on his credibility.

16. The tribunal notes that Mr [Maher] stopped making home loan payments in August or September 2016, indicating that he had made significant advance payments prior to that time. Ms [A] submitted that this coincided with Mr [Maher’s] need to direct funds to meet legal expenses in Family Court proceedings. The tribunal notes that in his Statement of Financial Circumstances form completed on 1 August 2017 Mr [Maher] did not record any outstanding debt in relation to legal proceedings, indicating that he had met all of those costs to that date.

17. Mr [Maher’s] wife arrived in Australia [in] January 2015 but was not entitled to Centrelink payments until 2017. When asked how he was able meet household expenses and make advance payments on his home loans in those circumstances, Mr [Maher] told the tribunal that he received rent from his property at [Suburb 1] from late 2012 until he returned to Australia. He said that he also sold vehicles he had owned including a [vehicle] he had used for work and that he had inherited $20,000 when his father died. He referred to deposits to his bank account of $3,500 and $10,000 on 7 and 8 March 2015 from the sale of two [vehicles] as well as a loan from a friend of $20,000 on 10 November 2015. Mr [Maher] also claims to have borrowed money from his brothers but provided no evidence in support.

18. Ms [A] noted that Mr [Maher] and his wife receive about $42,000 a year in Centrelink payments, including newstart allowance payments to Mr [Maher’s] wife and family tax benefit (which is not taken into account for child support purposes). Ms [A] said that Mr [Maher’s] payments are reduced at present as he had a debt of about $5,000 or $6,000 because he was not eligible to receive payments when he was overseas.

19. The tribunal finds that Mr [Maher’s] evidence of weekly household expenses of only $400 for five people (on 1 August 2017), including $100 a week for groceries, is not supported by the cash withdrawals made from his bank accounts.  While Ms [A] contended that the family is able to be supported on the Centrelink payments received as well as from loans from family members and friends the tribunal is not satisfied that is the case.

20. In a financial statement sworn on 11 October 2016 which was filed in the Family Court Mr [Maher] stated that he had expenses relating to the registration of a [vehicle] of about $30 a week. The Court has made an order which prevents Mr [Maher] dealing with a specified vehicle.

21. In his Statements of Financial Circumstances provided to the tribunal, dated 1 August 2017, Mr [Maher] does not disclose ownership of any vehicle. He told the tribunal that neither he nor his wife owns a vehicle. He said that he uses a bicycle as his mode of transport. When Mr [Maher] was asked about a debit on his credit card account to [a government agency] of $1,396.36 [in] July 2017, Mr [B] conceded that the payment related to registration of a vehicle. However, Mr [Maher] declined to answer the question on the basis that it may prejudice him in the property proceedings between the parties. The tribunal infers that Mr [Maher] does own a vehicle, at least beneficially.  

22. Ms [Cheetham] also contends that Mr [Maher] owns significant assets in [Country 1] including a large house. Mr [Maher] does not deny ownership of the house but refutes the suggestion that it should be valued at US$2 million. He contends that it is not available to be rented as it is used by his extended family. He submits that the property would not rent for US$3,000 to US$5,000 a week as Ms [Cheetham] submits in any event.

23. The tribunal notes that the property matters between the parties are before the Family Court in April 2018. Ms [A] said that she expected that the matters will be resolved by the end of 2018. In the circumstances of this case the tribunal finds that it is not necessary to determine the value or income potential of the property in [Country 1].

24. On the evidence available the tribunal finds it more likely than not that Mr [Maher] is working, possibly as a [occupation 1], and that he has income and financial resources available to him far greater than suggested by his provisional income or the Centrelink payments income support payments that he receives.

Mr [Maher’s] earning capacity

1. The tribunal also considered Mr [Maher’s] earning capacity and the three criteria in subsection 117(7B) of the Assessment Act. While the tribunal has found that Mr [Maher] is working, if that is not the case, the first criterion of subsection 117(7B) is met. Although Mr [Maher] stated that it would be hard for him to get another job in a supervisory role, as he had in 2012, as he is illiterate, he acknowledged that he has made no attempts to find work. The tribunal is satisfied that Mr [Maher] is not working despite ample opportunity. The tribunal notes that in the last few years there has been a significant increase in [his area of] work in the Sydney area.

2. Mr [Maher] suggests that he is unable to work for two reasons: the first as he has to care for his children, and the second because of medical conditions which affect his ability to work. He said that he stopped work for [Business 1] in early 2013 as he had to care for [Child 1], [Child 2] and [Child 3] at that time.

3. The tribunal does not accept Mr [Maher’s] claim that he continues to be unable to work since January 2015, when his wife arrived in Australia, due to caring responsibilities for his children. He did not provide any evidence to support his contention that his wife was unable to care for the children because she was unable to drive and he had to take her to doctor’s appointments.

4. Since her arrival in Australia Mr [Maher’s] wife has given birth to their two younger children. The tribunal has no evidence to suggest that she suffers from any medical condition which would require support from Mr [Maher] in a manner which would affect his ability to work. The tribunal notes that despite giving birth in December 2017 she is currently receiving newstart allowance payments while Mr [Maher] receives parenting payment. Although stating that he was unable to work, Mr [Maher] told the tribunal that he was ready to work if he could get a similar job. He also said that he can only work two hours a week because of his Centrelink payments.

5. Mr [Maher] provided the Department with a letter from a general practitioner, [named], dated [in] March 2017, which states that Mr [Maher] suffers from [several conditions]. [The doctor] stated that Mr [Maher] had been prescribed [specified medications]. No comment was made about the effect of the conditions on Mr [Maher’s] ability to work. Mr [Maher] told the tribunal that he hurt his back in 2007 and that he had not worked since 2009 for that reason, apart from the period in 2012.

1. Mr [Maher] told the tribunal that he attends five physiotherapy sessions a year and that he saw a back specialist who recommended the physiotherapy treatment. The tribunal finds that the level of treatment described by Mr [Maher] in conjunction with the medications prescribed do not suggest that he has any significant impairment. The tribunal has no medical evidence to support Mr [Maher’s] assertion that he is unable to work because of medical conditions.

2. Mr [Maher] stated that he is not working due to the need to care for his children and his medical conditions. However, he did not provide any evidence which satisfied the tribunal that the effect on the child support assessment is not a major reason for any decision not to work. If the tribunal is incorrect in concluding that Mr [Maher] is working, the tribunal finds that the three criteria of subsection 117(7B) of the Assessment Act are satisfied. The tribunal finds that Mr [Maher] has an unused earning capacity at least equivalent to the income he stated he earned in 2016, of $2,901 a week or about $150,800 a year.

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

Ms [Cheetham’s] income, property, financial resources and earning capacity

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

2. Ms [Cheetham] is employed full-time as [an occupation]. The tribunal notes that the estimated incomes used for her in the assessments from 12 January to 30 June 2017 were reconciled with her adjusted taxable income for 2016/17 of $90,016.  In the 2016/17 year she received salary of $63,076 and reportable fringe benefits totalling $31,152, less income tax deductions. Ms [Cheetham] told the tribunal that she stopped her salary sacrifice arrangement in August or September 2017 and no longer receives fringe benefits.

3. Ms [Cheetham’s] payslip for the period to 31 December 2017 indicates a year to date income of $36,928 and an annual salary of about $74,000. Ms [Cheetham] told the tribunal that she expects her income for 2017/18 to be about the same as the previous year because of overtime and shift allowances. The payslips she provided show gross income of between $2,872 and $3,400 a fortnight.

4. Mr [Maher] asserted that Ms [Cheetham] obtains income from renting part of her home. The tribunal accepts her evidence that a friend boarded at her home for three months until July 2015 and paid board of $200 a week for accommodation, food and grocery items and utilities.

5. The tribunal notes that Ms [Cheetham] has no significant savings. She owns a motor vehicle and household goods and has some funds invested in superannuation. The tribunal finds no evidence that she has any other financial resources or property of significant value which is capable of providing her with any significant income. The tribunal is satisfied that Ms [Cheetham’s] income is adequately reflected in the adjusted taxable incomes used for her in the assessment.

6. Ms [Cheetham] has worked for the same employer on a full-time basis for four years. There is no suggestion that she has any unused earning capacity.

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

1. Taking into account the objects of the Assessment Act (section 4), including that children should share in the standard of living of both their parents, the tribunal finds that the income, property and financial resources of Mr [Maher] or his earning capacity provide special circumstances for which to depart from the assessment. Mr [Maher] would be liable to pay child support if the assessment was based on his income, property and financial resources or his earning capacity rather than the provisional income used in the assessment. The tribunal finds that the assessment is unfair to Ms [Cheetham] and to the children for that reason and that grounds are established to depart from the assessment under subparagraphs 117(2)(c)(ia) and (ib) of the Assessment Act.

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

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

2. Section 3 of the Assessment Act states that it is the duty of both parents to financially support their children. In accordance with the objects set out in section 4 of the Assessment Act, [Child 2], [Child 1] and [Child 3] should receive a proper amount of financial support from their parents in accordance with their capacity to contribute.

The children’s needs

1. [Child 1] is seven years old, [Child 2] is eight and [Child 3] is 15. The children attend public schools. The tribunal is satisfied that the costs Mr [Maher] and Ms [Cheetham] have which relate to the care of the children are not out of the ordinary range of expenses for children of their ages.

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

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

The parents’ duty to support others  

1. Mr [Maher] and Ms [Cheetham] each provide support to an adult child. [Child 4] and [Child 5]  are both students who receive youth allowance payments. Neither has part-time or casual employment. Although they are studying the tribunal finds that in the circumstances of this case it would be unlikely that a court would find that their parents have a duty to support them under the Family Law Act 1975. The tribunal finds that any support Mr [Maher] or Ms [Cheetham] provide to their adult children cannot take priority over their duty to support [Child 1], [Child 2] and [Child 3].

2. Mr [Maher] has a duty to support his three younger children. He told the tribunal that he had not yet advised the Department of the birth of his youngest child in December 2017. However, the tribunal is satisfied that Mr [Maher’s] duty to support his younger children is able to be taken into account in the assessment.

The income, property, financial resources and earning capacity of Ms [Cheetham]

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

Ms [Cheetham’s] necessary commitments

1. Ms [Cheetham] lives with the [Child 1], [Child 2] and [Child 4], in rented accommodation. While her stated expenses (including modest amounts for holidays and entertainment) are slightly more than her income, the tribunal notes that the support she provides [Child 4]  affects her capacity to meet her reasonable and necessary expenses.

2. After reviewing the bank statements Ms [Cheetham] provided, the tribunal is satisfied that she is able to meet the reasonable and necessary expenses that she has for herself and the children. However, she has a significant debt in respect of legal fees and also has an unpaid HECS debt.

The income, property, financial resources and earning capacity of Mr [Maher]

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

Mr [Maher’s] necessary commitments

1. Mr [Maher] lives in the [Suburb 1] property with his wife and their three young children (born 2014, 2016 and 2017) as well as [Child 3] and [Child 5]. Despite his claims that he and his wife are solely reliant on Centrelink payments, the tribunal finds no evidence to suggest that Mr [Maher] is unable to meet the reasonable and necessary expenses he has for himself and the four children.

Terms and period of departure

1. Ms [Cheetham] made her departure application on 18 January 2017. She seeks a departure from the assessment for the maximum 18 month period permitted under subsection 98S(3B) of the Assessment Act. Mr [C] submitted that a departure decision should be backdated as there had been violence in the relationship which affected Ms [Cheetham’s] ability to make a departure application.

2. The tribunal notes that Ms [Cheetham] commenced property proceedings in August 2016. She told the tribunal that she wasn’t really aware of the child support assessment until Mr [Maher] applied to have child support collected by the Department. The tribunal notes that Mr [Maher’s] application for collection of the liability by the Department was accepted from 22 December 2016.

3. In her submissions on behalf of Mr [Maher], Ms [A] said that it would not be just and equitable to make any change prior to January 2018 and that any change should only be made for a year.

4. The tribunal finds that it would be just and equitable to depart from the child support assessment from 1 January 2016 as Ms [Cheetham] applied for a departure from the assessment fairly soon after Mr [Maher] applied to the Department for collection of child support. The tribunal considers that in the circumstances of this case it would not be just and equitable to depart from the assessment from any earlier date.

5. The tribunal finds that it would be just and equitable to depart from the assessment by varying Mr [Maher’s] adjusted taxable income to $150,800 to reflect his likely income and financial resources or his earning capacity. Although Mr [C] submitted that the tribunal should also include the Centrelink payments received, the tribunal does not consider that it would be just and equitable to do so. If Mr [Maher] is working and earning $150,000 a year he is not entitled to income support payments. If he is not working any consideration of his earning capacity should disregard the income support payments he receives.

6. Taking into account the history of the matter and to provide some certainty, the tribunal proposes to extend the variation to Mr [Maher’s] adjusted taxable income to 31 March 2020. Although Ms [A] submitted that any departure should only be made until the end of 2018 as the property proceedings are likely to be finalised in the current year, the tribunal notes that any variation to the parties’ circumstances as a result of the property settlement which would affect their ability to support the children can be taken into account in a further departure application if necessary.

7. The tribunal finds that the proposed variations result in a child support liability (currently $227.58 a week) which reflects a reasonable level of support for [Child 1] and [Child 2] given the differences between their parents’ incomes and financial resources and property and Mr [Maher’s] duty to support [Child 3] and his three youngest children.

Hardship

1. The child support payable on the basis of the decision proposed should assist Ms [Cheetham] to meet the children’s proper needs.

2. The proposed decision will not result in any change to the significant arrears owed by Mr [Maher]. However, in light of the findings about his income and financial resources the tribunal considers that the proposed decision will not result in hardship for him or his children. Although subject to property proceedings, Mr [Maher] has significant equity in the [Suburb 1] property from which any arrears could be paid.

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

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

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

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

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

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

2. The child support law recognises that each parent has a primary duty to maintain their children. Ms [Cheetham] receives family tax benefit. The tribunal is satisfied that it is otherwise proper to depart from the administrative assessment in this matter and to properly reflect Mr [Maher’s] income, property and financial resources or his earning capacity.

DECISION

The tribunal affirms the decision under review.