Mazahar and Mazahar (Child Support)
[2025] ARTA 2304
•28 July 2025
Mazahar and Mazahar (Child Support) [2025] ARTA 2304 (28 July 2025)
Applicant:Ms Mazahar
Mr Mazahar
Respondent: Child Support Registrar
Other Party: Mr Mazahar
Ms Mazahar
Tribunal Number: 2024/SC028832
2024/SC028876
Tribunal:General Member S Irvine
Place:Hobart
Date:28 July 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that Mr Mazahar’s adjusted taxable income is varied to $90,000 for the period 1 June 2024 to 31 October 2026.
CATCHWORDS
CHILD SUPPORT – departure determination – special circumstance – income, property and financial resources – access to business financial resources – caring responsibilities for an adult with disabilities – termination of employment – ground for departure – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Ms Mazahar and Mr Mazahar are the parents of [Child 1] (born [in] February 2012) and [Child 2] (born [in] November 2014). A child support case between Mr and Ms Mazahar commenced on 4 June 2012. The children are in Ms Mazahar’s sole care, and Mr Mazahar is the parent assessed to pay child support.
In the period commencing 1 December 2023 Mr Mazahar was assessed to pay the minimum annual rate of child support, which at that time was $493. This was based on a provisional income for Mr Mazahar of $21,808 and a provisional income for Ms Mazahar of $62,835.
On 4 March 2024 Ms Mazahar made an application to Services Australia – Child Support (Child Support), seeking a departure from the administrative assessment of child support payable by Mr Mazahar. On 21 June 2024 a Child Support decision maker made a decision to depart from the assessment, and varied the adjusted taxable income to be used for Mr Mazahar in the child support formula assessment to $100,000 for the period 1 June 2024 to 30 June 2026.
On 6 September 2024 Mr Mazahar objected to the decision, and on 11 November 2024 a Child Support objections officer set aside the decision made on 21 June 2024 and replaced it with a new decision that varied the adjusted taxable income to be used for Mr Mazahar in the child support formula assessment to $85,250 for the period 1 June 2024 to 31 October 2026.
On 11 November 2024 Ms Mazahar applied to this Tribunal for an independent review of Child Support’s objection decision. On 19 November 2024 Mr Mazahar also applied to this Tribunal for an independent review of Child Support’s objection decision. A hearing in relation to both applications took place on 24 June 2025. Ms Mazahar and Mr Mazahar attended the hearing by telephone and gave sworn evidence.
The Tribunal had before it documents submitted by Child Support numbered 1 to 532. The Tribunal also had documents submitted by Ms Mazahar numbered A1 to A11 (in respect of 2024/SC028832) and B1 (in respect of 2024/SC028876); and documents submitted by Mr Mazahar numbered A1 to A123 (in respect of 2024/CS028876) and B1 to B9 (in respect of 2024/SC028832).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988 (the Registration Act).
The rate of child support payable by a liable parent is usually based on an administrative assessment determined under Part 5 of the Act. This requires the application of a statutory formula which takes into account factors such as the number and age of the children, the income of each parent and the level of care provided for each child by each parent.
In relation to the income used for each parent, the formula set out in the Act requires that each parent’s adjusted taxable income be determined. Section 43 of the Act defines adjusted taxable income as the total of the parent’s taxable income for the last relevant year of income in relation to the child support period, plus other components set out in section 43. The last relevant year of income is defined in section 5 of the Act as the last year of income that ended before the start of the relevant child support period.
The formula uses the Costs of the Children Table, set out in Schedule 1 to the Act, to calculate the costs that are to be shared between the parents. The costs are calculated based on the parents’ combined child support incomes, with adjustments made according to the number and age of the children. In general, the costs calculated in accordance with the Costs of the Children Table are intended to cover the usual costs incurred in raising children, and the formula determines how those costs are to be shared between the parents according to the income of each parent.
However, it is recognised in the legislation that in some special circumstances an adjustment to the formula may need to be made. Under section 98B of the Act, if special circumstances exist, a liable parent or a carer entitled to child support may apply to the Registrar in writing, requesting a determination to depart from the provisions of the Act in respect of the administrative assessment.
Section 98C of the Act provides that before making a departure determination the Registrar must be satisfied that in the special circumstances of the case one or more of the grounds set out in subsection 117(2) of the Act exist, and also that it would be just and equitable and otherwise proper to make a particular determination. There are a number of grounds set out in subsection 117(2), including a ground relating to the costs of maintaining a child being affected because the child is being cared for, educated or trained in the manner that was expected by the parents.
Section 98S of the Act sets out the determinations that can be made, which include various adjustments to the formula including by varying the income to be used for a parent, or varying the annual rate of child support to be paid. Subsection 98S(3B) provides, in effect, that a determination can only be made for a day that is more than 18 months earlier than the day on which the application for a departure determination was made if a court has granted leave for such a determination to be made.
The issues that arise in this case are:
· whether one or more of the grounds for departure referred to in subsection 117(2) of the Act exists; and if so
· whether it is just and equitable as regards the child, the liable parent and the carer entitled to child support, and otherwise proper, to make a particular determination to depart from the administrative assessment.
CONSIDERATION
Is there a ground to depart from the administrative assessment?
As set out above, the first issue to be determined is whether any of the grounds for departure set out in subsection 117(2) of the Act are established.
Subparagraph 117(2)(c)(ia) of the Act provides that a ground for departure exists if:
…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
Absent any departure from the standard formula assessment, the incomes that would be used for Mr Mazahar in the child support assessments would be:
·For the period 1 December 2023 to 31 July 2024, his 2022/23 adjusted taxable income of $41,558
·For the period commencing 1 August 2024, his 2023/24 adjusted taxable income of $19,910.
Mr Mazahar told the Tribunal that his income comes from his business, [Business 1] (the company). He confirmed he is the sole director and shareholder of the company, which has been trading since 2017. The company operates from Mr Mazahar’s home.
Mr Mazahar told the Tribunal that his income depends on how much he works. The work fluctuates – he quotes for a job, and then after he has paid for all the materials and other expenses he can determine how much he can pay himself from that job. He said his taxable income that he declares is worked out at the end of each tax year, he does not pay himself a regular wage throughout the year.
According to tax returns provided to the Tribunal, Mr Mazahar received gross salary and wage income in the 2023/24 financial year of $21,600. The company had no taxable income in the 2023/24 financial year due to previous year losses brought forward, but according to the financial documents provided by Mr Mazahar the company had a net profit in the 2023/24 financial year of $53,743. Business activity statements filed for the company for the quarters ended 30 September 2024, 31 December 2024 and 31 March 2025 show that the company has declared salary and wage payments of $5,400 for each of those quarters (which annualises to $21,600) – Mr Mazahar confirmed that those salary and wage amounts are his income.
Mr Mazahar told the Tribunal that he did not, at the time of the hearing, know what his taxable income for the 2024/25 financial year would be. He said he had not worked much in the past three months as he had travelled to [Country 1] to meet his new child, who lives with his wife in [Country 1].
I am satisfied that in the 2023/24 financial year Mr Mazahar had a taxable income of $19,910. Mr Mazahar’s tax return for that year shows gross income of $21,600 from the company, and tax deductions of $1,690. While Mr Mazahar said that he does not know what his taxable income for the 2024/25 financial year is likely to be, I am satisfied that it is unlikely to be higher than his 2023/24 taxable income.
However, it is an established principle in the Family Court that the taxable income of a person who is self-employed may not be an accurate reflection of their earning capacity and financial resources for child support purposes.[1] In addition, it is established that the role of the Tribunal is not to conduct a forensic audit of a parent’s financial situation,[2] but rather to determine from the available evidence the financial resources available to the parties from which they can provide support to the children.
[1] DJM and JLM [1988] FamCA 97; Scott v Scott [1994] FLC92-457; Carey v Carey [1994] FLC 92-489
[2] Podmore & Pillai [2011] FMCAfam 952, Frost and Frost [2011] FMCAfam 1311
Mr Mazahar provided the Tribunal with financial statements for the company for the 2023/24 financial year. Mr Mazahar explained that he runs the company from his home and is able to claim a proportion of some of his household expenses against the company income. In the 2023/24 financial year those expenses were rent of $4,044 and electricity of $2,123. Those costs are worked out on a percentage of the total expenses. Mr Mazahar said that he uses the garage of the home he lives in to store his tools and materials.
The income statement shows that the company had motor vehicle expenses of $22,455 in the 2023/24 financial year. Mr Mazahar said he has one motor vehicle that is owned by the company, he uses that motor vehicle for both business and personal use. There is a loan against the motor vehicle and the company pays $1,384 per month, as well as other costs such as registration, insurance and petrol. The income statement also shows telephone expenses of $11,457 in 2023/24. Mr Mazahar told the Tribunal that that covers his own mobile telephone service, as well as phones for his two daughters and an iPad for his daughters, as well as a phone and iPad for his son.
In relation to the workers compensation payments received by the company in the 2023/24 financial year, Mr Mazahar said that those payments were made in respect of an injury that he suffered to his hand. He said he was unable to work properly for around 6 months, although he undertook some light duties in that time. Mr Mazahar said that receiving the workers compensation money enabled him to travel to [Country 1] to get married, and he was able to pay for a visa application for his wife and his new son.
Mr Mazahar said that he had an additional expense as he had to pay for a driver for a period of time. He lost his driver’s license for a period of three years, and only regained his license just before Christmas 2024. Mr Mazahar said that up until he recovered his license he had to pay $250 per day to a driver to drive him around. He was unable to say how many days he paid that amount for. Mr Mazahar said those expenses don’t appear in the business accounts, as he paid cash to the driver out of his own income.
Mr Mazahar also provided the Tribunal with copies of bank statements for both his personal and company bank accounts. In particular the Tribunal has considered bank statements from a [Bank 1 business] Account in the name of [Business 1] with [Account Number 1], and a [different Bank 1 account] account in Mr Mazahar’s name with [Account Number 2]. An analysis of those statements shows that in the period from 1 July 2024 to 24 December 2024 a total of $30,174.46 was transferred from the company account to Mr Mazahar’s personal account. At the hearing Mr Mazahar told the Tribunal that some of those payments would have been wages, but other payments were probably amounts that he borrowed from the company account and then subsequently paid back, although he was unable to explain what the loans were for or when they were repaid to the company. In relation to one $10,000 transaction Mr Mazahar said that amount was transferred to his personal account because he had to demonstrate that he had funds available as part of his application for an Australian visa for his wife, but the funds were later transferred back to the company account.
Mr Mazahar agreed that he also receives a Centrelink carers payment and carers allowance, as he cares for his adult son [Child 3].
It is difficult to determine with any precision the exact financial resources available to Mr Mazahar. While he appears to be declaring a wage to himself from the company of $21,600 per year, it is not clear what funds he is actually drawing from the company to meet his personal expenses.
According to the income statement provided by Mr Mazahar for the year ended 30 June 2024, the company had total income in that year of $314,685 and made a profit after expenses of $53,743. Business Activity Statements filed for the company for the period 1 July 2024 to 30 September 2025 indicate that in that period the company had total sales income of $225,612. Assuming that sales in the final quarter of the 2024/25 financial year continued at approximately the same rate, it would give the company total income from sales in the 2024/25 financial year of $300,816, which is similar to the total income received by the company in the 2023/24 financial year. I have no specific information about the expenses incurred by the company in the 2024/25 financial year, but if they were similar to the previous year the company could be assumed to have a net profit in 2024/25 of around $40,000, in addition to the at least $21,600 in wages drawn by Mr Mazahar. In addition, I am satisfied that Mr Mazahar receives personal benefit from some of the expenses listed as business expenses for the company, of at least $10,000 per year.
I find that the total income and financial resources available to Mr Mazahar from the company were equivalent to an income of at least $85,343 in the 2023/24 financial year, and at least $71,600 in the 2024/25 financial year. In addition I note that Mr Mazahar receives a non-taxable Centrelink payment of a little over $20,000 per year. I am satisfied that the total income and resources available to Mr Mazahar are significantly higher than the adjusted taxable income that would be attributed to him under the usual terms of the Act, and that this amounts to a special circumstance in this case. The ground set out in subparagraph 117(2)(c)(ia) of the Act is established.
Is a departure from the assessment just and equitable?
In deciding whether a departure from the assessment is just and equitable, I must have regard to the matters set out in subsection 117(4) of the Act, and I may also have regard to any other relevant factors. The factors set out in subsection 117(4) are as follows:
(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; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
Pursuant to section 3 of the Act, I must approach this task on the basis that the duty that a parent has to maintain their children has priority over all other commitments of the parent other than commitments necessary to support themselves and any other people they have a duty to maintain.
In relation to her income, Ms Mazahar told the Tribunal that she was employed by [Employer 1] until April 2025. Ms Mazahar provided the Tribunal with payslips showing that she was earning a salary of approximately $57,600 per year. Ms Mazahar said she left her employment in April because she found the position too stressful, and she was not enjoying it. She said she asked her employer for a different position with less managerial responsibilities but they did not accommodate her request, and in the end she felt she had no option but to resign. She is currently receiving a Centrelink payment and that is her only income.
In the 2024/25 financial year the child support assessment reflects Ms Mazahar’s estimated adjusted taxable incomes of $57,701 for the period 1 July 2024 to 7 April 2025, and $37,282 from 8 April 2025 to 30 June 2025.
The fact that Ms Mazahar has voluntarily left her employment raises a question of whether there should be consideration of her earning capacity. However, I note that as Ms Mazahar has 100% care of the children in the assessment, a reduction in her income from around $57,000 per year to $37,282 makes no significant difference to the child support assessment for [Child 1] and [Child 2].
Ms Mazahar said that since leaving her employment her financial situation has become even more difficult. She and the children are living in temporary accommodation provided by the Department of Housing, and she is seeking a more permanent rental situation but hasn’t yet been able to find anything. She has no assets, as she has had to sell her car. She has around $1,500 in [a finance service] debt and is paying around $300 per fortnight toward that debt.
Mr Mazahar has provided the Tribunal with a Statement of Financial Circumstances, in which he has declared that he has no significant assets other than a [Brand 1] motor vehicle valued at $20,000. At the hearing Mr Mazahar confirmed that this is the motor vehicle that was purchased through the company. He has declared that he has no liabilities, and that he incurs average weekly expenses of $1,100.
Mr Mazahar has raised an issue of his duty to support his adult son, [Child 3], who resides with him. Mr Mazahar provided evidence to the Tribunal that [Child 3] suffers from a range of health conditions and has also been diagnosed with a learning disability. Mr Mazahar told the Tribunal that he is [Child 3’s] full-time carer and he does everything for [Child 3] including paying all of his expenses, arranging and getting him to his appointments, and managing his medication. Mr Mazahar said that [Child 3] receives a disability support pension, and Mr Mazahar has access to [Child 3’s] money to meet [Child 3’s] expenses. However, he said that the disability support pension is not sufficient to cover all of [Child 3’s] costs, and some costs including medication and a gym membership have to be met from Mr Mazahar’s income. Mr Mazahar provided to the Tribunal a receipt for medication for [Child 3] dated 12 May 2025 in the amount of $470, but no other specific evidence about costs incurred for [Child 3].
I am satisfied that Mr Mazahar does provide daily care for [Child 3], and that he receives both a carer payment and a carer allowance in respect of the care he provides. While I note Mr Mazahar’s submissions that he has to pay some of [Child 3’s] expenses because [Child 3’s] income is insufficient to cover them, he has not provided any specific evidence about what costs he says are incurred by him other than one receipt for medication in the amount of $470. I am not satisfied on the evidence that Mr Mazahar is required to provide any significant financial support to [Child 3].
Mr Mazahar also raised an issue of his wife and child in [Country 1]. Mr Mazahar told the Tribunal that he married in [Country 1] in December 2023, and his son was born in [Country 1] on [date]. He was able to travel to [Country 1] for his wedding, and has [returned] for the birth of his son. He said he has to support his wife and child, who are currently living with his parents. Mr Mazahar said that he sends $250 USD per month to his wife and child, and that he also sends money to his parents. However, Mr Mazahar said in response to questions from the Tribunal that it would be too complicated to provide evidence of any payments he was sending. In response to questions about how he could afford to send money to his family in [Country 1], given his representations about his very low income, Mr Mazahar said that his adult sons help him. However, Mr Mazahar also told the Tribunal that it was his wife in [Country 1] who paid for his travel to [Country 1], as she had some gold she was able to sell and also some money from when she worked before.
I accept that Mr Mazahar has a wife and son in [Country 1], and that he does have a legal duty to support at least his son. However, there is no available evidence that would allow me to be satisfied that Mr Mazahar is actually incurring any costs to support his wife or son in [Country 1].
Ms Mazahar provided the Tribunal with a Statement of Financial Circumstances in which she has listed weekly expenses incurred for her household. At the hearing Ms Mazahar told the Tribunal that the Statement of Financial Circumstances was prepared before she left her employment, and so some details have changed since that statement was prepared. Specifically in relation to costs incurred for [Child 1] and [Child 2] Ms Mazahar has listed average weekly expenses of $75 per week for food, $50 per week for clothing and shoes, $100 per week for activities, $50 per week for medical, dental and optical costs, $100 per week for entertainment and hobbies, $30 per week for education expenses, $50 per week for chemist and pharmaceutical costs, $20 per week for gifts and $50 per week for hairdressing and toiletries. Those expenses total $525 per week, or approximately $27,300 per year. Ms Mazahar said that she has had to cut back most expenses since becoming unemployed, and her main expenses at the moment for the children are food and schooling. She has had to relocate to new accommodation which has required a new school for the children and so there have been expenses of new uniforms, for example.
Ms Mazahar told the Tribunal that both [Child 1] and [Child 2] suffer from asthma and need steroid medication, which costs her about $50 per week. There is no evidence that the children have any other special needs. Both children attend state schools.
On the evidence before me, I consider that it is reasonable to depart from the administrative assessment of child support by varying the adjusted taxable income used in the assessment for Mr Mazahar to $90,000, which makes some allowance for any personal tax deductions Mr Mazahar may be eligible to claim. I note this is very similar to the income set for Mr Mazahar in Child Support’s objection decision, and will result in a similar liability for Mr Mazahar to pay.
Ms Mazahar submitted to the Tribunal that any decision should be backdated to a date prior to the day she made her application to Child Support in March 2024. Ms Mazahar said that Mr Mazahar’s income has been higher than the income reflected in the child support assessments for some time, and the child support paid to her was minimal at a rate of $459 per year until she made her application. Ms Mazahar said she did not seek a departure from the child support assessment earlier as she didn’t realise that was an option that was open to her, and as a result she and the children have suffered.
I have considered Ms Mazahar’s submission, however I am not satisfied that it would be just and equitable to backdate a departure to the assessment. I am satisfied that Mr Mazahar does have the capacity to meet the ongoing child support payments in the region of $1,300 per month, but there is no evidence that he has capacity to pay any substantial amount of arrears. I also note that, following the decisions already made by Child Support in this matter, Mr Mazahar has not been paying the ongoing monthly liability in full, and currently already has arrears of child support that stood at approximately $7,600 as at 4 June 2025 and likely have increased since then. In the circumstances, I am satisfied that it is just and equitable to set the income of $90,000 for Mr Mazahar for the period 1 June 2024 to 31 October 2026.
Is a departure from the assessment otherwise proper?
The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlement to income-tested pensions, allowances and benefits.
To the extent that this decision has any effect on any income tested pension, allowance or benefit payable to Ms Mazahar, I am satisfied that the decision accurately reflects the capacity of the parents to maintain [Child 1] and [Child 2], and I am satisfied that this result is otherwise proper.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Mr Mazahar’s adjusted taxable income is varied to $90,000 for the period 1 June 2024 to 31 October 2026.
| Date of hearing: | Tuesday, 24 June 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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