Ousey and Tuckman (Child support)
[2024] AATA 4128
•25 September 2024
Ousey and Tuckman (Child support) [2024] AATA 4128 (25 September 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/PC027316
APPLICANT: Ms Ousey
OTHER PARTIES: Child Support Registrar
Mr Tuckman
TRIBUNAL:Member R Prasad
DECISION DATE: 25 September 2024
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – departure determination – financial resources in the administrative assessment – earning capacity – changed occupation – cost of maintaining the children – educated in the manner expected by the parents – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
Ms Ousey (the mother) and Mr Tuckman (the father) are the parents of two children, with the youngest born [in] December 2007 (the child). Since 30 May 2013, this case was registered with Services Australia – Child Support (Child Support). The existing percentages of care are that the mother has 100% care and the father has 0% care of the child from 6 May 2013.
The mother lodged an application to change the child support assessment (the departure application) on 25 November 2022. On 13 March 2023, Child Support determined that no reason to change the child support assessment was established.
On 25 October 2023, the mother lodged an objection. An objections officer, on 6 December 2023, disallowed the objection.
On 4 January 2024, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
A directions hearing was held on 2 July 2024. Directions were issued on 4 July 2024 requiring compliance by 26 July 2024.
The hearing took place on 20 September 2024, having been rescheduled previously. The mother appeared by MS Teams audio and provided documentation,[1] as did the father.[2] The Child Support Registrar elected not to be represented at the hearing, but provided documentation.[3] Both parties confirmed at the rescheduled hearing that they have received the documentation, and I note uncollected documents were returned to the Tribunal.
ISSUES
[1] Folios A1 to A116.
[2] Folios B1 to B56.
[3] Folios 1 to 349.
The issues before me are:
a. does a ground exist for departure from the administrative assessment of child support; and if so,
b. would it be just and equitable and otherwise proper to make a particular determination.
CONSIDERATION
What does the law say in relation to departure of administrative assessments?
Section 98C of the Child Support (Assessment) Act 1989 (the Act) provides that a decision to depart from an administrative assessment may be made if each of the following requirements are met:
a. at least one ground for departure referred in subsection 117(2) of the Act exists;
b. it would be just and equitable as regards to the child and the parents to the assessment; and
c. it would otherwise be proper.
Section 117 of the Act provides the matters that must be considered before being satisfied in making an order in relation to a child in the special circumstances of the case. The phrase ‘special circumstances of the case’ is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary, and peculiar to the particular case which set it apart from other cases.[4]
[4] Gyselman and Gyselman [1991] FamCA 93 at [39]; Philippe and Philippe (1978) FLC 90-433.
Subparagraph 117(2)(b)(ii) provides that, in the special circumstances of the case, the costs of maintaining a child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by the parents. This is known as ‘Reason 3’. Once the costs associated with educating, maintaining or training a child in the manner expected by the parents have been calculated, the additional amount must be significant in relation to the assessed costs of the child. If it is not, then the costs of maintaining the child may not be significantly affected and there would be no reason to change the assessment.
Further, in the special circumstances of the case, there is an unjust and inequitable level of financial support to be provided because of either parent’s income, property and financial resources as set out in subparagraph 117(2)(c)(ia) which is commonly known as ‘Reason 8A’, or their earning capacity pursuant to subparagraph 117(2)(c)(ib) commonly known as ‘Reason 8B’. A child support assessment is generally calculated using the parent’s most recent taxable income. This requires consideration of whether a parent’s current income is not adequately reflected in the child support assessment. Special circumstances may exist if one parent has substantial property or financial resources that have not been properly taken into account in the child support assessment.[5] Further, although a parent’s most recent taxable income is used in the child support formula, a parent’s income, earning capacity, property and financial resources which do not necessarily form part of a parent’s taxable income can be added to or excluded from a child support assessment.[6]
[5] Ross and McDermott (1998) FLC 98-003.
[6] Carey and Carey (1994) FLC 92-489.
In deciding whether a decision is fair, consideration is given to the amount and duration of any proposed change and the factors listed in subsection 117(4) of the Act which are relevant to a particular case. Particular factors may be given more weight depending on the circumstances of the case.
Subsection 117(5) of the Act provides that in determining whether it would be ‘otherwise proper’ to change the assessment, consideration must be given to:
a.the nature of the duty of a parent to maintain a child and, in particular, the fact that it is the parents of a child who have the primary duty to maintain the child; and
b.the effect that any proposed change would have on the child or the receiving parent’s entitlement to, or the rate of, an income tested pension, allowance or benefit.
What information has been provided?
Preliminary matters
There were various matters that were raised by the parties but I will only address and form findings in relation to those that are pertinent to the issues before me.
Further, the father raised concerns throughout these proceedings of the release of his personal information to the mother, stating that she had previously disclosed his personal information provided at earlier Tribunal proceedings to third parties. I reminded each party of the non-disclosure orders issued and that the proceedings were private and confidential at various stages of this matter. During the hearing, the issue was raised again and the father had written subsequent to the hearing regarding the mother’s admission of this. I note that his complaint is to be separately addressed by the Tribunal and does not impact my findings or decision made.
Costs of caring for, educating or training the child
In the departure application, the mother stated that there were extra costs associated with caring for and educating the child in the way the parents intended and noted the Family Court judgment of [Citation deleted] that the children of the marriage should have a private and tertiary education at a level equivalent to their own, referring to paragraph 38 of the judgment. In her application for review, the mother stated that the findings of the magistrate were that it was the party’s intention that their children would be educated privately and the findings gave rise to an estoppel upon which she relied and enrolled the child in a private school, [College 1] (the school). She says this is not an expensive private school and the child had previously attended the school in kindergarten in 2012, noting that the school had a different campus for primary school to its high school. She stated that the parents then separated around October 2012 and she could no longer afford to send the child there and instead enrolled the child into a public school from Year 1.
The mother provided tuition statements dated 1 October 2020, 3 March 2021, 21 January 2022, 8 February 2022, 2 August 2022, 28 September 2023, 29 January 2024 and 2 July 2024 for the school that the child was attending. The statements set out the child’s school fees comprising tuition fees, levy, and costs for facilities, coursework, particular classes and expeditions and camps. The mother was not certain of the breakdowns in relation to the voluntary amounts, but stated she would be happy if even the tuition fees were taken into account and advised that these amounts would be found on the school’s website. From the tuition statements, it appears that the tuition fees for the child were $10,125 for Year 9, $10,834 for Year 10 and $11,897 for Year 11.
The mother also provided an email dated 21 January 2019 from the school principal referring to proceedings against the father for recovery of claimed school fees for the older child, up until the end of 2017. The father provided an email dated 12 February 2020 from the school’s Senior Financial Officer, with the subject line as the child’s name, stating that the “Enrolment and Application, including payment of the School Fees has not got [his] name on it at all, there is no possible way we would expect you to contribute to the payment of the account”. He stated that he had contacted the school because he had heard in court proceedings in 2020 that the child was attending the school and he panicked and wrote to the school advising he had not made any decisions in relation to this and to confirm whether he would need to contribute. That was the last he had heard about the child attending the school before the departure application was made by the mother.
In his submissions of 14 July 2024, the father asserted that the Court did not find that the children would receive private schooling, noting that he had attended a private boys’ school on a full scholarship from Years 8 to 10 and then attended a public school for Years 11 and 12, while the mother had also attended public schools during high school. He stated that the Family Court proceeding instead involved an adult child support application that the older child receive maintenance while that child attended university. Paragraph 38 of [Citation deleted] specifically states:
I find that it is likely the parents had hope and expectation that their children would receive an education at a level equivalent to their own. I cannot, however, find that there has been any recent ‘meeting of the minds’ between them with respect to [the older child’s] present studies and, in particular, her decision to study two courses at the same time. It appears to be agreed that the [the father] had no involvement in the making of that decision.
The father confirmed that he had paid 100% of the older child’s high school fees from Years 7 to 10, and that he had settled with the school to avoid court proceedings in relation to paying for part of the older child’s Year 11 and 12 school fees.
The father stated that the child attended the school while in kindergarten, but this was in 2010 and the child commenced going to a public school in Year 1 prior to the parents’ separation in 2012 and divorce in 2013. He asserted that the decision to send the child to that school from Year 7 was purely a decision made by the mother. At the time of separation, they had a debt of $2.7 million in the house they had built and a business loan of $3 million for the [occupation 1 business]. After his [occupation 1 business] was closed, they lost the business income that was funding their lifestyle and even paying the older child’s school fees was a struggle. At no stage did they discuss the child’s high school before the separation and there was no agreement at the divorce settlement, the parties were just happy that the child was attending a good primary school. He also noted that they would have had to wait to see what the child’s strengths were before deciding which school would be best for the child to attend.
Earning capacity, income, property and resources of the parents
The Child Support records indicate that the mother’s taxable income was $175,849 for the 2023–24 financial year, $185,689 for the 2022–23 financial year, and $167,293 for the 2021–22 financial year. The father was recorded as having a taxable income of $86,604 for the 2022–23 financial year, and $72,839 for the 2021–22 financial year. A Child Support letter of 22 July 2024 indicates that a provisional income for the father of $90,068 for the 2023–24 financial year is being used for the administrative assessment. In his submissions dated 14 July 2024, the father advised that his 2023–24 tax return had not been lodged and would not be until September or October 2024 as his income protection income from his insurance company was not taxed, and lodging later enables him to make savings, although noted at the hearing that any payout goes towards his outstanding tax debt of $15,000. He provided his last three payslips which indicate that his gross earnings for the financial year up to 23 June 2024 was $45,506.20 and net pay of $35,103.20.
In her statement of financial circumstances, the mother indicates she works as [an occupation 2] earning an average gross weekly wage of $2,691. She also receives child support of $158 weekly, which the father asserts is $197 weekly.[7] The total value of her property, comprising savings, a house, a car, household contents and personal property, is $2,045,300. She has superannuation totalling $170,000. Her total liabilities comprising home mortgage, council rates and school fees for the child, is $682,000. Her personal weekly expenditure is $2,084, comprising income tax, superannuation, and health insurance for herself and the children. She estimates the total household expenditure for her and the children was $3,677 each week. Her bank statements indicate that in June 2024, she had savings of $4,142.13, and home loan closing balances of $110,206.94 and $530,465.52. The mother advised at the hearing that she is working to her own professional capacity and takes on extra work to provide for the children’s needs, increase in school fees, increase in cost of living and to repay her mortgage. She is unable to continue working the additional hours because of [specified medical conditions], but has been unable to reduce her hours as she needs to provide for the children. She stated that since her income went up, Child Support has decided that the father’s child support contributions should reduce and that he has overpaid her.
[7] The Child Support records indicate that current weekly rate of child support paid by the father is $181.05.
The father’s statement of financial circumstances indicates that he has an average weekly gross wage of $710 and receives gross mental illness income protection of $769. The total value of his property, comprising his home, savings, a car and household contents is $425,100, he has $200,000 in superannuation, and has total liabilities of $22,500 from his credit card, personal loan to pay a credit card debt, and income tax owed from his income protection payments. His personal weekly expenditure is $786, comprising income tax, life insurance premiums for his income protection, child support payments, credit card repayments and health insurance premiums. His weekly household expenditure is $1,509. His bank statements indicate he had savings of $392.71 as at 27 June 2024. There are several redactions made by the father, which he states are related to his treatment for his post-traumatic stress disorder (PTSD), but did not wish to disclose the details as the mother has previously revealed his personal information in separate Tribunal proceedings. These amounts are regular and generally for the same or similar amounts. Other transactions include transfers from his savings account to pay his credit card account, [sport 1] membership fees and transactions at [Business 1] relating to his house renovations, drinks he gets while he works, and general shopping like washing powder as he obtains a discount for working there.
The mother asserted that the father was a qualified [occupation 1] with a [qualification in occupation 1] and owned highly successful retail [occupation 1 businesses], but has voluntarily deregistered himself as [an occupation 1] and refused to work full time since Child Support garnished his wages, when during their marriage he worked excessive hours around 60 to 80 hours each week. He currently works at [Business 1] earning a minimum hourly rate of $27 per hour, working only a few days each week. She stated that the father had not produced any probative medical evidence that he suffers from PTSD, which she asserts is a result of him not being able to continue playing [sport 1] competitively which he had previously done prior to pursuing a career as [an occupation 1]. However, he continues to play regular competitive [sport 1]. She says that it is because of the PTSD the father claims he no longer has the capacity to work as [an occupation 1], and that an insurance company is unable to dispute when a person says they have mental health issues. She asserts that a quick Google search and as medical journals indicate, PTSD is treatable with recovery expected within six to 12 months, but the father’s condition has continued for years even after all his treatment. As [an occupation 1], he is able to tell a psychiatrist why he is unable to work. She referred to [Citation deleted] stating that the Court had stated that there was no evidence the father was unable to work full time for health reasons as well as separate proceedings involving an appeal of an earlier Tribunal decision, where a transcript of the proceedings, not final orders or judgment, indicates that the Court stated the father was avoiding his child support responsibilities and was going out of his way to do it. She also stated the Court in [Citation deleted] concluded that he had the capacity to earn more than he deposed to currently receive, being $1,014 per week or $52,732 per annum as a locum [occupation 1] employed on a casual basis at the time. The mother asserted that the father’s brother went down the exact same path, having a chain of [occupation 1 businesses] that went “bust”, and received income protection after claiming mental health issues. She said that they are doing a return-to-work program, but when asked to clarify, she stated she assumed this to be the case as he is working three days each week when previously he worked excessive hours, and if he is able to play competitive [sport 1], then he should be able to return to work five days each week.
The mother provided a copy of an email dated 30 September 2018 the father sent to one of his previous employers, where he resigned from the position on the basis of his view that the workplace, being [an occupation 1 business], had established a dangerous and unsafe [operating] environment. She also provided a letter on behalf of the employers referring to an email she had sent on 19 June 2019 regarding the father’s employment at the [occupation 1 business], and advising that personal information of current or former employees could not be released. She stated at the hearing that his resignation letter does not mention his illness.
The father stated that prior to their separation, he managed a decent [occupation 1 business] but which had significant debts. He was working long hours around 50 hours a week. After the parents separated, he was in court with the mother trying to get access to the children, which was unsuccessful, and became tired and drained with the process. From 2016, because of his mental health issues, he was no longer able to work long hours. He took a year off and was fortunate to have income protection, and decided not to continue running the [occupation 1 business] as it was not in the public’s best interests. He also deregistered for health reasons. He sees a psychiatrist weekly, a psychologist every three to four weeks, his general practitioner every five weeks and a consultant every six months. He receives rebates from when he sees his psychologist. He works four days a week at [Business 1] and receives income protection payments to ensure he gets full time wages, getting him back to what he was earning as a PAYG [occupation 1]. He also has four [Business 1] shares as part of his employment, which are worth $60 each. He stated that it is not true that his income has dropped since the onset of his illness. He disputed the mother’s assertion that the insurance company had not assessed his condition properly and only accepted what he had told them. He referred to the mother’s reference in her statement of financial circumstances that he has a multi-million dollar claim in train through his insurance company, noting that it was an unsubstantiated claim and that best his policy would be worth only $500,000 on the basis he receives around $50,000 per annum until he turns 65, so expiring in [number] years. He disputed the mother’s assertions that PTSD is treatable in six months on the basis of medical journals. He says [sport 1] is his therapy for PTSD, exercise being the number one treatment for the condition, and is hopeful for recovery. He has not received any prize winnings since he played professionally and only received a prize, comprising a weekend away at the coach’s home to play [sport 1] with him all weekend, which the person who had won turned down and he received by coming in second, but did not take up.
The hearing papers also indicate that the father’s earning capacity has previously been reviewed by this Tribunal (differently constituted) where the Tribunal decided on 10 July 2019 that it was not satisfied that the father’s resignation from his full time employment as [an occupation 1], and then proceeding to work on a casual basis at other [occupation 1 businesses], was to affect the child support assessment.[8] The mother appealed that decision which was dismissed by the Federal Circuit Court [in] July 2020. The mother again applied for the father’s earning capacity to be considered as he was not working 40 hours each week. Her application was refused by Child Support initially and then on objection, and no further review was sought.
[8] See proceedings 2018/PC014990.
The hearing papers indicate the mother asserted that the father was able to purchase a home after separation without any finance. The father advised that he bought his current house, after purchasing and selling two other homes, and also bought his current car from the settlement money he received. In relation to the mother’s property and financial resources, the father asserted, among other things, that her house is valued at $2.7 million and that at separation, she was given $600,000 in antiques but her household insurance is only $6,000 per annum to insure household contents and the house. The mother responded saying that during settlement, the father received $700,000 and she received their family house valued at $2.1 million but with a substantial debt, so she sold it to buy a smaller house.
The mother also advised that the child works four hours on weekends at a café only to earn pocket money, so does not earn any substantial amount. The parties did not advise of any other financial resources that I needed to consider.
Should the administrative assessment be changed in the special circumstances of the case?
Has Reason 3 been established?
The mother has asserted that it was the parents’ intention to send the child to the same high school that the older child had attended and seeks equal contribution of the school fees from the father.
The threshold legal question is whether the children are being “educated in the manner that was expected by their parents”. It is not necessary to establish that the parents were in agreement about the child being educated at a particular school, it is about the expectation.[9] The caselaw provides some guidance in relation to the particular circumstances of this case. A refusal to contribute to the private schooling costs does not preclude a finding that a child is being educated in the manner expected by the parents, when they are otherwise agreeable to the child attending the school in question.[10] However, simply not opposing or being indifferent to arrangements set in place by the other parent, does not mean there was agreement or a particular expectation about the manner in which the child would be educated.[11] One factor that can prove a parent’s expectations is to look to the past conduct, evidenced by the child attending a particular school prior to separation, though this is not the only method of proof of the parents’ expectations.[12] Further, it was open to a parent to change their expectations with respect to the child’s education for financial reasons.[13]
[9] F & S [2003] FMCAfam.
[10] Oliver v Oliver [2021] FCCA 965.
[11] WGB & CEM [2004] FMCAfam 17.
[12] Farthing & Robinson & Anor [2016] FCCA 2851 and Mabry & Mabry & Anor (SSAT Appeal) [2010] FMCAfam 388.
[13] Dobbins & Devlin & Anor (SSAT Appeal) [2014] FCCA 1274.
The mother in this matter has sought to rely on paragraph 38 of [Citation deleted] where the Family Court found that it was likely the parents had hope and expectation that their children would receive an education at a level equivalent to their own. However, that matter was regarding the adult child support case for the older child while that child attended university and the Court’s finding related to the older child receiving a tertiary education rather than a finding that either child attend a particular school or type of school. I note that the Family Court has held that consideration must be given to the type of education intended by both parents for the child rather than any particular school intended by the parents.[14]
[14] Wild v Ballard (1997) FLC 92-771.
To establish this reason, the child must be educated in the manner expected by the parents. The difficulty with the mother’s assertion is that the father has not been involved in making decisions in relation to the child’s upbringing since 2012. The Family Court at paragraph 38 of [Citation deleted] stated that it could not find that there had been a recent “meeting of the minds” between the parents and noted that it appeared to be agreed that the father had no involvement in making such decisions, specifically referring to the older child’s tertiary studies at the time.[15]
[15] See also paragraph 43 of [Citation deleted] where the Court further found that the father should have been given an opportunity to at least consider the older child’s proposed courses of study.
The mother’s evidence is that she had signed the enrolment form for the child to study at the school from Year 7 on the basis that it was always the parent’s intention to send the child to the school. However, the information before me also indicates that while the child was enrolled in the school during kindergarten before the parents separated, the child then went to a public school from Year 1 and completed her primary education at a public school and there is no evidence of any agreement or order made while the divorce and settlement proceedings took place, or after that, about sending the child to the school. The father’s evidence is that he has had no involvement in the child’s life since the parent’s separated and has not agreed to send the child to this school. It is not in dispute that he did not sign the enrolment form for the child to attend the school from Year 7, and therefore has not even simply acquiesced. After the child started attending the public school, he says the parties were happy that the child was going to a good school. Further, while the mother stated in her application for review that she relied on the judgment in [Citation deleted] to enrol the child into the school, I note that that judgment was delivered [in] April 2020 when the tuition statements indicate that the child was already enrolled in the school from January 2020. I am therefore unable to accept the mother’s statement in this regard.
In light of the above, I am not satisfied that the father had agreed for the child to attend the school from Year 7. While the child had attended kindergarten at the school prior to the parents’ separation, the child then attended a public school. Although the parents could not agree on the exact years apart from the child only attending the school for kindergarten and they had separated sometime in 2012, from my calculations, I understand that the child started attending the public school when the parents separated. While the child had attended kindergarten at that school, past conduct is not the only method of proving the parents’ expectations and it is open for a parent to change their expectations with respect to the child’s education. In this matter, I find the lengthy period since the father had input into making decisions about the child and the child attending a public school for many years to be persuasive factors. Accordingly, given the lack of any agreement or orders made during the divorce or settlement proceedings for the child to return to the school to complete primary school, I cannot accept the father then had agreed to the child attending the school from Year 7. I find the judgment in [Citation deleted] to support this conclusion.
I am therefore unable to be satisfied that there are costs of maintaining the child that are significantly affected because the child is being cared for, educated or trained in the manner that was expected by the parents. Accordingly, subparagraph 117(2)(b)(ii) of the Act or Reason 3 is not established.
Has Reason 8A or 8B been established?
The mother confirmed at the hearing that her main contention was about the father’s earning capacity but I note that as she also raised Reason 8A in her departure application and as both parties have provided information about their income, property and financial resources, I have also considered this ground. While each party has disputed what the other has disclosed about their available resources, such as the value of properties bought after separation and the value of antiques distributed at property settlement, I am not satisfied that there is cogent evidence to support these claims. The statements of financial circumstances and the bank statements from both parties do not indicate any significant expenditure, income or financial resources, including winnings from playing [sport 1] competitively. Further, the father’s taxable income has steadily increased over the past years and is correctly reported to Child Support, and I also consider the mother’s income has been correctly reflected in the administrative assessment since the lodgement of her tax returns. While it appears the mother has more resources available to her, which was also noted in paragraph 53 of [Citation deleted] to be the case at the time, I do not consider that this is not otherwise already reflected in the administrative assessment. Further, I note she has raised concerns about the feasibility of her continuing to work additional hours and that this has increased her overall income which is now reflected correctly in the administrative assessment since her tax returns were lodged and decreased the amount of child support the father is and was required to pay for the relevant periods, however this does not demonstrate that her income makes the administrative assessment unfair. I am therefore not satisfied this ground is established.
As mentioned above, one of the primary reasons the mother has sought review of the objection decision is that she considers the father has a higher earning capacity. She asserts that he has a [qualification in occupation 1] and ran a successful [occupation 1 business] working 60 to 80 hours each week before closing the business due to PTSD where no medical evidence has been provided, and also resigning from his position where he worked at [an occupation 1 business] as well as deregistering his licence. He is only working a few days a week at [Business 1] at a minimal hourly rate and receiving income protection payments, a path his brother had also taken, having relied on income protection for mental health issues after his chain of [businesses] was unsuccessful. The insurance company is unable to dispute when someone claims to have mental health, and as [an occupation 1], the father knows exactly what to tell his psychiatrist. She asserts that medical journals indicate that PTSD is completely treatable and recovery occurs within six to 12 months but his condition has continued for years even after all his treatment. She also said that the onset of his condition is a result of not being successful in playing professional [sport 1], yet he continues to play [sport 1] competitively and has won awards.
The father stated that he had a decent [occupation 1 business] but had a $3 million business loan against it and was working around 50 hours a week. After the parents separated, they were in courts for five years regarding access to the children, and he came out drained and tired. From 2016, it became apparent he could no longer work those hours and took a year off. He says he was fortunate to have income protection and that the insurance company did not make any mistakes, disputing the mother’s reliance on medical journals rather than actual medical evidence regarding his PTSD continuing for more than six to 12 months. After he took the break, he decided he could no longer continue his [occupation 1 business] and that it was not in the public’s best interests either. He says since his illness, his income has not dropped. He works four days each week at [Business 1] and receives income protection payments to make up full time hours. He also plays [sport 1] for his mental health as exercise is one of the main treatments for PTSD. He asserts he has never won any financial awards from doing this, but received a weekend away which he did not take up.
I note that the father’s earning capacity on the basis that he resigned from his employment as [an occupation 1] has previously been considered by this Tribunal in 2019 and an application for review was dismissed by the Federal Circuit Court in 2020. While I understand the mother does not accept these outcomes, these issues have already been ventilated and litigated and it appears the mother has otherwise not chosen to pursue further appeal rights.
Since his resignation, the father has changed his occupation and reduced his weekly hours of work to below full time and this was considered in an earlier departure application made by the mother. I agree with the findings in the objection decision that there have not been any recent changes to the father’s employment since he started working at [Business 1] in 2021. His income has been increasing from when he worked as a locum [occupation 1] earning $52,732 per annum, which the Child Support papers indicate was the income used for the 2018-19 financial year, and now has a provisional income of $90,068 which is currently being used for the 2023–24 financial year. Further, while the father works part time hours, he receives income protection payments to ensure he receives a full time salary and I have no evidence to the contrary. This indicates that working further hours would not make a substantial difference to how much he earns, it would just affect the income he receives from [Business 1] as opposed to from his insurance company.
I also note that without any cogent evidence, I do not accept the mother’s assertions that PTSD is treatable within six to 12 months on the basis of medical journals, that the insurance company has no choice but to accept his claims of mental health, or that the father knows exactly what to tell his psychiatrist. The fact remains that the father has been receiving income protection payments from an insurance company, for several years, on the basis of his medical conditions and without any medical evidence to the contrary, I am unable to be satisfied otherwise. I am therefore satisfied that his work arrangements are justified by the state of his health and therefore Reason 8B is not established.
Overall, I am not satisfied that in the special circumstances of the case, there is an unjust and inequitable level of financial support being provided because of either parent’s income, property and financial resources as set out in subparagraph 117(2)(c)(ia) or the father’s earning capacity pursuant to subparagraph 117(2)(c)(ib), and therefore Reasons 8A and 8B are not established.
As I have determined that there is no ground established to depart from the administrative assessment, no consideration is required of whether it is just and equitable and otherwise proper to depart from the administrative assessment.
DECISION
The decision under review is affirmed.
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