Raoul and Kighan (Child support) - [2025] ARTA 951

Raoul and Kighan (Child support) [2025] ARTA 951 (6 May 2025)

Applicant:Ms Raoul
Respondent: Child Support Registrar
Other Parties: Mr Kighan

Tribunal Number: 2024/SC028402
Tribunal:General Member S Irvine
Place:Hobart
Date:6 May 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that Mr Kighan’s adjusted taxable income is varied to $75,000 for the period 1 July 2024 to 30 August 2025.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – special circumstances – redundancy payment – unutilised earning capacity – adjusted taxable income varied – departure from the administrative assessment – 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 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

Ms Raoul and Mr Kighan are the parents of [Child 1] (born 2010), [Child 2] (born 2012) and [Child 3] (born 2016). A child support assessment commenced on 10 May 2022. The assessment reflects that Ms Raoul had 82% care and Mr Kighan had 18% of all three children from 4 July 2023. On 4 August 2024 the care percentages for [Child 1] changed to reflect that [Child 1] was in Mr Kighan’s sole care from that date, and the care of the other children remained unchanged. On 9 October 2024 there were further changes in the care percentages for all three children, with Mr Kighan having 80% care of [Child 1] and Ms Raoul having 20% care of [Child 1] from that date, and Ms Raoul having 80% care and Mr Kighan having 20% care of [Child 2] and [Child 3] from that date.
For a period commencing on 1 October 2023 the child support assessment required Mr Kighan to pay an annual rate of child support to Ms Raoul of $4,896, based on Mr Kighan’s estimated adjusted taxable income of $0 and Ms Raoul’s 2022/23 adjusted taxable income of $75,280.
On 27 November 2023 Ms Raoul applied to Services Australia – Child Support (Child Support) for a departure from the administrative assessment on the basis that the costs of supporting the children were affected by private school fees. On 5 May 2024 a Child Support decision maker made a decision to depart from the assessment in the following terms:
· For the period 1 January 2023 to 31 December 2023 the annual liability payable by Mr Kighan is increased by $6,545 per annum.
· For the period 1 January 2024 to 31 December 2024 the annual liability payable by Mr Kighan is increased by $7,045 per annum.
On 11 May 2024 Mr Kighan objected to Child Support’s decision. On 18 July 2024 a Child Support objections officer set aside the decision made on 5 May 2024 and substituted a new decision that there should be no departure from the administrative assessment. The objections officer found that Mr Kighan had paid 50% of the school fees payable for the children directly to the school in question, and so it would not be just and equitable to depart from the administrative assessment. As Mr Kighan’s estimated income had been updated, this resulted in the following child support assessments:
·     For the period 1 November 2022 to 30 June 2023 there was a child support assessment based on adjusted taxable incomes of $151,214 for Mr Kighan and $104,260 for Ms Raoul, resulting in Mr Kighan being required to pay an annual rate of child support to Ms Raoul of $29,856 for that period;
·     For the period 1 July 2023 to 30 September 2023 there were child support assessments based on adjusted taxable incomes of $164,219 for Mr Kighan and $104,260 for Ms Raoul. This resulted in annual rates of child support payable by Mr Kighan to Ms Raoul of $29,856 for the period 1 July 2023 to 3 July 2023, $19,482 for the period 4 July 2023 to 18 August 2023, and $21,267 for the period 19 August 2023 to 30 September 2023. The different assessed rates were due to changes in care for the children and [Child 1] turning 13 on 19 August 2023.
·     For the period 1 October 2023 to 23 June 2024 there was a child support assessment based on adjusted taxable incomes of $126,861 for Mr Kighan and $75,280 for Ms Raoul, resulting in Mr Kighan being required to pay an annual rate of child support of $18,048 for the period.

·     For the period 24 June 2024 to 30 June 2024 there was a child support assessment based on adjusted taxable incomes of $1,248,717 for Mr Kighan and $75,280 for Ms Raoul, resulting in Mr Kighan being required to pay an annual rate of child support of $39,048 for the period. Mr Kighan’s income for this period was the result of a reconciled estimate of income.
·     For the period 1 July 2024 to 31 August 2024 there was a child support assessment based on adjusted taxable incomes of $0 for Mr Kighan and $75,280 for Ms Raoul. Mr Kighan’s $0 income was an income estimated by Mr Kighan as his income for the 2024/25 financial year. This resulted in Mr Kighan being assessed to pay an annual rate of child support to Ms Raoul of $4,896, which is a fixed annual rate assessment.
·     For the period 1 September 2024 to 30 June 2025 there was a child support assessment based on adjusted taxable incomes of $0 for Mr Kighan and a provisional income of $78,291 for Ms Raoul. Mr Kighan’s $0 income was an income estimated by Mr Kighan as his income for the 2024/25 financial year. This resulted in Mr Kighan being assessed to pay an annual rate of child support to Ms Raoul of $5,160, which is a fixed annual rate assessment.

On 13 August 2024 Ms Raoul applied to the Administrative Appeals Tribunal (the AAT) for an independent review of Child Support’s decision, and in her application raised an issue relating to Mr Kighan’s income.
A hearing of the matter took place on 8 April 2025. Both parents spoke to the Tribunal on that day by conference telephone and gave sworn evidence. Ms Raoul requested that the hearing be conducted as a shuttle hearing, with each parent being heard separately. After speaking with both parties I determined that the hearing would be best conducted as a shuttle hearing. I first took evidence from Ms Raoul. I then took evidence from Mr Kighan and put to him the material matters from the oral evidence given by Ms Raoul. I then again spoke with Ms Raoul and put to her the material matters from the oral evidence given by Mr Kighan.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

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 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 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 provides a definition of adjusted taxable income which states that it is 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. Division 7 of Part 4 of the Act provides that if a parent’s current income is substantially less than the adjusted taxable income that would otherwise be used in the formula, the parent can elect to replace the existing adjusted taxable income with an estimate of their current income.
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 of 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 grounds relating to the income, property and financial resources of each parent, and earning capacity of each parent.
Section 98S of the Act sets out the determinations that can be made. Relevantly, they include a determination varying the annual rate of child support payable by a parent, or adjusting the adjusted taxable income used for a parent in the formula. 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 which 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 threshold question to depart from an administrative assessment of child support is that one or more of the grounds for departure referred to in subsection 117(2) of the Act is established.
Subparagraphs 117(2)(c)(ia) and 117(2)(c)(ib) of the Act provide 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

(ib) because of the earning capacity of the parent …

The words “in the special circumstances of the case” are not defined in the legislation. In Gyselman and Gyselman (1992) FLC 92–279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”.
As set out above, Mr Kighan was assessed to pay child support on the basis of his 2022/23 adjusted taxable income of $126,861 in the period from 1 October 2023 to 23 June 2024. From 24 June 2024 Mr Kighan lodged an estimate of income and stated that his ongoing income would be zero dollars. Mr Kighan’s actual adjusted taxable income for the 2023/24 financial year was $263,260.
Following the lodgement of Mr Kighan’s 2023/24 income tax return, Child Support reconciled the estimated income used in the assessment for the period 24 June 2024 to 30 June 2024, and calculated an income to be used in the assessment for Mr Kighan for that 7-day period of $1,248,717.
Mr Kighan lodged a further estimate of his income for the 2024/25 financial year, initially in the amount of zero dollars. Documents submitted by Child Support show that Mr Kighan has revised his estimate of income several times since 1 July 2024. I am satisfied that since 1 July 2024 the incomes that have applied for Mr Kighan in the child support assessment have been as follows:

$0 from 1 July 2024 to 11 August 2024;
$78,005 from 12 August 2024 to 15 December 2024;
$72,895 from 16 December 2024 to 17 February 2025;
$86,661 from 18 February 2025 to 21 February 2025;
$65,178 from 22 February 2025 to date.

Mr Kighan’s evidence as to his income can be summarised as follows:

Until June 2024 he was employed by his previous employer. He was made redundant and received his final pay from that employer on or about 19 June 2024.
Following his redundancy he received a redundancy payment through [Agency 1]. He received a total payment of $98,527.55. Mr Kighan submitted that this payment was not income, but was in the nature of an insurance payment paid to him so that he could meet his expenses while he was not working, and that Ms Raoul was not entitled to any of that money.
In August 2024 he began working with his current employer. He works full-time but he is earning significantly less than he earned with his previous employer, and his usual pay is $1,100 per week. However, his actual pay is often less because he has had to take significant time off due to ongoing legal proceedings between him and Ms Raoul – he has no paid leave and so has to take unpaid leave if he needs time off. He will also be taking some time off in the upcoming school holidays to spend time with the children, and that time will be unpaid. He expects that at best his taxable income in the current financial year will be approximately $66,000. If he were able to work full-time without any unpaid leave his income would be around $75,000 per year.

At the Tribunal’s direction Mr Kighan provided recent payslips from his current employer. The most recent of those shows that as at 11 February 2025 Mr Kighan had received gross year-to-date income of $34,946.05 from his employer. His ordinary pay is $1,329.60 per week, with some adjustment for a rostered day off.
Ms Raoul submitted that Mr Kighan could have obtained a higher paying job, at a similar rate of pay to his previous position, and that he has chosen not to do so. Mr Kighan said that in order to obtain a job with a similar rate of pay to his previous employment he would need to commute from his home to Sydney, as he did while working for his previous employer. He now has [Child 1] living with him full-time, and his caring responsibilities mean that it is not feasible for him to do that any longer.
In relation to the redundancy payment from [Agency 1], I note that while Mr Kighan received a total payment of $98,527.55, his tax return for the 2023/24 financial year shows that only $10,298 of that payment was taxable.
Ms Raoul made her application for a departure from the administrative assessment on 27 November 2023. At that time the child support assessment, according to the terms of the Act, used an adjusted taxable income for Mr Kighan of $126,861, which was his adjusted taxable income in the 2022/23 financial year. The evidence before me is that Mr Kighan’s income in the 2023/24 financial year was considerably higher than in 2022/23, being $263,260. Some of that difference is accounted for by Mr Kighan’s redundancy toward the end of the 2023/24 financial year. I am satisfied that Mr Kighan received some additional payments relating to a payment in lieu of notice and payment of accrued leave, and also the taxable proportion of his redundancy payment of $10,298, in June 2024. However, even absent those amounts it appears that Mr Kighan’s income was significantly higher in the 2023/24 financial year than it had been in the previous year.
In addition, I am satisfied that in June 2024 Mr Kighan did receive a redundancy payment of $98,527, of which $88,229 was tax-free. While I accept Mr Kighan’s submission that the tax-free part of the payment does not constitute taxable income, as discussed with Mr Kighan in the hearing I am satisfied that it was nevertheless a financial resource that was available to Mr Kighan, which increased his capacity to provide support for the children. Consequently I find that from at least June 2024 Mr Kighan had income and financial resources that are not accounted for in the child support assessment. I am satisfied that this constitutes a special circumstance, and that the ground set out in subparagraph 117(2)(c)(ia) of the Act is established.
Ms Raoul put to me that Mr Kighan also has earning capacity that is unutilised, in that he has taken a lower-paying position than he would otherwise have taken in order to minimise his child support liability. In respect of earning capacity, subsection 117(7B) of the Act provides that in having regard to the earning capacity of a parent of a child, I may determine that the parent’s earning capacity is greater than is reflected in his or her income only if the following three criteria are met:
·the parent does not work, or has reduced his or her hours of work below full-time hours, or has changed his or her occupation, industry or working pattern; and
·the parent’s decision to not work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of the parent’s caring responsibilities or the parent’s state of health; and
·the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support.
I am satisfied that Mr Kighan’s previous employment ended because his position was made redundant. Mr Kighan has provided evidence in the form of a letter from his previous employer that clearly sets out that his employment was terminated because his position was redundant. I also note that a payment from [Agency 1] is only payable in the event of a genuine redundancy. I am satisfied that following his redundancy Mr Kighan sought full-time work and he is currently working full-time. I accept that, to the extent that he may have been able to find a better paying job than he currently has, his decision to take a job closer to his home at a lower rate of pay is justified by his caring responsibilities, as he has had at least 80% care of [Child 1] since August 2024. I am satisfied that there are no grounds for me to determine that Mr Kighan has earning capacity greater than is reflected in his current income.

Is a departure from the assessment just and equitable?

As I have found that there is at least one ground 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.
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.
Subsection 117(6) of the Act provides that in having regard to the proper needs of the children I must have regard to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated and trained, and I must also have regard to any special needs of the child.
With regard to special needs of the children, the parents confirmed that [Child 1] has a diagnosis of ADHD. Both parents agreed that [Child 1] is currently in Mr Kighan’s sole care. Mr Kighan’s evidence is that [Child 1] saw a paediatrician last year, who has confirmed that [Child 1] no longer needs to be medicated. There is no evidence before me to suggest that there are any expenses currently associated with [Child 1’s] condition. Mr Kighan said he incurred a cost to see the paediatrician of around $380 about 9 months ago.
Ms Raoul’s evidence is that [Child 3] has been diagnosed with Oppositional Defiance Disorder, although Mr Kighan stated that there had been no such diagnosis. Ms Raoul said that [Child 3] does not tolerate before or after-school care, which limits her capacity to take on any additional work hours. There are currently no additional costs associated with [Child 3’s] condition, although Ms Raoul said that [Child 3] is undergoing additional assessments.
Both parents agreed that [Child 2] has no special needs. [Child 2] attends a fee-paying Catholic school ([School 1]), and [Child 1] also attended that school until August 2024, when he moved to a state school. [Child 3] attends a state school.
In relation to school fees, it is not disputed that both [Child 1] and [Child 2] were enrolled at [School 1] prior to the date that Mr Kighan and Ms Raoul separated. I am satisfied that [Child 1] and [Child 2] were being educated in the manner expected by both parents.
It is not disputed that in relation to the 2023 school year there were tuition fees incurred for [Child 1] and [Child 2] totalling $13,090, and in relation to the 2024 school year there were tuition fees incurred for [Child 1] and [Child 2], initially in the amount of $14,107. It is also not disputed that Mr Kighan made payments directly to [School 1] of $7,412 on 25 June 2024, and $6,186 on 18 July 2024, and that those payments were equal to half of the tuition fees that were payable at that time for the 2023 and 2024 financial years for both [Child 1] and [Child 2]. Ms Raoul’s evidence is that she has also been contributing to school fees although she has not been able to pay the whole of the outstanding amounts, she said she has entered into an arrangement with the school whereby she makes small regular payments, and that arrangement will be reconsidered when the property and financial arrangements between Mr Kighan and Ms Raoul are finalised. Ms Raoul’s evidence is that the amount owing to [School 1] is currently around $17,000, which includes all fees for [Child 2] in the 2025 school year as well as outstanding amounts from previous years.
[Child 1] stopped attending [School 1] on 7 August 2024, and on 13 August 2024 the then outstanding fees were consequently reduced by $3,973, meaning that the total tuition fees payable for [Child 1] and [Child 2] in the 2024 year were reduced to $10,134.
Ms Raoul submitted that, while he should perhaps be given some credit for the fee reduction amount in 2024, Mr Kighan should be required to contribute 50% of the ongoing tuition fees for [Child 2], who continues to attend [School 1]. Her preference would be for the school to simply invoice each parent separately for 50% each of the school fees, however that would require Mr Kighan’s agreement. Ms Raoul said the school fees for the current year for [Child 2] are $11,138. I note that includes a payment for a school camp, so tuition fees are $10,513.
In relation to the school fees, Mr Kighan said that he has paid school fees, whereas Ms Raoul has not paid her portion of school fees. He feels that he has paid enough, and he cannot afford to contribute any more toward [Child 2’s] fees.
There is no evidence before me to suggest that any of the children have any income, property and financial resources that allow them to contribute to their own needs. Mr Kighan’s evidence is that there are shares in the children’s names that Ms Raoul purchased from funds that Mr Kighan alleges were taken from a joint bank account without his consent. I note that the parents are currently in the process of settling property matters arising from their separation, and that those allegations can be addressed through that process. I am satisfied that the children rely wholly on their parents for support.
Mr Kighan’s income is discussed above. Mr Kighan provided the Tribunal with a statement of financial circumstances dated 3 September 2024, in which he lists his total assets as comprising a 50% share in the former family home with a value of $1.25 million, a 50% share in a rental property valued at $415,000 and a 99% share in a rental property valued at $520,000. Mr Kighan explained that as there had not yet been a property settlement that ownership is still correct, but that Ms Raoul currently lives in the family home and meets all expenses relating to the home. In relation to the rental properties, the arrangement was that Mr Kighan would receive all rents and pay all outgoings in relation to those properties. One of the rental properties has now been sold. The other property is still in his possession. Mr Kighan said that he receives rent for the property still in his possession of around $900 per week, which he said is wholly taken up with expenses and mortgage payments on the property. The mortgage on the remaining rental property is around $400,000. Apart from the rental property, Mr Kighan’s evidence is that he has cryptocurrency that at the time of the hearing was valued at about $16,000, funds in the bank of around $4,000, a motor vehicle valued at $30,000 and household contents valued at about $1,000. He has no other liabilities. He said that he has ongoing legal costs associated with property settlement and expects that any savings he still has will need to be used to pay legal costs.
Mr Kighan has listed ongoing expenses of income tax, health insurance and household expenses (including both rent and mortgage payments) totalling $2,266 per week. His evidence is that his mortgage payments have reduced due to the sale of one of the rental properties, but other expenses have increased somewhat from the amounts he listed in his statement of financial circumstances, as he now has additional care of [Child 1] and also because of general increases in the cost of living. Given his income from employment of $1,329 per week and his rental income that he told me was around $900 per week, it appears that his current income is just sufficient to cover his expenses. Mr Kighan told me, however, that his general financial situation is “going backwards” and his savings have been significantly depleted, in part due to significant legal costs that he continues to incur.
Mr Kighan did not provide a breakdown of the costs he incurs for the children specifically, however on the basis that he has sole care of [Child 1] and regular care of the two younger children, I accept that a portion of the household expenses incurred is for the benefit of the children. I note that some listed expenses including children’s activities at $150 per week and education expenses at $15 per week are clearly referable to the children.
Mr Kighan said that he shares his home with his partner, but she has a very low income and does not contribute to household expenses other paying for her own food. He said that essentially they each look after themselves financially but he pays the rent and household bills. I am satisfied that a portion of the household expenses incurred by Mr Kighan are referable to his partner, however it appears that this only increases his expenses by a relatively modest amount and is limited to part of the expenses for household supplies, electricity and water usage. There is no evidence before me to suggest that Mr Kighan has any legal duty to support his partner.
Overall I am satisfied that the expenses listed by Mr Kighan are reasonable, although I note that they do include a modest amount of what could be considered discretionary spending, such as entertainment and holidays for which he has listed expenses totalling $95 per week.
I note from the bank statements provided by Mr Kighan that although he did receive significant payments in June 2024 of $21,361 on 21 June 2024 and $98,527 on 24 June 2024, those funds have been spent. There were large payments for what appear to be legal fees and likely some payments toward mortgages, as well as the payment of school fees as set out above. Otherwise the funds seem to have been spent largely on general living expenses, and as at 11 February 2025 the balance of the account was $5,013. Mr Kighan’s oral evidence is that the balance of that account is now lower, although he was unable to tell me a precise amount.
Turning to Ms Raoul’s income, property and financial resources, Ms Raoul’s evidence is that she works 48 hours per fortnight. She explained that she job-shares a full-time position with another person, and that arrangement started a few years ago. She said she is not currently able to work full-time because she needs to be available to the children, and particularly [Child 3], outside of school hours.
The documentary evidence before me shows that Ms Raoul had an adjusted taxable income in the 2021/22 financial year of $104,620, made up of a taxable income of $81,740, reportable fringe benefits of $22,000 and a reportable superannuation amount of $520. In the 2022/23 financial year Ms Raoul had an adjusted taxable income of $75,200 made up of a taxable income of $52,843, a net rental property loss of $438 and a reportable fringe benefit of $21,999. In the 2023/24 financial year Ms Raoul had an adjusted taxable income of $73,365 made up of a taxable income of $51,244, a net rental property loss of $122 and a reportable fringe benefit of $21,999.
Ms Raoul also provided recent payslips from her employer that show that as at 20 February 2025 Ms Raoul had received year to date $37,158.18 in taxable income, plus untaxed amounts of $8,290. Her ordinary fortnightly income is $2,809.12, made up of a taxable amount of $2,298.79 and an untaxed amount of $510.33. Projected to the end of the 2024/25 financial year I find that Ms Raoul will have taxable income from employment of approximately $57,847, and an untaxed income from her employer of approximately $12,882, which I am satisfied will equate to a reportable fringe benefit of approximately $22,000, giving Ms Raoul an adjusted taxable income from employment of approximately $79,847.
Ms Raoul said that she took in a boarder for a period of around 5 months from around August 2024 to January 2025. He paid board of $230 per week, of which $130 was paid in to Ms Raoul’s bank account as rent while the other $100 was paid in cash. She had some expenses associated with that income including the boarder’s share of water and utilities, although she was unable to provide any evidence as to the total expenses incurred. Ms Raoul says she does not intend to take in another boarder.
Toward the end of 2024 Ms Raoul said she started a small business running a [business 1], which generates income of around $200 per week. She estimates her set-up costs in relation to her business were around $1,000 and she may have other claimable expenses but she doesn’t know the amount at this stage.
Overall, taking into account her income from employment and the small amount of income generated initially by taking in a boarder and more recently by commencing her small business, Ms Raoul’s adjusted taxable income in the 2024/25 financial year is likely to be around $83,000.
In her Statement of Financial Circumstances Ms Raoul has listed the value of the family home at $975,000, with a mortgage of approximately $486,000. Ms Raoul confirmed that while the property is still jointly owned pending the property settlement, and that currently she resides in the home and pays the mortgage on the property. Her other listed assets are an investment of $40,000, a motor vehicle valued at $19,000 and household contents and personal items with a total value of $6,000. She has not listed any liabilities other than the mortgage, although she notes she has a credit card with a $6,000 limit.
Ms Raoul has listed expenses of credit card payments, health insurance premium and household expenses totalling $1,948. According to her payslips she receives an after-tax income of approximately $2,500 per fortnight including the untaxed fringe benefits amount. Even taking into account the income from her small business her listed expenses therefore exceed her income. Ms Raoul has not provided a breakdown of the costs she incurs for the children specifically, however on the basis that she has majority care of the two younger children, I accept that a portion of the household expenses incurred is for the benefit of the children. I note that some listed expenses including child minding of $30 per week and education expenses of $110 per week are clearly referable to the children. Ms Raoul confirmed that the education expenses include private school fees for [Child 2].
In her application to the Tribunal Ms Raoul pointed out that Mr Kighan’s income in the 2023/24 financial year was considerably higher than the adjusted taxable income that was used in the child support assessment, and that he received a redundancy payment of almost $100,000 in June 2024. In the hearing Ms Raoul submitted that in her view the amount of the redundancy payment should be considered income for Mr Kighan and that it should be applied in the assessment for twelve months commencing on the day Mr Kighan received the payment.
When Ms Raoul made her application to Child Support for a departure from the child support assessment in November 2023 she did not raise the issue of Mr Kighan’s income. She submitted that at the time she was not aware of Mr Kighan’s much higher income, and she only became aware of that after having made her initial application for a change of assessment.
The most recent ongoing child support assessment included in the documents provided by Child Support, based on Ms Raoul’s 2023/24 adjusted taxable income of $73,365 and Mr Kighan’s current estimated income of $65,178, requires Ms Raoul to pay child support to Mr Kighan at an annual rate of $865, which equates to $16.58 per week. I note that that assessment is on the basis that Ms Raoul has 80% care of [Child 2] and [Child 3], and Mr Kighan has 80% care of [Child 1]. At the hearing both parties confirmed that [Child 1] is now in Mr Kighan’s 100% care, which may mean that a new assessment either has been or will be issued to reflect the new care arrangement.
I note that the financial circumstances of both parents are straitened, and that there are ongoing legal proceedings in relation to the property settlement that mean it is likely both parents will continue to incur legal costs for a period of time. Mr Kighan had a higher income than was reflected in the child support assessment in the 2023/24 financial year, and also received a substantial tax-free lump sum payment in June 2024 which has not been considered in the child support assessment. However, I am mindful that since being made redundant Mr Kighan’s ongoing income has reduced significantly, and also that Mr Kighan does not now have capacity to easily pay any substantial amount of arrears of child support to Ms Raoul.
In relation to hardship, both parents submitted that they are under significant financial pressure and are not in a position to pay child support to the other.
Mr Kighan made a number of submissions relating to issues arising from his separation with Ms Raoul, and also in relation to current court proceedings. In particular he provided a copy of a binding child support agreement that had been drafted by his lawyers. Mr Kighan said the intent of the agreement is that neither parent will be liable to pay any child support to the other, currently or at any time in the future. Ms Raoul agreed that she had received a copy of that binding child support agreement but she has not agreed to the terms of the agreement. I note that, while it is open to the parents to enter into a binding child support agreement at any time subject to the provisions of the Act, at the moment I am satisfied that no agreement has been reached by the parents.
Overall, I am satisfied that a just and equitable departure from the Child Support Assessment is to vary the adjusted taxable income used in the assessment for Mr Kighan to a sum of $75,000 in the period from 1 July 2024 to 30 August 2025. From 1 September 2025, provided at least one of the parents has lodged their 2024/25 tax return, the assessment will rely on each parent’s taxable income for the 2024/25 financial year. In making that adjustment I acknowledge that Mr Kighan did not work in the period from 1 July 2024 to approximately mid-August 2024, but I also note that up until June 2024 his income was substantially higher than the income that was used in the child support assessment, and he received a substantial and largely un-taxed redundancy payment in June 2024. I do not consider that it would just and equitable to back-date any departure from the assessment prior to 1 July 2024 to more fully incorporate Mr Kighan’s previous higher income and financial resources, as to do so would likely have the effect of creating substantial arrears of child support which Mr Kighan has little capacity to pay, and would be likely to cause hardship to Mr Kighan and also to the children while they are in his care.
That change is likely to result in a small ongoing amount of child support being payable by Mr Kighan. There is likely to be a small amount of arrears created, but I am satisfied that it will not be sufficient to cause hardship.
I have also found that Ms Raoul’s current adjusted taxable income is higher than the income currently used in the child support assessment. I do not propose to vary the adjusted taxable income used for Ms Raoul in the child support assessment, and so she will continue to be assessed on her adjusted taxable income for the 2023/24 financial year of $73,365. I also do not propose to increase the child support assessment any further in respect of the ongoing school fees payable for [Child 2]. I note that Mr Kighan contributed more than 50% of the total school fees for [Child 1] and [Child 2] at [School 1] in the 2024 school year, but has not contributed any additional payment toward [Child 2’s] ongoing fees at [School 1]. While I accept that Ms Raoul will have difficulty meeting the ongoing school fees for [Child 2], this is unfortunately a situation where both parents are now on a modest income, and so the overall capacity to meet private school fees has reduced considerably. My decision to not increase the income used in the assessment for Ms Raoul is partly in recognition of the fact that any additional income she is able to earn may assist in her payment of the remaining school fees for [Child 2].
I am satisfied that a decision to vary the adjusted taxable income used for Mr Kighan in the child support assessment to $75,000 is just and equitable as to the parents and the children.

Is a departure from the assessment otherwise proper?

Finally, I must be satisfied that the departure determination is “otherwise proper”. Subsection 117(5) of the Act requires me to take into consideration the nature of the duty of a parent to maintain a child, and the effect that any change to the assessment would have on the rate of any Centrelink benefits being received by the parties or the child.

The child support law recognises that each parent has a primary duty to maintain their children. In the case that they cannot, the government may assist in the form of family assistance payments.
Ms Raoul receives some family tax benefit for the children, as set out in her Statement of Financial Circumstances. There is no evidence before me as to whether Mr Kighan receives family tax benefit in respect of [Child 1], but I note that it may be open to him to claim family tax benefit either now or after the end of the current financial year. My decision may have some impact on the rate of family tax benefit payable for the children.
I am satisfied that the departure from the assessment properly reflects the capacity of each parent to provide for the children, and on that basis I am satisfied that the departure determination is otherwise proper.

DECISION

The Tribunal sets aside the decision under review and in substitution decides that Mr Kighan’s adjusted taxable income is varied to $75,000 for the period 1 July 2024 to 30 August 2025.

Date of hearing:

Tuesday, 8 April 2025