Rendell and Gedye (Child support)

[2023] AATA 1662

Rendell and Gedye (Child support) [2023] AATA 1662 (21 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024529

APPLICANT:  Mr Rendell

OTHER PARTIES:  Child Support Registrar

Ms Gedye

TRIBUNAL:Member H Moreland

DECISION DATE:  21 April 2023

DECISION:

The decision under review is set aside and a decision substituted that from 21 February 2022 to 30 June 2023, Mr Rendell’s adjusted taxable income is varied to $96,056 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – earning capacity of the carer entitled to receive – a ground for departure established – decision to depart - 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 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

1. The issue to be determined in this application is whether there is a reason to change the administrative assessment of child support and whether it is just and equitable and otherwise proper to do so.

2. Mr Rendell and Ms Gedye are the parents of [Child 1] and [Child 2]. Ms Gedye is currently the parent liable to pay child support with the current assessment commencing on 7 March 2019.[1] The application for child support was registered with Services Australia – Child Support (the Agency) from December 2017 and since then, Mr Rendell and Ms Gedye have both, at different times, been assessed as being the parent liable to pay child support. Since 7 December 2017, [Child 1] and [Child 2] have been in the care of Mr Rendell for 51% of the time and the care of Ms Gedye for 49% of the time.[2]

   [1] The Agency papers, p 515.

   [2] The Agency papers, p 539.

3. Prior to the application for a change of assessment, Ms Gedye was assessed to pay child support as follows:

   ·      For the period from 1 July 2021 to 31 August 2021, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $6,910.[3] The assessment used Ms Gedye’s 2021-22 estimated income of $78,266;[4] and Mr Rendell’s 2019-20 adjusted taxable income of $13,766.[5]

   ·      For the period from 1 September 2021 to 9 September 2021, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $6,822.[6] The assessment used Ms Gedye’s 2021-22 estimated income of $78,266;[7] and Mr Rendell’s 2020-21 provisional income of $21,963.[8]

   ·      For the period from 10 September 2021 to 30 June 2022, Ms Gedye was assessed to pay Mr Rendell an annual rate of child support of $8,956.[9] The assessment used Ms Gedye’s 2021-22 amended income of $95,004;[10] and Mr Rendell’s 2020-21 provisional income of $21,963.[11]

   [3] The Agency papers, p 7.

   [4] The Agency papers, p 524.

   [5] The Agency papers, p 516.

   [6] The Agency papers, p 7.

   [7] The Agency papers, p 524.

   [8] The Agency papers, p 516.

   [9] The Agency papers, p 7.

   [10] The Agency papers, p 524.

   [11] The Agency papers, p 516.

4. On 21 February 2022, Ms Gedye applied to the Agency for a departure from the administrative assessment on the bases of Reasons 8A and 8B because she said Mr Rendell had not updated his income and he was earning more than had been declared;[12] and he had a higher earning capacity than his actual income reflected.[13]

   [12] The Agency papers, pp  7 and 206.

   [13] The Agency papers, p 223.

5. On 27 April 2022, the Agency found Reason 8A established and decided that for the period from 27 April 2021 to 30 November 2022, the adjusted taxable income of Mr Rendell was to be set at $54,908.[14]

   [14] The Agency papers, p 309.

6. On 20 May 2022, Mr Rendell objected to that decision.[15] On 4 August 2022, an objections officer decided to allow Mr Rendell’s objection. The objections officer set aside the original decision and replaced it with their own decision that Mr Rendell’s adjusted taxable income for the period from 21 February 2022 to 30 November 2023 was set to $49,611.

   [15] The Agency papers, p 347.

7. On 25 August 2022, Mr Rendell lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the objections officer’s decision. Directions for this matter were made on 1 February 2023 for the parties to provide additional information. The application was scheduled to be heard on 23 February 2023. The matter was partly heard on that day but the remainder of the hearing was adjourned to 1 March 2023, because Mr Rendell had to attend to [Child 1], who had become unwell. Accordingly, the Tribunal reconvened the matter on 1 March 2023 and Mr Rendell and Ms Gedye both participated in that hearing. On 8 March 2023, Mr Rendell submitted a letter to the Tribunal which was addressed to him from his then employer, [Employer 1], which acknowledged Mr Rendell’s resignation from [Employer 1]. Accordingly, the Tribunal reconvened the hearing on 17 April 2023, to take evidence on issues relating to Mr Rendell’s employment and income as a result of him leaving [Employer 1]. On each occasion, the hearings were by teleconference and Mr Rendell gave evidence on affirmation and Ms Gedye gave sworn evidence. The Tribunal considered the documents and information which were provided to the parties prior to the hearing, as well as the oral and documentary evidence of Mr Rendell and Ms Gedye, and documents the Tribunal asked the Agency to obtain from the Australian Taxation Office (ATO) and Centrelink.[16]

CONSIDERATION

[16] Administrative Appeals Tribunal Act 1975 subsection 37(1) and section 38AA Statement and Documents provided by the Agency numbered 1 to 583; Mr Rendell’s documents numbered A1-A401; Ms Gedye’s documents numbered B1 to B489; and documents from the ATO and Centrelink numbered C1–C13.

The legislative framework

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act1989 (the Assessment Act). The liable parent or a carer may apply for a determination departing from the administrative assessment under Part 6A of the Assessment Act. Section 98C establishes a three-step process to be satisfied:

   a)   That there is a ground for a departure;

   b)   That it is just and equitable to depart from the administrative assessment; and

   c)   That it is otherwise proper to depart from the administrative assessment.

2. Once satisfied, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act.

10.The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[17] In the recent case of G v MIBP,[18] the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

[17] (1979) 2 ALD 634.

[18] [2018] FCA 1229.

Grounds for departure

Reason 3 – Education or training of children in the manner expected by the parents

11.At the telephone directions hearing, Ms Gedye told the Tribunal that she wanted the Tribunal to consider Reason 3 – Education or training of the child in a manner expected by the parents because, she said, she was paying for [Child 1]’s education costs, despite she and Mr Rendell having agreed that [Child 1] should attend [School 1].

12.Subparagraph 117(2)(b)(ii) of the Assessment Act, commonly referred to as Reason 3, provides that a ground for departure from an administrative assessment exists if:

(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: ...

(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents…

13.The Tribunal notes that in Wild v Ballard,[19] the Court said that this provision relates to the type of education intended by both parents, rather than the child’s attendance at any particular school.

[19] [1997] FamCA 41.

14.Further, the Tribunal notes that the term “manner expected” is not defined in the legislation. In Mee v Ferguson,[20] however the Court considered a similar provision in the Family Law Act 1975 and said (at [37]):

[20] [1986] FamCA 3.

It refers to the manner in which the child "is being", and which the parties to the marriage "expected" the child to be educated. That provision appears to have direct relevance to the issue of private school education, particularly its reference to the manner in which the parties "expected" the child to be educated. The word "expected" in the past tense presumably relates to some expectation of the parties at a point in time earlier than the hearing. 

15.In accordance with Wild v Ballard[21] and Mee v Ferguson,[22] in determining whether this ground was established, the Tribunal considered the type of education intended by both parents, rather than the child’s attendance at any particular school.

[21] [1997] FamCA 41.

[22] [1986] FamCA 3.

Ms Gedye’s submissions

16.Ms Gedye made written submissions to the Tribunal regarding Reason 3,[23] relevantly, she stated:

[23] The Agency papers, B9-B12.

I have solely borne the majority of the education costs for [Child 1] since she started in year 7 in 2021 with Mr Rendall providing a minor contribution, being a second-hand laptop, odd stationery items and footwear.

Mr Rendell refuses to pay for school fees for [Child 1] and to equally contribute 50% to her educational costs.

The circumstances at the time of separation we had agreed that our daughter, [Child 1], would attend [School 1], this was the local feeder school to her primary school, [School 1]. We had agreed from a very early age, as part of her education, that she would attend this school, which is a Secondary Education College for girls. We had spoken to [Child 1] of this intention for several years prior to her attendance and [Child 1] wanted to go there as all her friends were going there from her primary school.

Following our separation, when [Child 1] was in year 5, Mr Rendell was verbally supportive of this decision regarding our daughter's education and we all attended the open day at [School 1]. At the time when enrolment was required, Mr Rendell stated that he had changed his mind and he no longer supported this decision due to the cost of the enrolment fees for the school. Mr Rendell indicated that he did not wish to pay for [Child 1]'s school fees and would not contribute to her education costs at [School 1].

…

As Mr Rendell he did not support [Child 1] going to [School 1] (commencing 2021), he refused and continues to refuse to pay 50% of her school fees and contribute equally to other educational costs.

I am paying 100% of [Child 1]'s school fees, with a subsidised rate from the school. Note, however, even with the subsidised rate, I am still paying over 50% of the full school fee costs.

17.Ms Gedye told the Tribunal that [Child 1] commenced Year 7 at [School 1] in 2021, so she is now in Year 9. Ms Gedye told the Tribunal that it had always been agreed between she and Mr Rendell that [Child 1] would attend [School 1] and that [Child 1] had been raised as a younger child with the expectation of attending that school. Ms Gedye said that that was the school that she had attended and there was never any discussion about [Child 1] attending a different school until after she and Mr Rendell separated. Ms Gedye told the Tribunal that Mr Rendell told her after the open day that she, [Child 1] and Mr Rendell had attended, that he no longer agreed with [Child 1] attending the school.

18.Ms Gedye told the Tribunal that the choice of [School 1] was not about religion but about the type of community, that that kind of school, particularly an all-girls school could provide for [Child 1]. Ms Gedye also told the Tribunal, that both [Child 1] and [Child 1] had been enrolled at [School 2], which, she said, is a feeder primary school for both [School 1] where [Child 1] was intended to go and [School 3], where [Child 1] was intended to go.

Mr Rendell’s submissions

19.Mr Rendell told the Tribunal that he had been party to conversations from [Child 1]’s early childhood until he and Ms Gedye separated, regarding [Child 1] attending [School 1]. Mr Rendell however, said that he had always known that he and Ms Gedye would not be able to afford the fees at [School 1] but he had just “let those conversations roll”. Mr Rendell told the Tribunal that [Child 1] had been enrolled at [School 2] not because she was to attend [School 1] but because Ms Gedye’s sister-in-law was the vice principal of that school. Mr Rendell told the Tribunal that he could not remember if he had signed the enrolment form for [Child 1] for [School 2].

20.Mr Rendell told the Tribunal that [School 1] does have a nice community environment but that he knew, even when he and Ms Gedye were together, that they would not be able to afford to send [Child 1] there.

21.Mr Rendell told the Tribunal that he had attended the open day for [School 3] with [Child 1] but knows that he can’t afford to contribute to [Child 1] attending [School 3] either.

Was there a mutual intention for [Child 1] to attend [School 1]?

22.The Tribunal observes that there was no corroborating evidence, apart from the oral evidence, of the communication between Ms Gedye and Mr Rendell regarding schooling choices for [Child 1] and [Child 1]. There are, before the Tribunal, enrolment forms for [School 2], for [Child 1] and [Child 1], signed by both Ms Gedye and Mr Rendell.[24] The Tribunal finds however, that there is no co-signed enrolment form for [Child 1] attending [School 1].

[24] Second party papers, pp B478-B486.

23.Mr Rendell submitted a letter to the Tribunal, purportedly to [Ms A] of [School 1], dated 23 August 2019, which states:

I appreciate discussion this day with respect to enrolment forms due for Year 7’s to commence in 2021. Although I am not in objection to an expression of interest ($66 Fee) being completed this day in respect to my child attending your school, I do however object to the nature of the application whereby it eludes to responsibility at this time for the payment of fees as sought from time to time, as they may assign to me.

The basis for the mother in submitting a form this day was that she herself was educated attending your school throughout her high school years prior to departing in year 10 some-time ago, whom had always thought it would align that her daughter one day would attend this same school (which aligns to actions taken by her former school friends and some immediate family).

I am myself unemployed, without necessary funds in which to contemplate the registration of my child within your school, and associated fees , and thus find myself in no position in which to sign the application at this time.[25]

[25] Applicant papers, p A338.

24.Mr Rendell submitted a letter to the Tribunal that was sent to him from [Mr B], the Business Manager at [School 1] dated 18 December 2020. The letter stated:

As per our recent discussion as you have not signed the enrolment form there in [sic] no financial obligation from you in respect of the payment of tuition fees and levies for [Child 1] at [School 1]. The [School] is looking forward to a forming a strong partnership with [Child 1] during her education from Year 7 to Year 12 at [School 1].[26]

[26] Applicant papers, p A327.

25.Mr Rendell provided the Tribunal with copies of correspondence between him and [School 4], a government school, between 20 August 2020 and 12 March 2021, which showed him discussing the enrolment of [Child 1] at that school.[27] The Tribunal acknowledges that this correspondence shows that Mr Rendell, at some point, wanted [Child 1] to attend [School 4] but the Tribunal is not satisfied that this disproves that Mr Rendell never had an intention that [Child 1] was to attend [School 1].

[27] Applicant papers, p A324 and A334-A337.

26.The Tribunal finds that these letters, taken together, support Mr Rendell’s contention that, at some point in time, he objected to [Child 1] attending [School 1] but not that Mr Rendell never had an intention that [Child 1] was to attend [School 1].

27.As for any agreement that may have existed prior to this point in time, the Tribunal concludes, based on the evidence before it, that there was at least an acquiescence on the part of Mr Rendell with regard to [Child 1]’s education, which then changed to an opposition to [Child 1] attending [School 1].

28.Considering all the evidence before it however, the Tribunal cannot be satisfied that Mr Rendell ever had an intention for for [Child 1] to be educated at [School 1].

29.This means the Tribunal finds that special circumstances do not exist, such that the administrative assessment resulted in an unjust and inequitable outcome. Therefore, the Tribunal finds that a ground for departure is not established in relation to subparagraph 117(2)(b)(ii) (Reason 3) of the Assessment Act.

Reason 8B – The earning capacity of Mr Rendell

1. Ms Gedye also sought a change of assessment on the basis of Reason 8B. Such a determination can only be made if the relevant requirements, set out in the legislation are satisfied. According to subsection 117(7B) of the Assessment Act, the Tribunal must be satisfied that:

   (a) one or more of the following applies:

   (i) the parent does not work despite ample opportunity to do so;
   (ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
   (iii) the parent has changed his or her occupation, industry or working pattern; and

   (b) the parent’s decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

   (i) the parent’s caring responsibilities; or
   (ii) the parent’s state of health; and

   (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

Step 1: Did Mr Rendell change occupation, industry or working pattern?

31.The Tribunal considered the first leg of the test (as set out in paragraph 117(7B)(a) of the Assessment Act).

32.As noted above, Ms Gedye sought a change of assessment on the basis of Reason 8B because, she said Mr Rendell holds a Bachelor of [Subject] and with that qualification, he could earn far more than he does. Ms Gedye told the Tribunal that Mr Rendell had completed his study in 1998, and Mr Rendell agreed that this was when he completed university. Ms Gedye also stated that Mr Rendell had previously presented his redundancy as being compulsory but that she had learned it was voluntary. Ms Gedye also submitted that Mr Rendell had not sought work in his skilled occupation and worked in a casual capacity in order to affect the child support assessment in their case.[28]

[28] Second party papers, pp, B13-B14.

33.Ms Gedye also provided a copy of Mr Rendell’s curriculum vitae to the Tribunal as at 2009. According to the professional overview, Mr Rendell at that time, was a “highly versatile [Work sector] professional”. Having reviewed the curriculum vitae, the Tribunal notes that Mr Rendell, at that time, had experience in the [Work sector], having worked as [an Occupation 1], in [Job task 1], and on [a Job task 2].[29]

[29] Second party documents, pp B440-B442.

34.Mr Rendell told the Tribunal that until March 2019, he had been employed with [Employer 2] in the area of [Job task 3] for nine years. Mr Rendell told the Tribunal that he had had a difficult time working with [Employer 2] which had resulted in him being performance-managed. Mr Rendell also told the Tribunal that he had continued to work at [Employer 2] during a transition period of 6 months when [Employer 2] moved to [City], from Melbourne and he had found the commute to [City] extraordinarily difficult, given he and Ms Gedye had separated by that time and he was adjusting to life as a single parent.

35.Mr Rendell provided the Tribunal with documentation regarding his employment with [Employer 2], including a letter from the Director, [Section], [Mr C], which included a summary of his performance issues in that workplace, as follows:

As per your coaching plan (started in September 2017), Performance Improvement Plan (PIP started in September 2018), coaching plan (started in October 2018) and general discussions; the areas of your performance and behaviour which continue to be unsatisfactory include:

Performance

·Unable to complete allocated tasks within reasonable time frames

·Inability to provide estimated time frames for allocated tasks to be completed

·When tasks are delivered they are at times of a poor quality standard

Behaviour

·Not reading and responding to emails and other information (including your PIP, updated coaching plan, CHAT roll up) sent by your line manager

·Poor communication and interactions with line managers and peers

·Poor instructions and communication with internal stakeholders

·Not following reasonable management direction (e.g. requests for estimated indicative times for tasks, not returning to standard ordinary hours, not putting in leave for hours when not in the office)

In summary, in line with clause 3.2 – Misconduct and clause 3.4 - Under Performance of the [Employer 2] Discipline Policy, it has been observed and concluded that you have not provided an output equivalent to that expected of an employee at your level ([Band]). This is despite the flexibility and ongoing support provided to you by the business.[30]

[30] Applicant documents, pp A361-A362.

36.As shown in the Agency papers, Mr Rendell’s Employment Separation Certificate shows that Mr Rendell received a payout from [Employer 2] on 7 March 2019.[31]

[31] The Agency papers, p 74.

37.On returning to the workforce, Mr Rendell said, he secured a job at [Employer 3], in a manual role, [Job task 3] and cleaning. As shown in a previous decision by the Tribunal (differently constituted), Mr Rendell commenced this role in August 2019.[32] Mr Rendell told the Tribunal that this was a casual role, with hours that constituted less than full-time work. This job ended, Mr Rendell said, when [Employer 3] lost a major contract, so they could not afford to keep him on. As shown in the previous decision by the Tribunal (differently constituted), this role ended around Christmas time in 2019.[33]

[32] The Agency papers, p 91.

[33] The Agency papers, p 91.

38.Mr Rendell told the Tribunal that he had had significant challenges finding work after he finished at the [Workplace] and was out of work for around 16 months, receiving income support payments. Noting that a significant portion of this time coincided with the pandemic, the Tribunal asked Mr Rendell as to whether the pandemic provided an opportunity for someone with his skills and background in [Work sector] but Mr Rendell said that job searching during the lockdowns was difficult. The Tribunal asked Mr Rendell about periods during this time that were not affected by the pandemic and Mr Rendell said that he did not have a specific recollection of job searching during this period but he said he must have, as part of his mutual obligation requirements when he was receiving government benefits.

39.Mr Rendell said he then commenced at [Employer 1] on 28 April 2021 (trading as [Trading name]) in a role comprising [Job tasks 4 and 5], as well as [Job task 6]. Mr Rendell told the Tribunal that he was a casual employee and had negotiated hours with his employer to suit his care arrangements for [Child 1] and [Child 1]. While there was some variation in his hours, as outlined below, Mr Rendell, while at [Trading name] was generally working for 70 hours per fortnight. During the rescheduled hearing on 1 March 2023, Mr Rendell told the Tribunal that there was to be a change in manager in the week after the hearing and he did not anticipate that he would get along with the new manager. As noted above (at paragraph 7), Mr Rendell submitted a copy of a letter to him from [Employer 1] on 8 March 2023. This letter, dated 6 March 2023, in the week after the second part of the hearing in relation to this matter was held, confirmed that Mr Rendell had resigned from [Employer 1].[34] Mr Rendell told the Tribunal that he had not been permitted to job search when he was at [Employer 1].

[34] Applicant papers, p A356.

40.In a written submission, Ms Gedye said that she did not believe that Mr Rendell was precluded from job searching, given he had such flexible hours. The Tribunal asked Mr Rendell why he was unable to search for jobs outside of work hours, particularly as half of his workdays ended at 2pm and whether he was applying for jobs online. Mr Rendell told the Tribunal that he found it difficult to look for work when he has his children and that while he has made some applications online, he is more comfortable job searching on a face-to-face basis.

41.At the hearing on 17 April 2023, Mr Rendell told the Tribunal that he had resigned from [Employer 1] because he had decided that he was not financially benefiting from that role. Mr Rendell told the Tribunal that financially, he was going backwards and was starting to use his savings for living expenses. The Tribunal notes that this is a different account to the one provided before Mr Rendell resigned from [Employer 1], which was that he anticipated that he would not get along with his new manager. On 17 April 2023, Mr Rendell told the Tribunal that he was looking for work in the area in which he is qualified, that being the [Occupation 1/Work sector] sector and had already had one interview (albeit unsuccessful).

42.The Tribunal is satisfied that for the period from when Mr Rendell left [Employer 2] until the date of its decision, Mr Rendell’s occupation, industry and work pattern changed (subparagraph 117(7B)(a)(iii) of the Assessment Act), as he was no longer working in the sector in which he was trained, educated and worked for 20 years. Prior to March 2019, Mr Rendell was employed full-time in the [Work sector]; and since March 2019, Mr Rendell has ranged from being unemployed to being casually employed in manual employment.

Step 2: Was Mr Rendell’s change in occupation, industry and work arrangement justified?

43.The Tribunal considered the second leg of the test (as set out in paragraph 117(7B)(b) of the Assessment Act).

44.Mr Rendell told the Tribunal that one of the reasons his working pattern had changed since he separated was due to caring responsibilities. Mr Rendell did not submit that the state of his health contributed to the need for his occupation and work arrangements to change.

45.Mr Rendell told the Tribunal that he preferred to be able to walk [Child 1] to school due to road safety issues. Mr Rendell also stated in a written submission to the Tribunal on 8 March 2023 that:

Dear member, this administrative appeals process has significantly highlighted the shortfall this employment opportunity has availed me in recent times (April 2021 thru March 2023). I have previously referred to my hiring (and reporting) manager retiring from the business at the completion of February 2023, and actions taken by the business to remedy shortfall of workers moving forward, and upon reflection of my bank account balances throughout this Administrative Appeals Process and notes to the effect “out of cash” contained therein coupled with actions taken by the business I have more recently sought an exit strategy from the business.

Although not ideal, the business has made available the attachment (photo incl) as a result of the departure deemed appropriate. I note, the business had determined it not appropriate to allow me to search for additional work whilst remaining employed -with any need to attend interviews and/or taking appropriate job aligned phone calls during work hours having been deemed inappropriate and would impact business scheduling moving forward.

I had requested or conveyed that working up to two-three days per week would avail an opportunity to spend a greater deal of time in searching for work moving forward but this too was considered inappropriate by the business.

The hours referenced below (contents of departure letter) essentially align to those put in place soon after my commencement of employment (which in the first instance was 20hrs per week over four days) evidenced by reductions in job seeker payments May 2021 thru July 2021, having reported associated income earned. The business itself operates mon-fri 7:30am-5:00pm(4-6pax) and weekends 9:00am-5:00pm(2pax maximum)

The Departure Letters hours, additionally align to increased hours undertaken during the week I do not have care for my children, in the 50% care arrangements put in place (alternating each Thursday either morning/afternoon in week about arrangements). My ability to increase working hours in the weeks I do not care for my children have remained and been evident upon my exit from the former marital home since Nov 2017, even whilst employed at [Employer 2].

With both our children undertaking sports, throughout any given afternoon during weekdays post school closures, I have been rudimentarily involved in getting my children to activities (whilst in my care) like: [Sports 1 and 2] (Year round) as individuals once a week, whilst coupled with seasonal sports [Sport 3] (winter: [Child 1] and [Child 2]), [Sport 4] (summer: [Child 2]) since 2019 where I additionally supported the under 9’s [Sport 4] coach when [Child 2] was seven years of age. Both [Child 1] and [Child 2] excel at their chosen sports and in part I believe it is the access and availability and time I have invested with them in the raising of my children which has culminated in their respective achievements. My involvement additionally included either dropping off or collecting children from kinder (mid morning/early morning starts, mid afternoon finishes) and/or crèche operating hours in earlier years of our children(refer enclosed time sheet extracts).[35]

[35] Applicant papers, p A355.

46.The Tribunal also notes that the care of [Child 1] and [Child 2] is shared equally and Ms Gedye manages to work full-time while caring for [Child 1] and [Child 2]. The Tribunal notes that this has been the case since prior to March 2019,[36] which is when Mr Rendell stopped working full-time, with the exception of a 6-month period in the second half of 2020 when Ms Gedye, according to her oral evidence, worked a nine-day fortnight to provide her with more time to participate in school activities with and for the children. This also means, the Tribunal finds, that Mr Rendell was able to work full-time and care for his children prior to leaving [Employer 2]. The Tribunal acknowledges that Mr Rendell said that he managed this with the assistance of nannies, but finds this is not unusual for a full-time working parent.

[36] The Agency papers, p 92.

47.The Tribunal concludes that while Mr Rendell might prefer to work more child-friendly hours, his change in industry, occupation and work arrangements in general is not justified by his caring responsibilities. This is because neither [Child 1]nor [Child 2] appear to have any special needs, nor require either parent to work less than full-time hours to accommodate their needs.

Step 3: Has Mr Rendell demonstrated that it was not a major purpose of his change in occupation, industry and working pattern to affect the administrative assessment of child support?

48.The Tribunal considered the third leg of the test (as set out in paragraph 117(7B)(c) of the Assessment Act). The Tribunal notes that the third leg of the test is framed as a rebuttable presumption. This means that the starting point is, it is presumed that a major purpose of the decision to change a parent’s work arrangements is to affect the administrative assessment of child support.

49.The Tribunal asked Mr Rendell why he did not secure work in the [Work sector] immediately after he left [Employer 2]. Mr Rendell told the Tribunal that he was still affected by his separation from Ms Gedye. Mr Rendell said he felt his job had been “…thrown in my face…” and he was “peeved” about the way he was treated. Mr Rendell told the Tribunal that he wanted to be “at home with the kids” to maintain his rapport with them. Mr Rendell told the Tribunal that he had been “backed into a corner” and been performance-managed, and he felt [Employer 2] was an environment where you had to “prove your worthiness”.

50.As shown in the Agency papers, originally, Mr Rendell was the payer of child support. The papers also show that on 14 March 2019, Mr Rendell contacted Child Support and informed Child Support that his income was nil. One week prior to this, Mr Rendell received a payment of $77,735 upon leaving [Employer 2].[37]

[37] The Agency papers, p 75.

51.The Tribunal notes the following from a 19 May 2020 decision of the Tribunal (differently constituted):

23. Mr Rendell argued that Ms Gedye should be assessed on an earning capacity from the start of her employment with [Employer 4], even though her income increased when she took that position. Mr Rendell said this was because she was offered a full-time position, but she elected to only work part-time. He referred to the written offer of employment. Mr Rendell said he believed a major purpose of Ms Gedye working part-time was to affect the child support assessment. He could not refer to any specific evidence to support that assertion.[38]

[38] The Agency papers, p 92.

52.The Tribunal asked Mr Rendell what outcome he, as the applicant, was seeking as a result of these proceedings. Mr Rendell told the Tribunal that he was simply seeking a fairer outcome. The Tribunal put it to Mr Rendell that, logically, the outcome he was seeking, was to increase the child support payable to him by Ms Gedye. Mr Rendell told the Tribunal that that was not the case, he said he is simply seeking a fair outcome.

53.The Tribunal concludes that the pattern of Mr Rendell’s actions, since March 2019, demonstrate that he is substantially motivated to affect the child support liability to the extent not only that he reduces his child support liability, but to increase the child support payable to him by Ms Gedye.

54.Based on the evidence before it, specifically in relation to leaving his role at [Employer 2], the Tribunal is satisfied that Mr Rendell’s change in work arrangements from his work as [an Occupation 1] at [Employer 2] may not have been substantially motivated by the effect this would have on the child support assessment because it appears that Mr Rendell had performance issues. The Tribunal however, acknowledges Ms Gedye’s oral and written submissions, that Mr Rendell had been given repeated opportunities to improve his performance at [Employer 2] and appears to have been unwilling to address those performance issues.

55.For the period after Mr Rendell left [Employer 2] however, the Tribunal is not satisfied that Mr Rendell has shown that his decisions about his work arrangements were not substantially motivated by the effect this would have on the child support assessment. This is because Mr Rendell not only changed employer but he changed his industry, his occupation and his working arrangements, going from a full-time [Occupation 1] in the [Work sector] to a casual cleaner/labourer at [Employer 3] and then a [Workplace] worker, also on a casual basis. As noted above, at the hearing on 17 April 2023, Mr Rendell told the Tribunal that he had now decided to look for work in his former sector, as he was not making enough money as a [Workplace] worker.

Conclusion

56.The Tribunal finds that Mr Rendell’s occupation and work arrangements have changed; these changes are not justified by the caring needs of [Child 1] and/or [Child 2] and that for the period from when Mr Rendell finished at [Employer 2], Mr Rendell has failed to show that his decisions about his occupation and work arrangements were not substantially motivated by the effect this would have on his child support assessment.

57.The Tribunal acknowledges that Reason 8B is not designed to prevent a person from changing occupations but concludes that it must have some utility. The Tribunal finds that Reason 8B is for circumstances such as these. Those being circumstances in which a person has an established career, based on a university qualification and 20 years in the workforce, and finds themselves paying child support and then leaves that career, resulting in a reduced child support liability and in this case to the extent that the other party becomes the payer of child support.

58.This means the Tribunal finds that special circumstances exist, such that the administrative assessment resulted in an unjust and inequitable outcome. Therefore, the Tribunal finds that a ground for departure is established in relation to subsection 117(7B) (Reason 8B) of the Assessment Act.

Would departure from the administrative assessment be just and equitable?

59.Having found that special circumstances exist, such that the administrative assessment resulted in an unjust and inequitable result, and a ground for departure was established in relation to subsection 117(7B) (Reason 8B) of the Assessment Act, the next step for the Tribunal is to consider whether it is just and equitable to depart from the administrative assessment.

60.In deciding whether it is just and equitable, the Tribunal had regard to the matters set out in subsection 117(4) of the Assessment Act. Section 3 of the Assessment Act makes it clear that the parents of a child have the primary duty to maintain the child over all commitments of the parents other than commitments necessary for self-support or the support of another person to which they have a duty.

Mr Rendell’s income, property and financial resources

Mr Rendell’s income and expenses

61.On 17 April 2023, Mr Rendell told the Tribunal that he is now unemployed and relying on savings. Mr Rendell told the Tribunal that he has not yet applied for benefits, as he is unsure about his entitlement to benefits. Mr Rendell also told the Tribunal that he had not yet secured a job but was looking for one. As noted above, Mr Rendell said that he was looking for work as [an Occupation 1].

62.Mr Rendell had told the Tribunal that in his most recent role, he worked at [Employer 1], in a role comprising [Job tasks 4 and 5], as well as [Job task 6] work. Mr Rendell told the Tribunal that he had been a casual employee and had negotiated hours with his employer to suit his care arrangements for [Child 1] and [Child 2].

63.According to Mr Rendell’s Statement of Financial Circumstances, dated 31 January 2023, Mr Rendell’s weekly income was $844, comprising wages of $681, government benefits of $163 and child support of $36.[39] The Tribunal notes that the total of $681, $163 and $36 however, is $840. Further, Mr Rendell receives child support on an agency-collect arrangement and the child support payable by Ms Gedye for the period from 1 September 2022 to 30 November 2023 was $112.84 per week. The Tribunal had directed Mr Rendell to provide his payslips, which he did.[40] Mr Rendell explained however, that he had provided more than the requested payslips because the three most recent payslips were not reflective of his usual earnings because his workplace closed down during that period.

[39] Applicant papers, p A13.

[40] Applicant papers, pp A315-A323.

64.According to Mr Rendell’s 2021-22 income tax return, his gross income from wages was $32,907.[41] The Tribunal concludes that, based on the evidence before it, this is an accurate reflection of the income Mr Rendell received from [Employer 1] in 2021-22.

[41] The Agency papers, p 451.

65.Mr Rendell’s income tax return for 2021-22 shows that his taxable income was $52,033.[42] According to the Agency papers, this amount was the most recent amount used by the Agency.[43] This figure includes Mr Rendell’s gross income from wages, as well as income from interest and share trading, as well as deductions for Mr Rendell’s work-related expenses, and the costs of managing his tax affairs.

[42] The Agency papers, p 452.

[43] The Agency papers, p 516.

66.With regard to Mr Rendell’s expenses, the Tribunal asked Mr Rendell how he had been funding the shortfall between his income and expenses as he stated that his income is $844 and his expenses were $1,595 per week. Mr Rendell said that he was funding the shortfall by running down his savings and that he had decided to change jobs to increase his income to reduce his savings being eroded. The Tribunal asked Mr Rendell about the cost of his rent because the Statement of Financial Circumstances stated that his rent was only $100 per week, which is far below a market rental and the bank statements he had supplied indicated that he was paying a higher amount of rent. Mr Rendell told the Tribunal that this was an error and that his rent had been $390 per week and had recently increased to $400 per week. The Tribunal also asked Mr Rendell about the amounts he presented as being expenses incurred in relation to his children. Mr Rendell told the Tribunal that he hadn’t completed the form correctly and noted that he had not provided an amount for food on the form. As a consequence, the Tribunal was able to give no weight to the evidence provided by Mr Rendell in relation to his expenditure on his children as set out on the Statement of Financial Circumstances.

67.The Tribunal notes that Mr Rendell stated on his Statement of Financial Circumstances that he spends $320 per week on “entertainment/hobbies”.[44] Mr Rendell told the Tribunal on 17 April 2023 that this figure would include taking his children out for meals, and his own entertainment expenses. Mr Rendell told the Tribunal that he was a keen [Sport 5 player] and would be going to [Country] on a [Sport 5] trip in May 2023 and he expected the cost to be around $4,500. The Tribunal reviewed Mr Rendell’s bank statements for the period from April 2022 to January 2023 and finds, on the evidence before it, that Mr Rendell generally spends in excess of $200 per week, and often more, on discretionary spending. The Tribunal considers purchases at hotels and pubs, from bottle shops and [Sport 5] clubs, as well as fast food and other restaurants as discretionary spending. Further, the Tribunal considers spending related to travel for non-business purposes, as discretionary spending.

[44] Applicant papers, p A18.

68.Mr Rendell told the Tribunal that he has no other person whom he has a legal duty to support.

Mr Rendell’s property

69.According to Mr Rendell’s Statement of Financial Circumstances, as at 31 January 2023, he had $4,400 in [a Bank 1] account and $236,979 in [a Bank 2] account.[45] According to Mr Rendell’s bank statements however, Mr Rendell had $296.15 in the [Bank 1] account number ending in #5428 as at 27 January 2023 (the Tribunal concludes there may have been a large deposit to that account between 28 January 2023 and 31 January 2023); and the balance of Mr Rendell’s [Bank 2] account number ending in #5676 as at 29 January 2023 was $234,353.69.[46] Mr Rendell told the Tribunal that he had credit cards in the past but no longer has a credit card. According to Mr Rendell’s Statement of Financial Circumstances, Mr Rendell has two superannuation accounts, a [Fund 1] superannuation account of $148,667 and a [Fund 2] account of $72,865.[47] Mr Rendell did not provide a copy of his [Fund 1] superannuation statement as directed but did provided a [Fund 2] statement to show that the balance, as at 30 June 2022, was $72,865.07.[48]

[45] Applicant papers, p A14.

[46] Applicant papers, p A73.

[47] Applicant papers, p A15.

[48] Applicant papers, p A339.

70.Mr Rendell’s Statement of Financial Circumstances also refers to an amount of $211,600 invested in shares as at 31 January 2023.[49]

[49] Applicant papers, p A14.

71.Mr Rendell told the Tribunal that upon the finalisation of the financial settlement between him and Ms Gedye, Ms Gedye received the family home and he received nearly $500,000. Mr Rendell told the Tribunal that he has converted around half of this amount to shares (currently in the [Share Trading] account, although, he said, they have diminished in value) and half was deposited into the aforementioned [Bank 2] account (ending in #5676). The Tribunal accepts these submissions by Mr Rendell.

72.On 17 April 2023, Mr Rendell told the Tribunal that the value of his share portfolio was around $200,079.60 and his [Bank 2] savings account had a balance of $208,061.95. On 20 April 2023, Mr Rendell provided the Tribunal with a document that showed that the value of his “AUD assets” in his [Share Trading] account was $197,963.48 and that he also had $1,962.18 with [Share Trading account].[50]

[50] Applicant papers, pp A399-A400.

Mr Rendell’s submissions regarding the proceeds of his financial settlement with Ms Gedye

73.Mr Rendell told the Tribunal that, in his view, it is unfair that he be expected to pay child support from his financial settlement. Mr Rendell said that he did not think this would be fair and referred to the increase in value in Ms Gedye’s home that is not taken into account for the purposes of child support.

74.According to the Guide at 2.6.11: Reason 5 - money, goods or property received by the child, the payee or a third person:

…

The Registrar will avoid undermining the property settlement or any related agreement entered into by the parents.

Generally, the Registrar will not be satisfied that a transfer of property to the other parent was made for the benefit of the child, unless the order or agreement specifically identifies the proportion and states that the transfer was made for the benefit of the child. However, where a parent can establish, with adequate evidence, that the payee received a higher share of the property or a payment for the benefit of the children, the Registrar will consider whether the transfer or payment makes the child support assessment unjust and inequitable.[51]

[51] means that the starting point is that one parent’s share of a property settlement is not to be used for the benefit of a child, unless the orders or some other agreement stipulate that it will or it can be established that one parent received a higher share of the property settlement than the other. Further, the Tribunal concludes that it is generally not appropriate that the child support jurisdiction be used to renegotiate financial settlements.

76.The Tribunal however, as noted above, may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[52] In the recent case of G v MIBP,[53] the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

[52] (1979) 2 ALD 634.

[53] [2018] FCA 12 29.

77.Mr Rendell told the Tribunal that his and Ms Gedye’s financial settlement was based on a 50:50 basis, with Ms Gedye’s investment property being sold and a transfer of cash to Mr Rendell to enable Ms Gedye to maintain the family home. Ms Gedye did not dispute this. The Tribunal accepts that the financial settlement between Mr Rendell and Ms Gedye was on a 50:50 basis and there were no provisions made by the court for any part of Mr Rendell’s settlement to be used for the benefit of the children.

78.Mr Rendell submitted that this concept extends to income derived from property received through a financial settlement, even indirectly, such as through the share dividends and capital returns Mr Rendell receives upon the sale of shares. Mr Rendell told the Tribunal that it was unfair that his income from his share trading be considered for child support purposes simply because he chose to use his money for investment, while Ms Gedye maintained the family home, which has increased in value since the financial settlement but is not taken into account for the purposes of determining the child support payable by Ms Gedye to him.

79.The Tribunal however, rejects Mr Rendell’s submission that all of his income from share trading should be excised from his adjusted taxable income for the purpose of child support as this is part of his annual income and should be used for the benefit of his children. This is because it is not uncommon for real property to be transferred between parties during financial settlements and any income from that real property, which is used for investment, is taken into account for the purpose of determining child support income.

80.The Tribunal also notes that the way a person deals with their financial resources, including those received as a result of a financial settlement in relation to a family law matter, is a relevant consideration. In Mr Rendell’s case, the Tribunal finds that he has used those funds for his own personal expenses and as such, there is no reason that his children should not also benefit from those funds.

81.The Tribunal also finds that, having found that special circumstances exist, such that the administrative assessment resulted in an unjust and inequitable outcome (ie. that Reason 8B is established), it is appropriate that, should the child support liability between Mr Rendell and Ms Gedye be altered to the extent that an amount becomes payable to Ms Gedye, Mr Rendell may have to use some of his proceeds from the financial settlement to repay that amount.

Ms Gedye’s income, property and financial resources

82.A Statement of Financial Circumstances dated 25 February 2023, shows that Ms Gedye’s weekly income is approximately $2,038 (gross), comprising $1,977 from her employment as a [Job title] with [Employer 4]; and $61 in family tax benefit.[54] With regard to assets, the Statement of Financial Circumstances shows that Ms Gedye has assets totalling $1,145,500. This comprises, according to the Statement of Financial Circumstances: Ms Gedye’s home valued at $1,140,000; bank funds of $500; $3,000 for her motor vehicle and $2,000 in household contents. The Statement of Financial Circumstances also shows that at the time it was completed, Ms Gedye had $487,652 in liabilities,[55] comprising her mortgage of $485,000 and a child support debt of $2,652.[56] The Statement of Financial Circumstances shows that Ms Gedye has $191,803 in superannuation.[57] The Tribunal noted nothing out of the ordinary in Ms Gedye’s personal expenditure of $593 per week;[58] nor her weekly household expenses of $1,331.[59]

[54] Second party documents, pp B442-B445.

[55] Second party documents, p B448.

[56] Second party documents, pp B447-B448.

[57] Second party documents, p B447.

[58] Second party documents, p A7.

[59] Second party documents, pp B449-B450.

83.The Tribunal asked Ms Gedye about certain deposits that had been made to her account and she told the Tribunal that her sister had agreed to provide her with some assistance for [Child 1]’s school fees for a limited period of time.

84.During the hearing on 17 April 2023, Ms Gedye told the Tribunal that she had already incurred a child support debt as a result of Mr Rendell not lodging his 2020-21 income tax return on time; and that as a result of Mr Rendell lodging his income tax return for the 2022-23 financial year, her child support liability had increased. Ms Gedye told the Tribunal that as a result of these factors, she had been informed by the Agency that she was required to pay in excess of $700 to the Agency in the following week. Ms Gedye told the Tribunal that she was struggling to work out how she was going to pay her mortgage repayments.

85.The Tribunal concludes that Ms Gedye’s child support income for 2020-21 was $94,766.[60] This comprised her taxable income of $67,695,[61] as well as reportable fringe benefits of $29,998.[62]

[60] The Agency papers, p 524.

[61] Second party papers, p B23.

[62] Second party papers, p B24.

86.For the 2021-22 financial year, the Tribunal concludes that Ms Gedye’s child support income was $95,581.[63] This comprised $67,455 in taxable income,[64] as well as reportable fringe benefits of $29,998.[65]

[63] The Agency papers, p 524.

[64] Additional papers from the ATO via the Agency, C1.

[65] Additional papers from the ATO via the Agency, C2.

87.Ms Gedye told the Tribunal that she has no other person whom she has a legal duty to support.

The needs of the children

1. Both Mr Rendell and Ms Gedye told the Tribunal that neither [Child 1], nor [Child 2], have any special needs, with the exception of Ms Gedye raising Reason 3. For the reasons outlined above, the Tribunal concludes that [Child 1]’s education at [School 1] is not to be considered a factor in determining the child support liability in this matter.

2. Ms Gedye told the Tribunal that she believes the way in which the needs of the children are paid for is not fair. Ms Gedye told the Tribunal that Mr Rendell has not contributed adequately to the additional education costs for [Child 1] and that while she and Mr Rendell equally shared school fees for [Child 2], she said that Mr Rendell did not pay his fair share of additional education costs for [Child 2].

3. Mr Rendell told the Tribunal that when the children are with him, he pays for their food, medical and entertainment costs and that when they are with Ms Gedye, she does the same. Ms Gedye however, told the Tribunal that there are other costs for the children, such as [Child 1]’s mobile phone and other educational costs, that Mr Rendell refuses to contribute to.

4. Mr Rendell told the Tribunal that he does pay for some items for the children and that, in his view, he pays more for the children’s sport than Ms Gedye.

5. The Tribunal observes that the sharing of expenses for [Child 1] and [Child 2] appears to be poorly defined and it is apparent that there is significant conflict between Mr Rendell and Ms Gedye regarding the costs of the children. In particular, Ms Gedye said that she believes that Mr Rendell simply picks and chooses what he will and will not contribute to.

6. Overall however, the Tribunal concludes that there are no special needs to be taken into account regarding [Child 1] and [Child 2].

Would there be resulting hardship from a departure from the administrative assessment?

1. Subsection 117(4) of the Assessment Act requires the Tribunal to take into account whether any departure determination or failure to make a departure will cause any hardship to the child, the carer, the liable parent or any other person the liable parent has a duty to support.

2. At the time of this decision, Ms Gedye is employed in a full-time role and Mr Rendell is unemployed. The Tribunal observes however, that Mr Rendell’s bank statements show that while he was working for [Employer 1], earning far less than Ms Gedye, his discretionary expenditure was relatively high, as it was regularly more than $200 per week, often higher. The Tribunal acknowledges that Mr Rendell was not earning income from employment at the date of this decision but he does have significant funds available to him. Further, Mr Rendell, while he is in the position of being recently unemployed, as noted above, was planning on continuing with a $4,500 trip to [Country]. It is also significant that Mr Rendell is likely to secure work in the near future.

3. On the other hand, the Tribunal concludes that the administrative assessment has resulted in an unfair burden being placed on Ms Gedye with regard to child support payable to Mr Rendell. Ms Gedye told the Tribunal that she was unsure how she would afford to keep up with her mortgage payments on a home, the Tribunal notes, Ms Gedye has maintained not only for the benefit of herself, but for [Child 1] and [Child 2].

Conclusion

97.The Tribunal concludes that it would be just and equitable to make a departure determination from the administrative assessment.

98.The Tribunal finds that the most recent indicative year of Mr Rendell’s income was the 2017-18 financial year, in which he earned $96,056.[66] This is because the Tribunal had asked Mr Rendell about this particular income year and Mr Rendell said that in the year after that, [Employer 2] had provided travelling allowances, as part of their transition to [City], which skewed his income.

[66] The Agency papers, p 521.

99.The Tribunal finds that the children are in the equal care of Mr Rendell and Ms Gedye, and observes that if Mr Rendell had not changed his occupation, industry and work pattern, he would have continued to earn around $96,056, which is a little more than Ms Gedye’s 2021-22 financial year income of $95,581.

1. The result of applying these incomes, based on the care of the children being 50:50 would result in a very small child support liability from Mr Rendell to Ms Gedye.

2. Considering these factors, the Tribunal has determined that it is just and equitable to depart from the administrative assessment as follows:

   ·     From 21 February 2022 to 30 June 2023, Mr Rendell’s adjusted taxable income is varied to $96,056 per annum.

3. The Tribunal finds that this will result in an annual child support liability payable to Ms Gedye by Mr Rendell in the order of $56.

4. The Tribunal finds that the start date for the departure from the assessment should be 21 February 2022, because this is the date that Ms Gedye requested a change of assessment and it should conclude on 30 June 2023, as Mr Rendell’s circumstances are likely to change in the near future. For example, if Mr Rendell secures a role in the [Work sector], he may secure a role with a higher salary than he was on in 2017-18.

5. The Tribunal finds that its decision will not cause hardship to either Mr Rendell, Ms Gedye or their children.

6. While Mr Rendell was not earning income at the time of the decision, Mr Rendell, under the Assessment Act, has an obligation to provide for his children, and has significant resources available to him to provide for them. Further, the Tribunal has found that Mr Rendell already has a high level of discretionary expenditure and as such, the Tribunal finds that Mr Rendell will not experience hardship as a result of this decision. Based on Mr Rendell’s financial circumstances, the Tribunal concludes that Mr Rendell can afford to pay an annual rate of around $56 in child support.

7. The Tribunal acknowledges that this will result in a debt being raised against Mr Rendell for the period from 21 February 2022, but finds that Mr Rendell has the resources to repay such a debt and that in repaying the debt, a more just and equitable outcome in this matter will be achieved. The Tribunal acknowledges that its decision will cause an overpayment and resulting debt but concludes that the debt can be repaid by Mr Rendell, with his current funds, or offset against Ms Gedye’s current debt.

8. The Tribunal has carefully considered all of the income, resources, benefits and assets together with the commitments and liabilities of both parties to determine the above departure determination. In considering all of these factors, the Tribunal has taken the view that neither party will experience hardship as a consequence of this departure determination.

Is it otherwise proper to make a particular departure determination?

1. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Assessment Act. Subsection 117(5) of the Assessment Act sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination. Subsection 117(5) focuses on the balance of support carried between the parents on the one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Assessment Act means that the Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the child may be affected by the level of child support. The Tribunal has concluded that it is otherwise proper in the circumstances to depart from the administrative assessment.

DECISION

The decision under review is set aside and a decision substituted that from 21 February 2022 to 30 June 2023, Mr Rendell’s adjusted taxable income is varied to $96,056 per annum.