Riehle and Saunders (Child support)

Riehle and Saunders (Child support) [2020] AATA 6214 (19 March 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC017503
APPLICANT:  Mr Riehle
OTHER PARTIES:  Child Support Registrar
Ms Saunders

TRIBUNAL:Member J Thomson
DECISION DATE: 19 March 2020
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

For the period 6 December 2018 to 30 June 2019, Mr Riehle’s adjusted taxable income is varied to $68,000; and
For the period 1 July 2019 to 31 December 2020, Mr Riehle’s adjusted taxable income is varied to $58,800.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – earning capacity of the liable parent – 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

Mr Riehle and Ms Saunders are the parents of [Child 1] born 2004, who is recorded as being in the 100% care of Ms Saunders
The administrative assessment of child support for the period 1 January 2019 to 31 March 2020 required Mr Riehle to pay an annual rate of child support of $11,475 based on a 2017/18 provisional income of $75,490 for Mr Riehle and a 2017/18 provisional income of $16,450 for Ms Saunders, and is based on one child in the 13+ age category
Mr Riehle seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 16 May 2019. This decision partially allowed his objection to a decision dated 19 February 2019 setting his adjusted taxable income for the period 1 February 2019 to 31 March 2019 at $63,000 per annum. The objection decision set aside the Department’s decision of 19 February 2019, and in substitution, decided that, for the period 6 December 2018 to 28 March 2019, Mr Riehle’s adjusted taxable income is set at $60,000, and for the period 29 March 2019 to 31 December 2019, his adjusted taxable income is set at $80,000.
The Tribunal heard the matter on 19 March 2020. Mr Riehle and Ms Saunders attended the hearing by conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department, Mr Riehle and Ms Saunders. These documents were admitted into evidence and marked, respectively, Exhibits 1, A and B. Both parents had copies of these documents with them at the hearing.

CONSIDERATION

The legislative framework

The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989, (the Act). A formula is used. It takes into account variables including each parent’s adjusted taxable income for the last relevant year of income, the number of children, and the level of care provided by each parent. Part 6 A of the Act allows for a departure from the administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), the Registrar may make such a departure determination if the following matters are established:
·One, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(i));
·A departure is just and equitable as regards the children and each parent (subparagraph 98C(1)(b)(ii)(A)); and
·It is otherwise proper to make a departure decision (sub- paragraph 98C(1)(b)(ii) (B)).
Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2) of the Act.
If satisfied that a ground or grounds exist and that It would be just and equitable and otherwise proper to make a particular determination, the Registrar may make one of the determinations prescribed in section 98S of the act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage of a child.

Grounds for departure

Subparagraph 117(2)(c)(ia) of the Act provides as a ground for departure:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child…
(ia) because of the income, property and financial resources of either parent; or…
Subparagraph 117(7B) of the Act provides, relevantly, that the Tribunal may determine that the earning capacity of the parent of a child is greater than is reflected in his or her income for the purposes of the Act only if the Tribunal is 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 changed his or her occupation, industry or working pattern; and
(b) the parent’s decision not to work…or to change his or her occupation, industry or work 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.
The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislation in subsection 117(2) must be guided by the qualification that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. 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”. The Tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial position.
The Tribunal has considered the affirmed evidence given by both parents at the hearing and the documentation contained in Exhibits 1, A and B.

Mr Riehle’s evidence

Mr Riehle is a [age] year old former [Occupation 1], currently unemployed and awaiting further treatment following diagnosis of a posterior circulation stroke in the latter part of 2018. His treating neurologist, [Dr A], who examined Mr Riehle on 2 0ctober 2019, and provided a medical report dated 17 October 2019, has recommended the surgical insertion of stents to treat [Dr A]’s diagnosis of a condition [Dr A] describes as a severe V1 origin –right side vertebral artery stenosis(blockage). The Tribunal will comment further on [Dr A]’s report and the medical evidence provided by Mr Riehle later in these reasons.
Mr Riehle gave evidence that from November 2017 up until September 2018 he was employed as a [Occupation 1] by [Company 1], when he suffered an injury to his left [foot]. He also suffered a tendon related injury to his right wrist and thumb [and] was unable to return to work for a period of 2 to 3 weeks. However, the medical reports relating to these injuries suggest that he suffered no fractures to his foot, and the tendon injuries to his wrist and thumb, which were treated with 2 cortisone injections, appear to have largely resolved satisfactorily. Mr Riehle said he finished working for [Company 1] in September 2018. He was unable to provide evidence of his earnings from [Company 1] because the proprietor of that business encountered serious financial problems and did not provide him with a PAYG summary on his cessation of employment with that company.
He gave evidence that he returned to work in mid-October 2018 as a [Occupation 1] in the employ of [Company 2] ([Company 2]), a company with whom he had previously been [employed]. He said that although his left foot was still sore, he was able to [work].
He said that, during the latter part of 2018, he began experiencing severe headaches and migraines as well is blurred vision, but was able to continue working as a [Occupation 1] for [Company 2].
On 29 January 2019, his home in [Town 1], some 25km north of [City 1] was severely flood affected, and during the course of the following clean-up, the frequency of his severe headaches and migraines increased, and his eyesight was also severely affected. He consulted his local general practitioner, [Dr B] ([a named medical centre]) for treatment for these conditions and was prescribed Maxalt Wafers and rest.
Mr Riehle’s evidence regarding the circumstances in which he resigned from his employment as a [Occupation 1] with [Company 2] on 6 February 2019 was somewhat confused. He initially attributed his resignation to his inability to return to work because of the effects of the severe flooding experienced in North Queensland at or about that time, and in particular where he resided in [Town 1], and [a] [City 1] suburb, where [Company 2]’s business was located. He provided a copy of his Centrelink Employment Separation Certificate which reflects he resigned his position and ceased work on 6 February 2019.
A file note dated 13 February 2019 contained in the Department’s documentation, Exhibit 1 records a telephone conversation between a Department officer, [name deleted], and [Company 2]’s payroll officer, [name deleted], in the course of which the latter informed the Department officer that the floods had only impacted [Company 2]’s business for about one week and possibly less, and that she believed Mr Riehle was still employed by [Company 2], or at least, at the time the phone conversation, she had no information to suggest otherwise. Mr Riehle also suggested in his evidence to the Tribunal that the reason he tendered his resignation was because of the severe headaches, migraines and vision impairment he was experiencing, rather than that he was precluded from returning to work because of the impact of the floods on his employer’s business.
Relevantly, in the course of this telephone conversation, the payroll officer confirmed Mr Riehle’s gross year-to-date income from the date he commenced employment with [Company 2] on 11 October 2018 until the date of his resignation on 6 February 2019 was $20,897, annualised to $68,101 ($2,0897 / 112 days x 365 days = $68,101]).
It was not until 21 May 2019, after Mr Riehle’s GP, [Dr B] requested Queensland XRay to conduct further investigations, that Mr Riehle was diagnosed as having suffered some form of stroke, probably in the latter part of 2018. In this respect, Mr Riehle provided the Tribunal with copies of three reports from [radiologists], Drs [C], [D] and [E] dated, respectively, 21 May 2019, 4 June 2019 and 12 June 2019.
Dr [C]’s brief report identifies Mr Riehle’s symptoms as stroke related, but comments that no intracranial haemorrhage was seen in his xray analysis, and no destructive lesion or acute fracture was evident, suggestive of a transient ischaemic attack or TIA having occurred, the result of a temporary disruption of the circulation to part of the brain due to embolism/thrombosis to brain arteries or spasm of the vessel walls, symptoms which may be similar to those of a stroke, from which patients generally recover within 24 hours.
Dr [D] and Dr [E]’s reports confirm blockages in Mr Riehle’s right and left vertebral arteries, in particular, up to 70% high grade stenosis in the right vertebral artery, and diminished flow in the left vertebral artery due to narrowing in that artery.
Dr [D] recommended further evaluation with a CT angiogram, and Mr Riehle was subsequently referred to [Dr A], a consultant neurologist [the] [City 1] Hospital on 2 October 2019, for further examination and report.
In his report dated 17 October 2019, [Dr A] notes that Mr Riehle’s condition as atherothrombotic in a diabetic. He also notes that Mr Riehle’s left vertebral artery is congenitally atretic (narrowed), but at the time of his examination, Mr Riehle was on a single antiplatelet statin, with good blood pressure control and improved diabetic control. He also noted that Mr Riehle was experiencing some symptoms of positioning provoked vertigo, but attributed this to lithiasis (a formation of stones similar to kidney stones) relating to his inner ear labyrinth rather than his posterior circulation ischaemia (inadequate bloodflow to the heart caused by the right-sided vertebral artery stenosis, and the narrowing of the left side vertical artery).
With respect to his recommended course of treatment –stenting or balloon angioplasty - [Dr A] opined that, given Mr Riehle was well (at the time of examination), and that it was over 10 months since the probable stroke event occurring in the latter part of 2018, this was an asymptomatic stenosis and his risk of stroke was probably in the order of 1%, but clearly, given his youth and with the potential consequences of stroke in this area, particularly with an absence of any flow in the left vertebral artery, with a reasonable length the life expectancy, the course of treatment he recommended was worth the procedural risk. However, he recommended further examination and comment by one of the radiologists at the [HOSPITAL 1, prior to implementing that course of treatment. At the time of the Tribunal’s hearing, Mr Riehle was awaiting advice from his general practitioner, [Dr B] as to when that appointment could be arranged, but anticipated that would take place in the near future.
Mr Riehle provided a copy of a further medical report dated 15 November 2019 from his treating vascular doctor, [Dr F], [who] examined him on 18 October 2019. [Dr F] noted that Mr Riehle had been seen by [Dr A] who had referred Mr Riehle for further examination and report by one of the radiologists of the [HOSPITAL 1], as noted in the preceding paragraph. However, she noted in her report that at the time of her examination on 18 October 2019, although Mr Riehle was still having ongoing symptoms of left-sided weakness with numbness over the lateral aspect of his left leg, he was able to mobilise independently and was walking “fine”. [Dr A] also noted that Mr Riehle had ongoing visual disturbance with blurred vision, occasional loss of balance and dizziness, but had not experienced any loss of consciousness.
Mr Riehle also provided a more contemporaneous report from his general practitioner, [Dr B], dated 18 February 2020, certifying to Mr Riehle’s long term -12 month history of symptoms, culminating in the diagnosis of a stroke having occurred in the latter part of 2018, for which he was still undergoing neurological treatment at [City 1] Hospital. Although [Dr B] notes that Mr Riehle has not been able to work since January 2019, he does not expressly comment as to Mr Riehle’s fitness for work or otherwise.
Indeed, none of the medical reports referred to above suggest Mr Riehle is unable to return to work. [Dr A]’s report suggests that, subject to further examination and report from the radiologist at the [HOSPITAL 1], Mr Riehle’s stenosis condition can be successfully treated by implementation of his recommended balloon angioplasty stenting procedure.
Although Dr [E] noted that Mr Riehle had moderate left frontal and anterior ethmoid sinusitis, multilevel cervical spondylosis, and paraseptal emphysema in both lungs, no evidence was provided at the hearing to suggest that these symptoms adversely affected Mr Riehle’s ability to work as a [Occupation 1].
Mr Riehle gave evidence that, following the flood damage to his [Town 1] home in the 29 January 2019 floods, he lodged a claim with his property damage insurer, [COMPANY 3] ([COMPANY 3]). He provided a letter from [COMPANY 3] dated April 2019 evidencing the deposit of $101,623.03 to his [BANK 1] bank account number [in] full settlement of his flood damage claim.
According to his evidence, not all of these settlement funds were applied to the restoration of his [Town 1] residence and the replacement of other flood damaged property covered by the [COMPANY 3] insurance policy. He said he applied approximately $30,000 of the settlement proceeds to reduce his [BANK 1] Bank home loan mortgage debt. However, he was unable to provide a copy of the relevant home loan mortgage account bank statement to confirm the exact amount of funds he deposited to this account.
He provided copies of invoices rendered by his building contractor, [whom] he engaged to effect repairs to his home totalling $33,728, and invoices rendered by [a named company] to the builder for removal of flood related rubbish and building residue, totalling $1,056, which he said he remitted to the builder to cover the cost of the rubbish skips. Mr Riehle also purchased two second-hand motor vehicles ––[at] a total cost of approximately $8,000 to replace his vehicle, damaged beyond repair in the floods, which was not covered by the [COMPANY 3] insurance policy, and not part of the insurance settlement proceeds.
Mr Riehle acknowledged that he is not currently working, although his partner is in casual employment, working in [City 1] as a [Occupation 2], and needs to travel to [City 1] when she has work. As there is no public transport system operating between [Town 1], where he and his partner reside, and [City 1], [he] said his partner needs a vehicle to travel to [City 1] for work purposes. However, Mr Riehle conceded that he does not need two motor vehicles to accommodate his current unemployed lifestyle.
He also gave evidence that as a consequence of the floods, he was not able to reside in his flood damaged [Town 1] home, and, while repairs were being affected, he arranged with a friend, [name deleted] to have the use of a caravan, on-site at his [Town 1] address. Ms Saunders asserted that Mr Riehle owned the caravan. Her evidence in this respect was based on an advertisement Mr Riehle inserted on his [social media] account for the sale of the caravan, but she was not otherwise able to provide any evidence to suggest Mr Riehle owned the caravan. The Tribunal accepts Mr Riehle’s evidence that he had no proprietorial interest in the caravan, which has since been removed from Mr Riehle’s property by the rightful owner of the [caravan].
Ms Saunders also drew the Tribunal’s attention to a number of deposits in the amount of $100 to Mr Riehle’s [BANK 1] account number [identified] as being from Mr [G]. Ms Saunders asserted that these payments were income received by Mr Riehle. In response, Mr Riehle gave evidence that [Mr G] had acquired a quantity of cold room panels owned by Mr Riehle and stored at his [Town 1] property at a total cost of approximately $1,000, which [Mr G] was repaying by periodic deposits of $100 between 4 October 2019 and 22 November 2019, totalling $800. The Tribunal accepts Mr Riehle’s evidence, but finds that these sale proceeds are a financial resource available to Mr Riehle for child support purposes.
Ms Saunders also asserted that Mr Riehle had not made full disclosure of his bank and credit card accounts. In particular, she drew the Tribunal’s attention to a [banking] account conducted in Mr Riehle’s name. Mr Riehle provided a letter from [a] credit union dated 5 February 2020 confirming that the account was closed on 25 July 2019.
Mr Riehle gave evidence that he conducts the two [BANK 1] bank accounts identified above –his [BANK 1] [account] [number], and his [BANK 1] account [number]. He also provided bank statement evidence of his [BANK 1] [Home] Loan Account [number]. He explained that his current Centrelink payments, which he said he has been receiving since November 2019, are deposited to his [BANK 1] account [number] , from which he transfers funds to his [BANK 1] account [number]. Although his [BANK 1] Home Loan mortgage repayments of $140 per week, he said he transferred $200 per week from his [BANK 1] [account] to ensure he had sufficient funds to activate the redraw facility on that account, into which he had transferred approximately $30,000 from the [COMPANY 3] insurance settlement proceeds paid his [BANK 1] [account] on 4 April 2019. He said he has been redrawing amounts of between approximately $1,500 and $3,500 from his [BANK 1] Home Loan account number [and] depositing those amounts to his [BANK 1] [account] since 28 October 2019 up until 7 February 2020 when the redraw facility was exhausted. Bank statements provided by Mr Riehle for these accounts confirm his evidence in this respect.

The Tribunal finds that Mr Riehle’s evidence suggests his decision to resign his job as a [Occupation 1] with [Company 2] on 6 February 2019 was premature: there is no medical evidence to suggest he was unfit for work at that time. The Department’s file note of the telephone conversation with the payroll officer, [name deleted], at [Company 2] on 13 February 2019 suggests that heavy rains and flooding which occurred in the [City 1] region in January 2019 only affected the company’s operations for possibly a week or less, and that Mr Riehle was expected to return to work as a [Occupation 1] with the company.
The medical evidence reflected in the medical reports of the neurologist, [Dr A], and the vascular surgeon, [Dr F], and the radiologists, Drs [C], [D] and [E], suggest the stroke condition was not diagnosed until late May 2019, and does not appear to have been debilitatingly serious, having occurred in the latter part of 2018 when Mr Riehle was working as a [Occupation 1] for [Company 2], and appears to be readily treatable with balloon stenting. Although further examination by the radiologists was to be conducted at the [HOSPITAL 1] during the course of this year, [Dr A]’s report does not suggest the balloon stenting treatment he has recommended will not be successful.
Mr Riehle gave evidence of a variety of other medical conditions from which he claimed to be suffering and which he asserted render him unfit for work, ranging from problems with this vision, headaches, loss of balance, a degenerative neck and lumbar disc issues, knee and shoulder problems, however, no medical evidence was provided by him to suggest that he was no longer able to work as a [Occupation 1]. Indeed, he seems to have been able to work in that capacity notwithstanding those conditions until his premature resignation of his position with [Company 2] in February 2019.
Ms Saunders gave evidence that Mr Riehle had complained of symptoms with his knee, shoulder and back during the course of their marriage, while he was working as a [Occupation 1], but was able to continue working as a [Occupation 1]. Mr Riehle acknowledged in his evidence to the Tribunal that he was able to [work] regardless of his foot injury in September 2018, and appears to have been able to continue working as a [Occupation 1] for [Company 2] up until the date of his resignation on 6 February 2019.
The Tribunal therefore finds that the evidence, on balance, suggests that Mr Riehle is capable of earning an income of approximately $68,000 as a [Occupation 1].
Mr Riehle also gave evidence of his having received an insurance settlement from [COMPANY 3] of $101,623 in compensation for flood damage to his [Town 1] home and contents, deposited to his bank account on 4 April 2019, from which he said he applied approximately $30,000 to reduce his home [BANK 1] home mortgage account, and in respect of the balance of that settlement, he was only able to provide evidence that he expended $33,728 on repairs to his [Town 1] property, $1,056 on skip higher for removal of rubbish and other building material waste, and approximately $8,000 on the purchase of the [motor] vehicles, a total of $72,784, leaving a balance of $28,839 of his insurance settlement available to him as a financial resource for child support purposes.
Section 3 of the Act relevantly provides that the parents of a child have the primary duty to maintain the child, and that the duty to maintain the child has priority over all commitments of the parent, other than commitments necessary to enable the parent to support him or herself, or any other child or another person that the parent has a duty to maintain.
The administrative assessment in place at the time of Mr Riehle’s application for a change of assessment on 6 December 2018 required Mr Riehle to pay an annual rate of child support to Ms Saunders of $11,475 for the support of [Child 1] for the period 1 January 2019 to 31 March 2020, based on a 2017/18 provisional income of $75,490, and Ms Saunders’s 2017/18 provisional income of $16,450.
The Tribunal has found that Mr Riehle has an income earning capacity of approximately $68,000 for the financial year 1 July 2018 to 30 June 2019, based on his year-to-date income, 11 October 2018 to 6 February 2019 of $20,897 as a [Occupation 1] in the employ of [Company 2], (annualised to approximately $68,000), and that in addition, he had financial resources of $58,839, comprising $30,000 applied to his home loan mortgage account, and $28,839 in unexpended insurance settlement funds which would have otherwise been available to him for child support purposes. This makes the administrative assessment using the income set out in paragraph 47 above unfair and inequitable, and a ground for departure established.

Just and equitable

The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. Regard must be had to a variety of factors such as the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula

Mr Riehle’s Statement of Financial Circumstances (SOFC)

Mr Riehle provided a SOFC dated 14 October 2019. Although he affirmed the contents of this document to be true and correct, in response to questioning by the Tribunal, he acknowledged a number of changes to the document.
His SOFC records his usual occupation as a [Occupation 1] and his current unemployed status since resigning from his [job] with [Company 2] on 6 February 2019. However, he has received a number of Centrelink payments since 18 November 2019, including a newstart payment of $1,813.42 on 18 November 2019 and fortnightly Centrelink newstart payments are between $464.76 and $480.79 between 17 December 2019 and 10 February 2020 (average $460 per fortnight) reflected in his [BANK 1] access advantage cheque account [number]. He said in evidence that his anticipated taxable income for the 2018/19 financial year will be approximately $34,000.
He lists his current partner, [Ms H] as an income earner in his household. As noted above, he gave evidence that [Ms H] does casual [work] in [City 1]. He reports her average weekly gross income at $500.
In the assets section of his SOFC he lists his half share in his jointly owned [Town 1] residential property which he valued at $100,000. Ms Saunders challenged this valuation, suggesting a more appropriate value of between $350,000 to $400,000, having lived on the property prior to the parents’ separation. She described the property as a four bedroom dwelling with carport and shed on approximately 2 acres of land. In response, Mr Riehle’s evidence was that he had an evaluation from the Department of Natural Resources recording the land valuation for the property at $100,000, and estimated the value of the building improvements on the land at $100,000. The Tribunal inclines to Ms Saunders’s estimated value of $350,000 to $400,000.
Mr Riehle lists the two motor vehicles he purchased from the [COMPANY 3] insurance proceeds referred to above, which he collectively valued at $3,500. He gave evidence that he is currently experiencing mechanical difficulties with the [vehicle] he purchased for his own use; He gave evidence that [Ms H] uses the other [vehicle] to travel to [City 1] for her work as a casual [Occupation 2].
Details of the bank and credit card accounts operated by Mr Riehle and his partner were in evidence before the Tribunal. Reference has already been made in the reasons above to his [BANK 1] [account] number, [his] [BANK 1] account [number], and his [BANK 1] [Home] Loan account [number]. He also conducts two other accounts – an [BANK 1] account number [and] an [BANK 1] [account] [number], both of which reflected nil balances as at 25 February 2020.
Although he lists bank savings of $295 in his SOFC, evidence supplied by the [BANK 1] bank as at 25 February 2020 reflect a balance of $11,210.29 in the [BANK 1] [account], $249 in his [BANK 1] [account][credit] card [account].
In the course of his evidence, Mr Riehle said that he has been utilising his [BANK 1] [Home] Loan account [drawdown] facility for financial support since resigning his [Occupation 1]’s job with [Company 2] in early February 2019. At hearing, he asserted that this facility had been exhausted. However, bank statements contained in the Department’s documents, Exhibit 1 reflect a redraw of $11,759 from that account on 20 February 2020, and the current outstanding balance of his home loan account as at 25 February 2020 was $51,296, against a valuation of approximately $200,000 on Mr Riehle’s evidence, to approximately $350,000 to $400,000 on Ms Saunders’s evidence, suggesting that there is significant equity in this property.
There was evidence in one of Mr Riehle’s [BANK 1] [account] bank statements of a deposit of $8,608.67 to this account on 3 April 2019.
Mr Riehle’s average weekly household expenses listed at item 47 of his SOFC totalling $710.60 included his increased weekly mortgage repayments of $200 over above the normally required mortgage payment of $140 per week, which he said allowed him to access the redraw facility on his [BANK 1] home loan account. He confirmed that his partner does not contribute funds to the mortgage debt.

Ms Saunders’s SOFC

Ms Saunders provided a SOFC dated 4 October 2019. She reported her income sources comprising Carer Allowance of $703.50 per fortnight, and Family Tax Benefit of $408.80, totalling $1112,30, or $556.15 per week. She lists her current partner’s gross weekly income of $703.50 per fortnight.
Ms Saunders lists no real property assets; she rents the premises in which she and the family reside. She reports negligible bank savings, a [motor] vehicle valued at $1,000, and household contents valued at $10,000, total assets of $11,015.70. Her only liability is [a] Visa card debt of $2,000, and her only personal expenditure item was her [Visa] card weekly payment of $54.
Her reported weekly household expenditure totalling $705 was unremarkable, including rent of $300, which she said at hearing had recently increased to $320, increasing her total weekly household expenditure to approximately $725. She otherwise affirmed the accuracy of her SOFC.
Although Ms Saunders gave evidence of the child, [Child 1] requiring medical treatment for various allergies, she said she is content to meet the costs of this treatment, and did not seek contribution towards those costs from Mr Riehle. Mr Riehle did not challenge Ms Saunders’s SOFC.

Conclusion

The Tribunal is not satisfied Mr Riehle was justified in his decision to resign from his job as a [Occupation 1] with [Company 2] on 6 February 2019, a position that was available to him at the time of his resignation. Mr Riehle has also failed to demonstrate that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child, [Child 1]. The Tribunal has found all three criteria of subparagraph117(7B) have been satisfied. The Tribunal has also found that Mr Riehle has an income earning capacity of $68,000 as a [Occupation 1], and financial resources of approximately $58,839 from the proceeds of his [COMPANY 3] insurance settlement of 4 April 2019 available to him for child support purposes.
The Tribunal takes into account the medical evidence of [Dr A] in finding that Mr Riehle will need to undergo further stenting/angioplasty surgery in the near future, and that having regard to the length of time which has elapsed since his stroke incident, the low risk of a further similar incident, his age, and reasonably lengthy life expectancy, the surgical intervention recommended by [Dr A] is both necessary, with a good prognosis for a successful outcome, following which there is nothing to suggest he will not be able to return to work as a [Occupation 1].
Ms Saunders’s income is derived from her Centrelink payments identified above, and there is no evidence to suggest her income for the 2018/19 financial year will not be reflected in the administrative assessment in accordance with her income tax return for that financial year. The Tribunal will therefore not disturb the application of her 2017/18 provisional income of $16,450 used in the administrative assessment at the time of Mr Riehle’s application for a change of assessment.
The Tribunal will therefore vary Mr Riehle’s adjusted taxable income for the period 6 December 2018 to 30 June 2019 to $68,000, and, to give Ms Saunders some certainty, from 1 July 2019 to 31 December 2020, his adjusted taxable income will be varied to $58,800.
The Tribunal is satisfied that Mr Riehle has the income earning capacity and sufficient financial resources to meet his child support obligations based the incomes referred to in the preceding paragraph without any undue hardship to either parent or the child, [Child 1].

Otherwise proper

The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents rather than the community have the primary duty to maintain a child. Varying Mr Riehle’s income on which child support is calculated from that used in the administrative assessment, based on his income and financial resources which are not reflected in the administrative assessment will result in an appropriate apportionment of financial responsibility between the parents and the community. Such a result would be otherwise proper.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

For the period 6 December 2018 to 30 June 2019, Mr Riehle’s adjusted taxable income is varied to $68,000; and
For the period 1 July 2019 to 31 December 2020, Mr Riehle’s adjusted taxable income is varied to $58,800.

[2020] AATA 6214

19 March 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Jurisdiction

Remedies

Judicial Review