Saville and Lowe (Child support)

[2016] AATA 2002

Saville and Lowe (Child support) [2016] AATA 2002 (25 January 2016)

DIVISION:  Social Services & Child Support Division

APPLICANT:  Ms Saville

OTHER PARTIES:  Mr Lowe

Child Support Registrar

DECISION DATE:  25 January 2016

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 June 2015 to [date omitted], the rate of child support payable by Mr Lowe is increased by $1,600 per year.

CATCHWORDS

Child Support – Departure determination – Income and financial resources of parent - Business income – Proper needs of the child – 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 removed 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. This review is about the amount of child support Mr Lowe must pay to Ms Saville for their [Child 1], aged 10. In particular, the review concerns whether there should be a departure from the administrative assessment of child support. Administrative assessments are made by the Department of Human Services – Child Support ("the Department") on the basis of parents’ adjusted taxable incomes.

2. On 25 May 2015 Ms Saville applied to the Department for a departure from the administrative assessment. At that stage the administrative assessment (since 1 January 2015) required Mr Lowe to pay $1,526 per year in child support, based on his estimate of $32,589 for his 2014/2015 adjusted taxable income. Ms Saville sought an increase to an unspecified rate for a year from January 2015. Ms Saville contended that “Mr Lowe is purposely trying to pay less, as he is capable of earning much more than the amount he has estimated”.

3. The administratively assessed rate became $408 per year from 1 July 2015, based on Mr Lowe’s estimate of $25,097 for his 2015/2016 adjusted taxable income.

4. On 22 July 2015 a senior case officer of the Department decided to depart from the administrative assessment. He varied Mr Lowe’s adjusted taxable income to $64,318 for the period 1 June 2015 to 31 May 2017. The figure of $64,318 reflected Mr Lowe’s full-time earnings as an employee of [Company 1]. The senior case officer commented that although Mr Lowe said his employment had been terminated, he had not produced supporting evidence of this.

5. The senior case officer’s decision produced an annual rate of child support of $6,815.

6. Mr Lowe objected to the senior case officer’s decision, and on 7 September 2015 an objections officer allowed the objection. The objections officer replaced the senior case officer’s decision with one not to depart from the administrative assessment of child support. The objections officer was satisfied, on the basis of further documents produced by Mr Lowe, that Mr Lowe’s employment with [Company 1] had been terminated in February 2015. The objections officer also rejected a submission made by Ms Saville that Mr Lowe was working as a [occupation] at [Company 2]. The objections officer accepted that Mr Lowe was sometimes present at [Company 2] but she found that this was simply because Mr Lowe’s wife works there as the [occupation].  

7. As a result of the objections officer’s decision, the child support returned to the administratively assessed annual rates described above. On 30 November 2015 Mr Lowe updated his 2015/2016 income estimate to $36,171, saying that he had obtained part-time employment on 18 November 2015. This served to increase the annual rate of child support to $2,135 with effect from 16 December 2015.

8. Meanwhile, on 14 September 2015, Ms Saville had applied to the Tribunal for a further review. The application was heard on 25 January 2016. Ms Saville and Mr Lowe participated by phone and gave evidence on affirmation. The Tribunal also took oral evidence by phone, also on affirmation, from three witnesses namely [Mr A] and [Mrs A] (the owners, via entities, of [Company 2]) and Mr Lowe’s wife, Mrs Lowe (“Mrs Lowe”).

9. The Child Support Registrar was not represented at the hearing but the Department had supplied documents (page-numbered 1 to 338) from its file. The Tribunal also had before it additional documents ([omitted]) obtained from Ms Saville, Mr Lowe and others. Copies of all of these documents were supplied to Ms Saville and Mr Lowe in advance of the hearing.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (“the Act”). The issues which arise under section 98C of the Act are:

   ·     Does a ground exist to depart from the administrative assessment?

   ·     If so, is it just and equitable to depart from the administrative assessment?

   ·     If so, is it otherwise proper to depart from the administrative assessment?

CONSIDERATION

Issue 1 – Does a ground exist to depart from the administrative assessment?

1. A ground will exist if, in the special circumstances of a case, the administrative assessment results in an unjust and inequitable level of child support because of the income, earning capacity, property or financial resources of either parent: subparagraphs 117(2)(c)(ia) and (ib) of the Act.

2. Ms Saville submits that Mr Lowe has been working as a weekend [occupation] of [Company 2], but with the income recorded as his wife’s in order to minimise his child support liability.

3. Before considering this submission, it is relevant to discuss any other employment that Mr Lowe has had in recent times. Mr Lowe has produced documents from [Company 1] indicating that he was employed as a full-time [occupation] from November 2013; that his hours were reduced to part-time in June 2014; and that he was made redundant with effect from 4 February 2015. The Tribunal accepts that Mr Lowe’s employment with [Company 1] was as outlined in those documents, and in particular that he became unemployed on 4 February 2015 due to circumstances beyond his control.

4. Mr Lowe says he had no further employment until he started his current part-time job as a [occupation] at a [workplace] in late 2015. He says he works 20 to 25 hours per week, on average. He says he looked for other work while he was unemployed but he was not successful in finding any. Mr Lowe told the Tribunal that although he has experience in [a certain line of work], it is not easy to find work because he is competing against younger people with formal qualifications.

5. The Tribunal has not seen documentary proof of Mr Lowe’s current employment, but nor has it called for such proof as Mr Lowe’s income estimate will be reconciled against his actual income in due course. The Tribunal sees no reason to doubt Mr Lowe’s evidence that he had no wage income after February 2015, when he was made redundant by [Company 1], until he obtained employment at a [workplace] in late 2015. The Tribunal finds accordingly.

6. Ms Saville questioned whether Mr Lowe’s income from his employment with [Company 1] has been fully disclosed: the senior case officer found an annual income of some $64,000, based on the employment contract, but Mr Lowe’s 2013/2014 adjusted taxable income was only $56,430. However, the Tribunal does not consider that there is any discrepancy: Mr Lowe was employed by [Company 1] for only part of the 2013/2014 tax year. Mr Lowe’s tax return indicates that he worked for another employer for the first five or so months of the tax year, but he earned only $20,236 from that employment.

7. So far as [Company 2] is concerned, it is undisputed that Mr Lowe worked there as a [occupation] in the past along with Mrs Lowe, and that Mrs Lowe has an ongoing contract to provide weekend [services] at [Company 2] through her business, [Business 1]. It is also undisputed that Mr Lowe spends at least some time with Mrs Lowe while she is on duty at [Company 2]; that his phone number is a contact number (along with Mrs Lowe’s) for [Business 1]; and that he provides assistance to Mrs Lowe with her duties at [Company 2]. It is also undisputed that Mr Lowe was financially supported by Mrs Lowe in the period between the end of his employment at [Company 1] in February 2015 and the start of his present employment in November 2015.

8. The matters that are in dispute are the scale of Mr Lowe’s assistance at [Company 2], and whether Mr Lowe is really a co-[occupation] who has arranged for all of the weekend [income] from [Company 2] to be channelled to Mrs Lowe in an effort to minimise his child support liability.

9. The following is a summary of Ms Saville’s evidence on the topic. In 2013 she rang [Company 2]. Mrs Lowe answered. Ms Saville asked for Mr Lowe “as [occupation]” and Mrs Lowe said he was not there. In August 2015 Ms Saville rang [Company 1] and was told that Mr Lowe no longer worked there but that he was working as a [occupation] at [Company 2]. When she rang [Company 2], also in August 2015, and asked for Mr Lowe, an employee named [Ms B] said that Mr Lowe and Mrs Lowe had been the weekend [occupation] for the two years that she had worked there.

10. Ms Saville had suggested to the Department that the “[initials” in the trading name [Business 1] stands for [the first name] (for Mrs Lowe) and [the first name] (for Mr Lowe). However, it is more likely in the Tribunal’s view that the name reflects Mrs Lowe’s full name, which is [name] Lowe as shown in an Australian Business Number registration printout. That printout also shows that the business number has been registered since July 2011.

11. Ms Saville points to a letter written by Mr Lowe to the Department in December 2014 which includes the comment: “My request is for child support in any form to cease”. Ms Saville submits that this indicates that Mr Lowe is opposed to paying child support, and so he has arranged for his income to appear low on paper.

12. Ms Saville also told the Tribunal that when she and Mr Lowe were together they jointly operated a [business] but Mr Lowe arranged for it to be in her name alone, in order to minimise his child support liability to his ex-wife. Mr Lowe responded that he had been required to pay a fixed rate of child support to his ex-wife, so it was not affected by his income.

13. Officers of the Department spoke with Mr and Mrs [A], the owners of [Company 2], by phone in August – September 2015. The following is a summary of what [Mr and Mrs A] said, according to the Departmental file notes. [Mr A] said that Mr Lowe is employed at [Company 2] but Mr Lowe and his wife are contractors [at Company 2] and are paid on invoice. [Mrs A] said that she does not have a contract with Mr Lowe. Rather, she has a contract with, and pays, [Business 1], “who is [Mr Lowe’s] wife”. [Mrs A] added that Mr Lowe’s name is on the invoices, but he may or may not work for [Business 1].

14. [Mr A] told the Tribunal that he cannot recall the conversation but the file note does not sound “completely inaccurate”. [Mrs A] told the Tribunal that she assumes that Mr Lowe works for [Business 1] because his name is on the invoices. She knows that he spends time at [Company 2] but she does not know how much. At times, more than one person would be needed to do the tasks required under the weekend [contract], but she does not know whether Mrs Lowe obtains assistance for particular tasks from Mr Lowe or from staff of [Company 2].

15. [Mrs A] told the Tribunal that she and her husband have owned [Company 2] (via their entities) since August 2012. [Mr and Mrs A] explained to the Tribunal that they are not on site during the weekends but they sometimes have contact with [Company 2] by phone or email on weekends. [Mr A] said that his experience has been that Mrs Lowe is at [Company 2] much more frequently than Mr Lowe.

16. Prior to the hearing the Tribunal had obtained from [Mrs A] some invoices issued by [Business 1] to [Mr and Mrs A’s] entities, dating from September 2015. These show Mrs Lowe’s name, and not Mr Lowe’s, but they also show two phone numbers for [Business 1]. One of these, it is undisputed, is Mr Lowe’s.

17. The following is a summary of Mr Lowe’s evidence about his involvement in [Business 1] and [Company 2]. The previous owners of [Company 2] were [Mr and Mrs C]. He and Mrs Lowe were engaged by [Mr and Mrs C] as a [couple] for weekends, through [Business 1]. This was a business that Mrs Lowe had previously set up, and through which she had [worked in a certain location]. He was paid a wage by [Business 1] for his work at [Company 2]. When [Mr and Mrs A] took over, they operated [Company 2] differently and there was less to do on the weekends. For example he used to [do certain work] but [another person] employed by [Company 2] took this over. Mr Lowe found work elsewhere. Some of this work has been on weekends. He has   continued to spend time with Mrs Lowe at [Company 2] on weekends, for the sake of companionship. He has helped out with small [tasks]. However, he has had no set tasks. He has not been remunerated, as there has not been enough work to justify another position. The original letterhead for [Business 1] included his name and phone number (in addition to Mrs Lowe’s details), and it took Mrs Lowe a long time to use up the invoices with that letterhead. She “upgraded” the letterhead to remove Mr Lowe’s name, though his phone number remained so that he could take messages.

18. Mr Lowe told the Tribunal that his career has been in [a certain line of work], rather than in the sort of work Mrs Lowe [does] at [Company 2]. Mr Lowe said he has also worked in other [roles]. He held the position of [occupation] for [organisation] at one stage. (Taxation records in the hearing papers suggest that this would have been from June to November 2013).

19. The Tribunal asked Mr Lowe why his name had been removed from the letterhead of [Business 1]. His response was that it was not necessary to have his name there.

20. The following is a summary of Mrs Lowe’s evidence about [Business 1] and Mr Lowe’s involvement. She originally [worked in this line of work] at [Town 1] through the business [Business 1]. She then took up a contract with [Mr and Mrs C] doing weekend [work] at [Company 2] in [City 1]. She employed Mr Lowe on a minimum wage. She employed him on a casual basis because the contract did not require two people to be there at all times. They had applied for the job as a [couple], and they were engaged by [Mr and Mrs C] on that basis, but they used her existing business structure, [Business 1]. After about two years [Mr and Mrs A] took over [Company 2]. Mr Lowe’s services were no longer required as [Mr and Mrs A] were more actively involved. Mr Lowe found work elsewhere. Mr Lowe’s name and phone number remained on [Business 1’s] invoices because she was using up old invoices. He remained a contact point for the business. The weekend [contract] was originally for Thursday to Sunday nights, but since November 2015 it has been only for Friday to Sunday nights. During the period that Mr Lowe was between jobs in 2015, he would come into [Company 2] if she needed him for something, or to keep her company. He did general [work] as required but he was not remunerated.

21. The Tribunal accepts that the contracted hours for [Business 1] have reduced. An email from [Mrs A] to the Tribunal in December 2015 advised that the weekend hours at that time ran from 2 pm on Fridays to 9 am on Mondays.

22. Asked by the Tribunal why Mr Lowe has not been remunerated in recent years, Mrs Lowe responded that [Business 1] is her business; she earns the income and she pays the bills.

23. Asked by the Tribunal how many hours per week, on average, Mr Lowe assisted in the business while between jobs in 2015, Mrs Lowe estimated five to 10 hours per week. Mr Lowe responded that Mrs Lowe’s estimate is an over-estimate.

24. The Tribunal notes that in 2013 another senior case officer commented that Mr Lowe told him or her that Mrs Lowe was playing a much larger part than him in the business (of providing [services] at [Company 2]), and his involvement there was limited to working for three days per week doing [work]. Mr Lowe told the Tribunal that he did not tell the senior case officer that he worked at [Company 2] three days per week; rather he said that the work there (for the business) was three days per week.

25. In relation to his comment in the December 2014 letter about wanting the child support liability to cease, Mr Lowe told the Tribunal that he had simply been asking for his child support to be reduced because he was no longer working full-time. The Tribunal does not accept this. It is true that in the letter, Mr Lowe had sought a reduction in the income figure used in the assessment because his hours at [Company 1] had been reduced. However, he went on to make comments about Ms Saville and her attitude to contact between himself and [Child 1]. This culminated in a comment that Ms Saville had made it clear that “she wishes for no assistance or ties to myself or my family”, followed by the request for “child support in any form to cease”. The Tribunal regards this as a statement of general opposition by Mr Lowe to paying child support to Ms Saville, not related merely to his reduction in income. Mr Lowe’s evidence on other topics needs to be evaluated in light of this.

26. Having regard to all of the evidence about [Business 1] and Mr Lowe’s roles at [Company 2], the Tribunal considers that the business arrangement has been used to minimise Mr Lowe’s taxable income with the intention of minimising his child support. Mrs Lowe says that when she employed Mr Lowe some years ago it was at the minimum wage. Bearing in mind that Mr Lowe and Mrs Lowe had been engaged by [Mr and Mrs C] as a [couple], it is likely that payment of Mr Lowe at only the minimum wage (despite his [work] experience) was done to minimise his child support liability. Mrs Lowe says that during 2015 Mr Lowe worked an average of five to 10 hours per week in her business but she did not pay him. She did not have a convincing explanation for this lack of payment. The Tribunal does not accept Mr Lowe’s evidence that he performed even less work than Mrs Lowe estimated. The Tribunal also rejects Mr Lowe’s denial that he told the senior case officer in 2013 that he was working three days per week in the business. Mr Lowe told the Tribunal that the [Business 1] letterhead had been “upgraded” by removing his name, while leaving his phone number. It is not apparent how this was an upgrade, and the Tribunal infers that it was done in an effort to hide Mr Lowe’s role in the business from Ms Saville and the Department. The Tribunal also accepts that an employee of [Company 2], namely [Ms B], referred to Mr Lowe as a [occupation] in August 2015. Overall, the Tribunal considers that Mr Lowe has downplayed his involvement in the business.

27. On the other hand, the Tribunal does find it plausible that during [Mr and Mrs A’s] tenure at [Company 2], Mrs Lowe has been the primary operator of the business. This is consistent with the tenor of the evidence given by [Mr and Mrs A]. Also, significantly, it is consistent with the fact that Mr Lowe has had other employment for considerable periods in recent years. It is probable that some of this employment, being in [certain workplaces], has involved weekend work. The fact that an employee such as [Ms B] has spoken of Mr Lowe as one of the weekend [occupation] does not necessarily mean that Mr Lowe has had an equal role in the business in recent years.

28. The true extent of Mr Lowe’s involvement in the business in recent years is unclear. The Tribunal considers it likely that it has been less than the three days per week mentioned by Mr Lowe in 2013, given that the overall hours of engagement for [Business 1] have reduced. Mrs Lowe is not an independent witness, but the Tribunal finds plausible and accepts her estimate that Mr Lowe’s work in the business has been for around five to ten hours per week during 2015. The Tribunal infers that this remains the case and that it is likely to remain the case indefinitely. The Tribunal accepts that Mr Lowe has not received payment for his work for some years. However, the Tribunal finds that there is a long-standing arrangement between Mr Lowe and Mrs Lowe such that, in order to minimise his child support, he has not received direct remuneration, but the mutual expectation has been that Mrs Lowe will provide general financial support to Mr Lowe.

1. The Tribunal considers that there are special circumstances in this case in that Mr Lowe has a financial resource from the arrangement with Mrs Lowe. The arrangement goes beyond the situation of a spouse supporting another during a period of unemployment. Rather, it amounts to a long-term arrangement to avoid direct remuneration for the purpose of minimising child support.

2. It is not possible to precisely quantify the value of the financial resource. In the circumstances, the Tribunal considers it reasonable to adopt a figure of $10,000 per year. If an additional $10,000 per year in income for Mr Lowe was taken into account in the child support formula, the rates of child support would be between $1,500 and $1,700 per year higher than the administratively assessed rates of $1,526, $408 and $2,135 discussed earlier. The Tribunal considers that the administrative assessment is unjust and inequitable because of the financial resource. A ground therefore exists to depart from the administrative assessment.

Issue 2 – Is it just and equitable to depart from the administrative assessment?

1. The Tribunal must consider whether a departure would be just and equitable as regards the child and each parent: sub-subparagraph 98C(1)(b)(ii)(A) of the Act. A range of factors must be considered under subsection 117(4) and following subsections: subsection 98C(3). These factors will be discussed below so far as they are relevant. The Tribunal may also have regard to other factors: subsection 117(9).

Parental duties

1. Each parent of a child has a duty to maintain the child, and this duty must take priority (relevantly) over all commitments other than those necessary for self-support: section 3 of the Act. It is also relevant to note that the principal object of the Act is to ensure that children receive a proper level of support from their parents: subsection 4(1). Particular objects of the Act include ensuring that the level of financial support to be provided by parents is determined according to their capacity to provide, and that parents with a like capacity to provide should provide like amounts of support: paragraph 4(2)(a).

2. In light of these factors, it is appropriate to take into account the financial resource available to Mr Lowe through his arrangement with Mrs Lowe. Unless this is taken into account, the rate of child support will not properly reflect Mr Lowe’s capacity to provide for [Child 1], and Mr Lowe would be paying less child support than other parents in similar circumstances but with more conventional remuneration arrangements.

[Child 1]’s proper needs

1. [Child 1] lives with Mrs Saville and has no contact with Mr Lowe. He attends a state school. It is not suggested that he has any special needs or that his basic needs are not met. However, Mrs Saville told the Tribunal that if she had more funds she would enrol [Child 1] in sporting and other extracurricular activities. The Tribunal accepts this. The Tribunal considers that [Child 1]’s proper needs include such activities to the extent that his parents are able to afford them.

2. Mrs Saville told the Tribunal that she plans to engage a tutor for [Child 1] this year as he has fallen behind at school. The Tribunal has no reason to doubt this, but without documentary evidence the Tribunal is not in a position to determine whether [Child 1] has a need for tutoring.

Ms Saville’s financial circumstances

1. The following is a summary of Ms Saville’s evidence about her financial circumstances. Her current occupation is single parent and carer for her elderly parents, who have high levels of need. Her income consists of Centrelink benefits namely carer payment and family tax benefit. She has no assets apart from a car, household contents, and jewellery (worth $3,000). She has no debts. She pays $80 per week in board to her parents (which she acknowledges is well below the market rate) and she contributes to household bills. The Tribunal accepts this evidence.

2. The Tribunal must disregard Ms Saville’s carer payment and family tax benefit. These are income-tested payments, and the Tribunal must disregard any entitlement of the parent entitled to child support to an income-tested pension, allowance or benefit: subparagraph 117(7A)(b)(ii) of the Act. When those payments are disregarded, it is clear that Ms Saville requires a substantial amount of child support from Mr Lowe to enable her to care for [Child 1] appropriately.

3. The Tribunal finds that Ms Saville’s decision not to engage in paid employment is justified on the basis of her caring responsibilities. Accordingly, Ms Saville cannot be assessed for child support purposes on the basis of an unexercised earning capacity: subsection 117(7B) of the Act.

Mr Lowe’s financial circumstances

1. The Tribunal has already discussed Mr Lowe’s income and financial resources.

2. In relation to Mr Lowe’s earning capacity, Mr Lowe says that he was looking for work after he was retrenched from [Company 1] but he did not find any until late 2015, when he started his current part-time position. The Tribunal has reservations about the reliability of Mr Lowe’s evidence generally, and it is surprising that someone with his experience would have had such difficulty finding work. However, on balance and in the absence of any more concrete evidence to suggest that Mr Lowe has not been looking for work, the Tribunal accepts that Mr Lowe has had difficulty finding work. Accordingly, the Tribunal finds that Mr Lowe has not failed to exercise his earning capacity.

3. According to Mr Lowe’s statement of financial circumstances completed in September 2015, he has no substantial assets, and he has approximately $6,000 in credit card debt. In the statement of financial circumstances Mr Lowe indicated no expenses other than child support and credit card repayments.

4. Again, while the Tribunal has reservations about the reliability of Mr Lowe’s evidence, in the absence of any concrete evidence that he has other assets the Tribunal accepts his evidence that he does not. Presumably Mr Lowe is currently meeting more of his own living expenses now that he has paid employment.

5. Ms Saville submits that the Tribunal should vary Mr Lowe’s income for child support purposes to $56,430, which is the level of his 2013/2014 income. However, the Tribunal is not satisfied that Mr Lowe’s income is as high as that.

6. If the Tribunal were to add around $1,600 per year to the rate of Mr Lowe’s child support (as discussed above) from June 2015, this would generate arrears of a little over $1,000. While at first glance the payment of arrears and the ongoing increase in rate would be difficult for Mr Lowe, it is reasonable to expect him to obtain assistance from Mrs Lowe in making these payments bearing in mind the amount of unpaid work that the Tribunal has found he does for her business. The Tribunal is satisfied that increasing the rate of child support in this manner would not impose undue hardship on Mr Lowe.

Conclusion

1. The Tribunal considers that it would be just and equitable to increase the rate of child support by $1,600 per year. The additional child support will assist Ms Saville to provide [Child 1] with a more comfortable standard of living and the opportunity to participate in more extracurricular activities.

2. The increase would take into account the financial resource worth around $10,000 per year which the Tribunal has found arises from the arrangement that Mr Lowe and Mrs Lowe have for him to work part-time in her business for no direct remuneration. The Tribunal considers it preferable to add to the rate of child support, rather than to vary the income amount used for Mr Lowe. This will enable the income estimates (which do not include the financial resource) to be reconciled.

3. Ms Saville had previously used the departure process, so she would have been aware of the process when the rate of child support decreased significantly in January 2015. However, she did not make the present departure application until 25 May 2015. The Tribunal considers it would be unfair to Mr Lowe to backdate an increase in the rate before 1 June 2015, which is about the time that he would have been notified of Ms Saville’s application.

4. It is appropriate to increase the rate of child support by $1,600 per year for some time into the future because, on present indications, Mr Lowe will continue to have the financial resource in question indefinitely. The Tribunal considers it appropriate to increase the rate until [date omitted], which is the day before [Child 1]’s 13^thbirthday. This of course does not preclude Mrs Saville from making another departure application in due course to cover the period after 4 July 2018, and it does not preclude either parent making an earlier application in the event of some material change of circumstances.

Issue 3 – Is it otherwise proper to depart from the administrative assessment?

1. In considering whether a departure would be otherwise proper, the Tribunal must have regard to two matters under subsection 117(5) of the Act. The first is the fact that the parents, rather than the community, have the primary duty to maintain their child. The second is the effect of a departure on entitlement to, or the rate of, any income-tested pension, allowance or benefit. In practice this means that the Tribunal must be mindful of the impact on parents’ entitlement to family tax benefit, which is affected by the rate of child support. The Tribunal must ensure that cost is not inappropriately shifted from parents to the community through the family tax benefit system.

2. Increasing the rate of child support by $1,600 per year would serve to decrease Ms Saville’s entitlement to family tax benefit. This shifts some of the cost of raising [Child 1] from the community to the parents, which is proper.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 1 June 2015 to [date omitted], the rate of child support payable by Mr Lowe is increased by $1,600 per year.