Schreider and Sitwell (Child support)

Schreider and Sitwell (Child support) [2022] AATA 3072 (6 July 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC023059
APPLICANT:  Miss Schreider
OTHER PARTIES:  Child Support Registrar
Mr Sitwell

TRIBUNAL:Member S Hoffman
DECISION DATE: 6 July 2022
DECISION:

The tribunal varies the decision under review and decides as follows:

The objection decision made on 1 December 2021 that applied from 3 April 2020 to 2 April 2022 is unchanged.
For the period from 3 April 2022 to 31 August 2024, Mr Sitwell’s adjusted taxable income is varied to $180,000 a year.
For the period from 3 April 2022 to 31 August 2024, Miss Schreider’s adjusted taxable income is varied to $47,000 a year.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of both parents – 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

The child support case relevant to this review was registered with Services Australia – Child Support (the CSA) on 16 July 2014. The CSA has been involved with the collection of child support since 28 June 2015.
This review is about the child support assessments in respect of [Child 1] and [Child 2], aged 11 and 10 years old respectively. There was an assessment for a third child, [Child 3], who is 14 years old. The CSA notified the parents on 6 August 2021 that the child support assessment for [Child 3] had been cancelled following a court declaration that the father was not considered to be [Child 3]’s biological father.
On 6 April 2020, the father applied for a change of assessment. At that time, he was required to pay an annual rate of child support of $39,129 to the mother, based on his adjusted taxable income of $179,824 and the mother’s 2018/19 taxable income of nil. The father’s adjusted taxable income had been determined by a change of assessment decision which applied from 1 April 2019 to 31 March 2021. The child support assessment in place at that time was for the three children. They were recorded by the CSA as being in the mother’s 100% care.
The CSA reissued assessment notices from 16 July 2014 excluding a child support assessment for [Child 3]. The reissued notices show that the father’s annual child support liability on 6 April 2020 for the two children of the case was $32,380.

On 18 May 2020, a case officer from the CSA decided to vary the father’s adjusted taxable income to $143,423 a year for the period from 3 April 2020 to 30 June 2020 and to increase his adjusted taxable income by $143,423 from 1 July 2020 to 2 April 2022 (the original decision).
The effect of this decision was that from 1 July 2020 the father was required to pay $40,599 a year in child support.
On 4 August 2021 the father lodged an objection to the original decision, along with an application for an extension of time which was granted.[1]
[1] The father contacted the CSA between May 2020 and August 2021 a number of times with a view to getting the child support assessment changed. These contacts were treated as new change of assessment applications. One application was made on 4 August 2020 (decision made 30 September 2020) and another on 30 October 2020 (decision made 23 December 2020). Both decisions left the child support assessment unchanged. The father then lodged an objection on 1 February 2021 which was taken to be an objection to the decision made on 23 December 2020 whereas the father wanted the decision made on 18 May 2020 revisited.
On 1 December 2021, an objections officer from the CSA decided as follows:
·For the period from 3 April 2020 to 30 June 2020, the father’s adjusted taxable income was varied to $143,423 a year.
·For the period from 1 July 2020 to 31 August 2020, the father’s adjusted taxable income was increased by $143,423 a year.
·For the period 1 September 2020 to 31 July 2021, the father’s adjusted taxable income was varied to $143,423 a year.
·For the period from 1 August 2021 to 2 April 2022, the father’s adjusted taxable income was increased by $143,423 a year.

On 29 December 2021, the mother lodged an application for review of the objection decision (the decision made on 1 December 2021) with this tribunal. A directions hearing was held on 18 May 2022 via MS Teams audio (equivalent to conference telephone) and attended by both parents. The substantive hearing was held on 6 July 2022 again via MS Teams audio. Both parents attended and gave sworn evidence.
Before the hearing, the CSA had provided documents numbered 1 to 460. The mother had submitted documents numbered A1 to A26 and the father had submitted documents numbered B1 to B23.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Act). The Act provides for an administrative assessment of child support to be paid. Pursuant to section 98C of the Act, a decision to depart from the administrative assessment may be made if the following three requirements are met:
i.A ground is established; and
ii.It would be just and equitable as regards the child, the liable parent and the carer entitled to child support to make a particular determination; and
iii.It would be otherwise proper to make a particular determination.

The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.
If the tribunal is satisfied that the three requirements are met, it may make one of the determinations prescribed in section 98S of the Act, which include variations to the annual rate of child support payable, or to the adjusted taxable incomes of the parents and/or carer, or to other components of the statutory formula used to calculate child support.

CONSIDERATION

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

Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination of the rate of child support because of the income, property and financial resources of either parent.

The father’s income

According to the CSA’s records, the father’s taxable income was $178,675 for 2015/16, $179,824 for 2016/17, $49,732 for 2017/18, $44,569 for 2018/19, $278,145 for 2019/20 and $89,902 for 2020/21.
The father had worked for [Employer 1] for eight years and was made redundant on 3 April 2020. Since 2017 until being made redundant, the father worked for [Employer 1] in [Country]. The mother said that there was a particular arrangement in place regarding his salary which was why it was low according to his tax returns. The tribunal notes that the father’s taxable incomes for the 2017/18 and 2018/19 tax years were under $50,000 a year. The father said that he remained an Australian resident but the tax arrangements for people in his position were so complex, that [Employer 1] arranged for accountants to do his tax returns.
The father was assessed for child support on his 2016/17 taxable income of $179,824 until 30 November 2018. For the period from 1 December 2018 to 31 March 2019, he was assessed on his 2017/18 taxable income of $49,732. The mother applied for a change of assessment and from 1 April 2019, an adjusted taxable income of $179,824 was used for the father in the child support assessment. The father said he thought that was too high but as he was overseas, it was too difficult for him to object at the time.
The reason the father lodged his change of assessment application on 6 April 2020 was that he had returned to Australia and had been made redundant. The CSA obtained data that showed that the father’s annualised salary from [Employer 1] while he was overseas was $143,423 and that his lump sum payment on termination was $296,249. His lump sum payment was therefore roughly equivalent to two years’ salary, from 3 April 2020. The father submitted that $189,562 of his final payment was unused leave paid out to him.
The father submitted that he had intended to study for an MBA but because of the child support liability, he returned to work in about August 2020. Based on the original decision, from 1 July 2020 the father’s child support liability was $40,599 a year for the three children using an income of $170,824 for him. From 1 September 2020, the father was assessed to pay child support on an income of $421,568.
The original decision was such that the father’s income as recorded in his tax return was to be increased by $143,423 a year for each of two years because of the redundancy payment which was roughly equivalent to two years’ salary. The father’s taxable income for 2019/20 was $278,145. It included the redundancy payment. It was applied to the child support assessment from 1 September 2020. The original decision meant that from 1 September 2020, $143,423 was added to $278,145, with the effect that about 50% of the redundancy payment was double-counted; it was included in his taxable income and then added on again in his adjusted taxable income.
The tribunal agrees with the CSA officers that the termination payment should be treated as the father’s income for a two-year period from 3 April 2020 to 2 April 2022. This is because the termination payment was equivalent to two years’ salary from [Employer 1]. The tribunal is also of the view that any income from employment earned by the father during that period should be added onto the redundancy payment amount of $143,423.
The father said that he lived off his redundancy payment for a few months. The CSA checked Centrelink records and there was no indication he received income support payments during the relevant period. In early September 2020, the father informed the CSA that he had started work with [Employer 2]. For that reason, the tribunal considers that from 3 April 2020 to 31 August 2020, $143,423 represents the father’s income for child support purposes.
The father’s taxable income for 2020/21 was $89,902. If earned during the period from 1 September 2020 to 30 June 2021, it is equivalent to earning $107,882 a year for that 10- month period. Added to $143,423 gives $251,305. The tribunal is of the view that this amount adequately represents the father’s income and financial resources from 1 September 2020 to 30 June 2021.
By 1 July 2021, the father was working for [Employer 3], a recruitment firm that placed him on different work sites on a contract basis that meant he could be terminated the same day. He had started there in about April 2021. The father said there was the prospect of a long-term contract. According to his payslip for the week ending 15 May 2022, the father was paid $5,312 for that week and his year-to-date gross income was $144,440. The previous week, his gross income was $4,250 which equates to $221,000 a year.
Based on the year-to-date figure, the father’s annual income for 2021/22 is likely to be $165,000 a year whereas his most recent weekly pay suggests his annual income will be about $220,000 a year.
The father said his rate of pay and the hours he worked varied and he was not guaranteed work. He said that he has had a significant increase in his pay in the last three months. As he is paid by a recruitment firm, it is unlikely he gets paid leave. Assuming his weekly pay is $4,250 and allowing for four weeks leave and 10 days public holidays, the tribunal calculates the father’s annual income would be about $195,000. That assumes he does not take time off between contracts and does not take time off because he is ill.
Given it is not possible to be certain about the father’s income going forward, the tribunal is of the view that taking a midway point between $195,000 and $165,000 is reasonable, say $180,000 a year.
Taking into account the redundancy payment, the tribunal considers that the father’s income, property and financial resources for child support purposes from 1 July 2021 to 2 April 2022 is represented by an income of $308,423 ($165,000 + $143,423) and from 3 April 2022, by an income of $180,000.[2]
[2] $165,000 is the annualised equivalent of the father’s year to date income to 15 May 2022, of $144,440.
In summary, the tribunal considers that the following annual incomes adequately reflect the father’s income, property and financial resources for child support purposes:
·     From 3 April 2020 to 31 August 2020   $143,423
·     From 1 September 2020 to 30 June 2021               $251,305
·     From 1 July 2021 to 2 April 2022  $308,423

· From 3 April 2022 going forwards $180,000

The mother’s income

The mother’s taxable income was $20,176 for 2017/18, $nil for 2018/19, $23,098 for 2019/20 and $nil for 2020/21.
The mother said she started work for [Employer 4] on 10 February 2022, on a casual basis. She submitted three payslips for fortnights in April and May 2022. Her gross pay according to those payslips was $1,072, $1,567 and $1,348. The average over the three fortnights is $1,329 a fortnight ($3,987 / 3).
The mother said that she also gets parenting payment, which varies according to how much she earns. The last four fortnights, she was paid $585, $504, $427 and $398 a fortnight. That averages to $478.50 ($1,914 / 4) a fortnight. Added to her pay, that gives $1,807.50 a fortnight, equivalent to $46,995 a year.
The tribunal considers that $47,000 adequately reflects the mother’s income, property and financial resources from when she started work on 10 February 2022. Prior to that her income was say, $15,000 a year to represent the parenting payment. The child support formula includes a self-support amount, about $26,000 a year. Generally, if the receiving parent’s income is less than the self-support amount, it will not affect the rate of child support.

How does the administrative assessment compare with an assessment of child support using the tribunal’s income figures for the parents?

The figures that follow should be regarded as estimates, due to the complexity of the child support formula.
On 6 April 2020, when the father applied for a change of assessment, he was required to pay an annual rate of child support of $39,129 to the mother, based on his adjusted taxable income of $179,824 and there being three children of the case. When that assessment was redone for two children, his annual child support liability was $32,380.
On an income of $143,423 for the father, his child support liability for the two children was about $26,200 a year. For five months, this is $10,916.
On an income of $251,305 for the father, his child support liability was about $36,000 a year. For 10 months, this is $30,000.
On an income of $308,423 for the father, his child support liability is also about $36,000 a year. With the mother having an income of $47,000, this reduces to about $33,000 a year. The higher figure applied for about seven months, which gives a liability of about $21,000 for that period. The lower figure applied for about two months, which gives a liability of about $5,500 for those two months.
For the period from 3 April 2020 to 2 April 2022, the tribunal estimates that the father’s child support liability for two children using its figures amounted to $67,416. (10,916+30,000+21,000+5,500).
The default child support assessment, based on an income of $179,824 for the father and for two children, was about $32,000 a year or $64,000 for the two years. (This was before the original and objection decisions were made.)
Given the difference between the father having a child support liability of about $67,416 over two years rather than $64,000 (a difference of, on average, $1,708 a year), the tribunal is not satisfied that there would be a ground for departure from the administrative assessment in relation to that period.
However, the tribunal also considered the period from 3 April 2022. Since then, the father has been assessed on an adjusted taxable income of $89,902 and the mother was assessed on an income of nil, resulting in a child support liability for the father of $15,020 a year.
Using the tribunal incomes for the parents, of $180,000 for the father and $47,000 for the mother, the father’s child support liability will be about $31,500 a year.
Given the difference between the father having an annual child support liability of about $31,500 rather than $15,020, the tribunal is satisfied that in the special circumstances of this case, the administrative assessment does result in an unjust and inequitable rate of child support, and that a ground for departure from the administrative assessment has been established pursuant to subparagraph 117(2)(c)(ia) of the Act.

Issue 2 – Is it just and equitable to make a particular departure determination?

As the tribunal is satisfied that there is a ground to depart from an administrative assessment of child support, the next step is to consider whether it is just and equitable as regards the children, the father and the mother to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the tribunal to consider a variety of factors, as set out in subsection 117(4) of the Act.[3]
[3] The tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi and Meares (SSAT Appeal) [2008] FMCAfam 886.
Section 3 of the Act makes it clear that parents have the primary duty to maintain their children, and that this duty has priority over all commitments of the parents other than commitments necessary for self-support or the support of another person the parent has a duty to maintain. In this case the father and the mother have the primary duty to financially support the children of this case.

Income, property and financial resources – the father

The father submitted his Statement of Financial Circumstances (SFC) dated 24 January 2022. He recorded weekly income to be $2,489 which was his net income. He agreed his gross income was about $4,250 a week, consistent with one of the payslips he provided.
The father recorded having a home loan which was 100% in his name with the balance owed of $553,000. He did not record a corresponding property. He said he owned a property which he purchased for $418,000 and he had about $60,000 equity in it. The amount of $553,000 was what he would have paid in mortgage repayments by the end of the term of the loan, or the balance still owing on that amount, rather than what was outstanding on the home loan on or around the date he completed the form.
The mother was not satisfied that the father had a home loan as there was nothing on the Certificate of Title she had obtained, that recorded a bank having an interest in the property. The father agreed to provide proof of his mortgage by way of a bank statement or similar, and to submit this within three days of the hearing. As of 13 July 2022, he had not done so.
There was no suggestion that the father owned other property apart from his home. As it would make no difference to the tribunal’s decision whether or not there was a mortgage over his home, the tribunal proceeded to make its decision without proof of mortgage.
The father recorded having a bank balance of $86 which is a very low figure for someone earning about $4,250 a week. The father said that the money went out as soon as it came in, on his mortgage and bills and living expenses.
The father has remarried and recorded that his wife’s income is $912 a week. He recorded weekly household expenses of $1,812 and his personal expenses of $2,288 a week, totalling $4,100 a week. This is adequately covered by his income and in addition, his wife will most likely make a contribution to the household expenses from her income.

The father said he did not use credit cards. He said he has incurred about $51,000 in legal fees related to child support and family court matters, and owes about $16,000 of those fees.
The father did not include a vehicle in the assets section of his SFC but did show the costs incurred for running a vehicle. He said he had sold his car and he and his wife share her car.
The mother made the point that the father returned to Australia with about $400,000 and queried where it had gone. The father used to have a [Bank 1] Online Saver account. On 1 May 2020 the balance in that account was $481,742. It was $440,362 as at 31 July 2020. The bank statements show that the father was transferring money quite regularly from the saver account to a [Bank 1, specified] account. The latter account was used for daily expenses like food. The father was not employed from 3 April 2020 to 31 August 2020 and it reasonable that he used the funds in the saver account for everyday expenses.
The father provided a breakdown of $439,892, stating that $274,162 was from his final payment from [Employer 1] and $92,630 was his wife’s money from [Country]. He sold his car before leaving Australia in 2017 for $68,500. He stated that selling miscellaneous items accounted for a further $4,600.
The father also provided a schedule showing how $445,483 was spent. It included $74,000 on purchasing a car on returning to Australia, $22,430 to obtain a diploma in [Subject] and $39,640 to enrol for an MBA. He spent $14,400 on rent before becoming employed, $66,000 on a house deposit, $22,400 on costs associated with purchasing a house and $18,600 on furnishing a home here. He listed other expenses including that $8,215 was spent on IVF treatment.
The father said that the diploma course was run by [Course provider].[4] [Course provider] provide training for the [industry]. Its website provides some information on its Diploma in [Subject] but not the cost. The diploma is available via TAFE colleges and other establishments at costs varying between $5,000 and $13,000[5] but these were courses taken over one to two years whereas the father said the [Course provider] course was face to face learning over six weeks. This is consistent with the website information.[6]
[4] [Course provider details deleted]
[5] For example, see Box Hill Institute (2022) Diploma of [Subject] accessed at
[6] [Course provider’s course webpage]
The mother said that the father had [Employer 1] shares. These were not included in his SFC. He said there was a share purchase scheme for [Employer 1] employees and he bought shares in 2015 that might be worth about $15,000 now but he does not know for sure.
In his SFC, the father valued his household contents at $487 which is inconsistent with his claim that he spent $18,600 on furnishing his home about two years ago. In his SFC, the father referred to fertility treatment costing about $8,000 and that he and his wife would take out a loan to pay for it. This appears inconsistent with the expenses he listed in the schedule showing how $445,483 had been spent. That included $8,215 spent on IVF treatment.
The tribunal was not satisfied that the father completed his SFC accurately. It considers it unlikely that the father’s bank balance was $86.
The mother claimed the father has other bank accounts. He provided bank statements that showed he has closed his [Bank 1] account and now has a [Bank 2] account. He said he had no other bank accounts. The mother drew attention to the father’s change of assessment application form dated 15 April 2020, in which the father wrote that he had $241 in a [Bank 2] everyday account and $3,206 in a [Bank 3, specified] account. The father said he no longer has the [Bank 3] account.
The tribunal asked the mother if she was suggesting that the father had another source of income and she said she was not. The tribunal observes that the father explained the source of the funds in the [Bank 1] account, most of which was explained by his termination payment. That has been taken into account when considering his income for child suppprt purposes.

Income, property and financial resources – the mother

The mother’s SFC was dated 11 January 2022. This was before she started working for [Employer 4] in February 2022. Based on her SFC, she received family tax benefit, parenting payment and child support for the two children of this case and also for one other child. These payments amounted to $1,483 a week. The mother recorded outgoings totalling $1,547 a week, meaning her income was insufficient to cover her expenses. She has since started work and her income from employment will mean she can cover the expenses recorded in her SFC.
The mother wrote that she has $216 in her bank account, owns a [Vehicle] worth $5,000 and has household contents worth $7,500. She recorded having $50 in superannuation.
As to her liabilities, the mother recorded owing $1,000 on her credit card, $26,000 in legal fees and that she owes $12,000 to her father and to a family friend, both of whom lent her money.
The mother wrote that she pays rent of $350 a week and the household food bill is $400 a week. There was nothing else of particular note in the mother’s SFC.

Other issues pertaining to the parents’ incomes, property and financial resources

Subsection 117(7B) of the Act prescribes the circumstances in which a parent’s earning capacity may be taken into account; certain criteria have to be met. These include that the parent has failed to demonstrate that decisions made about their work arrangements were not substantially motivated by the effect they would have on the rate of child support.
The decision maker is required to consider whether changes to a person’s work arrangements are justified on the basis of their caring responsibilities and/or their state of health, or another reason.

The changes to the father’s work pattern during the period of interest to this review have already been discussed. He was made redundant, was out of work for a few months, intending to study for an MBA, and then decided to find work because of his child support liability. The mother has recently started work again. The father being made redundant was a decision made by his employer. His decision to increase his income by returning to work resulted in an increase in the rate of child support he would be required to pay. The mother’s decision to start work would reduce the child support payable to her. The tribunal is satisfied that neither parent was substantially motivated to change their work patterns to affect the rate of child support.
The tribunal concluded that it need not consider the application of subsection 117(7B) of the Act in relation to either parent any further.
The tribunal is required to have regard to the commitments of each parent that are necessary to enable the parent to support himself or herself, or any other child or another person that the person has a duty to maintain (paragraph 117(4)(e) of the Act). The CSA records show that the mother provides care for a third child born in January 2018. The mother recorded in her SFC that she received child support for a child in addition to the two children of this case.

Costs related to the children

In determining the proper needs of the children, it is necessary to have regard to the manner in which they are being, and in which the parents expected them to be, cared for, educated or trained, and any special needs they may have (subsection 117(6) of the Act).
In a submission dated 25 May 2022, the mother referred to one of the children being diagnosed with ADHD and GAD, and that a specialist recommended that he has weekly psychologist appointments. The mother wrote that this would cost $150 a week. Instead, she has relied on the public system which only provides 10 sessions a year under a GP plan. She also referred to medication for this child costing $120 a month as it is not under the pharmaceutical benefits scheme. The mother did not raise these costs at the directions hearing and did not provide any supporting evidence such as medical reports or proof of out-of-pocket expenses.
Parents will likely incur medical and related costs for their children and the child support formula is intended to cover such costs. However, there can be a basis for varying the child support assessment when a child has special needs. As the psychologist appointments occurred under the public system, the tribunal will not consider them further as the out-of-pocket costs would be minimal.
Medication costing $120 a month is equivalent to $1,440 a year. If the father was to contribute say 50%, his share would be $720 a year which is about 2.3% of his annual child support liability. Even if the mother had provided proof of this expense, the tribunal would be unlikely to increase the rate of child support for this amount, given the rate of child support paid by the father. It is open to the mother to apply to the CSA for a change of assessment based on the child’s special needs, including the out-of-pocket costs for medication and/or attending a psychologist through the private system.
With regard to the costs of the children more broadly, the mother provides care for more than the two children of this case. The SFC form does not provide space to separate out the costs of the children of the case from costs associated with any other children. Therefore, the costs incurred on behalf of the children of this case cannot be determined from the “Household expenses” schedule, or any other schedule, in the SFC. That being the case, the tribunal considers it appropriate to rely on the Costs of the Children Table available from the CSA’s website.[7]
[7] For the parents’ information, a Costs of the Children Table is available at the Services Australia website which can be found at align="left">Hardship
1. The tribunal is required to consider any hardship its determination might cause and is guided by Gyselman and Gyselman[8] in this respect:
  This requires the Court to balance the “hardship” which the parents or the children may suffer as a result of either making or refusing to make the order. It is a recognition of the circumstance that in this area there is likely to be hardship both ways and the Court is required to take into account the balance of that hardship and give it the weight which is appropriate to the circumstances of the individual case.
  [8] [1991] FamCA 93.
2. Given the difference between the parents’ incomes and that the mother has 100% care of the children, it is apparent that she is in a more vulnerable and difficult position financially than the father.
3. The tribunal is of the view that this child support case has been particularly difficult for both parents. When the father was overseas, the mother relied on child support of about $30,000 a year until it dropped to about $7,000 a year for the period from 1 December 2018 to 31 March 2019, during which time the father was assessed on his 2017/18 taxable income of $49,732. Through the change of assessment process, his liability increased to over $30,000 a year from 1 April 2019.
4. The original decision made on 18 May 2020 had the effect of the father being assessed twice on his termination payment, as it was included in his 2019/20 taxable income as well as 50% of it being added to his 2019/20 taxable income. He tried a number of times to get this changed and it was finally corrected by the objection decision made on 1 December 2021. In the interim he accrued arrears of child support.
5. On 6 August 2021, it was formally acknowledged that [Child 3] was not the father’s biological child and all the child support assessments from 16 July 2014 were redone.
6. The next major adjustment to the child support liability occurred in December 2021, following the objection decision.
7. At the start of the hearing, the mother referred to the effect the objection decision had on her, and her ability to care for the children. The objection decision reduced the father’s child support liability by $9,364. At the time the objection decision was made, the father had arrears of child support of about $6,700. This created an overpayment of child support for the mother of about $2,600. The objections officer wrote that the mother had “received two tax refund payments” from the father in the previous six months, totalling $14,324.71. However, unless the mother had anticipated there would be a further change in child support resulting in her being overpaid, it is unlikely she would have set that money aside.
8. Both parents have referred to incurring significant legal fees.
9. The facts as set out would have been financially and emotionally challenging for both parents. The tribunal considers the changes to the rate of child support would have been particularly difficult for the mother to deal with financially, as she was not working when they occurred, and had young children to care for with few financial resources.
Any other relevant matters
1. The tribunal may take into account any other matters it considers relevant in making a particular departure determination (subsection 117(9) of the Act).
2. Given the history of this case referred to above, the tribunal will not change the objection decision, to minimise any arrears or overpayments its decision creates.
3. According to the objection decision, between 1 August 2021 and 2 April 2022, the father was assessed on an adjusted taxable income of $233,325, being the sum of his 2020/21 taxable income of $89,902 plus $143,423. The annual rate of child support was $37,506.[9]
  [9] See pages 384 and 448 of the CSA papers
4. The tribunal has ascertained the father’s income for that period to be $308,423 as his actual income during 2021/22 was higher than his taxable income from 2020/21. However, as the father was paying the maximum rate of child support, using the tribunal’s income figure would not affect the rate of child support.
5. The objection decision ended on 2 April 2022. By that time, the mother had been working for two months. The tribunal estimates that the effect of her income on the rate of child support for those two months would reduce it by $500. Given the mother’s more difficult financial circumstances, and that $500 is only 1.3% of the annual liability, the tribunal is satisfied that, on balance, it is just and equitable to vary the child support assessment for her income from 3 April 2022 and not an earlier date.
6. The rate of child support from 3 April 2022 was $15,020 a year, based on the father’s 2020/21 taxable income of $89,902 and the mother’s income being less than the self-support amount. The tribunal estimates that using its determination will increase the annual rate of child support to about $31,500. For the four months to end of July 2022, this will increase the father’s liability by about $4,500 for that period. Given the discrepancy between the father’s income during 2021/22, and the income he has been assessed on from 3 April 2022, the tribunal considers this to be just and equitable.
7. The tribunal has ended its determination on 31 August 2024. This is to give the parties some certainty with regard to child support for the two years.
8. It remains open to either parent to apply for a change of assessment between now and 31 August 2024 if their circumstances change.
Issue 3 – Is it otherwise proper to make a particular departure determination?
1. The requirement to consider whether a departure determination would be otherwise proper is concerned with what is fair to the community; it is preferable for a child or children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Act means that the tribunal must consider whether the level of a benefit, in particular family tax benefit (FTB), received by the party caring for a child or children, may be affected by the level of child support.
2. The mother recorded in her SFC that she was receiving FTB. The tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and the community and would be otherwise proper.
DECISION
The tribunal varies the decision under review and decides as follows:
- The objection decision made on 1 December 2021 that applied from 3 April 2020 to 2 April 2022 is unchanged.
- For the period from 3 April 2022 to 31 August 2024, Mr Sitwell’s adjusted taxable income is varied to $180,000 a year.
- For the period from 3 April 2022 to 31 August 2024, Miss Schreider’s adjusted taxable income is varied to $47,000 a year.

[2022] AATA 3072

6 July 2022

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Statutory Construction