Seaver and Corey (Child support)

[2021] AATA 1764

Seaver and Corey (Child support) [2021] AATA 1764 (31 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020100

APPLICANT:  Mr Seaver

OTHER PARTIES:  Child Support Registrar

Ms Corey

TRIBUNAL:Member M Baulch

DECISION DATE:  31 March 2021

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there is to be a determination to depart from the administrative assessment of child support, such that:

• From 18 November 2019 to 29 February 2020, the adjusted taxable income of Mr Seaver is varied to be $254,965 per annum;

• From 1 March 2020 to 31 January 2021, the adjusted taxable income of Mr Seaver is varied to be $251,346 per annum; and

• From 1 February 2021 to 30 June 2021, the adjusted taxable income of Mr Seaver is varied to be $290,590 per annum.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – ground 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 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 application for review is about how much child support Mr Seaver should be assessed to pay to Ms Corey.  Mr Seaver and Ms Corey are the separated parents of [Child 1], who was born in 2005, [Child 2], who was born in 2007 and [Child 3], who was born in 2011.

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and their percentages of care. 

3. Since 30 December 2015, the Department of Human Services (now Services Australia) – Child Support (Child Support) has made assessments of child support that applied to Mr Seaver and Ms Corey. 

4. The Act also provides for a departure from the administrative assessment of child support in certain circumstances.  On 15 January 2020, Mr Seaver applied to Child Support seeking a determination to depart from the administrative assessment of child support on the basis that the assessment of child support did not correctly reflect one or both parents’ earning capacity.

5. On 2 July 2020, a Child Support decision maker decided to make a departure determination, such that for the period 18 November 2019 to 31 March 2021 Mr Seaver’s adjusted taxable income was set at $251,346 (the decision under review).

6. Mr Seaver objected to that decision and, on 30 September 2020, that objection was disallowed. Mr Seaver has now applied to this tribunal for an independent review of Child Support’s decision.

7. A hearing into the application for review was held by the tribunal on 31 March 2021. Mr Seaver and Ms Corey both discussed the application for review with the tribunal by telephone conference and both gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

8. [Mr A], from [Law Firm 1], had been given permission to make submissions on Mr Seaver’s behalf during the hearing.  However, [Mr A] advised the tribunal officer responsible for setting up the telephone conference that he would not be participating in the hearing.  Ultimately, [Mr A]’s participation in the hearing is a matter for Mr Seaver and [Mr A] to determine and the hearing proceeded without [Mr A]’s participation.

9. The tribunal had before it relevant documents provided to it, and the parents, by the Registrar pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (341 pages). The tribunal had regard to additional documents provided by Mr Seaver (labelled folios A1 to A140) and Ms Corey (labelled folios B1 to B154).

ISSUES

1. The statutory provisions relevant to this review application are found within the child support law, in particular the Act.

2. Pursuant to section 98C of the Act, a determination to depart from the administrative assessment of child support may be made if the following three requirements are met:

   (i)that one, or more than one, of the grounds for departure referred to in subsection [117(2) of the Act] exists; and

   (ii)that it would be:

   (A)   just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (B)  otherwise proper;

   to make a particular determination under this Part; …

CONSIDERATION

1. From 30 July 2019 until 25 September 2019, the administrative assessment of child support required Mr Seaver to pay child support of $44,724 per annum, based upon Mr Seaver’s adjusted taxable income of $254,965 and Ms Corey’s adjusted taxable income of $48,062, determined by reference to the parents’ 2017-18 taxable incomes.

2. From 26 September 2019 to 17 November 2019, the administrative assessment of child support rendered Mr Seaver as liable to pay child support of $49,200 per annum, based upon his adjusted taxable income of $254,965 and Ms Corey’s adjusted taxable income of $7,020.  The assessment changed due to Ms Corey making an estimate election $0 on 26 September 2019.  That estimate of Ms Corey’s income for the 2019-20 financial year has now been reconciled as the amount of $7,020.

3. From 18 November 2019 to 24 November 2019, the administrative assessment of child support required Mr Seaver to pay child support of $40,797 per annum, based upon Mr Seaver’s estimated income, for the 2019-20 financial year, of $170,492 and Ms Corey’s reconciled estimate of $7,020.

4. [From] November 2019 to 30 June 2020, Mr Seaver was liable to pay child support of $35,550 based upon the same adjusted taxable incomes for both parents.  The liability reduced to take into account Mr Seaver’s duty to support a dependent child who was born [in] November 2019.

5. For the period 1 July 2020 to 31 January 2021, the administrative assessment of child support required Mr Seaver to pay child support of $35,448 per annum, based upon Mr Seaver’s estimated income for the 2020-21 financial year of $170,517 and Ms Corey’s estimated income for the 2020-21 financial year of $0.

6. A new child support period commenced on 1 February 2021.  Had the decision I am reviewing not been made, I estimated that the administrative assessment of child support would have required Mr Seaver to pay child support of $35,295 per annum, based upon the parents’ estimated incomes for the 2020-21 financial year.

7. These, therefore, are the administrative assessments from which I am considering departing.

Is there a ground, or grounds, for departure?

1. All the grounds for departing from the administrative assessment of child support are prefaced by the term “… in the special circumstances of the case …” As noted by the Full Court of the Family Court:[1]

   Whilst it is not possible to define with precision the meaning of that term, as a generality 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 Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (at Fam LR 815 FLC 77,897), Kay J, adopting the view in In the Marriage of Philippe (1977) 4 Fam LR 153; [1978] FLC 90-433 at Fam LR 155 FLC 77,202 in a different context, said that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.

   My consideration will be guided by this principle.

   [1] See Gyselman and Gyselman [1991] FamCA 93

2. Mr Seaver’s application for a departure determination was based upon the ground for departure referred to as Reason 8B by Child Support, that the assessment of child support did not correctly reflect one or both parents’ earning capacity. 

3. However, Child Support has given regard to other matters raised by both parents through the decision-making process.  Those issues, which constituted additional grounds, that have been considered are:

   ·      That Mr Seaver had a duty to support another person (Reason 9); an issue raised by Mr Seaver; and

   ·      That the assessment of child support does not correctly reflect one or both parent’s income, property and financial resources (Reason 8A); an issue raised by Ms Corey.

4. Generally, a parent would set out grounds for departure upon which they seek to rely in a relevant form.  However, I noted that, as a general principle, strict adherence to the requirement to use a form is not required and I agreed that it was appropriate for these additional grounds, which have been raised by the parents, to be considered in the context of Mr Seaver’s application for a departure determination.

The earning capacity of either parent

1. Mr Seaver is seeking to have Ms Corey assessed based upon her capacity to earn, rather than her estimated incomes (and ultimately the reconciled amounts for those estimates) for the 2019-20 and 2020-21 financial years.   Mr Seaver’s application for a departure determination relied upon the ground for departure set out in subparagraph 117(2)(c)(ib) of the Act. 

2. This provision – commonly referred to as “Reason 8B” by Child Support – provides that a ground to depart from the statutory formula may be established if, in the special circumstances of the case, the child support assessment results in an “… unjust and inequitable determination of the level of financial support to be provided by the liable parent …” due to the earning capacity of either parent. 

3. Assigning a parent an earning capacity is only possible if subsection 117(7B) of the Act is satisfied, which relevantly provides:   

   (7B) In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court 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 reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii)  the parent has changed his or her occupation, industry or working pattern; and

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

   (i)  the parent's caring responsibilities; or

   (ii)  the parent's state of health; and

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

4. In September 2019, Ms Corey resigned from her employment as a part-time [Occupation 1].  I concluded that Ms Corey is not working despite ample opportunity to do so and concluded that subparagraph 117(7B)(a)(i) of the Act applies in Ms Corey’s case.

5. I received no submission, nor identified any evidence, to the effect that Ms Corey’s decision to cease employment was justified on the basis of her caring responsibility or the state of her health.  I was satisfied that paragraph 117(7B)(b) of the Act applies in Ms Corey’s case.

6. I considered whether or not Ms Corey has demonstrated that it was not a major purpose of her decision to cease work to affect the administrative assessment of child support.

7. Mr Seaver submitted that Ms Corey’s decision to cease work was motivated by a desire to affect the child support assessment, and there was no justification for her ceasing work as early as she did.

8. Ms Corey’s evidence was that her partner, who works with [a named agency], was posted to another state, with the new posting due to commence in January 2020.  Ms Corey explained that the decision to cease work in September 2019 was influenced by a number of factors, including a desire to avoid disruption for [the clients] and to provide her time to prepare their home to become a rental property once they had moved out.  Ms Corey did not dispute that there was no impediment for her to remain in employment until the end of [the] year in December.

9. Even though Ms Corey could have remained employed until later in 2019, her decision to leave employment was primarily motivated by her desire to relocate interstate once her partner commenced his new posting.  I identified no evidence that suggests in any way that Ms Corey’s decision to cease employment was motivated by a desire to affect the child support assessment.

10. I was consequently satisfied that Ms Corey has demonstrated that affecting the administrative assessment of child support was not a major purpose of her decision to cease employment and paragraph 117(7B)(c) of the Act does not apply.  Therefore, it is not possible to consider Ms Corey’s earning capacity in the context of contemplating a departure determination.

11. Mr Seaver is in full-time employment and I received no submission to the effect that subsection 117(7B) of the Act is relevant in his circumstances. 

12. I consequently determined that the ground for departure set out in subsection 117(7B) of the Act has not been established in respect to either parent.

Mr Seaver’s duty to support another person

1. Mr Seaver has raised the issue of his duty to support his dependent child and his current partner, while she was on leave from employment due to the birth of that child, in the context of his application for a departure determination.  This relates to a ground for departure set out in subparagraphs 117(2)(a)(i) and 117(2)(a)(iii)(B) of the Act. 

2. These provisions – commonly referred to as “Reason 9” by Child Support – provide that, in the special circumstances of the case, a ground for departure from the statutory formula may be established if the capacity of either parent to provide financial support for the child is significantly reduced because of the duty of the parent to maintain any other child or another person, or the necessary commitments of the parent to enable the parent to support that child or person.

Duty to support another child

1. Mr Seaver has a dependent child who was born [in] November 2019.  I accepted that Mr Seaver has a duty to support this child.

2. [Since] November 2019, the administrative assessment of child support has allowed Mr Seaver a “relevant dependent amount.”  The quantum of the relevant dependent amount is dependent on Mr Seaver’s income.  The higher a parent’s income, the greater is any relevant dependent amount that may apply.

3. [From] November 2019, the relevant dependent amount was $19,804 per annum based upon Mr Seaver’s estimated income of $170,492.  A new child support period commenced on 1 March 2020.  The relevant dependent amount allowed under the statutory formula, based upon Mr Seaver’s estimated income of $170,492, would be $19,863 per annum.  From 1 July 2020, Mr Seaver’s estimated income was $170,517, but the relevant dependent amount remained at $19,863 per annum.

4. I identified no evidence that Mr Seaver’s necessary commitments to enable him to meet his duty to support his dependent child are not adequately reflected in the relevant dependent amounts provided for in the statutory formula. 

5. I determined that the ground for departure set out in subparagraphs 117(2)(a)(i) and 117(2)(a)(iii)(B) of the Act are not made out in regard to Mr Seaver’s duty to support his dependent child.

Duty to support another person

1. Mr Seaver submitted that his duty to support his current partner, for the year she was not working after the birth of their child, should be considered.

2. I noted that a duty to maintain a spouse, when that spouse is not working, is generally not considered to give rise to a special circumstance in the context of an application for a departure determination.  As noted by Federal Magistrate Jarrett, in Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 at [55]:

   There is nothing special or out of the ordinary about one spouse meeting another’s expenses and providing financial support during periods when the supported spouse has no income. Indeed, I would venture to suggest that it is an entirely ordinary circumstance that is one of the key elements of a spousal relationship.

   Mr Seaver submitted that the fact that his partner lives in Brisbane, while he works in Canberra, giving rise to the need to maintain a second residence, characterises his case with the necessary degree of special circumstances.

3. I noted that it was Mr Seaver’s evidence that he chooses to live in Brisbane, rather than in Canberra where he works.  I also considered that, for the year Mr Seaver’s partner did not work, she was not tied to Brisbane by her employment.

4. I was not persuaded that there is anything out of the ordinary regarding Mr Seaver’s duty to support his current partner for the year she was not working after the birth of their child.  I therefore concluded that the ground for departure set out in subparagraphs 117(2)(a)(i) and 117(2)(a)(iii)(B) of the Act are not made out in regard to Mr Seaver’s duty to support another person.

The income, property and financial resources of either parent

1. This ground for a departure determination - referred to by Child Support as “Reason 8A” - is set out in subparagraph 117(2)(c)(ia) of the Act.  It provides a ground to depart from the statutory formula may be established if, in the special circumstances of the case, the child support assessment results in an “… unjust and inequitable determination of the level of financial support to be provided by the liable parent …” due to the income, property and financial resources of either parent.

Mr Seaver

1. Mr Seaver is in full-time employment.  At the time of his application for a departure determination, the administrative assessment of child support was based upon his estimate of his 2019-20 adjusted taxable income of $170,492.  This estimate has not yet been reconciled by Child Support and I inferred that Mr Seaver is yet to lodge his income tax return for the 2019-20 financial year.

2. The evidence shows that Mr Seaver’s estimated income of $170,492 replaced his adjusted taxable income of $254,965, determined by refence to his 2017-18 taxable income.  The amount of $254,965 was determined in accordance with section 43 of the Act, which prescribes that a parent’s adjusted taxable income is the sum of the following:

   ·      The parent’s taxable income for the last relevant year of income in relation to the child support period;

   ·      The parent’s reportable fringe benefits total for that year of income;

   ·      The parent’s target foreign income for that year of income;

   ·      The parent’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income;

   ·      The total of the tax free pensions or benefits received by that parent in that year of income; and

   ·      The parent’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.

3. I noted that the adjusted taxable income of $254,965 included reportable fringe benefits of $73,924.[2]  Mr Seaver’s PAYG payment summary for the 2018-19 financial year discloses that Mr Seaver again had reportable fringe benefits of $73,924.[3]

   [2] A15

   [3] A16

4. Mr Seaver’s employment contract, as at 17 December 2019, discloses that Mr Seaver’s renumeration included:[4]

   [4] A17 to A28

$183,500 per annum, in base salary

$2,865 per month for accommodation support

$400 per month for private health insurance allowance

It is not disputed that the monthly payments for accommodation support and the private health insurance allowance are not subject to taxation.

1. I determined that it is the payment of the untaxed accommodation support and the private health insurance allowance that gives rise to the reportable fringe benefits of $73,924 per annum.  These amounts, added together and multiplied by 12, then multiplied by the Australian Taxation Office’s lower gross-up rate of 1.8868,[5] give an annual amount of $73,924.[6]

   [5] $2,865 + $400 = $3,265 x 12 x 1.8868 = $73,924.84

2. Mr Seaver’s evidence was that he made his estimate election based upon his annual salary.  Mr Seaver stated that his calculation of his estimated income did not include the non-taxable allowances.  His justification for this was that these amounts do not include part of his disposable income and should therefore be ignored.

3. I identified no evidence that the circumstances of Mr Seaver’s employment had changed and there had been no reduction in the renumeration Mr Seaver received from his employment when he made his estimate election.  It appears that Mr Seaver made his estimate election to reduce the extent to which the non-taxable allowances impacted on his child support liability by their inclusion, in the assessment of his adjusted taxable income pursuant to section 43 of the Act, as reportable fringe benefit amounts.

4. Mr Seaver’s evidence was that the housing allowance is used to maintain a flat in Canberra where he works.  He stated that his circumstances are a special circumstance, justifying the exclusion of the housing allowance, because the flat in Canberra is a second residence because he lives in Brisbane.  Mr Seaver’s evidence was that he lives in Brisbane by choice.

5. Mr Seaver’s evidence was that he is required, by reason of not being an Australian citizen or permanent resident, to maintain private health insurance because he does not have access to Medicare.  Mr Seaver also asserted that he still has to pay the Medicare levy and Medicare surcharge.  As a consequence, Mr Seaver believes the private health insurance allowance should be disregarded when determining his child support liability.

6. I was not persuaded that there are any circumstances, special or otherwise, which justify the exclusion of the non-taxable payments received by Mr Seaver from his employer for accommodation support and the private health insurance allowance from an assessment of his income for the purposes of child support.

7. I was satisfied that Mr Seaver’s income, property and financial resources are adequately represented by his adjusted taxable income, that would apply if his estimate election had not been made.  Those amounts are as follows:

   ·      From 18 November 2019, $254,965, determined by reference to his 2017-18 taxable income.

   ·      From 1 March 2020 (the start of a new child support period), $251,346,[7] determined by reference to this 2018-19 taxable income.

   [7] Folio 246

8. Another child support period commenced on 1 February 2021.  Mr Seaver’s adjusted taxable income, had his estimate elections not been made, would have had regard to his 2019-20 taxable income.

9. In my directions issued on 3 February 2021, I directed that Mr Seaver provide a copy of any and all Income Statements as reported to the Australian Taxation Office by Mr Seaver employer(s) for the 2019-20 financial year.  Mr Seaver failed to comply with this direction, and it is therefore not possible to make an estimate of Mr Seaver’s adjusted taxable income that would have applied from 1 February 2021, had he not made an estimate election.

10. As an alternative, I had regard to Mr Seaver’s current income, as reflected in his payslip for February 2021.[8]  This discloses gross payments, year-to-date of $181,619, including year-to-date allowances of $3,200 and $22,920.  This means that gross payments made to Mr Seaver for the period July 2020 to February 2021, excluding those allowances, are $155,499.[9]  Mr Seaver’s payslip discloses his current gross salary to be $15,291.67 per month.

    [8] A13

    [9] $181,619 - $3,200 - $22,920 = $155,499

11. I therefore estimated Mr Seaver’s gross income, excluding his non-taxable allowances, for the current financial year to be:

Gross payments July 2020 to Feb 2021	$155,499
Salary for March 2021 to June 2021	$61,167[10]
Total	$216,666.

[10] $15,291.67 per month x 4 months = $61,166.68

1. I am satisfied that Mr Seaver’s fringe benefits should be included in the assessment of his income for child support purposes.  If Mr Seaver’s reportable fringe benefits are considered, I was satisfied that Mr Seaver’s income and financial resources for the current financial year are in the order of $290,590.[11]

   [11] $216,666 + $73,924 = $290,590

2. During the hearing, Mr Seaver disputed that his current income was in the order of $290,590.  However, Mr Seaver has not complied fully with my directions issued on 3 February 2021 in relation to providing information about his gross income and fringe benefits for the 2019-20 financial year.  As a result, I concluded that Mr Seaver has not made full and frank disclosure of his financial affairs and assets.  According to principles enunciated in the case of Humphries & Barry (SSAT Appeal) [2008] FMCAfam 409, I should not therefore be unduly cautious of making findings unfavourable to Mr Seaver. I therefore find that Mr Seaver’s current income is $290,590 and it is likely that his 2019-20 adjusted taxable income, had his estimate election not been made, would be $290,590.

3. The administrative assessments of child support are based upon Mr Seaver’s estimated incomes of $170,492 as at 18 November 2019, and $170,517 as at 1 July 2020.  I have found that Mr Seaver’s income, property and financial resources are better represented by the following amounts:

   ·      From 18 November 2019, $254,965 per annum;

   ·      From 1 March 2020, $251,346 per annum; and

   ·      From 1 February 2021, $290,590 per annum.

4. Under the administrative assessment of child support, Mr Seaver’s child support liability is in the order of $40,000 per annum as at 18 November 2019, reducing to approximately $35,000 per annum on the birth of his dependent child [in] November 2019.  If the amounts above were used instead of Mr Seaver’s estimated incomes, Mr Seaver’s child support liability would be in the order of $49,200 to $51,717 per annum.  These amounts are essentially the maximum amount of child support payable for three children of mixed ages.[12] 

   [12] See & & >

   I was satisfied that Mr Seaver has income, property and financial resources that render the administrative assessments of child support, which are based upon his estimates of his income, unjust and inequitable. 

5. I found that Mr Seaver’s estimates of his income, that apply in the administrative assessment, are disingenuous and were not grounded in a change in his circumstances that resulted in a reduction in the renumeration he receives from his employment.  In my view, Mr Seaver’s estimates are an attempt by him to manipulate the child support assessment to exclude his fringe benefits and to give a child support liability that he considers he should be paying.  I was satisfied that Mr Seaver’s actions gives rise to special circumstances in this case.

6. Therefore, the ground for departure set out in subparagraph 117(2)(c)(ia) of the Act is established in respect of Mr Seaver’s circumstances.

Just and equitable

1. The requirement to consider whether a departure would be just and equitable directs that my attention is turned to what is fair to the parents and their children. Regard must be had to a variety of factors, set out in subsection 117(4) of the Act, such as the needs of the children, the parents’ commitments and any hardships that would be caused by departing, or not departing, from the statutory formula.

The children

1. Child Support records the children as being in Ms Corey’s sole care.  There is no evidence that the children themselves have any income, property, financial resources or earning capacity that are relevant to my consideration.

2. [Child 1] attends a private school; however I was satisfied that this does not constitute her being educated in a manner that was expected by both Mr Seaver and Ms Corey.  There is evidence that [Child 3] has been diagnosed with attention deficit hyperactivity disorder and an autism spectrum disorder.  However, there is no evidence that Ms Corey is currently incurring any additional costs in caring for [Child 3] as a result of these disorders.

3. Under the administrative assessments of child support that have applied in this case the costs of the children used in the statutory formula are approximately $35,000 per annum.

Mr Seaver

1. The circumstances surrounding Mr Seaver’s income, property and financial resources have been discussed earlier in these reasons. I was satisfied that Mr Seaver’s income, property and financial resources are adequately represented by the following amounts:

   ·      From 18 November 2019, $254,965 per annum;

   ·      From 1 March 2020, $251,346 per annum; and

   ·      From 1 February 2021, $290,590 per annum.

2. I have found that Mr Seaver does not have an underutilised earning capacity relevant to my consideration.

3. I was satisfied that Mr Seaver’s duty to support the child born [in] November 2019 is adequately reflected by the relevant dependent amounts that apply under the statutory formula. 

4. Under the administrative assessment of child support, Mr Seaver had the benefit of a self-support amount of approximately $25,000 to $26,000 per annum. I identified no evidence to persuade me that Mr Seaver’s necessary commitments to support himself are not adequately represented by this amount.

5. Mr Seaver submitted that if I were to make a departure determination, he would be caused financial hardship.  I noted that Mr Seaver’s bank statements indicate that he has managed to accommodate the current liability, that results from the decision I am reviewing, of approximately $50,000 per annum without incurring debt or drawing down on his savings. 

6. I was not persuaded Mr Seaver would be caused undue hardship by any departure determination I am contemplating.

Ms Corey

1. Under the administrative assessment of child support, Ms Corey’s adjusted taxable income is a reconciled estimate, as at 18 November 2019, of $7,020 and from 1 July 2020, her estimated income of $0. 

2. Ms Corey is not in employment and I was unable to identify any evidence that she has any income, property and financial resources that would render the administrative assessment, based upon Ms Corey’s adjusted taxable income unjust and inequitable.

3. I was satisfied that Ms Corey’s income, property and financial resources are adequately represented by her adjusted taxable incomes that apply in the statutory formula.

4. I have found that Ms Corey does not have an underutilised earning capacity relevant to my consideration.

5. I was satisfied that Ms Corey does not have a duty to support any other person or child, other than [Child 1], [Child 2] and [Child 3] who are in her sole care.

6. Under the administrative assessment of child support, Ms Corey had the benefit of a self-support amount of approximately $25,000 to $26,000 per annum. I identified no evidence to persuade me that Ms Corey’s necessary commitments to support herself are not adequately represented by these amounts.

7. Ms Corey submitted that were the child support assessment to revert to the administratively assessed amount, she would be caused financial hardship. 

Conclusion

1. Having considered those matters set out in subsection 117(4) of the Act, I was satisfied that it would be just and equitable to make a departure determination.

Otherwise proper

1. The requirement to consider whether a departure would be otherwise proper, is set out in subsection 117(5) of the Act, which directs my attention to what is fair to the community. It is necessary to consider the effect, if any, that a departure from the administrative assessment would have on entitlements to income tested pensions, allowances or benefits. Parents, rather than the community, have the primary duty to maintain their children.

2. Ms Corey is not currently receiving family tax benefit and I was satisfied that any departure determination I might make will not impact on the costs being born by the community. 

3. I was consequently satisfied that it is otherwise proper to make a departure determination in this case.

Conclusion

1. Section 4 of the Act sets out the objectives of the Act. These objectives include:

   ·      Parents of a child have a primary duty to maintain that child;

   ·      That duty has a priority over all commitments of the parent other than commitments necessary for self-support;

   ·      The level of financial support to be provided by parents to their children should be determined in accordance with the legislatively fixed standards; and

   ·      The level of financial support is to be determined according to the capacity to provide financial support and noting that parents with a like capacity to provide financial support should provide like amounts.

2. I have found that there is a ground for departure in this case, and it would be just and equitable and otherwise proper for me to make a departure determination. Section 98S of the Act describes the determinations that I may make if a decision is made to depart from the administrative assessment of child support.

3. I formed the view that I should make departure determinations that replace Mr Seaver’s estimates of his income with amounts more commensurate with his actual income, property and financial resources.  I decided to set Mr Seaver’s adjusted taxable income to be the following:

   ·      From 18 November 2019, $254,965 per annum;

   ·      From 1 March 2020, $251,346 per annum; and

   ·      From 1 February 2021, $290,590 per annum.

   I decided that the amount of $290,590 should apply until 30 June 2021, the day before Mr Seaver’s current estimate election lapses were no departure determination made.

4. I estimated that such a departure determination would result in Mr Seaver being liable to pay child support of approximately $49,200 per annum from 18 November 2019, approximately $50,255 per annum from 1 March 2020 and approximately $51,717 from 1 February 2021.

5. I was satisfied that my decision would not result in Mr Seaver suffering undue financial hardship and is fair to both parents, Mr Seaver’s dependent child and the three children to whom the child support assessment relates.

6. Accordingly, I concluded that the appropriate departure determination to apply in this case, pursuant to paragraph 98S(1)(g) of the Act, is such that:

   ·      For the period 18 November 2019 to 29 February 2020, the adjusted taxable income of Mr Seaver is varied to be $254,965 per annum;

   ·      For the period 1 March 2020 to 31 January 2021, the adjusted taxable income of Mr Seaver is varied to be $251,346; and

   ·      For the period 1 February 2021 to 30 June 2021, the adjusted taxable income of Mr Seaver is varied to be $290,590 per annum.

7. Therefore, and for these reasons, I set aside the decision under review and substituted my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that there is to be a determination to depart from the administrative assessment of child support, such that:

• From 18 November 2019 to 29 February 2020, the adjusted taxable income of Mr Seaver is varied to be $254,965 per annum;

• From 1 March 2020 to 31 January 2021, the adjusted taxable income of Mr Seaver is varied to be $251,346 per annum; and

• From 1 February 2021 to 30 June 2021, the adjusted taxable income of Mr Seaver is varied to be $290,590 per annum.