Sherry and Sherry (Child support)

[2018] AATA 2405

Sherry and Sherry (Child support) [2018] AATA 2405 (14 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/PC012579

APPLICANT:  Mr Sherry

OTHER PARTIES:  Child Support Registrar

Mrs Sherry

TRIBUNAL:Member S Hoffman

DECISION DATE:  14 May 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

·         Mrs Sherry’s adjusted taxable income is varied to $150,000 for the period 1 January 2017 to 31 December 2019;

·         The rate of child support payable by Mr Sherry is increased by $24,980 a year for the period 1 July 2017 to 31 December 2017;

·         The rate of child support payable by Mr Sherry is increased by $14,934 a year for the period 1 January 2018 to 31 December 2018; and

·         The rate of child support payable by Mr Sherry is increased by $15,590 a year for the period 1 January 2019 to 31 December 2019.

CATCHWORDS

Child support - Departure determination - Income and financial resources of parents - Business income - Costs of education - Whether there was mutual intention regarding manner of education - A ground for departure established - 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 child support assessment in respect of two children, born February 2002 and May 2004. The case started on 10 April 2012 with the Department of Human Services – Child Support (the Department) responsible for collecting child support from that date. The mother was providing 100% care of the children and the father was the parent liable to pay child support.  

2. On 9 March 2017 the mother lodged an application for a change of assessment with the Department and on 7 May 2017, the father also lodged an application.

3. The administrative assessment in place on 9 March 2017 was that the father’s annual child support liability was $5,586, based on the parents’ 2015/16 adjusted taxable incomes of $49,390 for the father and $50,132 for the mother.   

4. On 22 June 2017 a senior case officer from the Department decided to vary the mother’s adjusted taxable income to $150,000 for the period 1 January 2017 to 31 December 2019, and also decided that the annual rate of child support payable by the father was increased as follows:

   From 1 July 2017 to 31 December 2017, by $24,980.

   From 1 January 2018 to 31 December 2018, by $13,114.

   From 1 January 2019 to 31 December 2019, by $13,770.[1]

   [1] The original decision stated that the increase was to be applied for the period from 1 July 2019 to 31 December 2019 but it is apparent from the details of the decision that the increase was to apply for the calendar year.

5. On 4 July 2017 the father lodged an objection to the decision made 22 June 2017. On 1 September 2017 an objections officer from the Department disallowed the objection which means there was no change to the decision of 22 June 2017.

6. On 26 September 2017 the father lodged an application for review with this tribunal. The matter was heard on 21 March 2018. The parents attended via conference telephone and gave sworn evidence. The mother’s representative, her lawyer, also attended.

7. The tribunal had before it documents provided by the Department (numbered 1 to 372); by the father (numbered A1 to A20); and by the mother (numbered B1 to B12). Copies of these documents were sent to the parties before the hearing.

8. In a submission received two weeks before the hearing, the mother sought a contribution from the father in relation to the special needs of one of the children. This had not been raised before during the change of assessment process. Also the father said he had not received a copy of the mother’s submissions. As more evidence was required in relation to the special needs of one of the children and the father had not read the mother’s submissions, the tribunal deferred making its decision to allow two weeks for the parties to make further submissions, and a further two weeks for the parties to send in their response to the post-hearing submission of the other party.

9. After the parties’ submissions had been exchanged for comment, the mother submitted a further three pages. She stated she had become confused with the paperwork and duplicated some papers and omitted to send others. The tribunal sent these to the father to comment.

10. The father’s post-hearing submission and responses were numbered A21 to A56, and the mother’s post-hearing submission and response were numbered B13 to B188. The mother sent in a further response numbered B189 to B193 which did not raise anything new of relevance to the tribunal’s decision. The tribunal made its decision on 14 May 2018.

ISSUES

1. 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:

1. A ground is established; and

2. 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

3. It would be otherwise proper to make a particular determination.

1. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.

2. 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?

1. Subparagraph 117(2)(b)(ii) of the Act provides that there is a ground for departure where, in the special circumstances of the case, the costs of maintaining the children are significantly affected because the children are being educated in the manner that was expected by their parents.

2. The mother lodged her change of assessment application as she was seeking a 50% contribution from the father towards the cost of school fees which, for 2017, were $14,000 for the older child and $12,200 for the younger child, less a sibling discount of 10%. This means the 2017 school fees were $24,980.

3. The father disputed that the children are being educated in the manner expected by both parents and also argued that he cannot afford to pay 50% of school fees. Before the hearing the father had offered to pay $5,000 towards the cost of school fees and at the hearing he increased his offer to $7,500.

4. The issue of school fees was considered in a decision of the Social Security Appeals Tribunal (SSAT) made 26 March 2014.[2] According to that decision, the children were attending the same private school they attended before the parents separated and both parents signed the acceptance and agreement forms in relation to the older child’s initial enrolment in 2006.

   [2] Prior to the amalgamation of various tribunals from 1 July 2015, the SSAT was the body that reviewed decisions made by objections officers from the Department.

5. The children are currently attending the same school they were attending in 2014 and before the parents separated.

6. The SSAT decision recorded that the father said he no longer agreed with the children attending that school as he could not afford it. He did not at that time argue that the children were not being educated in the manner expected by both parents. That decision also recorded a notation to consent orders of the Family Court made 6 July 2012 as follows:

   C. NOTED that the parents agree that it is currently appropriate for the children to attend … school and they shall jointly contribute to the school fees.

7. At this tribunal’s hearing, the father referred to more recent consent orders, dated 29 March 2017, that begin:

   BY CONSENT IT IS ORDERED

   1.    That all previous Orders and Notations in relation to parenting herein be and hereby discharged.

8. The issue of school fees has been considered in previous departmental decisions as well as the SSAT decision. The father said that the previous decisions requiring him to contribute to school fees were based on the earlier orders, which no longer applied. The tribunal disagrees with this submission for the following reason.

9. In the previous SSAT decision, that tribunal found at paragraphs 26 and 27 that both children were ‘being educated at a private school and that both parents intended that they were to be educated in that manner’ and that ‘the children are attending a private school as expected by the parents’ for the reasons referred to above; these being that the children were attending the same private school they attended before the parents separated and both parents signed the acceptance and agreement forms in relation to the older child’s initial enrolment in 2006.

10. The SSAT decision did not refer to the consent orders until paragraph 31. That is, the finding by that tribunal that there was joint expectation on the part of the parents that the children attend a private was not premised on the consent orders of 6 July 2012.

11. The mother said that the more recent consent orders were just to do with parenting issues. Her lawyer said that the main purpose was that the mother was applying for sole parental responsibility. The mother said these consent orders had nothing to do with child support or school fees. The father agreed that child support and school fees were not discussed in relation to the consent orders of 29 March 2017 but contended that the reference to all previous orders and notations being discharged meant that he was no longer required to contribute to school fees.

12. The tribunal observes that the notation quoted above referred to an agreement between the parents rather than being a court-ordered requirement that the father contribute to the cost of school fees. In any event, in the absence of court orders that address child support payments and school fees, the tribunal considers it is obliged to look at and apply the relevant legislation which is subparagraph 117(2)(b)(ii) of the Act, referred to above.

13. For reasons already set out, the tribunal is satisfied that both parents expected the children to be educated privately. 

14. The administrative assessment in place on 9 March 2017, when the mother lodged her change of assessment application, was that the father’s annual child support liability was $5,586, based on the parents’ 2015/16 adjusted taxable incomes of $49,390 for the father and $50,132 for the mother. Given the amount of school fees, the tribunal is satisfied that in the special circumstances of the case, the costs of maintaining the children are significantly affected because they are being educated in the manner that was expected by their parents. The tribunal determines therefore that a ground for departure from the administrative assessment has been established, pursuant to subparagraph 117(2)(b)(ii) of the Act.

15. The tribunal will return to the father’s capacity to contribute to the cost of private education later in these Reasons for Decision.  

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

1. 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 & Meares [2008] FMCAfam 886.

2. 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. 

Income, property and financial resources – the father

1. In his Statement of Financial Circumstances (SFC) dated 16 October 2017 the father wrote that his total income was $961 a week ($49,972 a year), his personal expenditure plus household expenses related just to him, including child support of $582 a week, amounted to $1,313 a week ($68,276 a year). He stated that his de facto’s weekly income was $1,603.52 ($83,383 a year).

2. The father does not own any property. He recorded assets of $2,115 in his bank account, a 2007 Holden Astra worth $6,500, household contents worth $4,500 and superannuation of $44,020. He recorded debts of $13,535 to the Australia Taxation Office (ATO), a personal loan of $7,500 and that he owed his partner $1,000. A letter from the ATO dated 16 May 2017 stated that the father owed $18,170 in tax and was paying it off in instalments of $1,500 a month, with the last payment due in May 2018.

3. In his application for a change of assessment made to the Department dated 2 May 2017 the father wrote that at that time he owed $5,494 in relation to a private loan to purchase the Holden Astra.

4. The household expenses listed by the father as being incurred on his behalf totalled $490 a week and were made up of $50 for children’s activities, $100 in education expenses, $40 in pharmaceutical expenses and $300 a week that he pays to his partner as per their agreement for board, food and utilities.

5. The father is employed by a company owned by his partner, and of which she is the director. The father’s gross income was $50,000 in 2013/14, 2014/15, 2015/16 and 2016/17. His taxable income was $48,615 in 2013/14, $49,135 in 2014/15, $49,390 in 2015/16 and $48,426 in 2016/17.

6. The company was first registered in 2012 and was registered for GST from 1 July 2013. It provides [a particular service] and since about 2015 has been registered as a [service] provider with the federal government. According to its website it operates in [various Australian states]. The father said that the only physical office was in [a particular Australian state] and the others are virtual offices.

7. The profit of the business for 2015/16 was $648,531 and its taxable income was $655,973. The father’s position has been that he derives no benefit from the business apart from his pay as it his partner’s business.

8. His partner is a [professional] and works as [a particular occupation] on a part-time basis. They have a three year old son. The father said that he worked for the business one or two days a week doing [various duties]. In his SFC the father gave his job title as general manager. At hearing he said his role was limited to [particular duties]. He also said that he [details of duties removed].

9. The father said that in August 2017 he registered an ABN in his name as a sole trader providing [particular] services. He said that he has earned about $1,500 since then through that business. He is also registered as [separate type of service provider], and said he renews his registration but has never had a client. His said that he has a non-commercial licence that allows him to [provide service] but not to charge for it.

10. The father has contended through the change of assessment process that he cares for his son while his partner drives the business as its managing director. In a letter dated 2 May 2017 to the Department, the father wrote that he was the sole primary carer for his son, and that he works flexible hours from home.

11. The tribunal asked the father about his partner’s LinkedIn profile which places greater emphasis on her [professional career] rather than the [business]. The father said her family has been involved in [that particular business area] for a long time.

12. The father also said that the [services provided] had a [professional focus] which linked to his partner’s background. The website for the business shows that it offers [particular services] as well as those previously mentioned.

13. There have been previous change of assessment decisions made in 2013, 2014 and 2015. These show that the father has a background in running businesses. His LinkedIn account shows that he acquired a [a particular] degree in 1994 and a [subsequent] degree in 1996. He said that he ran a [business] selling [particular goods] in [a particular Australian state] which he had to sell when he moved to [another Australian state] as he could not operate it from [the state to which he had moved]. He was also involved in a [services based] business some six or more years ago that he could not continue with when he [moved]. In a post-hearing submission, the father wrote that he was seeking to complete a Masters [degree] in the future when he can afford the course costs.

14. The objections officer, in his decision of 1 September 2017, observed that the father had received the same gross income of $50,000 from his employer in 2013/14, 2014/15 and 2015/16, that his child was born in January 2015 and that it appeared anomalous that he received the same pay before the birth of his child when he had inferred that it was his child-minding duties that prevented him from undertaking more work and earning more than $50,000 a year after the child was born.

15. The father lives in a home owned by his partner. According to real estate information it was purchased in 2014 for over $2 million. As noted above, in his SFC the father wrote that he pays $300 a week to his partner which is the agreed contribution for board, food and utilities. The objections officer noted that he found it incongruous that the father would pay rent to his partner given he is looking after their child. He wrote that in his view, given the father’s relationship to the owner of the business for which he worked, on the balance of probabilities the father derives a significant financial benefit from that association.

16. In a decision made 17 August 2015, a departmental officer observed that the father was described as the current director of a business involved in [the provision of particular services], although not the registered director, secretary or shareholder of the company.  That decision-maker recorded a concern that the father was employed in his partner’s company and was portrayed to be the director of that company, and that this was not an arm’s length arrangement. She considered that the father exerted considerable control over the income paid to him.

17. The tribunal put these anomalies and concerns to the father. He remained insistent that the [business] was owned and run by his partner, and that he worked in her business part-time and was paid accordingly. He said that they had a living arrangement between them, which was an agreement that defines their respective responsibilities.

18. After the hearing the father submitted a letter from his partner dated 29 March 2018 in which she stated that she works 40 to 45 hours a week at the [business]. She outlined her role and responsibilities within the business. She stated that her family, including her father and grandfather, have operated in [the same particular business area] for over four decades.

19. The father also submitted various documents from state and federal bodies in relation to the [business] and the [services] it offers, all addressed to his partner.

20. A letter from chartered accountants confirmed that the father’s partner is the director and shareholder of the business. This letter also states that she manages and controls the business, that instructions related to the business come from her, and that she is the person who signs off on company documentation. The letter emphasises that the accounting firm has not received instructions relating to the company from any other person.

1. A letter from a contractor dated 23 March 2018 stated that the contractor has worked with the father’s partner for six years, and is the person responsible for the office computers, general admissions made via the web portal and other tasks. The contractor stated that the father’s partner is the person to whom the contractor reports, and that she manages staff and operations on a daily basis.

2. In light of the foregoing, the tribunal accepts the father’s contention that his partner controls the business on a day-to-day basis. However it also notes the father’s business qualifications and his background in business. Further he has had very similar taxable incomes over a number of years despite changes in his circumstances, in particular following the birth of their son and the father’s claim that he is the primary sole carer of this child which impacts the number of hours he can work. The tribunal considers it more likely than not that the father plays a more significant role in the [business] than he has acknowledged, and therefore has greater actual control in the running of the business, and access to financial resources over and above his salary of $50,000 a year.

3. However as the mother said that she was not seeking for the father to be assessed for child support on a higher taxable income, only that he contribute to the children’s school fees and special needs, the tribunal will not vary the father’s income for child support purposes from his taxable income. It is satisfied that the father has the capacity to contribute to the children’s school fees.

4. The father said that he is up to date with his child support payments as he borrowed $3,500 from his mother to pay them. He said that he is not repaying that at the moment but hopes to at a later date.

5. There was some discussion around whether the father’s partner works one or more mornings a week. As mentioned at the hearing the tribunal checked this. According to the online booking system for the [professional practice] at which she works, the partner’s availability for appointments is on Thursday mornings which is what the father said was the case.

Income, property and financial resources – the mother

1. The mother runs her own business in [a particular Australian state] which she done for about 16 years. It has [a number of] outlets. Her taxable income for 2014/15 was $55,393, for 2015/16 was $50,132 and for 2016/17 was $18,042. The mother has acknowledged that she receives benefits from her business not reflected in her taxable income. During the change of assessment process she declared her net income from her company including the value of personal benefits to be approximately $104,000. The objections officer determined that was equivalent to a pre-tax income of $150,000 a year. The mother said that although she thought this was a bit high, she was not seeking for it to be changed as what she wanted was the father to pay half of the school fees.

2. The father queried whether the mother’s income for child support purposes should be increased and in this regard referred to work she had done on her home. The father claimed that the mother’s partner lived with her. She said that was not the case, as he had his own home. The father queried how the mother paid for the work done on her home which was a new driveway (that is, re-concreted) and the installation of a swimming pool. The mother said this was paid for by her partner. The evidence records that her partner owns a [company]. The mother said that she thought the cost of the work, which was finished in September or October 2017, was about $100,000. 

3. In a post-hearing submission, the father stated that the value of the improvement to the mother’s property would exceed $150,000 to $200,000. The tribunal observes that while this may increase the value of the property, it is not a financial resource that the mother can access to pay for the various costs associated with raising the children.

4. The mother’s SFC dated 16 October 2017 records income of $3,002 a week and outgoings of $3,455 a week. The mother said she covers the shortfall with her credit card.

5. The mother valued her home at $1.8 million and stated that she owes $1,095,000 for the property. She recorded $2,300 in her bank account, household contents worth $60,000, and superannuation of $45,000. She wrote that she owed $28,000 on her credit cards, and owes $80,000 for a business loan. Based on his post-hearing submission the father is aware of this loan as he stated it arose before he met the mother.

6. The mother said that the 2016/17 tax returns for her business had not been done. Her taxable income for 2016/17 was $18,042 and she was agreeable to an income of $150,000 being used for her for child support purposes.  Based on the evidence before it, the tribunal considers that $150,000 is the appropriate income figure for the mother for child support purposes.

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

1. 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.

2. The father’s taxable income has been constant for a few years. The father said that he works part-time as he is caring for his and his partner’s child.

3. The mother’s taxable income dropped from $50,132 for 2015/16 to $18,042 for 2016/17. Because of how the child support formula works and as she is the parent who provides 100% of the children’s care, the reduction in the mother’s taxable income will have a negligible effect (about $50 a year) on the rate of child support. Also the mother has acknowledged she receives benefits from her business not reflected in her taxable income, and her income for child support purposes has been varied to $150,000.

4. The tribunal is satisfied that it is not open to it to make an earning capacity determination in respect of either parent and need not consider the application of subsection 117(7B) of the Act in relation to either parent any further.

5. 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). As already noted the father has a dependent child and allowance is made for him in the child support formula.  

Costs related to the children

1. 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).

2. The tribunal has already discussed the cost of the children’s education in 2017. The departmental decisions assumed an increase in school fees of 5% a year for each of 2018 and 2019 from the previous year. The tribunal has checked the school’s website and calculated the children’s school fees for 2018, such that 50% of the fees for both children, allowing the 10% sibling discount, is $13,680 for 2018. This is more than the amount of $13,114 which was the figure used in the departmental decisions and therefore a notional saving of $566 for the father.

3. The objections officer decided that the father was to make a contribution to school fees of $13,770 for 2019 which, given the 2018 figure, might be too low. However given that the tribunal’s determination includes a contribution by the father to orthodontic costs (see below) as well as school fees, the tribunal will not increase his contributions to school fees beyond those specified in the departmental decisions. 

4. The mother has also sought a contribution from the father towards the cost of braces for the younger child. She had submitted a quote for the cost which excluded any rebate she might get from her private health insurer. She agreed to submit further evidence after the hearing about the payment plan she has arranged, any rebate she might get and an explanation from the orthodontist as to why the work is needed as opposed to it being done for just cosmetic purposes.

5. The mother advised that she was able to claim a rebate of $1,200 from her health fund, meaning her out of pocket expenses for the orthodontic work will cost $7,280. She also provided a report from the orthodontist about why the work was needed.

6. In his post-hearing submission, the father stated his willingness to pay half of the orthodontic costs less rebates or Medicare contributions if his contribution could be spread out over 18 to 24 months. This is reasonable given the mother has arranged a payment plan that extends for approximately 27 months with $1,980 paid at the beginning of the treatment and the remainder paid in instalments of $260 a month.

7. The first payment was made 5 March 2018. The tribunal notes that if the contribution to orthodontic costs was aligned with the contribution to school fees, such that it started on 1 January 2018 and ended on 31 December 2019 (24 months), the father’s 50% contribution is $1,820 a year.

8. This means that the increase to the annual rate of child support in respect of school fees and orthodontic costs is $14,934 ($13,114 + $1,820) for 2018 and $15,590 ($13,770 + $1,820) for 2019.

9. Referring to her SFC, the mother did not apportion her weekly household expenses between her and the children, and therefore the tribunal has no further information regarding the costs of the children.

Hardship

1. The tribunal is required to consider any hardship its determination might cause and is guided by Gyselman and Gyselman[4] 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.

   [4] [1991] FamCA 93.

2. Both parents have expressed difficulty in managing their financial situations. The father told the Department that the assessment was too much for him to afford and he could not pay it, although he has kept up with his child support payments. He did say that he borrowed from his mother to do this. As noted the tribunal is not satisfied that the father’s submissions about his financial situation reflect his actual situation and the financial resources to which he has access. With regards to his overall financial security and the stability of his accommodation, the father lives with his de facto partner who owns the home they live in.

3. The mother has a large mortgage on a property she valued at $1.8 million. Through her business she operates [a number of] outlets. Therefore she has resources available to her to manage her financial situation.

4. The tribunal does not consider that either party will experience financial hardship through its decision which represents an increase to the child support liability compared to the administrative assessment as referred to under Issue 1.   

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. The father said that it was unfair that his partner was brought into the consideration of child support when the mother’s partner was treated differently. The tribunal considers these to be very different situations in that the father’s only employment from which he derives an income of any significance is with a business owned by his partner.[5] The mother’s primary source of income is from her business interests.

   [5] In addition to being employed, the father said that since August 2017 he has earned about $1,500 operating as a sole trader providing website optimisation services.

3. In his post-hearing submission the father stated that the mother works in some capacity at her partner’s business, and that this needs to be investigated. The tribunal undertakes an administrative review and not a forensic examination of the parties’ respective financial situations. It is required to conduct a review that is proportionate to the importance and complexity of the matter.[6] The main focus of this review is about the father making a contribution to the children’s school fees and special needs. Also in his post-hearing submission the father made a number of comments about the detail of the mother’s SFC and other matters which are not relevant to the issues the tribunal is required to determine.

   [6] Section 2A of the Administrative Appeals Tribunal Act 1975.

4. The mother has accepted the rate of child support is assessed on an income for her of $150,000 which is significantly higher than her taxable income.

5. The mother lodged her change of assessment application on 9 March 2017. Her income was increased by the departmental decisions from 1 January 2017 and the father was required to contribute to the cost of school fees from 1 July 2017. As this is a reasonable approach and neither party made submissions for different dates to be used, the tribunal is satisfied that departing from the administrative assessment from 1 January 2017, consistent with the departmental decisions, is appropriate in this case.

6. The tribunal’s determination ends 31 December 2019 to give the parties some certainty into the future particularly in relation to school fees. It is open to either parent to lodge a further change of assessment application 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, received by the party caring for a child or children, may be affected by the level of child support.

2. The mother does not receive family tax benefit. 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 sets aside the decision under review and, in substitution, decides as follows:

·         The mother’s adjusted taxable income is varied to $150,000 for the period 1 January 2017 to 31 December 2019;

·         The rate of child support payable by the father is increased by $24,980 a year for the period 1 July 2017 to 31 December 2017;

·         The rate of child support payable by the father is increased by $14,934 a year for the period 1 January 2018 to 31 December 2018; and

·         The rate of child support payable by the father is increased by $15,590 a year for the period 1 January 2019 to 31 December 2019.