Thimbleby and Thimbleby (Child support)

[2021] AATA 3854

Thimbleby and Thimbleby (Child support) [2021] AATA 3854 (24 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020966

APPLICANT:  Ms Thimbleby

OTHER PARTIES:  Child Support Registrar

Mr Thimbleby

TRIBUNAL:Member M Douglas

DECISION DATE:  24 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the annual rate of child support payable by Mr Thimbleby be varied to $446 for the period 1 July 2021 to 31 January 2022.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – business income – low capacity to pay child support – 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. The parties to this proceeding are Ms Thimbleby, Mr Thimbleby and the Child Support Registrar.  The Registrar acts through a government department known as Services Australia - Child Support and hereafter the Tribunal’s reference to Services Australia is to be taken as a reference to the Registrar.

2. Mr Thimbleby and Ms Thimbleby are the parents of [Child 1].  Services Australia has issued administrative assessments of child support for [Child 1] since 24 July 2009 that have obligated Mr Thimbleby to pay child support to Ms Thimbleby for him.

3. On 16 October 2020 Services Australia received an application from Mr Thimbleby for a determination to be made under Part 6A of the Child Support (Assessment) Act 1999 (the Act) to depart from the provisions of the Act relating to the assessment of child support for [Child 1].  Services Australia refers to such an application as a “change of assessment application” and the departure determinations it makes in response to such an application as a “change of assessment decision”. The Tribunal shall adopt those terms in these Reasons.

4. The assessment in force at the time Mr Thimbleby made his change of assessment application obligated him to pay child support for [Child 1] at an annual rate of $5,886.  That assessment was calculated in accordance with a change of assessment decision Services Australia made on 14 October 2018. The decision Services Australia made on 14 October 2018 was in response to an objection Mr Thimbleby had made to an earlier change of assessment decision dated 5 September 2018.  

5. Services Australia made two changes to the assessment by its decision of 14 October 2018.  One related to Ms Thimbleby’s adjusted taxable income, and the effect of that change expired on 31 August 2018 and has no relevance to the present matter.  The second change was to Mr Thimbleby’s adjusted taxable income which was varied to $74,350 for the period 1 June 2018 to 31 December 2022, with further variations to be made on 1 July each year within that period such that Mr Thimbleby’s adjusted taxable income would be increased by the CPI national weighted average for the preceding March.  The upshot of the decision was that when Mr Thimbleby made his change of assessment application that Services Australia received on 16 October 2020, his adjusted taxable income was $76,959. 

6. His purpose in making his change of assessment application was, essentially, to have his adjusted taxable income varied to a lower amount.  He asserted in his application that employment he held with [Employer 1] had been terminated on 27 September 2020. 

7. On 11 November 2020 Services Australia refused to change the assessment.  Mr Thimbleby then lodged an objection on 29 November 2020 to that refusal decision.  On 15 February 2021 Services Australia disallowed his objection.  

8. Ms Thimbleby then applied to the Tribunal for a review of Services Australia’s decision disallowing Mr Thimbleby’s objection.  The Tribunal held a directions hearing with Mr Thimbleby and Ms Thimbleby on 15 June 2020 with respect to her application. At that time the Tribunal scheduled the hearing of Ms Thimbleby’s application for 27 July 2021.  The Tribunal also directed that by 6 July 2021 Ms Thimbleby and Mr Thimbleby file various documents with the Tribunal.  Both complied with that direction. 

9. The Tribunal further directed that if Mr Thimbleby or Ms Thimbleby wished to bring any other evidence to the Tribunal that they do so by 6 July 2021 and that if they wished to make written submissions that they make those submissions by 6 July 2021.  The Tribunal also gave Mr Thimbleby permission for his solicitor to make submissions on his behalf at the hearing.

10. Mr Thimbleby’s solicitor made written submissions on Mr Thimbleby’s behalf which were provided to the Tribunal with the documents Mr Thimbleby filed in compliance with the Tribunal’s direction.

11. Shortly before 27 July 2021 Mr Thimbleby’s solicitor notified the Tribunal that he had become ill and would be unable to appear at the hearing scheduled for 27 July 2021 to make submissions on behalf of Mr Thimbleby. He sought that the hearing be rescheduled. The Tribunal acceded to his request, against Ms Thimbleby’s opposition, rescheduling the hearing to 24 August 2021. 

12. On 23 August 2021 at 4.31pm Mr Thimbleby’s solicitor sent by email to the Tribunal further documents that Mr Thimbleby wanted the Tribunal to receive into evidence and further written submissions that Mr Thimbleby’s solicitor wished to make on Mr Thimbleby’s behalf.  No explanation was provided for the lateness in forwarding this material to the Tribunal other than a statement by Mr Thimbleby’s solicitor that “there has been a change in circumstances which has been highlighted in the further outline of submissions”. 

13. One of the reasons Ms Thimbleby advanced when opposing the Tribunal rescheduling the hearing to 24 August 2021, was that she had arranged to take time off from her work on 27 July 2021 so as to participate in the hearing scheduled for that day.  Were the Tribunal to receive into evidence the further documents Mr Thimbleby’s solicitor forwarded to the Tribunal on 23 August 2021 and were it to consider the further written submissions Mr Thimbleby’s solicitor also forwarded that day, there would need to be a further rescheduling of the hearing in order to ensure Ms Thimbleby could receive and review that material before the hearing.  Given that, and given further that:

    a.    Ms Thimbleby had previously been inconvenienced by the hearing having been earlier rescheduled;

    b.    The lack of any substantive explanation provided for filing the material well outside the time by which the Tribunal had directed that such material be filed;

    c.     Mr Thimbleby’s solicitor would be able to make oral submissions on Mr Thimbleby’s behalf at the hearing on 24 August 2021; and

    d.    An objective of the Tribunal when carrying out its function is to provide a mechanism of review that is fair, just, economical, informal and quick;

    the Tribunal declined the tender of the further documents into evidence and decided not to receive the further written submissions Mr Thimbleby’s solicitor had made.

14. At the hearing on 24 August 2021 both Ms Thimbleby and Mr Thimbleby gave sworn oral evidence.  The documents Ms Thimbleby provided, in compliance with the Tribunal’s directions, were marked A1-91 and the documents Mr Thimbleby provided were marked B1- 55, which, as said, also included written submissions from Mr Thimbleby’s solicitor.  Ms Thimbleby also made submissions.  Mr Thimbleby’s solicitor made oral submissions on Mr Thimbleby’s behalf.  Services Australia also provided the Tribunal with the documents it had that related to its objection decision, which were numbered 1–300.  All of that material has been considered by the Tribunal.

RELEVANT LAW AND ISSUES

1. Part 5 of the Act contains the provisions by which Services Australia assesses the annual rate at which a liable parent is to pay child support to the carer entitled to child support. Broadly speaking, a formula is used that takes into account variables including each parent’s adjusted taxable income, the care they each provide for their child, whether they have other children to support and the costs to care for a child.

2. A parent liable to pay child support or the carer entitled to receive child support may, if special circumstances exist, apply to Services Australia under subsection 98B(1) of the Act for a determination to depart from the provisions of the Act relating to an assessment of child support.  As mentioned, Services Australia refers to such an application as a change of assessment application.

3. If the criteria of subsection 98C(1) are met, then one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to an administrative assessment of child support can be made. The criteria specified in subsection 98C(1) are, in substance, that one or more of the grounds for departure listed in subsection 117(2) of the Act is established and that is both just and equitable as regards the child, the liable parent, and the carer entitled to child support and it is otherwise proper to make a determination to depart from the provisions of the Act with respect to an assessment of child support.

CONSIDERATION

Is a ground for departure established?

1. In his change of assessment application Mr Thimbleby relied on the ground for departure provided in subparagraph 117(2)(c)(ia), which reads:

   that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:

   (ia) because of the income, property and financial resources of either parent.

2. Mr Thimbleby’s case is, in substance, that employment he had held for several years as a [Occupation 1] with [Employer 1] came to an end on 27 September 2020.  As a consequence of that, he did not thereafter have the income that Services Australia had determined to be his adjusted taxable income by the decision Services Australia made on 14 October 2018. Basically, he contended that with the loss of his employment the assessment of his child support obligation is now an unfair determination of the level of financial support he is required to provide for [Child 1]. 

3. Mr Thimbleby provided a copy of the employment separation certificate [Employer 1] issued to him upon the termination of his employment, and that confirms [Employer 1] terminated his employment.  The reason [Employer 1] specified in that form for the termination of Mr Thimbleby’s employment was shortage of work.

4. The Tribunal observes that as part of the process of making its change of assessment decision of 14 October 2018, Services Australia established that Mr Thimbleby was receiving large sums of “cash” from [Employer 1] that he was not declaring in the tax returns he lodged each year with the Australian Taxation Office (ATO).  At the hearing, Mr Thimbleby confirmed he had received income throughout his employment with [Employer 1] that he did not declare to the ATO.  Necessarily, therefore, the assessment of his child support obligation would in the period before he lost his employment work an unfairness to Ms Thimbleby and to [Child 1] were it to be based solely on his taxable income.  Part of the reasoning behind the decision of Service Australia of 14 October 2018 was to avoid the unfairness to Ms Thimbleby and [Child 1] from Mr Thimbleby not declaring all of his income to the ATO in his tax returns.

5. Mr Thimbleby’s evidence to the Tribunal was that since the termination of his employment with [Employer 1], he has worked only for [Company 1].  His wife is the director of that company.  Mr Thimbleby’s evidence was that his wife conducts a business through this company of managing two [businesses] for [a franchisor], one of which is situated at [Location 1] and the other at [Location 2]. 

6. Mr Thimbleby’s evidence was that around two weeks after the NSW Government imposed the recent COVID-19 restrictions across Sydney as a measure to control the contagion of the Delta variant, [Company 1] suspended its operations and that since then he has had no income.  He said that the company relied on traffic coming to the [business location], and that following the imposition of the restrictions there was “no point keeping the [businesses] open”.

7. Mr Thimbleby’s evidence was that his income from that company, prior to it suspending its operations, was $2,600 a month. He provided his payslip from the company for month ending 30 April 2021 to confirm that. 

8. Services Australia’s change of assessment decision of 14 October 2018 was also based, in part, on Services Australia concluding that Mr Thimbleby was likely to be managing the business of [Company 1].  In the process of investigating and considering the change of assessment application Services Australia received from Mr Thimbleby on 16 October 2020,  Services Australia established Mr Thimbleby’s mobile number was displayed as the contact number on the web pages that [the franchisor] published for its [services] at [Location 1] and [Location 2], being the [businesses] that [Company 1] managed.  Mr Thimbleby’s evidence to the Tribunal was that he fielded online enquiries and telephone calls relating to those [businesses], and that was the reason for his number being displayed.  He said his telephone number was used because there was no landline where the [businesses] were located, which was where his wife was stationed.  That does not, however, explain why his wife’s mobile number could not be used. His number had been used for this purpose from a time prior to the termination of his employment with [Employer 1]. 

9. Further, Services Australia established that Mr Thimbleby was the signatory of the account that the company holds with [Bank 1].  Mr Thimbleby’s evidence to the Tribunal revealed he had extensive knowledge of the various credits and debits to and from that account.  He was, for example, aware what payments were received into the account from [the franchisor], and what payments were made from the account to contractors and to employees.

10. Mr Thimbleby’s evidence was also that his wife recently gave birth to their third child.  He said that his wife was unwell during her pregnancy and required several hospitalisations.  He said that from April this year he did her work for the company.

11. Mr Thimbleby’s evidence was also that following the termination of his employment with [Employer 1], he enrolled in courses to qualify him for a [Occupation 2] licence.  He completed those courses online, and qualified for the licence in March this year, although the licence was not conferred by the relevant authority to him until a month later as he had to attend to various administrative steps the authority required.

12. Mr Thimbleby’s evidence was that he has not yet sought to obtain work with this licence.  The Tribunal understood from his evidence that his reasons for that were that he was working for [Company 1] and, due to the issue relating to his wife’s pregnancy, he also needed to care for her and their other children. 

13. Mr Thimbleby’s solicitor contended that, based on Mr Thimbleby’s evidence, Mr Thimbleby’s only relationship with [Company 1] is as an employee. 

14. There is an issue about the credibility of Mr Thimbleby.  That arises from the fact that Mr Thimbleby has, on his evidence, been untruthful in his declarations of income to the ATO.  Mr Thimbleby’s solicitor submitted to the effect that Mr Thimbleby’s evidence to the Tribunal is truthful because Mr Thimbleby has now had legal advice from him regarding his obligation to be truthful to government authorities regarding his income.  Mr Thimbleby’s solicitor also submitted to the effect that although Mr Thimbleby has been untruthful in the past in his declarations to government authorities, that does not mean that his sworn evidence to the Tribunal is untruthful.

15. Whilst Mr Thimbleby gave no evidence regarding what legal advice he has received about being truthful when declaring his income to government authorities or about giving truthful evidence to the Tribunal, the Tribunal infers from Mr Thimbleby’s solicitor’s submission that Mr Thimbleby’s solicitor has advised him regarding that. 

16. It is the case, consistent with Mr Thimbleby’s solicitor’s submission, that it does not follow from the fact that Mr Thimbleby was deceitful in the past regarding his declarations of income to the ATO, that his evidence to the Tribunal will also be untruthful.  However, notwithstanding that Mr Thimbleby has received legal advice to be truthful when giving evidence relating to his income, given his admission that he has been untruthful regarding his declarations of income to the ATO, which had the consequence of his having an artificially reduced child support obligation for [Child 1], the Tribunal considers it needs to treat his evidence with caution and assess it carefully in order to determine its honesty and reliability.

17. The Tribunal does not accept Mr Thimbleby’s evidence and his submission to the effect that his only relationship with [Company 1] is as an employee.  The evidence reveals that Mr Thimbleby:

    a.was fielding calls and online enquiries for the company, which indicates that he was the point of contact for the company;

    b.was a signatory to the company’s bank accounts and consequently would have had control over its finances and would have been able to draw money from the account to pay the company’s creditors; and

    c.was familiar with the income and outgoings of the company. 

18. In the Tribunal’s view, it is likely that Mr Thimbleby was involved with the management and operation of the business that [Company 1] conducted and that Mr Thimbleby was, in substance, one of the principals of the company; that is, a de facto director of the company.   

19. As the Tribunal understood Mr Thimbleby’s evidence, since the of termination of his employment with [Employer 1] in September 2020, the only income for him and his wife has been from [Company 1].  That is to say, it is by virtue of being able to draw upon the resources of this company that Mr Thimbleby has been able to manage his household budget and also pay child support for [Child 1].

20. There is limited evidence before the Tribunal relating to the finances of [Company 1].  There is a letter from [Bank 1] to Services Australia dated 4 January 2021 that reveals that the company had $42,208.15 held on deposit with the bank at that time.  The account had a balance of $31,613.18 as at 27 February 2021 and $35,325.16 as at 31 May 2021.  There are also statements for the same account, that Mr Thimbleby provided, covering the period 27 February 2021 to 31 May 2021, that reveal the [Bank 1] account was used by the company to deposit its income and to pay its creditors. 

21. There is also a document titled “FINANCIALS FROM 1/07/2020 - 31/05/2021” that Mr Thimbleby said the company’s accountant prepared which provided a brief summary of the company’s income and expenses for the financial year to 31 May 2021 and the company’s balance sheet as at 31 May 2021.  That document revealed that the company’s net profit for the financial year to that date was $31,350.  That profit was net the salary it had paid to employees, and hence was net the wages it had paid to Mr Thimbleby to that date.

22. Mr Thimbleby provided a Statement of Financial Circumstances to the Tribunal, the contents of which he had declared on 24 March 2021 to be complete and correct.  He revealed in that, that the expenditures of his household tallied to $1,063.26 a week, which equate to around to $55,000 a year.  In addition to that he was, at that time, also meeting his child support obligation for [Child 1]. 

1. The statements Mr Thimbleby provided the Tribunal for personal accounts he holds with [Bank 2] and [Bank 3] indicate that subsequent to the cessation of his employment with [Employer 1], Mr Thimbleby did not accumulate debt.  In other words, he has been able to meet all his commitments, including until recently his child support obligation for [Child 1].  The evidence of Mr Thimbleby and Ms Thimbleby is that Mr Thimbleby has not recently being paying child support, and that he has, as a consequence accumulated an arrears of child support of around $1,900.

2. Noting that the Tribunal has found that, in all likelihood, Mr Thimbleby is, in effect, a principal of [Company 1], the Tribunal considers that [Company 1] is to be treated as a financial resource for Mr Thimbleby.  The Tribunal considers that it is by means of this financial resource that Mr Thimbleby has, until recently, been able to meet his commitments including his child support obligation as presently assessed.

3. The Tribunal considers that Mr Thimbleby’s qualification as a [Occupation 2] since April 2021 would not have provided him capacity to augment his income.  This is because of the health of his wife at the time, which in all likelihood would have resulted in his taking on a greater role than he previously undertook, with the management and direction of the business and affairs of [Company 1], and also taking on a greater role with the care of his and his wife’s children.

4. The Tribunal considers, however, that notwithstanding the termination of Mr Thimbleby’s employment in September 2020 with [Employer 1], the financial resource that has been available to him through [Company 1], by means of his being, in substance, a principal of the company is such that, until recently, an assessment of child support using an adjusted taxable income for him of $76,959 did not result in an unjust or inequitable determination of the support he was to provide [Child 1].  This is evident from the fact that he was able to meet his commitments including his child support commitment.

5. However, the Tribunal accepts Mr Thimbleby’s evidence that [Company 1] has recently suspended its operations due to the restrictions imposed on the movement and activity of people within Sydney consequent upon the Public Health Orders the NSW Government has made.  As mentioned earlier, the Tribunal considers it needs to exercise caution in assessing Mr Thimbleby’s evidence, given the issue the Tribunal has noted regarding his credibility, but having regard to the nature of the business [Company 1] conducts and noting the limit on activity and movement to which Sydneysiders are now subject, Mr Thimbleby’s evidence is plausible, and the Tribunal considers it reliable on this issue.

6. Given that, the Tribunal considers that from 1 July 2021, [Company 1] would not have provided Mr Thimbleby the capacity to meet a child support obligation that has been assessed using an adjusted taxable income for him of $76,959.  The income and money available to him through [Company 1] has been the only resource on which Mr Thimbleby could rely to meet his commitments.  The Tribunal considers that in the current environment in Sydney, and NSW more broadly, there is no real prospect that Mr Thimbleby could presently obtain employment for the first time as a [Occupation 2]. 

7. The Tribunal further notes, from Mr Thimbleby’s Statement of Financial Circumstances, that his assets consist of household furniture worth $25,000, a motor vehicle worth $25,000 and his home worth $770,000.  The Tribunal infers that Mr Thimbleby would own these assets jointly with his wife.  The Tribunal understands that his home is encumbered by a mortgage that secures repayment of two loans Mr Thimbleby has with [Bank 1], the outstanding balances of which were revealed in the [Bank 1] letter of 4 January 2021 to total $402,471.37 as at that date.  It would not be reasonable for Mr Thimbleby to sell these assets to meet his assessed child support obligation.

8. The Tribunal finds that the suspension by [Company 1] of its business due to the COVID-19 restrictions amounts to a special circumstance.  The Tribunal further finds that from 1 July 2021, the assessment of Mr Thimbleby’s child support obligation using an adjusted taxable income for him of $76,959 has resulted in an unjust and inequitable determination of the level of financial support to be provided by him for [Child 1] because he does not now earn that income and does not presently have the financial resources and does not have property available to him to enable him to pay child support assessed by reference to that income amount.

9. The Tribunal is accordingly satisfied that a ground for departure exists.

Is it just and equitable to make a determination?

1. The matters the Tribunal must take into account when considering whether it is just and equitable to depart from the provisions of the Act with respect to the assessment of child support are listed in subsection 117(4) of the Act. The Tribunal is not required to go slavishly through each of those matters but must have regard to those that are relevant to the particular circumstances of this case and do so in a practical and flexible way:  Inthe marriage of Gyselman and Gyselman (1992) FLC 92-279; Ross & McDermott [1998] FamCA 134; and Lawson and Edney [2017] FCWA 77. Rather than dealing separately with each matter that is relevant, insofar as the matters have relevance it is convenient for the Tribunal to group the matters and consider them by a reference to the following headings.

[Child 1]’s circumstances

1. There is no evidence to indicate that [Child 1] receives any income or has any property or financial resources.  Certainly, neither Ms Thimbleby nor Mr Thimbleby contended that he did, and given that, and also [Child 1]’s age, the Tribunal infers that he does not have any assets or financial resources or income.

2. The Tribunal infers that [Child 1] has all the normal needs of a child of his age.  The evidence does not reveal that [Child 1] has any special needs.

3. [Child 1] resides with Ms Thimbleby all of the time.  As will be shortly discussed, Ms Thimbleby’s income approximates that average earnings for a person in NSW.  She relies on her income and the child support she receives from Mr Thimbleby to cover the costs of [Child 1]’s needs.  She does not otherwise have resources or property on which she could rely to cover the costs of his needs.  Given that, the Tribunal is satisfied that making a determination that would result in a reduction in the child support Mr Thimbleby pays for [Child 1] would cause hardship to [Child 1].

Ms Thimbleby’s circumstances

1. Ms Thimbleby has employment as a public servant with the NSW Government.  Her annual salary is $94,610, which in the last financial year resulted in her having a taxable income of $90,644 after expenses she incurred to earn her income were deducted.  Data published on the Australian Bureau of Statistics website indicates that this figure roughly equates to the average income for employees in NSW. 

2. Ms Thimbleby completed a Statement of Financial Circumstances on 16 March 2021 declaring the information therein to be complete and correct.  In that she disclosed that her only assets are her car worth $26,000 and household assets worth $25,000. 

3. As the Tribunal understood Ms Thimbleby’s evidence, she has created an account for [Child 1] with [Bank 4] over which she has effective control.  The account had a balance of just in excess of $3,000 at the end of February 2021.  Ms Thimbleby had been depositing the child support she received from Mr Thimbleby into this account and drew from it to pay school fees for [Child 1], which are $1,492 a term.

4. Ms Thimbleby has loans that as at the date she signed her Statement of Financial Circumstances had outstanding balances totalling $28,231.83.

5. Ms Thimbleby disclosed in her Statement of Financial Circumstances having personal and domestic expenses for her household, which of course includes [Child 1], that amounted to around $1,329.50 a week.  None of what she listed was out of the ordinary or indulgent.

6. It is apparent that making a departure determination that would result in her receiving less child support would cause her hardship.

Mr Thimbleby’s circumstances

1. Mr Thimbleby’s financial situation has been discussed above, when considering whether a ground for departure exists.

2. The Tribunal takes into account that Mr Thimbleby has three children from his present relationship to support.  In accordance with subsection 3(2) of the Act, the priority of Mr Thimbleby to support these children ranks equally with his duty to support [Child 1].

3. As the analysis of Mr Thimbleby’s financial situation above revealed, the Tribunal considers there was nothing unfair about the assessment of his child support obligation prior to [Company 1] suspending its operation shortly after the NSW Government issued Public Health Orders to control the Delta variant.  Since then, however, he has not, in the Tribunal’s view, had the capacity to pay child support for [Child 1] at the assessed rate.  To require him to do so, would cause hardship to him and his children from his present relationship.

What is the just and equitable to make a determination?

1. In the Tribunal’s view, weighing the above matters, the just and equitable determination to make would be to depart from the provisions of the Act with respect to the assessment of child support such that the annual rate at which Mr Thimbleby is to pay child support for [Child 1] is varied to the minimum annual rate of child support, which is $446 for the period 1 July 2021 to 31 January 2022.  The Tribunal is cognisant of the hardship that this will cause Ms Thimbleby and [Child 1], but given Mr Thimbleby’s present situation, which really has been foisted upon him by the restrictions on movement and activity of people within Sydney, the hardship caused to him and the children from his present marriage, if the determination were not to be made, would far outweigh the hardship to Ms Thimbleby and [Child 1].

2. It is of course unknown how long the Public Health Orders in their present form will remain in place, but doing the best the Tribunal can, the Tribunal considers that it is likely that there will be some form of orders in place affecting movement and activity in Sydney until the end of the year.  The consequence of that is that [Company 1] probably will not return to normal operation until sometime early next year.

3. Beyond 31 January 2022, the annual rate at which Mr Thimbleby will be assessed to pay child support for [Child 1] will revert to a calculation based on the adjusted taxable income Services Australia determined for Mr Thimbleby by way of its decision of 14 October 2018.  The Tribunal has found above that if [Company 1] is operating its business then, because of the financial resource [Company 1] provides Mr Thimbleby, an assessment of his child support using the adjusted taxable income Services Australia determined for him by way of its decision of 14 October 2018, does not result in unfairness to him.  If [Company 1] has not returned to normal operation by 31 January 2022, then Mr Thimbleby is able to make a further change of assessment application to Services Australia.  On the other hand, if the restrictions imposed by Public Health Orders are significantly eased earlier than the end of this year, such that it would be likely that [Company 1] would return to normal operations before 31 January 2022, then Ms Thimbleby can make a change of assessment application to Services Australia.

Is it otherwise proper to change the assessment?

1. In deciding whether it is otherwise proper to depart from the administrative assessment, the Tribunal must have regard to the fact that the primary obligation to support [Child 1] rests with Mr Thimbleby and Ms Thimbleby, and also have regard to whether, and if so how, any determination it makes would affect the entitlement of Ms Thimbleby or [Child 1] to an income-tested pension, allowance or benefit. 

2. The Tribunal understands that [Child 1] does not receive an income-tested pension, allowance or benefit and, also, that circumstance will not change whatever determination the Tribunal makes. 

3. The Tribunal observes from Ms Thimbleby’s Statement of Financial Circumstances that she receives family tax benefit. The Tribunal notes that the departure it considers it is just and equitable to make would result in Ms Thimbleby receiving less child support, which the Tribunal understands may result in an increase in the family tax benefit she receives.  Having regard, however, to the hardship that will be caused to Ms Thimbleby and [Child 1] by making the determination the Tribunal considers it is just and equitable to make, and noting too Mr Thimbleby cannot in his present situation pay more child support, the Tribunal considers it is also otherwise proper to make the determination.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the annual rate of child support payable by Mr Thimbleby be varied to $446 for the period 1 July 2021 to 31 January 2022.