Tuckey and Tuckey (Child support)
[2025] ARTA 253
•23 January 2025
Tuckey and Tuckey (Child support) [2025] ARTA 253 (23 January 2025)
Applicant/s: Mr Tuckey
Respondent: Child Support Registrar
Other Parties: Ms Tuckey
Tribunal Number: 2024/MC028207
Tribunal: Member R Anderson
Place:Melbourne
Date:23 January 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that there is no departure from the administrative assessment of child support.
CATCHWORDS
CHILD SUPPORT – departure determination – income, property and financial resources – ground for departure – reduced work capacity – departure determination not just and equitable – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Tuckey and Ms Tuckey are the separated parents of [Child 1] and [Child 2]. According to records of Services Australia – Child Support (Child Support), the child support assessment was initially registered on 13 October 2006. In the meantime the parents reconciled. According to Child Support records, Ms Tuckey applied to register the child support assessment again on 29 June 2022 and Child Support commenced responsibility for collection of child support from Mr Tuckey on 25 May 2023. At that time, [Child 2] was no longer a child of the assessment.
The child support liability was calculated in accordance with the administrative assessment, as provided in the Child Support (Assessment) Act 1989 (the Act). The calculation was based on the income recorded by each parent in their most recently completed income tax returns, as lodged with the Australian Taxation Office (ATO). It is open to either parent to lodge an application for a departure from the administrative assessment under Part 6A of the Act if they consider the administrative assessment results in an unfair amount of child support payable by one parent. Ms Tuckey lodged such an application on 7 March 2024 on the basis that the assessment was unfair because of the income, property and financial resources available to Mr Tuckey, commonly referred to as Reason 8.
Mr Tuckey cross applied on 28 March 2024 on the basis of Reasons, 4, 5, 7 and 8, which included consideration of [Child 1’s] income and financial resources, the financial support Mr Tuckey has provided to Ms Tuckey through car repayments and his own costs of self-support.
When the child support period commencing 1 September 2023 applied the 2022/23 adjusted taxable income (ATI) of Mr Tuckey in the amount of $143,924 to the child support assessment, the annual child support liability payable by Mr Tuckey to Ms Tuckey in respect of [Child 1] increased from $10,193 to $22,635.
The administrative assessment on 7 March 2024 was based on a derived ATI for Ms Tuckey in respect of 2022/23 in the amount of $25,122. The ATI of Mr Tuckey was based on an estimate. Child Support accepted a first estimate from Mr Tuckey in respect of an ATI from 8 November 2023 to 14 January 2024 in the amount of $61,685. The resulting annual child support liability payable by Mr Tuckey to Ms Tuckey in respect of [Child 1] was $7,861.
On 15 January 2024, Child Support accepted a second estimate from Mr Tuckey in respect of an ATI from 15 January 2024 to 30 June 2024 in the amount of nil. The resulting annual child support liability payable by Mr Tuckey to Ms Tuckey in respect of [Child 1] was $1,632.
On 20 May 2024, a delegate of the Child Support Registrar found that a ground was established in relation to Reason 8. Consequently, the ATI in respect of Mr Tuckey was varied to $143,924 for the period from 8 November 2023 until [Child 1] is no longer a child of the assessment.
On 28 May 2024, Mr Tuckey lodged an objection to the decision of 20 May 2024. Subsequently, on 27 June 2024, an objections officer decided to disallow the objection. Mr Tuckey then lodged an application with the Administrative Appeals Tribunal (AAT) on 8 July 2024, requesting an independent review of Child Support’s decision.
In the meantime, according to Child Support records, Ms Tuckey lodged an application to end the child support assessment in respect of [Child 1] from 22 July 2024, which was accepted by Child Support.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The directions hearing was conducted by telephone with Mr Tuckey and Ms Tuckey on 10 December 2024. Following this hearing, directions were made to both parties requiring them to provide further information and documents.
The hearing was held on 14 January 2025. Both parties participated by conference telephone and gave sworn oral evidence to the Tribunal. Mr Tuckey was represented by [Representative A] of [firm name]. The Tribunal also received oral evidence on affirmation from [Relative A] as a witness.
The Tribunal considered information in the documents provided by Child Support in accordance with the Administrative Review Tribunal Act 2024 numbered 1 to 503, documents lodged by Mr Tuckey numbered A1 to A161, documents lodged by Ms Tuckey numbered B1 to B326 and information from Centrelink numbered C1 to C5. All of the documents were provided to all parties prior to the hearing. Ms Tuckey confirmed the receipt of all documents. However, Mr Tuckey told the Tribunal that he had only received the A documents. The Tribunal immediately arranged to email all of the documents to [Representative A], which were then available to Mr Tuckey and his representative throughout most of the hearing. In the interim the Tribunal read out the relevant information in relation to discussion of the uncomplicated circumstances of Ms Tuckey.
Further information in the form of bank statements was provided to the Tribunal by Mr Tuckey during the hearing. A medical certificate was provided after the hearing. All of the information was discussed at hearing and the numbered documents, A162 to A172, were sent to all parties for their information.
ISSUES
When calculation of the rate of child support is based on the usual administrative formula as discussed above, it also takes into account, relevantly, factors such as the number of children, the level of care provided, the costs of the children, the costs of self-support of each parent and the income of each parent. Section 98C of the Act allows for a decision maker to depart from the usual manner of calculating the rate of child support payable by one parent to the other parent for a child after considering the following issues:
· whether a ground exists to depart from the administrative assessment; and if so
· whether any proposed departure is fair to Mr Tuckey, Ms Tuckey and the children; and if so
· whether any proposed departure is fair to the public.
CONSIDERATION
Ms Tuckey told the Tribunal that in her view the departure decision to vary Mr Tuckey’s ATI to align with his ATI used in the administrative assessment prior to acceptance of his estimate from 8 November 2023 was fair.
In response to a question from the Tribunal, Mr Tuckey stated that he does not consider it fair as the 2022/23 ATI is not reflective of his income in 2023/24 or beyond, as he resigned from his employment in January 2024 due to deterioration in his physical health. He continues to be limited to working less than 12 hours per week due to his physical health. Furthermore, he is not pursuing a ground in respect of Reasons 4, 5 or 7.
The Tribunal explained at the outset that any decision made by this Tribunal will only impact the period to 22 July 2024, the day the child support assessment ended in respect of [Child 1].
Issue 1 – Does a ground exist to depart from the administrative assessment?
The grounds for departure are set out in subsection 117(2) of the Act. Each ground is prefaced by the words ‘in the special circumstances of the case’. The meaning of this expression is not defined in the Act. However, the Tribunal was guided by the courts, which have concluded that the expression relates to the facts peculiar to each case such that those facts are ‘out of the ordinary’ and set the case apart from the usual case (Gyselman and Gyselman (1992) FLC 92-279 (Gyselman) and Philippe and Philippe (1978) FLC 90-433).
Reason 8A– the income, property and financial resources of each parent
Subparagraph 117(2)(c)(ia) of the Act provides a ground for departure exists where, in the special circumstances of the case, use of the administrative assessment would result in an unfair level of child support payable by Mr Tuckey because of the available income, property and financial resources available to the parents. The Act goes on to state in subsection 117(7A) that the decision maker must have regard to ‘the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of the parent that do not produce, but are capable of producing, income’ and disregard ‘the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child’.
The Tribunal notes that there is no other person who has a legal duty to support [Child 1] other than Mr Tuckey and Ms Tuckey. According to Child Support records, [Child 1] has been recorded as being in the sole care of Ms Tuckey from 26 September 2022, albeit the date of effect is not until 25 May 2023.
The ATI of Mr Tuckey in 2021/22 was $71,967, made up of salary and wages/allowances from [Employer 1] after work related deductions from 4 January 2022 to 30 June 2022 of $61,987 (annualising to $127,108). He was also in receipt of carer payment for the last half of 2021 in the amount of $9,980 in respect of his caring duties for Ms Tuckey prior to their separation.
Mr Tuckey gave oral evidence that he was initially employed as [an occupation 1] on a casual basis for the first three months with [Employer 1] before becoming a permanent full-time employee. While his work was based on interstate [travel], it roughly equated to a 40 hour-week.
The 2022/23 tax return of Mr Tuckey was before the Tribunal and recorded a taxable income of $143,924. This consisted of salary and wages/allowances paid to Mr Tuckey from [Employer 1] in the amount of $145,292 and bank interest of $25. After deductions, his ATI for 2022/23 was $143,924. This was applied to the administrative assessment at commencement of the child support period from 1 September 2023, following lodgement of his tax return with the ATO.
Mr Tuckey gave oral evidence that around November 2023 his workload was reduced, which is the reason he lodged the first estimate of an annualised ATI for the period 8 November 2023 to 30 June 2024 with Child Support in the amount of $61,685.
As noted above, Mr Tuckey resigned from [Employer 1] on 14 January 2024. The separation certificate states that it was for his own reasons. Mr Tuckey asserted that [he incurred an injury] many years ago and has gradually deteriorated since surgery to a stage where [he experiences a medical condition]. As such, he finds it difficult to [continue occupation 1] work. Medical evidence states that the injury was due to a motor bike accident in November 2010. Mr Tuckey lodged a second estimate of his annualised ATI for the period 15 January 2024 to 30 June 2024 with Child Support in the amount of $0.
Medical evidence before the Tribunal includes a Centrelink medical form completed on 18 July 2024 by [Doctor A] of [Health Service 1] stating that Mr Tuckey has a maximum working capacity of up to 12 hours per week from 18 July 2024 to 18 October 2024 due to post operative issues that result in difficult ambulation. An X-ray report dated 15 August 2024 notes [specified injury observations]. Further medical evidence included a letter from [Doctor B] of [Health Service 1], dated 12 December 2024, stating that Mr Tuckey has a maximum working capacity of up to 10 hours per week from 12 December 2024 to 11 March 2026, being two hours per day for five days per week. The certificate refers to chronic [pain].
In 2023/24 the total income received by Mr Tuckey consisted solely of salary and wages/allowances from [Employer 1] in the amount of $66,999. After deductions, his ATI for 2023/24 was $65,547.
A separation certificate prepared by [Employer 1] records Mr Tuckey’s last day of employment as 14 January 2024. It further states that he received an annual leave payout for 15 days, paid on 22 January 2024. Therefore, the Tribunal calculates that Mr Tuckey received his normal pay until 6 February 2024. This finding was undisputed. The Tribunal calculates the annualised ATI of Mr Tuckey in the period 1 July 2023 to 6 February 2024 to be $108,256 ($65,547/221 x 365).
Based on evidence before the Tribunal, Mr Tuckey commenced casual employment with [Employer 2] in late May 2024. This income was not declared on his tax return. [Employer 2] is the sole trader business of [Relative A] , who confirmed to the Tribunal that Mr Tuckey commenced work in May 2024 and worked through to 30 June 2024. The 2023/24 tax return of [Relative A] was before the Tribunal, which included a business profit and loss statement. Also provided was the business activity statement for the September 2024 quarter. The Tribunal is satisfied that the business is making little, if any profit, with minimal wages expensed.
Mr Tuckey’s bank statements confirm that he received wages that represented less than 12 hours per week of work and totalled around $1,540 in May and June 2024. Therefore, the Tribunal calculates the 2023/24 ATI of Mr Tuckey to be $67,087 and finds accordingly.
In the period from 1 July 2024 until 15 December 2024, Mr Tuckey continued to work up to 12 hours per week [in occupation 1] on a casual basis for [Employer 2]. [Relative A] confirmed that the business name change to [Employer 2A] was purely for her own privacy reasons and the operations of the business are unchanged. She further stated that Mr Tuckey was unable to work in the weeks leading up to Christmas and is yet to resume for medical reasons. She is hoping that business picks up as there was no work last week. She told the Tribunal that she is “struggling financially and drowning in debt.”
Mr Tuckey confirmed to the Tribunal that he has received no government payments or benefits throughout the period from 25 May 2023 to date, which was confirmed by the Centrelink documents. In response to a question from the Tribunal, he stated that [Relative A] was loaning him $200 per week to assist him to meet the car payments on behalf of Ms Tuckey. When she was no longer able to assist him financially, his parents did so. Mr Tuckey gave oral evidence that more recently his parents also paid the car finance out in the amount of $11,000 and paid out Ms Tuckey in the amount of $27,000 in accordance with the property settlement orders.
Going forward, Mr Tuckey is concerned about his future employment prospects. He further stated that the [specified injury] is severe and regardless of what he does he is in pain. At present he relies on assistance from his parents to meet his weekly costs. The land at [Property 1] does not have habitable premises, only a few sheds. Mr Tuckey is currently residing there in an old caravan. While he transferred title of the property to [Relative A] , it was considered as part of the marital pool for property settlement. Mr Tuckey told the Tribunal that he transferred the land as a goodwill gesture to [Relative A] and her children. As discussed at hearing, property settlement also included payout of the car for Ms Tuckey by Mr Tuckey. As such, the Tribunal does not consider it appropriate to also consider the payments made by Mr Tuckey towards the car finance as a ground for the purposes of departing from the administrative assessment of child support or to make any related adjustments to any child support liabilities.
According to the medical certificate dated 12 December 2024, Mr Tuckey has a working capacity of up to 10 hours per week until 11 March 2026. Based on his pay rate of $29.50 per hour, his annualised ATI until then is unlikely to approach $15,000. This is well below the self-support amount used in the administrative assessment in 2024 and 2025 of $28,463 and $29,841 respectively. He receives no Centrelink benefits.
In relation to the assets and liabilities of Mr Tuckey, his personal assets consist of approximately $21 in the bank, a motor vehicle valued at $500 and household and personal items valued at $800. Other than arrears of child support, Mr Tuckey has no other debts, noting that the arrangement in respect of the loan from his parents is to repay it when he can. The Tribunal is satisfied that Mr Tuckey has a negligible asset base.
The Tribunal then considered the evidence in relation to Mr Tuckey’s expenses. He told the Tribunal that there is no power connected to [Property 1]. His mother continues to loan him $200 per week to assist with costs for food and petrol. He estimates his average weekly expenses to be $151.30, or $7,867 per annum.
In respect of Ms Tuckey, she is not required to lodge an annual income tax return, as her income consists solely of a tax-free disability support pension (DSP). However, as DSP is a tax-free pension, it is included in her ATI for child support purposes, in accordance with paragraph 43(1)(e) of the Act. Ms Tuckey told the Tribunal that she last worked in 2009 and has been diagnosed with [medical condition 1]. According to Centrelink records, her fortnightly DSP payment is $862.
Ms Tuckey is also in receipt of family tax benefit (FTB) for [Child 1]. According to Centrelink records, her current fortnightly FTB payment is $517. The Tribunal notes that for child support purposes, as FTB is an income-tested benefit, it is not considered to be a part of her ATI (subparagraph 117(7)(b)(ii) of the Act). Furthermore, FTB is not defined as a tax-free benefit under section 5 of the Act to be included in ATI (paragraph 43(1)(e) of the Act).
Ms Tuckey gave oral evidence that she took up a hobby [specified] in 2015 and later registered as a [a related occupation]. [Details of business failing deleted.] The Tribunal accepts the oral evidence of Ms Tuckey that other than Centrelink payments; she has no other source of income.
The Tribunal then considered the assets and liabilities of Ms Tuckey, who shares a rented residence with her partner, [Partner A], who is also her fulltime carer and in receipt of a carer pension. Her assets consist of $165 in the bank, an [Vehicle 1] motor vehicle valued at $9,500 and the [Vehicle 2] vehicle she received through property settlement, valued at $47,800. Ms Tuckey gave oral evidence that she used the $27,000 payout to purchase the [Vehicle 1] and to pay back her parents who had met her legal fees.
In respect of liabilities, Ms Tuckey told the Tribunal that she is paying back the [specified] costs from the failed [business], which is currently at $3,388, and Zip Pay has an outstanding balance of around $1,200. The Tribunal is satisfied that Ms Tuckey has an asset base of around $50,000.
The Tribunal considered the evidence in relation to Ms Tuckey’s expenses. Her medical costs are bulk billed and she incurs monthly costs for her [medical condition 1] medication of $6.70. In addition, she also incurs costs of $65 per month for prescribed [treatment products]. Ms Tuckey gave oral evidence that she is in receipt of an NDIS package that meets the costs of a physiotherapist, gardener, cleaner and support worker.
Ms Tuckey’s Statement of Financial Circumstances estimated the average weekly household expenses to be $1,466 or more than $76,000 per annum. Of this, she estimated her own costs of self-support to be $603 per week, or $31,356 per annum. She told the Tribunal that the rent and household utilities are shared between her and [Partner A] and they each contribute to their own food costs. Ms Tuckey is also meeting the costs for [Child 1], which she estimated at $280 per week, or $14,560 per annum.
In response to a question from the Tribunal, Ms Tuckey stated that without the contribution from [Partner A] she could not meet the household expenses.
According to the administrative assessment from 25 May 2023, the annual rate of child support payable by Mr Tuckey to Ms Tuckey in respect of the children and the ATIs used in the respective assessments is as set out in the table below:
| PERIOD | ATI PERIOD | ATI Mr Tuckey $ | ATI Ms Tuckey $ | CS payable by Mr Tuckey $ |
| 25/05/2023 to 30/06/2023 | 2021/22 | 71,967 | 16,855 | 10,193 |
| 01/07/2023 to 31/08/2023 | 2021/22 | 71,967 | 16,855 | 10,193 |
| 01/09/2023 to 07/11/2023 | 2022/23 | 143,924 | 25,122 | 22,635 |
| 08/11/2023 to 14/01/2024 | 2023/24 | 61,685 First estimate | 25,122 (2022/23) | 7,861 |
| 15/01/2024 to 30/06/2024 | Second estimate | Nil | 25,122 (2022/23) | 1,632 |
| 01/07/2024 to 22/07/2024 | 2023/24 | 143,924 | 25,122 (2022/23) | 22,635 |
The Tribunal considered the financial circumstances of both parties. Ms Tuckey’s circumstances have remained unchanged throughout the relevant period, as she has been reliant on Centrelink benefits as an income. The Tribunal is satisfied that the ATI used in the administrative assessment in respect of Ms Tuckey is an accurate reflection of her income and financial resources from all sources. It is noteworthy that it has consistently been below the allowance for self-support used in the administrative assessment from date of collection on 25 May 2023. In addition, as discussed at hearing, due to Ms Tuckey being attributed with the sole care of [Child 1], even if she were to earn additional income, it would have little or no impact on the child support assessment up to some $50,000 per annum.
In respect of Mr Tuckey, the Tribunal noted at hearing that in the normal administrative process his estimates would be reconciled against his actual 2023/24 ATI of $65,547 and his child support liability recalculated accordingly. Consequently, use of an ATI of $143,924 is only used from 1 September 2023 to 7 November 2023 and from 1 July 2024 to 22 July 2024. The Tribunal accepts that the corresponding child support liability payable by Mr Tuckey in these two periods is overstated. However, the Tribunal also noted that given Mr Tuckey’s actual ATI in 2022/23 of more than $140,000, he has been significantly under-assessed in the corresponding collection period from 25 May 2023 to 31 August 2023, as the assessment was based on his 2021/22 ATI of only $71,967.
The Tribunal is satisfied that the reconciliation process will accurately address the ATI of Mr Tuckey in the period 8 November 2023 to 30 June 2024. However, given the discrepancy in the actual ATI of Mr Tuckey and the ATI used in the administrative assessment in the period from 25 May 2023 to 7 November 2023 and 1 July 2024 to 22 July 2024, together with his significantly reduced costs of self-support, the Tribunal finds that the administrative assessment produced an unfair result overall in under-assessing Mr Tuckey by almost $2,000. Therefore, the Tribunal finds that special circumstances do exist in this case from 25 May 2023, and is satisfied that a ground for departure is established in relation to subparagraph 117(2)(c)(ia) of the Act.
Issue 2 – Is it fair or “just and equitable” in relation to Mr Tuckey, Ms Tuckey and the children to make a particular departure determination?
As the Tribunal is satisfied that there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is fair as regards the parents and the children 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 have regard to a range of factors, including but not limited to those set out in subsections 117(4) and (6) to (8) of the Act, such as the needs of the children, the parents’ assets, liabilities, income and commitments and any hardship that would be caused by departing or not departing from the formula. The Tribunal does not propose to explore every matter in detail but will discuss those it regards as pertinent to this application (Gyselman).
The needs of the children
Section 3 of the Act makes it clear that the parents of a child have the primary duty to maintain the child, 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 (Ashcroft and Ashcroft (SSAT Appeal) [2008] FMCAfam 1250). In this case, Mr Tuckey and Ms Tuckey have the primary duty to financially support [Child 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 (subsection 117(6) of the Act). It is common ground that [Child 1] is generally in good physical health, albeit he is struggling with depression at present. Ms Tuckey told the Tribunal that the cost for [Child 1’s] prescription anti-depressants are not significant at $6.70 per month. [Child 1] is now 17 years of age, having completed Year 10 in 2024. Ms Tuckey stated that he has not yet returned to school and is seeking to commence an apprenticeship in the immediate future.
Ms Tuckey meets all of [Child 1’s] costs and estimated his average weekly costs to be $280, or $14,560 per annum. She is assisted in meeting these costs through FTB payments received and times when she receives child support payments from Mr Tuckey.
The earning capacity, income, property and financial resources and commitments of each parent
The Tribunal found above that an ATI equivalent to Ms Tuckey’s DSP payments is an accurate reflection of her income from all sources, which is consistently below the self-support amount used in the administrative assessment formula. Going forward, the circumstances of Ms Tuckey are unlikely to change.
The Tribunal also found that the child support liability payable by Mr Tuckey to Ms Tuckey in respect of [Child 1] in the period 25 May 2023 to 31 August 2023 was under-assessed and from 1 September 2023 to 7 November 2023 and 1 July 2024 to 22 July 2024 was over-assessed. The Tribunal is satisfied that the reconciliation process in accordance with section 64A of the Act will result in amended ATIs for Mr Tuckey in the period 7 November 2023 to 30 June 2024 to correspond with his actual 2023/24 ATI. While the income from [Employer 2] was not declared in his 2023/24 tax return, the Tribunal found that there is negligible impact on the child support assessment.
In respect of Mr Tuckey, according to his most recent medical certificate, his working hours are limited to 10 per week until March 2026, due to chronic [pain]. The Tribunal found earlier that Mr Tuckey is unlikely to earn an income in excess of $15,000 per annum up to 11 March 2026.
For the sake of completeness, the Tribunal considered the earning capacity of Mr Tuckey. A parent’s earning capacity can only be taken into account in limited circumstances, as set out in subsection 117(7B) of the Act. This section requires the Tribunal to consider three matters in determining that the parent’s earning capacity is greater than is reflected in his or her income used in the administrative assessment.
·Whether the parent is:
o not working despite ample opportunity to do so (subparagraph 117(7B)(a)(i)); and/or
o has reduced their weekly hours of work to below full-time work (subparagraph 117(7B)(a)(ii)); and/or
o has changed their occupation, industry or working pattern (subparagraph117(7B)(a)(iii)); and
·If the parent’s decision about his/her work arrangements is not justified by either his/her caring responsibilities (subparagraph 117(7B)(b)(i)) or his/her state of health (subparagraph 117(7B)(b)(ii)); and
·If the parent has not demonstrated that it was not a major purpose of their decision not to work despite ample opportunity to do so or to stop working, reduce their hours of work or change their occupation, industry or working pattern to affect the administrative assessment of child support (paragraph 117(7B)(c)).
Mr Tuckey has clearly reduced his working hours since 8 November 2023. Therefore, the Tribunal finds that the first criterion under subparagraph 117(7B)(a)(ii) of the Act is met.
The Tribunal is also satisfied, based on medical evidence provided, that the reduction in working hours was justified by his own state of health. Therefore, as the second criterion is not met, all of the required criteria cannot be met and it is not open to the Tribunal to determine an earning capacity in respect of Mr Tuckey.
Conclusion
After examination of the income, resources and benefits available to Mr Tuckey and Ms Tuckey, their costs of self-support and the necessary needs of [Child 1], the Tribunal considered whether it was just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Act.
In this case, the relevant period is confined to the commencement of collection of child support by Child Support on 25 May 2023 to the end of the child support assessment, being 22 July 2024.
Ms Tuckey told the Tribunal that she rarely receives child support and therefore has always incurred hardship in trying to meet the costs of the children. Furthermore, she is concerned that any increase in child support will impact on her Centrelink benefits, in particular FTB, in the period to 22 July 2024.
Mr Tuckey told the Tribunal that he has no capacity to pay more child support than he is currently paying to address the current arrears, in the amount of $20 per week. [Representative A] submitted that any repayment creates hardship to Mr Tuckey. However, he promises to make good on any child support debt that exists after this decision is implemented.
Overall, without allowing for the process of the estimate reconciliation that will automatically apply in accordance with the administrative assessment, the Tribunal estimates that Mr Tuckey has been under-assessed in the period 25 May 2023 to 22 July 2024 by approximately $2,000, which equates to around $38.00 per week. In considering this discrepancy and the concerns of Ms Tuckey in respect of her FTB entitlements, the Tribunal considers that it is not just and equitable to depart from the administrative assessment. The Tribunal is also cognisant of Ms Tuckey not lodging a change of assessment in November 2023 when Mr Tuckey initially lodged his first estimate and the generally accepted principal that parents should be able to rely on the child support assessment until put on notice that there may be a change to the assessment. This did not occur until March 2024.
According to Child Support records, Mr Tuckey’s child support arrears at 25 October 2024 were $12,296. The Tribunal’s decision not to depart from the administrative assessment would likely result in a decrease in the child support arrears payable by Mr Tuckey to nil, prior to any reconciliation in respect of 2023/24. This may adjust further following reconciliation in respect of the 2023/24 estimates lodged by Mr Tuckey.
On balance, the Tribunal finds that it is not just and equitable to depart from the administrative assessment. As such, there is no requirement to go on and consider the third issue in relation to whether or not a departure decision would be otherwise proper.
It is open to either party to lodge a further change of assessment application should the future circumstances of either party change significantly from the circumstances upon which this decision is based.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that there is no departure from the administrative assessment of child support.
| Date of hearing: | Tuesday, 14 January 2025 |
| Representative for the Applicant: | [named] |
| Representative for the Other party: | Self-represented |
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