Vannoy and Cleland (Child support) - [2023] AATA 2946

Vannoy and Cleland (Child support) [2023] AATA 2946 (16 August 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/PC025884
APPLICANT:  Mr Vannoy
OTHER PARTIES:  Child Support Registrar
Ms Cleland

TRIBUNAL:Member S Hoffman
DECISION DATE: 16 August 2023
DECISION:

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

For the period from 25 August 2022 to 30 June 2023:
oMr Vannoy’s adjusted taxable income is varied to $114,389.
oMs Cleland’s adjusted taxable income is varied to $129,199.
For the period from 25 August 2022 to 31 December 2022, the annual rate of child support payable by Mr Vannoy is increased by $5,033.

For the period from 1 January 2023 to 30 June 2023, the annual rate of child support payable by Mr Vannoy is increased by $3,075.
For the period from 1 July 2023 to 31 October 2024, Mr Vannoy’s annual rate of child support is varied to $459, equivalent to the minimum annual rate of child support for 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources of the liable parent – school fees - a ground for departure established – decision to depart - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

The child support case relevant to this review was registered with Services Australia – Child Support (Child Support) on 30 April 2018. Child Support has been involved with the collection of child support for [Child 1], aged 12 years old, since then.
On 25 August 2022, the mother applied for a change of assessment (COA).
The assessment then in place was that the father was required to pay an annual rate of child support of $5,413 to the mother, based on his adjusted taxable income from a previous COA of $62,000 and the mother’s taxable income for 2020–21 of $90,181. This assessment had been in place since 1 February 2022.

According to Child Support’s records, the mother has provided 100% of the child’s care.

An officer from Child Support made a decision on 22 November 2022, in response to the COA application. They varied the father’s adjusted taxable income to $179,000 and the mother’s adjusted taxable income to $123,845 for the period 25 August 2022 to 31 December 2023. In addition, the annual rate of child support payable by the father was increased by $5,033 as his contribution to the child’s private school costs (the original decision).
On 4 January 2023 the father objected to the original decision.
On 22 March 2023, an objections officer from Child Support disallowed the objection. That meant there was no change to the original decision.
On 29 March 2023, the father lodged an application for review of the objection decision with this Tribunal.
A directions hearing was held on 5 July 2023 via MS Teams audio (equivalent to conference telephone) and attended by both parents. The substantive hearing was held on 16 August 2023, also via MS Teams audio. Both parents attended and gave sworn evidence.
Child Support had provided documents numbered 1 to 313. The father submitted documents numbered A1 to A49 and the mother submitted documents numbered B1 to B14. These were provided to the parents before the main hearing.

ISSUES

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

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

CONSIDERATION

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

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

The father’s income

According to Child Support’s records, the father’s taxable income was $27,766 for 2020–21 and $87,233 for 2021–22. His tax return for 2022–23 recorded his taxable income as $112,483.
The father said that during most of 2021–22, he lived in [Town 1]. He worked for three companies that contracted to [local businesses]. The three companies took on employees according to the contracts they had, and once those were finished, people like him who were employed for particular projects looked for work elsewhere. He was employed as follows:[1]
[1] The father’s tax return recorded $40 earned during 2022–23 from [Business 4] which the father could not explain. The amount is immaterial and the Tribunal has not included it in the table.

Period of employment during 2022/23	Employer	Rate of pay	Gross pay earned during the period
1 Jul 2022 to 19 Aug 2022	[Business 1]	$57 an hour	$27,184
25 Aug 2022 to 28 Nov 2022	[Business 2]	$60 an hour	$46,702
16 Dec 2022 to 17 Apr 2023	[Business 3]	$100,578 a year	$40,287

The father’s income from employment totalled $114,213 (including $40 from [Business 4]) from which work related expenses of $1,630 and gifts or donations of $100 were deducted, leaving $112,483 as his taxable income for 2022–23.
The father provided a profit and loss report for 2022–23 that showed he had earned a further $1,906 by way of net profit from his own business, [Business 5], which he had operated as a sole trader during 2022–23. That brings his income for 2022–23 to $114,389.
The father said that he left the [Business 2] job because of workplace bullying but he left the other two jobs as the projects he was employed to do were complete and there was no more work available with them at the time.
The father said he and his partner had decided to move from [Town 1] to [Town 2] which is [approximate location in] Western Australia. His plan was to establish his own business.
The father said he was [an occupation 1] by trade but had other skills and could offer labouring and general maintenance. He has earned very little through his business so far and since moving to [Town 2], has supplemented his income through occasional [occupation 2] work and working on a farm. He is in receipt of jobseeker from Centrelink. He said that he expects there will be more work for him once the crops have been harvested and, in the meantime, he is trying to get to know people in the local community so he can get work in the future. Through [Business 5], he wants to get into [a line of work]. The father said that his partner has an uncle and aunt in [Town 2].
The father provided copies of bank statements. One set, for the period from 26 June 2023 to 8 August 2023, was for [a Bank 1] [account] which showed payments from Centrelink and wages paid on an irregular basis, consistent with the father’s evidence that he was working on a casual basis from time to time. He said he reported any earnings to Centrelink. The statement also shows payments made in July 2023 totalling $2,800 from the father’s brother and a loan from his mother of $3,000. The father said his family was helping him out.
The father also submitted statements from [a Bank 1] [Business] account for the period 11 May 2023 to 8 August 2023. The final balance was $238.
The maximum amount of jobseeker payable to a partnered person is currently $631.20 a fortnight. The Tribunal estimates this will increase to about $680 a fortnight from September 2023, which is equivalent to $17,680 a year.[2] The amount of jobseeker payment paid to a person reduces according to income they get from another sources.
[2] The Tribunal’s estimates are based on information available at Centrelink’s website. See
Generally, for a person who pays child support, the amount they have to pay does not change if their income is between $18,000 and $26,000 a year. Given the father expects to generate income through his business, the Tribunal considers it reasonable that his income for child support purposes is assumed to be $26,000 a year from 1 July 2023.
In light of the foregoing, the Tribunal considers that $114,389 adequately reflects the father’s income, property and financial resources for the period from 25 August 2022 to 30 June 2023, and $26,000 reflects his income, property and financial resources from 1 July 2023.

The mother’s income

The mother’s taxable income was $77,792 for 2019–20, $90,181 for 2020–21 and $98,448 for 2021–22. She submitted her tax return for 2022–23 which recorded taxable income of $129,199.
The mother said that she is currently on a salary of $130,000 a year plus a mobile phone allowance of $70 per month.
The Tribunal is of the view that as the $70 allowance is work-related, it is not to be included as income for the purposes of child support.
The Tribunal considers that $129,199 adequately reflects the mother’s income, property and financial resources for the period 25 August 2022 to 30 June 2023.
Her income increases to $130,000 from 1 July 2023.

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

The figures that follow should be regarded as estimates, due to the complexity of the child support formula.
As recorded earlier, the mother lodged her COA application on 25 August 2022. The assessment then in place was that the father was required to pay an annual rate of child support of $5,413 to the mother, based on his adjusted taxable income of $62,000 and the mother’s taxable income of $90,181.
Based on an income of $114,389 for the father and $129,199 for the mother, the father’s annual child support liability is about $10,899. This is equivalent to $209 a week.
Given the difference between the father having an annual child support liability of about $10,899 rather than $5,413, the Tribunal is satisfied that in the special circumstances of this case, the administrative assessment does result in an unjust and inequitable rate of child support, and that a ground for departure from the administrative assessment has been established pursuant to subparagraph 117(2)(c)(ia) of the Act.

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

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

Income, property and financial resources – the father

The father submitted a Statement of Financial Circumstances (SFC) dated 24 April 2023, a week after he finished work at [Business 3]. Based on his form, he had applied for jobseeker payments.
The father wrote in his SFC that he was currently moving from [Town 1] to [Town 2]. According to his SFC, he and his partner paid $300 a week in rent. He said they now pay $100 a week for a room, and generally their living expenses are less than when they lived in [Town 1]. He wrote that his partner’s income at the time was $400 a week and he had $1,000 in the bank.
The father did not record owning a vehicle. He said he had lost his licence and would not be able to drive for some time. The mother said that he had owned a [Vehicle 1]. The father said that when he moved from Perth to [Town 1] about two years ago, he got rid of most of his belongings, by selling them or giving them away or throwing them away. He said he sold the [Vehicle 1], which was unregistered, about three years ago.
In his SFC, despite not owning a vehicle, the father recorded expenditure on fuel, maintenance and registration. In his written submission, the father wrote that he relies on his partner who drives for him, including for his business, so he helps her pay her vehicle expenses.
The father recorded having $103,821 in superannuation and that his household contents were worth $1,000. The mother had queried the value he gave for household contents but observed that if he was renting just a room, that amount may be reasonable.
The father recorded that he owed $4,838 on a fine which he was paying off at the rate of $50 a fortnight. This was related to him losing his driver’s licence.
The father did not include his child support arrears when recording his liabilities. These were $13,758 as at 24 April 2023.[4]
[4] Page 312 of the documents.
The mother observed that the applicant had valued his business as nil and that she would expect to see an amount in respect of tools, [machines], materials and other items used in the business. As the applicant is operating as a sole trader, he would own such items rather than the business. The father claimed $1,630 in his tax return for work-related expenses, including some tools. It may be that he purchased these after filling in his SFC or that he forgot to record their value in his SFC, or a mix of both in that some were purchased before 24 April 2023 and others after that date.
Unless such items are of an exceptionally high value and are not used to generate an income, generally their value would not be factored into the rate of child support.
The father recorded weekly outgoings totalling $1,802 ($290 plus $1,512), of which $693 were expenses incurred by or on behalf of his partner. The amount of $290 was the father’s weekly child support liability, although based on the child support documents, he did not pay it regularly.[5]
[5] Page 307 of the documents.
Annualised, $1,802 per week is equivalent to $78,914 a year. The father was well-placed to pay for these expenses during 2022–23 when he was working, even without taking into account his partner’s income.
There was nothing else of particular note in the father’s SFC.

Income, property and financial resources – the mother

The mother submitted an SFC dated 20 April 2023. She works full-time in a permanent position. She owns a property which she valued at $470,000. She recorded a mortgage of $399,700 against it.
The mother wrote that she has $11,721 in her bank accounts and that she owns a [Vehicle 2], worth $9,000. She valued her household contents at $43,680. She has $208,736 in superannuation.
The mother recorded $4,305 to be paid in school fees. Based on her SFC, the fees are $6,150 and she pays them in instalments. The Tribunal discusses school fees in more detail below. She also owes $404 on a HELP loan.
The mother’s main ongoing expenses are her mortgage repayments of $575 a week, $300 a week on food, and school fees for [Child 1] of $128 a week. The mother summarised her weekly income as being $2,500 and her outgoings as being $2,823 ($965 plus $1,858), meaning there is a shortfall of $323 a week. She did not include child support in her income figure. While the mother has some savings to draw on, it is apparent that she has to manage her finances carefully.
There was nothing else of particular note in the mother’s SFC.

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

Earning capacity

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

There was no evidence given by the father to indicate that he changed his work arrangements during 2022–23 because of caring responsibilities or his health. As set out earlier, he explained why he changed employers a number of times during 2022–23 and that he moved to [Town 2] with the intention of establishing his own business.
The mother said a number of times during the hearing that she did not want the father to experience hardship; that is, she did not want there to be a situation where he was expected to pay more in child support than he could afford. She said she understood where he was coming from.
The mother works full-time. Her annual income has increased in recent years.
The Tribunal is satisfied that there is no basis for adjusting either parent’s income for child support purposes in relation to their earning capacity. The Tribunal concluded that it need not consider the application of subsection 117(7B) of the Act in relation to either parent any further.

Commitments of each parent to support him or herself

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). There was no evidence before the Tribunal of either parent having a legal duty to support another child (apart from [Child 1]) or person, or that either of them had particular needs that should be taken into account with regard to the amount of child support payable.
The Tribunal is satisfied that it need not consider paragraph 117(4)(e) of the Act any further.

Costs related to the children

In determining the proper needs of the children, it is necessary to have regard to the manner in which they are being, and in which the parents expected them to be, cared for, educated or trained, and any special needs they may have (subsection 117(6) of the Act).
The child support formula is designed to cater for costs incurred by all parents in raising their children, including costs related to education. However, it may be the case that additional costs are incurred because, for example, the parents agreed that the children should be privately educated. In such cases, any additional contribution made by a paying parent is usually limited to a proportion of the school fees and not other school-related costs such as uniforms, stationery or extra-curricular activities which are costs that can be incurred on behalf of all children and are factored into the child support formula. However, this is considered on a case-by-case basis.

Certain principles have been established with regard to parents’ expectations as to their child’s schooling. First, that what is relevant is the type or kind of schooling that the parents expect their child to attend rather than one particular school.[6] Second, that parents’ expectations with regard to their child’s schooling may change over time.[7]
[6] Wild and Ballard (1997) FLC 92-771; Beklar & Beklar [2013] FamCA 327.
[7] Dobbins & Devlin (SSAT Appeal) [2014] FCCA 1274.
The Tribunal notes the following extract from a decision made in the Family Court of Australia:[8]
246In Lightfoot & Hampson (1996) FLC 92-663 and Wylde & Ballard (1997) FLC 92-771 the principles established in Mee & Ferguson[1986] FamCA 3; (1986) FLC 91-716 are identified as relevant to a departure application that concerns costs associated with attendance at private fee paying schools. In essence, the principles that emerge are as follows:
The mother was seeking a contribution from the father towards [Child 1’s] school fees. The background to this is as follows.
[Child 1] attended [School 1] until the end of calendar year 2022 as a primary school student.
As noted earlier, this child support case started on 30 April 2018. An objections officer from Child Support made a decision on 13 March 2019 which increased the father’s rate of child support such that he contributed 46% of the school fees paid by the mother. The objections officer used that percentage as it reflected the difference between the parents’ incomes. The additional amounts were applied to the 2018, 2019 and 2020 school years.
It was noted in that decision that during March and April 2018, before the case started, both parents contributed to the cost of school fees. The father had told Child Support that he paid enough child support to cover the school fees. The mother’s position then, as now, was that both parents expected [Child 1] to be educated at that school.
The objection decision under review increased the father’s child support liability by $5,033 a year for the period from 25 August 2022 to 31 December 2022 (129 days). That has the effect of requiring the father to pay $1,779 ((5,033 / 365) x 129), which was about 50% of the school fees for 2022.
The father has not made a contribution to school fees for 2021 via child support. It was open to the mother to have lodged a COA in late 2020 or during 2021 in relation to school fees for the 2021 school year but she did not do so.
The mother requested that the father contribute to [Child 1’s] school fees for 2023 and beyond, now that he is attending high school.
The mother said that when she and the father selected [School 1] as a primary school for [Child 1], they were advised that the school would expand into a high school as well but that did not happen. Had it happened, [Child 1] would have remained at the same school for his high school years.
As that was not the case, the mother selected an appropriate high school for [Child 1] which charged fees she could afford.
The parents agreed that the father was not involved in the discussions as to which high school [Child 1] would attend. While it was agreed there was a joint expectation with regard to his primary school, it is less clear with regard to high school.
The mother’s position was that they had both expected that [Child 1] would attend the high school associated with his primary school, had that high school ever opened as had been the plan years earlier.
The father said he was not opposed to [Child 1] attending his current school but that the decision about [Child 1’s] schooling was made by the mother and if he had been involved in that decision, he would be happy to pay half but he was not involved.
The father said that he had been kept out of his son’s life since separation and from any decisions made about [Child 1’s] schooling. This was consistent with the mother’s evidence.
The mother said that both she and the father preferred a non-religious school but she could not find one with fees she could afford at high school level, so she selected a religious school that seemed suitable. She could find only two non-religious private high schools, and the fees for those were double the fees for a religious school so she settled on a school that she thought was not too religious.
She said [Child 1’s] friends from primary school went to the same school and it was a good place for him. She said she thought that if the father had been involved in the decision-making about a high school for [Child 1], he would have chosen the same one.
The father said that if the primary school attended by [Child 1] had developed a high school as intended many years ago, he would be in agreement with [Child 1] attending that school. But he does not agree with [Child 1] attending the school he currently attends because it is a religious school.
From what the father said, the Tribunal understood that he had expected many years ago that [Child 1] would attend a private school in his high school years. The father said that he did not disagree with [Child 1] being privately educated. He said that he was concerned that he might be required to contribute to very expensive school fees that would be too great a financial burden for him and/or that he did not agree with the high school chosen by the mother.
The father also questioned whether it was reasonable that he was held to his intentions from maybe 12 years ago when he has had no involvement in the decision-making about schools. He also said he wanted the best education for his child. He said again that because he was not included in the decision-making, it is unfair to expect him to contribute when he has had no input into those decisions.
The mother said that she was not expecting the father to contribute to school fees on his current income, but she hoped if his income improved, he would do so in the future.
Based on evidence the mother provided to Child Support, [Child 1’s] school fees for 2023 are $6,150 a year.
The Tribunal is satisfied that there was a joint expectation by the parents with regard to the primary school that [Child 1] attended, which was a private school, and that the father should contribute to the fees charged by that school. This happened in relation to 2018, 2019 and 2020. The Tribunal notes that the mother had requested in relation to the latest COA that Child Support backdate its decision.[9] She told Child Support that she was not aware the previous decision had not included school fees for 2022. In fact, it had not included school fees for 2021 or 2022. The Tribunal observes that the decision dated 13 March 2019 was clearly worded.
[9] Page 134 of the documents.
The Tribunal considers it would be unfair to the father to now include school fees for 2021 when the option was open to the mother to lodge a COA at an earlier time to seek a contribution to the 2021 school fees, and she did not do so.
The Tribunal agrees with the objection decision, that the father is to contribute 50% of the school fees for 2022. The father did not dispute this and confirmed that he had intended for [Child 1] to attend this primary school.
With regard to the 2023 school fees, the Tribunal notes in particular that the father said that if the primary school attended by [Child 1] had developed a high school as intended many years ago, he would be in agreement with [Child 1] attending that school. That means the father was agreeable to [Child 1] attending a private school as a high school student. It is well established that in relation to parents’ expectations as to their children’s schooling, it is the type of school that is relevant (that is, public or private) rather than a particular school.
However, the Tribunal does not consider it is reasonable to conclude that the father expected the child to be educated in a certain manner in his high school years from 2023 on, when the father has had no contact with [Child 1] or involvement in decisions made about his schooling, since about 2018.
The mother gave evidence to the effect that attending his current school is particularly beneficial for [Child 1], as follows.
The mother said that [Child 1] struggles a little bit with his focus and she fears that if he was in a public school, particularly one in the area where she lives, he would fall through the cracks. In a private school, he gets the attention he needs. The mother said that being at this school is in [Child 1’s] best interests and he does well at his current school. The majority of his graduating class from primary school goes to the same high school and so he has been able to maintain his friendships which is clearly in his interests.
The Tribunal had regard to Beklar & Beklar (see the quote at paragraph 65).
The Tribunal accepts the mother’s evidence that attendance at a private school is the best option for [Child 1’s] welfare and on that basis, is satisfied that the father should contribute to [Child 1’s] high school fees according to his financial capacity to do so. The Tribunal is satisfied that the father had the capacity to do so for the period from 1 January 2023 to 30 June 2023 but not from 1 July 2023. He may be able to do so in the future.
The Tribunal finds that the father is to contribute 50% of $6,150, which is $3,075 a year, in relation to the period when he could afford to do so. For the six-month period just mentioned, he is to contribute $1,537 towards [Child 1’s] school fees.

Hardship

The Tribunal is required to consider any hardship its determination might cause and is guided by Gyselman and Gyselman[10] 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.
[10] [1991] FamCA 93.
According to Child Support records, the father had arrears of child support of $6,553 as at 25 February 2021. As noted earlier, his arrears of child support at 24 April 2023 were $13,758.
The Tribunal observes that there were periods during 2022–23 when the father did pay child support regularly through deductions from his pay, as can be seen from the payslips he submitted.[11]
[11] See pages 307 to 311 of the documents and A30 to A32 of the father’s submissions.

100.The Tribunal estimates that its decision will reduce the father’s arrears by about $2,000 for the period from 25 August 2022 to 24 April 2023 compared with the objection decision, while cautioning that the calculations are complex and the figure of $2,000 is only an estimate.
101.With regard to the child support assessment from 1 July 2023, the Tribunal has varied the rate of child support the father is required to pay, to the minimum annual rate for 2023 which is $459 a year. It is, of course, open to the father to pay more than that at any time to reduce his arrears, if his finances permit
102.The Tribunal is of the view that its decision pays due regard to the financial situation of each parent and gives appropriate weight to each parent’s circumstance.

Any other relevant matters

103.The Tribunal may take into account any other matters it considers relevant in making a particular departure determination (subsection 117(9) of the Act).
104.The Tribunal considers it just and equitable that the father is required to pay the minimum annual rate of child support from 1 July 2023 to the end of its determination which is 31 October 2024. The Tribunal has used the 2023 rate as it does not know the rate for 2024. As this sets the rate of child support for that period, there is nothing to be gained by varying the mother’s adjusted taxable income to $130,000 from 1 July 2023. Doing so would not affect the father’s liability.
105.Therefore, the Tribunal has not varied the mother’s adjusted taxable income from 1 July 2023.
106.As mentioned at the hearing, in determining the end date of its decision, the Tribunal has taken into account that the father has started a new business and his income during 2023‍–‍24 is difficult to predict at this stage. The Tribunal is of the view it is not appropriate to select an end date for its decision that is too far into the future.
107.The end date of this decision is therefore 31 October 2024. By then both parents will have had time to prepare their tax returns for 2023–24.
108.It remains open to either parent to apply for a change of assessment between now and 31 October 2024 if their circumstances change.

Issue 3 – Is it otherwise proper to make a particular departure determination?

109.The requirement to consider whether a departure determination would be otherwise proper is concerned with what is fair to the community; it is preferable for a child or children to be primarily supported by their parents rather than by government assistance. Paragraph 117(5)(b) of the Act means that the Tribunal must consider whether the level of a benefit, in particular family tax benefit (FTB), received by the party caring for a child or children, may be affected by the level of child support.
110.Based on her SFC, the mother is not in receipt of FTB. The Tribunal is satisfied that its determination has no bearing on any apportionment of financial responsibility between the parents and the community. It is satisfied its determination is otherwise proper.

DECISION

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

For the period from 25 August 2022 to 30 June 2023:
oMr Vannoy’s adjusted taxable income is varied to $114,389.
oMs Cleland’s adjusted taxable income is varied to $129,199.
For the period from 25 August 2022 to 31 December 2022, the annual rate of child support payable by Mr Vannoy is increased by $5,033.
For the period from 1 January 2023 to 30 June 2023, the annual rate of child support payable by Mr Vannoy is increased by $3,075.
For the period from 1 July 2023 to 31 October 2024, Mr Vannoy’s annual rate of child support is varied to $459, equivalent to the minimum annual rate of child support for 2023.