Walle and Whibley (Child support)

[2021] AATA 4802

Walle and Whibley (Child support) [2021] AATA 4802 (26 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/CC021147

APPLICANT:  Dr Walle

OTHER PARTIES:  Child Support Registrar

Ms Whibley

TRIBUNAL:Member M Douglas

DECISION DATE:  26 October 2021

DECISION:

The decision under review is varied so that it reads as follows:

The annual rate of child support payable by Ms Whibley is varied by reducing it as follows:

·$2,521 for the period 1 July 2020 to 31 December 2020;

·$5,834 for the period 1 January 2021 to 31 October 2021;

·$1,200 for the period 1 November 2021 to 31 December 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – whether there was a ground for departure – costs of special needs significantly affect the cost of maintaining the child – school fees – ground established – decision under review varied

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

1. Dr Walle and Ms Whibley are the parents of [Child 1], [Child 2] and [Child 3], for whom the Child Support Registrar has issued administrative assessments of child support, with the first assessment commencing on 21 June 2019.  All assessments have required Ms Whibley to pay child support to Dr Walle for the children. 

2. An assessment of child support is made in accordance with the provisions of Part 5 of the Child Support (Assessment) Act1989 (the Act).  Broadly speaking, those provisions prescribe a formula that applies to several variables to work out the amount of child support one parent must pay the other.  Those variables include the parents’ incomes (which generally will be a parent’s taxable income from the financial year before the start of the child support period to which the assessment relates); the level of care that each parent provides for their children; and the cost to care for the children.  A parent, if they believe there are special circumstances with respect to their case, may apply to the Registrar under section 98B of the Act for a determination to depart from those provisions of the Act relating to the assessment of child support. The Registrar, who acts through staff employed at Services Australia – Child Support (Services Australia), describes such an application as a “change of assessment application”. 

3. The Registrar, if satisfied that the criteria of subsection 98C(1) of the Act are met, can make one or more of the determinations listed in subsection 98S(1) to depart from the provisions of the Act relating to the assessment of child support. The criteria specified in subsection 98C(1) are firstly, that one of the several grounds for departure listed in subsection 117(2) of the Act is established in the particular case, secondly, that is just and equitable as regards the parents and the child to make a departure determination and, lastly, that it is otherwise proper to make a departure determination. 

4. The matters that must be considered regarding the second criterion are listed in subsection 117(4) of the Act, but broadly speaking consideration of those matters ensures that any departure will be fair for both parents and fair for the children.  The matters to be considered regarding the third criterion are listed in subsection 117(5) of the Act, and broadly speaking consideration of those matters ensures that any departure reflects that it is the parents, rather than the Australian community through the social security system, who have primary responsibility for the cost of their children’s care.

5. On 7 July 2020 Ms Whibley made a change of assessment application to Services Australia.  At that time, the assessment obligated her to pay child support to Dr Walle at an annual rate of $24,600.  That assessment was calculated using an adjusted taxable income for Ms Whibley of $255,318 and an adjusted taxable income for Dr Walle of nil.  The assessment was based on Ms Whibley and Dr Walle having equal care of their children. 

6. On 29 August 2020 Services Australia published its decision on Ms Whibley’s change of assessment application, which was not to make a departure determination.  Services Australia was satisfied that a ground for departure had been established, as a consequence of the cost of maintaining [Child 3] being significantly increased due to [Child 3] being educated at [School 1] that Services Australia considered was occurring in accordance with the expectation of Dr Walle and Ms Whibley.  However, Services Australia was not satisfied that it was just and equitable to make a departure determination, and consequently, because one of the criterion of subsection 98C(1) was not satisfied, its discretion to make a departure determination did not arise.

7. On 5 October 2020 Ms Whibley lodged an objection to that decision.  On 5 March 2021 Services Australia, now being satisfied that all the criteria of subsection 98C(1) were met, allowed Ms Whibley’s objection and made a departure determination in the following terms:

   The annual child support otherwise payable by Ms Whibley decreases, as follows:

   For the period 1 July 2020 to 31 December 2020, by an amount of $2521 in recognition of [Child 3]’s private tuition fees.

   For the period 1 January 2021 to 31 December 2021, by an amount of $5351 in recognition of [Child 3] and [Child 2]`s private tuition fees, and a further $483 for [Child 1]`s orthodontic treatment.

   For the period 1 January 2022 to 31 December 2022, by an amount of $5497 in recognition of [Child 3] and [Child 2]’s private tuition fees.

8. On 1 April 2021 Dr Walle applied to the Tribunal for review of the objection decision.  The Tribunal conducted an audio hearing of his application for review on 26 October 2021 using Microsoft Teams.  Dr Walle and Ms Whibley participated and both gave affirmed oral evidence.  No one from Services Australia participated, which is customary. 

9. Prior to the hearing Services Australia provided to the Tribunal, in accordance with its obligation under section 37 of the Administrative Appeals Tribunal Act1975, copies of the documents it had that were relevant to its objection decision.  Dr Walle also provided a bundle of documents to the Tribunal, in accordance with directions the Tribunal made, which are marked A1–A100. Ms Whibley did similarly, and her documents are marked B1–B102.

10. The Tribunal has had regard to those documents and to the oral evidence of Dr Walle and Ms Whibley. 

CONSIDERATION

Is a ground for departure established?

1. In the change of assessment application form that Services Australia has specified for a parent to make an application under section 98B of the Act, Services Australia lists within Part 5 the several grounds for departure enumerated in subsection 117(2), of which one must be established before a departure determination can be made.  Services Australia describes those grounds within the change of assessment application form as “Reasons”.  The grounds for departure that Ms Whibley ticked in Part 5 of her change of assessment application were those provided in subparagraphs 117(2)(b)(ii), 117(2)(c)(ii), 117(2)(c)(ia), and 117(2)(c)(ib) of the Act, to which Services Australia refers as “Reasons” 3, 5, 8A and 8B.  Whilst not ticking the relevant box in Part 5, the detail that Ms Whibley provided in her application form to support her application also brought into consideration the ground for departure provided in subparagraph 117(2)(b)(ia), being “Reason” 2.  Services Australia in both its primary decision of 29 August 2020 and in its objection decision of 5 March 2021 considered that ground. 

2. It is convenient for the Tribunal to deal with that ground for departure, that is, the ground provided in subparagraph 117(2)(b)(ia), which reads as follows:

   that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:

   (ia) because of special needs of the child.

3. There is no dispute between Dr Walle and Ms Whibley that both [Child 3] and [Child 1] have had orthodontic treatment since the assessment of child support commenced.  In the evidence before the Tribunal is a letter dated 28 October 2019 from Dr [A] to Ms Whibley in which he advised that [Child 3] had “adult dentition with a bite relationship that has her lower teeth biting further back than ideal”, that [Child 3] had “significant loss of space for the eruption of her upper right canine which has resulted in drifting of the upper dental midline”, and that [Child 3] had “a bulge on the roof of the mouth which indicates that this unerupted canine tooth is impacted on the pallet”.[1]  Dr [A] recommended that full braces be applied to [Child 3]’s teeth for a course of two or three years.  Dr [A] advised that the fee for the treatment would be $9,400 which was to be paid by means of a 40% deposit on the day the braces were fitted to [Child 3]’s teeth and the balance by instalments over a 21-month period. 

   [1] Hearing papers page 396

4. Ms Whibley’s evidence to the Tribunal, which the Tribunal accepts, was that she met the bulk of the cost of the orthodontic treatment [Child 3] had.  She received a rebate from her health insurer of $1,200 and her mother assisted with a couple of the instalments, but otherwise she paid for the treatment without assistance from Dr Walle. 

5. Also within the evidence before the Tribunal is a further letter from Dr [A] dated 17 June 2020 addressed to Ms Whibley relating to [Child 1] in which Dr [A] advised that [Child 1] has a “left hand side bite issue and cross bite... causing her lower jaw to grow to the left”.[2]  Dr [A] recommended an upper expansion plate be applied over an approximate period of 9 months to correct the problem.  Dr [A] advised the cost would be $3,500 which he was willing to reduce to $3,000 on account of his having previously treated [Child 1].  He further advised that that amount would have to be paid by a deposit of 40% on the date the appliance was fitted with the remainder to be paid by instalments over a 9-month period.

   [2] Hearing papers page 118

6. Ms Whibley’s evidence, which the Tribunal accepts, was that she paid that amount in accordance with the proposal that Dr [A] had advised in his letter.  In other words, she paid $3,000 by means of a 40% deposit on the day [Child 1] had the treatment and paid the remainder by equal instalments over a 9-month period.  Ms Whibley’s evidence was that she received no rebate from the health insurer for the cost of that treatment. 

7. Ms Whibley’s evidence was also that the expander that was fitted to [Child 1]’s mouth broke before Christmas in 2020.  Ms Whibley said that Dr [A] recommended that a retainer be fitted to complete the treatment, rather than repairing the expander.  Ms Whibley’s evidence is that Dr [A] did not charge any fees for that.

8. It was Dr Walle’s evidence that he paid $110 or $220 to Ms Whibley as a contribution towards the cost of that retainer.  Ms Whibley disputed that he did so. 

9. The Tribunal notes that the case that Dr Walle presented to Services Australia in opposition to Ms Whibley’s change of assessment application was that he had not agreed to the orthodontic treatment that [Child 3] and [Child 1] had.  Further, the grounds he articulated in the form by which he made his application to the Tribunal for review of Services Australia’s objection decision included that there was “no agreement” for [Child 1] to have the treatment she did.[3]  Dr Walle also contended that he ought only be liable for the cost of any major treatment [Child 1] or [Child 3] had if he had agreed to it.  Given that position of Dr Walle, and noting that Dr [A] had corresponded with Ms Whibley regarding the treatment that was to be dispensed to [Child 1] and [Child 3] and regarding the cost of that treatment, the Tribunal prefers the evidence of Ms Whibley that Dr [A] did not charge for fitting a retainer to [Child 1]’s teeth, and that consequently, given there was no charge, she received no money from Dr Walle regarding the treatment.  The Tribunal finds the evidence of Ms Whibley on this issue to be more reliable than Dr Walle’s evidence.

   [3] Hearing papers page 2

10. In any event, the Tribunal is satisfied from the correspondence that Ms Whibley received from Dr [A], that both [Child 3] and [Child 1] had a special need with respect to their teeth that required treatment.  The overall cost for that treatment, net of the health rebate that Ms Whibley received from her health insurer for the treatment [Child 3] had, amounted to $11,200, which, Ms Whibley paid over the course of approximately 18 months from November 2019 to April 2021, other than a couple of instalments her mother paid.

11. The Tribunal is satisfied that with the expense Ms Whibley incurred to ensure treatment of the special need that [Child 3] and [Child 1] had regarding their teeth that the costs of maintaining those children were significantly increased.  The Tribunal also considers that, by virtue of the fact that [Child 3] and [Child 1] had those special needs with respect to their teeth, special circumstances exist in this case, such that the ground for departure provided in subparagraph 117(2)(b)(ia) is established.

12. Given that a ground for departure has been established, considering whether any of the other grounds on which Ms Whibley also relied are established becomes otiose. 

Is it just and equitable to make a determination?

1. As already mentioned, 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.[4] Rather than dealing separately with each matter that is relevant, it is convenient for the Tribunal to group the matters and consider them, insofar as the matters have relevance, by a reference to the following headings.

   [4] Gyselman and Gyselman (1992) FLC 92-289; Ross v McDermott (1998) FLC 98-003; and Lawson and Edney [2017] FCWA 77

The children’s circumstances

1. The children’s ages are such that they do not have income or property. 

2. As discussed above, [Child 3] and [Child 1] had a special need with respect to their teeth that required treatment at significant cost that was largely borne by Ms Whibley.

3. The proper needs of the children also include that they receive an education. 

4. In the evidence before the Tribunal is a [School 1] enrolment form that Ms Whibley and Dr Walle signed on 4 March 2018 seeking that [Child 3] be enrolled at that school.[5] 

   [5] Hearing papers page 133

5. Ms Whibley’s evidence was that [Child 3] was accepted for enrolment at that school and commenced her year 7 studies there in 2019.  She remains enrolled at that school.  Ms Whibley’s evidence was also that [Child 2] also commenced his year 7 studies at that school in 2020.

6. The fees this school charges for a child in year 7 to 8 are around $16,000 a year with a 10% discount being provided for the second sibling. 

7. Ms Whibley and Dr Walle separated on [date] January 2019.[6]  The Tribunal is satisfied from the fact that both Ms Whibley and Dr Walle signed a form for [Child 3] to be enrolled at [School 1] that, as at their date of separation, it was their mutual expectation that [Child 3] would be educated at that school.  The Tribunal also infers from Dr Walle and Ms Whibley having the expectation that [Child 3] would be educated at that college that, as at the date of their separation, it was also their expectation that their younger children would similarly be educated at that school.

   [6] Hearing papers page 96

8. Dr Walle’s evidence to the Tribunal was to the effect that he and Ms Whibley had agreed that if the children were to be educated at the [School 1] that it would be at the expense of Ms Whibley.  He said that Ms Whibley had informed him that her parents would meet the cost as a gift to the children.

9. Ms Whibley’s evidence was that whilst she and Dr Walle had discussed the issue of whether they could afford the children attending [School 1], no resolution had been reached between them before their separation on how the cost associated with sending the children to [School 1] would be borne.  Ms Whibley said that at the time they had the discussion Dr Walle was anticipating obtaining employment with [a workplace], however that job did not eventuate for him.

10. Dr Walle did not in his evidence to the Tribunal indicate that he had ever spoken with Ms Whibley’s parents regarding the issue of their paying for school fees.

11. It seems to the Tribunal that, most likely, whilst discussion did occur between Dr Walle and Ms Whibley regarding whether they could afford the cost of schooling the children at [School 1] and how they might bear those costs, no resolution was reached by the time of their separation in January 2019. 

12. As matters have transpired, however, Ms Whibley’s parents have met the cost of schooling the children at [School 1].  As the Tribunal understood Ms Whibley’s evidence, the likelihood is that her parents will continue to assist her with the school fees for the children. 

13. Also relevant to the issue of the children’s education is that on 20 May 2020, which is subsequent to Ms Whibley and Dr Walle’s separation, the Family Court of Australia made orders with the consent of Ms Whibley and Dr Walle to adjust their interests in their property, and those orders include a notation that “it is agreed that all three children will attend [School 1] for high school at the mother’s expense and both parents will sign the enrolment forms for this purpose”.[7] 

    [7] Hearing papers pages 135–139

14. That notation verifies that post the separation of Dr Walle and Ms Whibley it remained their expectation that the children would be educated at [School 1].  That notation further evidences that a premise upon which they adjusted their interests in their property included that Ms Whibley would be responsible for the cost of the children being educated at that college.

15. The Tribunal also takes into account that on 23 June 2020 Ms Whibley and Dr Walle made a binding child support agreement that Services Australia accepted on 11 September 2020.  That agreement provided for Ms Whibley and Dr Walle to pay periodic child support as determined in accordance with any assessment of child support Services Australia issued from time to time.  Further, the agreement provided for non-periodic child support to be paid from one to the other by means of sharing out of pocket medical expenses for any routine medical treatment, sharing any out of pocket medical expenses for any “agreed major treatment”, sharing the cost of expenses of the children in “agreed extracurricular activities”, and Ms Whibley bearing the cost of private health insurance for the children.[8]

    [8] Hearing papers pages 95–113

16. As discussed above, Dr Walle has not contributed to any of the costs associated with either [Child 3] or [Child 1]’s orthodontic treatment, notwithstanding that it was necessary for those children to have that treatment.  As mentioned above, his reason was because this was not “agreed” treatment.

17. The Tribunal also takes into account that all the children participate in sporting activities and that [Child 3] and [Child 1] also participate in dance.  Ms Whibley also bears the cost of those activities, without contribution from Dr Walle.  Again, as the Tribunal understood the evidence, this was because Dr Walle’s position is that he has not agreed to these activities in which the children participate.  The Tribunal considers that it is a proper need of the children that they engage in extracurricular activities, such as sport and dance.

Ms Whibley’s circumstances

1. Ms Whibley is employed as a [occupation].  She is assigned within the level of [level deleted]. In the two prior years she has been engaged in a higher position at [a higher] level.  Presently she is also filling in at [the higher] level.  Her filling in a position at the [higher] level is temporary. She had a taxable income in the 2019 year of $255,398 and $264,226 in the 2020 year. 

2. In her statement of financial circumstances that she completed on 26 September 2021, declaring the contents to be complete and correct, she listed her average weekly income before tax was $4,342.  She also estimated in that statement that tax of $1,450 is deducted each week.

3. Her property comprises that which can be traced to what was allocated to her by the orders to which she and Dr Walle consented in the Family Court proceedings for an adjustment of their property.  In her statement of financial circumstances she detailed that she owns her home of which she estimates the value to be $1.85 million, her motor vehicle of which she estimates the value to be $45,000 and household contents worth $132,500.  She detailed that she has a loan facility on which she is presently drawing to fund landscaping to her house and of which she estimates the total outstanding balance will be $247,000 upon completion of that landscaping.  That loan is secured by way of a mortgage over the title to her house.  She also detailed having accrued significant entitlement to superannuation but given her age, that is not a resource upon which she will be able to draw for several years. 

4. She listed her weekly expenditures in her statement of financial circumstances.  Her list did not include anything that could be considered indulgent and indeed comprised what would be necessary to ensure her support and that of the children when they reside with her.  The total of expenses amounted to $1,806 a week.

5. As discussed above, her parents cover the cost of the children attending [School 1].  Insofar as her parents do that, her parents ought to be treated as a financial resource for Ms Whibley upon which she can rely to meet that aspect of the cost of the children’s care.

Dr Walle’s circumstances

1. Dr Walle has not been employed since the 2019 financial year.  The position in which he was employed in the 2019 year came to an end as a consequence of the expiration of the terms of the contract under which he was employed. 

2. He is qualified as a [occupation].  His evidence was that since the 2019 financial year he has applied for several positions within his field of expertise, both at junior and senior level, but has not yet had success with his applications.  His evidence was that he has not been successful in even obtaining an interview for the positions for which he has applied.  He said that he has been trying to develop positions as a consultant in partnership with a colleague, but he has been unsuccessful also in that endeavour. 

3. Dr Walle’s evidence, which the Tribunal accepts, is that he presently receives a job search allowance at the rate of $315.00 a week.  His evidence was that he has not applied for family tax benefits from the Federal Government.  This is so notwithstanding that it would seem that he would be entitled to that benefit given that he is genuinely without employment and without income and having care of the children for 50% of the time. 

4. Dr Walle completed two statements of financial circumstances, declaring the contents to be complete and correct.  The first is dated 19 May 2021 and the second 29 September 2021.  In his later statement he listed his property comprises his home which he stated the value to be $750,000, a [motor] vehicle of which he estimates the value to be $7,000, a [motor] vehicle of which he estimates the value to be $23,000 and household contents worth $50,000.  He purchased the [motor] vehicle in late 2020.  On direct questioning by the Tribunal, he agreed that he does not need two motor vehicles.  His evidence was that he has not yet tried to sell the more expensive [vehicle] and his reason for that was that he has not been able to recover the log books for it.  The Tribunal considers that this is an asset that is surplus to his needs and notwithstanding that he may not have the log books for it, the sale of it would still provide him funds that he could use to assist with the cost of caring for the children.

5. Dr Walle listed that he has accumulated superannuation entitlements of $668,200.  His evidence was that if he were to declare himself retired he could receive the whole of those funds as a lump sum or alternatively receive them progressively as a fortnightly pension.  He said that it may come to a point, if he is unable to obtain employment, that necessity may require him to do that, but he contended that it would not be a wise thing for him to do because the purpose of the fund is to ensure he has a means to support himself over the course of the remainder of his life.  In other words, as the Tribunal understood him, while there is still some prospect that he may obtain employment, and it is his endeavour to do so, it is reasonable for him not presently to draw upon what he has accumulated by way of superannuation entitlements.  The Tribunal accepts that is a reasonable position for Dr Walle to take.

6. Dr Walle’s weekly expenses as listed in his statement of financial circumstances amounted to $1,125.  That included an amount of $211 for vehicle maintenance and an amount of $255 for house repairs.  He detailed in his statement that those were “extraordinary expenses” and were “one off costs”.  In other words, he does not expect that they will form part of his weekly expenditures into the future.  His list of expenses was otherwise modest and did not reveal any indulgences for him.

7. The Tribunal accepts that were it to make a determination that would reduce the amount of child support he receives from Ms Whibley, hardship would be caused to him because of his limited means.  However, that hardship could be diminished partly were he to seek the payment of a family tax benefit and sell his [motor] vehicle. 

Conclusions regarding whether it is just and equitable to make a determination to depart from the assessment of child support

1. Having regard to the matters set out above, the Tribunal considers that it is just and equitable to make a determination to depart from the provisions of the Act with respect to the assessment of child support, so as to reduce the rate of child support payable by Ms Whibley.  Critical to that conclusion is that the proper needs of the children include their participation in extracurricular activity and that the proper needs of [Child 3] and [Child 1] necessitated their having  expensive orthodontic treatment.  The child support agreement that Dr Walle and Ms Whibley made obligated them to share the cost of “agreed major treatment” and also “agreed extracurricular activities”.  Essentially, Dr Walle, by not agreeing to the extracurricular activity in which the children have been participating and by not agreeing to the orthodontic treatment [Child 3] and [Child 1] had, has not been required to contribute to the expense Ms Whibley incurred to enable the children to participate in their extracurricular activities and to obtain treatment for [Child 3] and [Child 1].  The Tribunal has found that these are and were proper needs of the children.  In those circumstances, the Tribunal considers it would be fair as regards Ms Whibley and Dr Walle and the children for there to be a reduction in Ms Whibley’s child support obligation so as to effect from Dr Walle a contribution towards the expenses associated with these needs of the children. 

2. The Tribunal takes into account that Ms Whibley’s financial situation is clearly superior to that of Dr Walle.  Nevertheless, given that they each have a primary duty to maintain their children, the Tribunal considers, as has just been indicated that having weighed the matters discussed above, the annual rate at which Ms Whibley is required to pay child support to Dr Walle ought to be reduced so as to require Dr Walle to contribute half of the cost that Ms Whibley incurred for the orthodontic treatment for [Child 3] and [Child 1] and to effect an ongoing contribution from Dr Walle, although less than half, towards the cost for the children’s extracurricular activities. 

3. The Tribunal notes that Ms Whibley’s evidence was that she has paid all child support she has been liable to pay under the extant assessments.  Consequently, to reduce her obligation by more than that which has been effected to date by the departure determinations that Services Australia made by way of its objection decisions would place her account with Services Australia in credit, which would mean that Dr Walle would not receive any ongoing child support from her until that credit were to be offset against his ongoing entitlement.  Noting his inferior financial position, the Tribunal considers such an outcome would cause him and the children whilst they are in his care, unnecessary hardship.

4. The Tribunal calculates that if the departure determinations that Services Australia made by way of its objection decisions are kept in place for the period 1 July 2020 to 31 August 2021, then that would broadly equate with half of what Ms Whibley spent on the orthodontic treatment that [Child 3] and [Child 1] had. 

5. In the circumstances, and weighing the matters discussed above, it seems to the Tribunal that the departure that would be just and equitable to make would be the determinations that Services Australia made by its objection decision but only until 31 October 2021, and thereafter a determination that the annual rate of child support payable by Ms Whibley be reduced by $1,200 until 31 December 2023.  This ensures a contribution by Dr Walle to half of the costs of the orthodontic treatment and a contribution from him to some of the cost, but less than half, of the children’s extracurricular activities.

6. The Tribunal has decided not to make a departure decision for a longer period but would suggest that if either party considers that there continue to be special circumstances beyond 31 December 2023 with respect to the children that either of them make a further application to Services Australia at that stage. 

7. In summary, the Tribunal considers, having regard to the above matters, that the just and equitable determination to make is to determine that there be a departure from the provisions of the Act with respect to the assessment of child support by reducing the annual rate at which Ms Whibley is to pay child support for the children by $2,521 for the period 1 July 2020 to 31 December 2020 and by $5,834 for the period 1 January 2021 to 31 October 2021 and by $1,200 for the period 1 November 2021 to 31 December 2023.

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 the children rests with Dr Walle and Ms Whibley, and also have regard to whether, and if so how, any determination it makes would affect any entitlement of Dr Walle or the children to an income tested pension, allowance or benefit. 

2. The Tribunal understands that none of the children received or will receive an income tested pension, allowance or benefit during the relevant period and, also, that circumstance will not change whatever determination the Tribunal makes. 

3. As mentioned above, it would seem that Dr Walle would be entitled to receive a family tax benefit from the Commonwealth Government, but has not applied for it.  The Tribunal understands that were he to apply for such a benefit, then the rate at which he would receive that would be marginally greater than what would be the case were the Tribunal not to make a determination to depart from the provisions of the Act with respect to the assessment of child support. Notwithstanding that, given the matters discussed when considering whether it would be just and equitable to make a departure determination, the Tribunal considers that the determination it considers it is just and equitable to make is also otherwise proper to make.

DECISION

The decision under review is varied so that it reads as follows:

The annual rate of child support payable by Ms Whibley is varied by reducing it as follows:

·$2,521 for the period 1 July 2020 to 31 December 2020;

·$5,834 for the period 1 January 2021 to 31 October 2021;

·$1,200 for the period 1 November 2021 to 31 December 2023.