Walpole and Conway (Child support)

[2024] AATA 2897

Walpole and Conway (Child support) [2024] AATA 2897 (19 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC027050

APPLICANT:  Ms Walpole

OTHER PARTIES:  Child Support Registrar

Mr Conway

TRIBUNAL:Senior Member J Longo

DECISION DATE:  19 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – ground for departure – income, property and financial resources – financial position of company not fully disclosed – just and equitable – needs of the children – decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1.Mr Conway and Ms Walpole are the separated parents of [Child 1] and [Child 2]. According to the records of Services Australia – Child Support (Child Support), the child support assessment was registered on 16 June 2016. Child Support has been responsible for the collection of child support from Ms Walpole since 10 December 2022. The children are recorded as being in the greater than primary care of Ms Walpole.

2.The most recent administrative assessment, prior to the application for this departure determination, was as follows:

·      For the period 1 December 2022 to 18 June 2023 Ms Walpole is to pay an annual rate of child support of $10,378 based on a 2021–22 adjusted taxable income of $117,575 for Ms Walpole and a 2021–22 adjusted taxable income of $45,769 for Mr Conway.

3.Ms Walpole applied to Child Support for a departure from the administrative assessment on 16 March 2023 on the basis that, in the special circumstances of the case, it was unfair because of the income, earning capacity, property or financial resources of one or both parents (Reasons 8A and 8B).

4.On 25 July 2023, Child Support decided to depart from the administrative assessment on the basis of Reason 8 and made a departure determination as follows:

·      For the period 16 March 2023 to 30 June 2025, Mr Conway’s adjusted taxable income is set at $105,000 per annum.

5.Mr Conway objected to the decision on 23 August 2023. An objections officer of Child Support allowed the objection on 9 November 2023 as follows:

·      For the period 16 March 2023 until a terminating event occurs, Mr Conway’s adjusted taxable income is set at $59,000 per annum.

6.On 14 November 2023, Ms Walpole lodged an application to the Administrative Appeals Tribunal (the Tribunal) for review of the objections officer’s decision. Directions for this matter were made on 19 March 2024. The application was heard on 30 April 2024 and 13 June 2024. The Tribunal considered the documents and information (provided to the parties prior to the hearing)[1] and the oral evidence of Ms Walpole and Mr Conway at hearing. Relevant aspects of the evidence and material will be referred to in the Tribunal’s decision.

[1] Administrative Appeals Tribunal Act 1975 subsection 37(1) and section 38AA statement and documents provided by Child Support numbered 1 to 581; Ms Walpole’s documents numbered A1 to A150; and Mr Conway’s documents numbered B1 to B268; Child Support documents numbered C1 to C25.

CONSIDERATION

The legislative framework and issues

7.The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act1989 (the Assessment Act). This involves the application of a statutory formula, which takes into account factors such as the number of children, the age of each child, the level of care provided and the income of each parent. The income used in the calculation has a number of components making up the adjusted taxable income, which is worked out using section 43 of the Assessment Act. The general approach is that the Child Support Registrar (the Registrar) will utilise a parent’s adjusted taxable income as assessed by the Australian Taxation Office for the last relevant year of income.

8.The liable parent or a carer may apply for a determination departing from the administrative assessment under Part 6A of the Assessment Act. Section 98C establishes a three‑step process to be satisfied prior to a departure determination being made: that there is a ground for a departure from the administrative assessment; that it is just and equitable to depart; and that it is otherwise proper. Once satisfied, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act.

Reason 8: Mr Conway’s and Ms Walpole’s income, property, financial resources

9.Subparagraph 117(2)(c)(ia) of the Assessment Act provides that a ground for departure from an administrative assessment arises as follows:

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

…

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

10.With regard to terminology, the Tribunal also notes that generally, adjusted taxable income is calculated according to section 43 of the Assessment Act and is the total of the following: (a) the parent’s taxable income for the last relevant year of income in relation to the child support period, disregarding the parent’s assessable first home super saver (FHSS) released amount (within the meaning of the Income Tax Assessment Act 1997) for that year of income; (b) the parent’s reportable fringe benefits total for that year of income; (c) the parent’s target foreign income for that year of income; (d) the parent’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year of income; (e) the total of the tax free pensions or benefits received by that parent in that year of income; and (f) the parent’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year of income.

11.The discretion provided for under section 117 of the Assessment Act provides that the Tribunal can depart from the administrative assessment. This means that the Tribunal can determine that an income amount other than a parent’s adjusted taxable income is to be used for the purpose of calculating the parent’s child support obligation. Where Child Support has referred to adjusted taxable income for the purpose of making the administrative assessment, the Tribunal accepts its calculations. For clarity, the Tribunal will refer to this figure as the parent’s “income for child support purposes”. Another income amount to be referred to in these Reasons is “taxable income” and that is the amount specified in Australian Taxation Office income tax returns.

12.As outlined above, for the period from 1 December 2022 to 18 June 2023, when making the administrative assessment, Child Support used an adjusted taxable income of $45,769 for Mr Conway and an adjusted taxable income of $117,575 for Ms Walpole.

13.The term “special circumstances” in paragraph 117(2)(c) of the Assessment Act is not defined. However, in Gyselman and Gyselman (1992) FLC 92-279 the Full Family Court indicated that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary.

14.In considering the above, the Tribunal is also mindful of the requirement of satisfying subsection 117(7A) of the Assessment Act having regard to the capacity of the parent to derive an income but disregarding the capacity of anyone who does not have a legal duty to maintain the child. To this end, the Tribunal has considered Mr Conway’s and Ms Walpole’s circumstances as the parents of [Child 1] and [Child 2]. The Tribunal has assessed Mr Conway’s and Ms Walpole’s income, property and financial resources to determine whether a ground is established.

15.Ms Walpole confirmed that she was working for [Employer 1] as a [Occupation 1] on a full-time basis from around November 2023 until March 2024 when she resigned due to the workload. Ms Walpole stated that at the time she resigned, she was coordinating east, west and south Victoria and overseeing staff in all those regions, including country areas. She was unable to continue to manage this employment due to personal circumstances.

16.Ms Walpole stated that the property she was renting was destroyed by fire in August 2023 and they lost all their belongings. At the time, she had transferred her banking to [Bank 1] and as her contents insurance was paid automatically from her previous account, the insurance lapsed and so they did not have any insurance cover at the time of the fire. They did not have housing and eventually found another rental which was $650 per week, however the rental was too high and so they broke the lease and moved to another property in April 2024, where the rental is $480 per week and more affordable.

17.Ms Walpole stated that she is currently on jobseeker payment and receiving family tax benefit but has no other income. She is looking for other work and also hoping to complete some studies. She has also applied for an ABN so she can do some work as an [Occupation 2]. Prior to working for [Employer 1], she was employed at [Employer 2] but finished her employment there in June 2023. She was salary sacrificing, when working full‑time, towards rent and her car repayments and also for food and entertainment costs, but this stopped when she resigned. She has missed a car payment and hopes to make up the payment but her vehicle might be repossessed. She stated that she has to revisit her expenditure due to her current unemployment.

18.Ms Walpole stated that she shares the household with her partner, mother and [Ms A], who is over 18 years old and not part of the assessment. [Child 2] and [Child 1] also reside in the household.

19.Ms Walpole completed a Statement of Financial Circumstances on 17 November 2023 which showed her weekly income from employment at around $1,900 per week.[2] Ms Walpole completed a subsequent Statement of Financial Circumstances on 9 April 2024 which showed income of around $951, derived from her Centrelink payments and child support. The payslips[3] given to the Tribunal by Ms Walpole show gross income of $4,266 per fortnight. Ms Walpole’s subsequent Statement of Financial Circumstances confirms her only source of income is from Centrelink including family tax benefit. The Tribunal notes that family tax benefit is not taken into account in the calculation of a parent’s income for the purpose of assessing child support.

[2] Page A3 of Ms Walpole’s documents to the Tribunal.

[3] Page A26 to A28 of Ms Walpole’s documents to the Tribunal.

20.Ms Walpole stated that she did not expect Mr Conway should pay more child support due to her change of circumstances and that she is hopeful of finding alternate employment. She stated that she is looking at positions which pay around $60,000 to $80,000 per annum, which are reflective of roles with less responsibility than her previous roles.

21.Mr Conway told the Tribunal that he works full-time as a [Occupation 3]. He is employed through [Company 1] which is owned by Mr Conway and his wife, with Mr Conway owning six out of the 10 available shares and his wife owning the other four shares. Mr Conway and his wife are also Directors of [Company 1].

22.Mr Conway told the Tribunal that apart from employing himself, he also has an apprentice who is full-time. The other [Occupation 3]s engaged by [Company 1] are contractors, which he uses as required depending on the work being undertaken. He stated that he predominately does work for one builder, who does both commercial and residential work, and he does the [work] when the properties are ready. Mr Conway stated that there are breaks throughout the year where there is no work.

23.Mr Conway’s 2021–22 adjusted taxable income is recorded in the Child Support documents as $45,769. Mr Conway provided a notice of assessment for the 2022–23 financial year which showed taxable income of $49,038.[4] The Tribunal directed Mr Conway to provide his 2022–23 income tax return and 2022–23 financial statements for [Company 1], including profit and loss and balance sheets. Mr Conway stated that he sent these to the Tribunal but this information has not been received. Mr Conway stated that [Company 1] has minimal assets and that his work vehicle is owned by him and used for both work and private use. However, the details of the assets held in [Company 1] have not been provided as the financial statements have not been received by the Tribunal.

[4] Page B18 of Mr Conway’s documents to the Tribunal.

24.Mr Conway stated that he trains racehorses through [Company 1]. He stated that this is a hobby, and he is currently training four horses. One of the four horses is owned partly by a syndicate (60% ownership) and the other three horses are in his and his wife’s name. The Tribunal discussed with Mr Conway the costs associated with training the horses, which includes such expenses as feed, farrier work, transportation, registration and veterinarian costs, as calculated by Child Support, were around $43,000 per annum. Mr Conway stated that these costs are met through the unplaced winning subsidies, race winnings and payments from syndicate fees. Mr Conway was unable to provide any figures regarding the winnings from horseracing.

25.The Tribunal notes that the objections officer’s decision determined that Mr Conway’s adjusted taxable income is $59,000, based on Mr Conway’s 2022–23 taxable income and an amount of around $10,000 per annum from Mr Conway’s winnings from horseracing. Mr Conway did not provide any financial statements for the 2022–23 financial year for [Company 1]. A profit and loss statement for the month ending 31 March 2024 was provided to the Tribunal by Mr Conway.[5] This statement only shows income of $32,121.18 and expenses of $32,877.51. However, the information in this document is inconsistent with Mr Conway’s statements at hearing and information contained in the Statement of Financial Circumstances. The Tribunal notes that the profit and loss statement show wages and salary of $565 for this month. This amount does not align with Mr Conway’s Statement of Financial Circumstances which shows he receives weekly income of $813.54. Mr Conway’s evidence to the Tribunal was that while he did pay for food for himself and others when travelling for work, his accommodation was usually provided by the builder. However, the profit and loss statement shows a travel allowance of $10,000 for March 2024, which is inconsistent with Mr Conway’s evidence. Other expenses claimed by [Company 1] include rent of $454.55 and motor vehicle expenses of $3,470.15, notwithstanding Mr Conway’s evidence that [Company 1] is operated from his principal home and he uses his own vehicle for work.

[5] Page B5 of the documents provided by Mr Conway.

26.It is unclear whether this is normal monthly expenditure for [Company 1] over the financial year or what, if any, of this expenditure was for the previous financial period. However, the information is incomplete and does not include expenditure which, according to Mr Conway’s evidence, should occur, such as his weekly wages. The Tribunal has therefore placed minimal reliance on this profit and loss statement. The Tribunal does find, based on evidence at the hearing, that Mr Conway derives some non-remunerative benefit from [Company 1], namely the payment of motor vehicle expenses on his behalf. Mr Conway did not provide evidence to the Tribunal regarding the amounts of these expenses directly, but there is evidence of the payment of fuel and motor vehicle expenses paid through the business account. While the Tribunal accepts that Mr Conway’s vehicle is used for work purposes, as stated in the hearing, Mr Conway also indicated that he uses the vehicle for his own personal use. The business account also indicates that payments relating to the horse training have been paid through this account.

27.It is a well-established principle in the Family Court that the taxable income of a person who is involved in their own business may not be an accurate reflection of their earning capacity, income, benefits and financial resources for child support purposes (DJM and JLM [1988] FamCA 97; Scott and Scott (1994) FLC 92-457; Carey and Carey (1994) FLC 92-489). Even though this principle is well established, the particular circumstances of the case must still be considered. It is clear that Mr Conway is employed through [Company 1] and that he and his wife are Directors of the Company, as well as shareholders. Mr Conway’s income is from employment through [Company 1] and his taxable income was $49,038 in the 2022–23 financial year. The Tribunal finds that he also enjoys the benefit of expenses being met by [Company 1], based on the information provided. This includes payments towards the costs of a motor vehicle which is used for both work and private purposes. While such claims are perfectly acceptable for tax purposes, they provide some benefit which should not be disregarded for the purpose of assessing child support.

28.In addition, the Tribunal has also considered the issue of Mr Conway’s provision of information to the Tribunal. In Humphries & Berry (SSAT Appeal) [2008] FMCAfam 409 (Humphries) Slack FM dealt with the issue of the disclosure of financial information in matters before the Tribunal. His Honour made it clear that the principle of full and frank disclosure applicable to proceedings in the Family Court was also applicable to proceedings before the Tribunal and the obligation:

to make a full and complete disclosure of their financial affairs relevant to the matter before the hearing and a duty to assist the Tribunal to come to its determination in the application.[6]

His Honour further observed that while it is open to the Tribunal to exercise its powers to obtain information to clarify inconsistent, confusing and incomplete financial information, this does not diminish the parties’ obligations and duties to the Tribunal and the Tribunal should not be unduly cautious about making findings in favour of the other party if it is not satisfied that proper disclosure has been made.[7]

[6] Paragraphs 26 and 27.

[7] Paragraphs 30 and 31.

29.Similarly, in K & M (No.2) [2007] FMCAfam 920:[8]

The law is clear: there is a duty in proceedings of this type on every party to provide full disclosure of their financial position. If full disclosure is not provided the Court is at liberty to make appropriate inferences and findings from the non-disclosure, and not to be unduly cautious in doing so when making findings or drawing inferences against the non-disclosing party.

[8] Paragraph 9.

30.The Tribunal finds that Mr Conway’s failure to fully comply with directions as requested results in the Tribunal not having sufficient information before it to allow it to consider his circumstances relating to income and expenses and financial resources. As stated in Humphries above, it was Mr Conway’s obligation to provide information fully and completely. By not doing so, Mr Conway has not fulfilled this obligation.

31.The Tribunal further observes that the Court has observed on numerous occasions that the Tribunal is not required to undertake a “forensic audit” or major investigation of the financial circumstances of a party (Podmore & Pillai (SSAT Appeal) [2011] FMCAfam 952 and Frost and Frost (SSAT Appeal) [2011] FMCAfam 1311). Rather, the Tribunal must be satisfied on the balance of probabilities as to the income, property and financial resources available to the parties for child support purposes, such that a fair decision can be made in respect of the child support liability (Shearer & Benson (SSAT Appeal) [2011] FMCAfam 623).

32.The Tribunal notes that Mr Conway was directed to provide information to the Tribunal relating to his 2022–23 income tax return and financial statements from [Company 1] for the 2022–23 financial year. This information was not provided. Mr Conway stated that the information was sent to the Tribunal but there is no evidence which confirms the information was provided. In not providing this information, the Tribunal is unable to properly assess Mr Conway’s circumstances for the purpose of determining whether a ground is established. [Company 1] appears to pay for a number of non-work-related expenses, from what can be ascertained in the bank statements. As a copy of the financial statements has not been provided, the Tribunal is unable to ascertain how these payments have been accounted for within [Company 1]’s profit and loss and balance sheet or whether they represent a benefit Mr Conway received through [Company 1]. In addition, there is no information regarding whether any profit (or loss) has been incurred and whether, if there was a profit, this has been distributed to the shareholders or retained in the business.

33.In addition, the Tribunal finds that Ms Walpole’s circumstances have also changed considerably since the Child Support decision. Previously she was in full-time employment but has since then subsequently left her employment and is receiving income support payments.

34.In the circumstances and on the basis of the Tribunal’s findings above in relation to both Mr Conway’s and Ms Walpole’s circumstances, the Tribunal is not satisfied that either parent’s income, financial resources or property or earning capacity are such that they make the assessment of child support under the administrative assessment unfair or unjust. There is nothing in either parent’s circumstances which is unusual or uncommon which would result in an unjust and inequitable determination of the level of financial support to be provided by Ms Walpole or Mr Conway for the children.

Issue 2 – Is it fair or “just and equitable” in relation to Mr Conway, Ms Walpole and [Child 1] and [Child 2] to make a particular departure determination?

35.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 Assessment 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 Assessment 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 earning capacity, income, property and financial resources and commitments of each parent

36.The Tribunal has found that Mr Conway’s income from employment for 2022–23 was $49,038 per annum. This income is slightly higher than previous financial years. The income for 2022–23 does not reconcile with Mr Conway’s income as stated on his Statement of Financial Circumstances, which discloses income of $813.54 per week ($42,304 per annum). Mr Conway has not provided a personal income tax return for 2022–23 or financial statements for [Company 1] for 2022–23.

37.Mr Conway did not provide a fully completed Statement of Financial Circumstances, as the pages relating to his assets and liabilities were not included. Child Support did provide a property search for Mr Conway, which shows he has joint ownership of his principal home and an investment property. Mr Conway stated at hearing that his wife already owned their principal home and that his name has been put onto the record. The documents provided by Child Support show that the investment property was purchased in November 2023, which Mr Conway confirmed in his oral evidence. Mr Conway stated that the investment property is mortgaged. The Tribunal notes that the information provided by Child Support shows a sales history for the property, with a purchase price in November 2023 of $342,500. Mr Conway’s documents include a statement of accounts, dated 10 April 2024, which shows an investment property loan of $345,016.[9]

[9] Page B6 of the documents provided by Mr Conway.

38.The information provided in Mr Conway’s Statement of Financial Circumstances indicates that he has household expenses of $1,800 per week, however, Mr Conway is not the only person in the household. Mr Conway told the Tribunal that he and his wife have three children to care for as well. While the amount is not divided amongst those in the household, the Tribunal has concluded that the amount is representative of all the members of the household.

39.In addition to these expenses, Mr Conway stated that he and his wife have three racehorses that he is training, with a fourth racehorse which they own together with another syndicate. Mr Conway stated that most of the costs for the racehorses are met through the payments received for unplaced winning subsidies, race winnings and payments from syndicate fees. Mr Conway estimated in his oral evidence that there was still around $2,000 per month of out‑of‑pocket costs for the horse training costs.

40.In respect of Ms Walpole, she initially stated income of around $1,900 per week. However, as Ms Walpole told the Tribunal at hearing, she has resigned from her employment and is currently in receipt of income support payments from Centrelink. She stated that she is seeking alternate employment but not at the same level as her previous employment and she anticipates earning around $60,000 to $80,000 per annum. Ms Walpole told the Tribunal, in relation to a fire at her home in 2023 which resulted in the loss of all their personal property, that this event had also required that they move to a new premises and replace the lost items. Ms Walpole stated that these events were further impacted by the demands of her work and made it difficult for her to continue in her role.

41.Ms Walpole provided a Statement of Financial Circumstances to the Tribunal which shows total household expenditure of $2,047 per week. Ms Walpole provided information as to the contributions towards the household expenses by the other members of the household. Taking out these contributions, this leaves around $1,211 per week of household costs for Ms Walpole and the children. Ms Walpole indicated that they have moved to a cheaper rental property and she has been trying to reduce her expenditure since her circumstances changed.

The needs of the children

42.Section 3 of the Assessment 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 Conway and Ms Walpole have the primary duty to financially support [Child 1] and [Child 2] and contributing to their costs should take priority over all other costs other than their “necessary” costs of self-support.

43.In determining the proper needs of the child, subsection 117(6) of the Assessment Act also requires the Tribunal to have regard to the manner in which the parents expected the child to be cared for, educated and trained as well as a consideration of any special needs of the child. Both Ms Walpole and Mr Conway indicated that the children do not have any special needs.

44.Mr Conway told the Tribunal that [Child 1] has obtained an apprenticeship as a [Occupation 4] on a full-time basis. Ms Walpole confirmed that [Child 1] started working full-time on 29 April 2024 and was earning a gross income of $591.67 per week. [Child 1]’s current income from his apprenticeship is greater than the rate of youth allowance payable.

Conclusion

45.After consideration of the income, resources and assets, together with the commitments and liabilities of Mr Conway and Ms Walpole and the needs of the children, the Tribunal considers it is just and equitable to make a departure determination from the current administrative assessment in accordance with section 98S of the Assessment Act. The Tribunal may make one of the determinations set out in section 98S of the Assessment Act. Section 98S sets out a range of determinations, including varying the annual rate of child support payable, the adjusted taxable income of a parent, or the costs of self-support.

46.Therefore, the Tribunal makes a departure determination as follows:

·      For the period 16 March 2023 until a terminating event occurs, Mr Conway’s adjusted taxable income is set at $59,000 per annum.

47.The Tribunal finds that the amount determined by Child Support is a just and equitable amount of income to assess Mr Conway’s financial support for the children. The Tribunal has carefully considered all the evidence and costs regarding the children’s proper needs. The income, resources, benefits and assets together with the commitments and liabilities of both parties were also scrutinised to determine the above departure determination.

48.The Tribunal’s departure determination above as to the amount of adjusted taxable income to be used to determine the child support payable by Mr Conway has considered that Mr Conway has financial resources which do not form part of his adjusted taxable income and increase his capacity to provide for the children. With Mr Conway failing to make a fulsome disclosure of the financial position of [Company 1], the Tribunal has inferred these financial resources. While there was no direct evidence and it is difficult to quantify the financial resource, the ability of Mr Conway to meet out-of-pocket horse training costs without incurring debt has been considered. The Tribunal accepts that these expenses are shared, however, even accounting for the sharing of the costs, they are greater than his taxable income would allow, considering his other expenses. Mr Conway stated that [Company 1] makes a profit but could not tell the Tribunal how much profit was made on a yearly basis.

49.In reaching the above departure determination, the Tribunal also considered that [Child 1] is now working full-time as an apprentice [Occupation 4] and, as such, the Tribunal found that it was not just and equitable to increase the amount of child support payable. In addition, the Tribunal also considered Ms Walpole’s change in circumstances and that her income has reduced. The Tribunal finds that when Ms Walpole commences employment, her income will be less than previously assessed. The Tribunal finds that these factors should be considered against any potential increase in the assessment and has thus determined to set the adjusted taxable income of Mr Conway in line with what was previously determined by Child Support.

50.Subsection 117(4) of the Assessment Act requires the Tribunal to consider whether any departure determination or failure to make a departure will cause any hardship to the children, the carer, the liable parent or any other person the liable parent has a duty to support.

51.According to Child Support records, Mr Conway is up to date, as of 23 May 2024, in respect of his child support payments. Assuming he has paid his assessed child support to date, the Tribunal has determined that Ms Walpole will experience a minimal change in the rate of payment until the end of the child support liability. The Tribunal has also considered submissions to start the departure determination at an earlier date than March 2023 and determined that it is not just and equitable to do so. In considering not to make a departure determination at an earlier date, the Tribunal has taken into account the hardship to both parents and the present circumstances and the date of the application for a departure determination as reasons not to depart at an earlier date than 16 March 2023.

52.The above determination is reflective of Mr Conway’s and Ms Walpole’s income as considered by the Tribunal. The additional child support payable by Mr Conway is representative of his greater capacity to pay for the children’s needs which has been balanced against Ms Walpole’s and the children’s changed circumstances. The determination has also assumed, given the household expenses indicate accordingly, that he is able to meet these costs.

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

53.The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Assessment Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be “otherwise proper” to make a departure determination.

54.Ms Walpole is not in receipt of family tax benefit. As such, the Tribunal’s decision has no impact on the public purse. Therefore, the Tribunal considers that it is otherwise proper to make the particular proposed determination.

55.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. As the Tribunal has made the same determination as Child Support, the decision under review has been affirmed.

DECISION

The decision under review is affirmed.