Zentner and Zentner (Child support)

[2022] AATA 3374

Zentner and Zentner (Child support) [2022] AATA 3374 (17 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC020774

APPLICANT:  Dr Zentner

OTHER PARTIES:  Child Support Registrar

Ms Zentner

TRIBUNAL:Senior Member F Hewson

DECISION DATE:  17 August 2022

DECISION:

The tribunal decided to set aside the decision under review and, in substitution, decided to depart from the administrative assessment of child support, so that:

·     For the period from 15 August 2019 to 31 December 2019 the annual rate of child support is reduced by $31,000.

·     For the period from 1 January 2020 to 31 December 2020 the annual rate of child support is reduced by $20,008.

·     For the period from 1 January 2021 until a terminating event occurs in relation to one of the children, the annual rate of child support is reduced by $31,000.

·     For the period from the day after a terminating event happening in relation to one of the children, and until a terminating event happens in relation to the other, the annual rate of child support is reduced by $15,500.

CATCHWORDS

CHILD SUPPORT – departure determination – money, goods or property provided provided by liable parent for the benefit of the children – 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

1. Dr Zentner and Ms Zentner the parents of two children, now aged 18 and 17 years.  Since 15 August 2019, Dr Zentner has been assessed by Services Australia – Child Support (Services Australia) as liable to pay child support to Ms Zentner in respect of the children.

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable. It uses a formula which contains variables such as the parents’ adjusted taxable incomes and their percentages of care of the children. The child support liability in this case was assessed on the basis that Ms Zentner has a percentage of care of the children of 100% from 1 January 2019.

3. The Act also provides for a departure from the administrative assessment of child support in limited circumstances.  On 29 February 2020, Dr Zentner applied to Services Australia for a determination to depart from the administrative assessment of child support on the basis that:

   ·      He had provided money, goods or property for the benefit of the children (Reason 5); and

   ·      The assessment does not correctly reflect one or both parents’ income, property and financial resources (Reason 8A).

4. On 11 June 2020, a decision maker from Services Australia considered the application and decided to depart from the administrative assessment of child support such that:

   ·      For the period from 15 August 2019 to 31 December 2019, the annual rate of child support payable was reduced by $30,253;

   ·      For the period from 1 January 2020 to 31 December 2020[1], the annual rate of child support payable was reduced by $19,343; and

   ·      For the period from 1 January 2021 to the date [Child 1] ceases to be an eligible child, the annual rate of child support was reduced by $30,256.

   [1] The written reasons for the decision refer to the period from 1 January 2020 to 30 December 2020. The objections officer, however, confirmed that the period was intended to end on 31 December 2020.

5. Dr Zentner objected to the decision and, on 9 November 2020, an objections officer from Services Australia disallowed the objection.  

6. On 11 February 2021 Dr Zentner lodged an application for review of the objection officer’s decision by the AAT.

7. Following a hearing on 1 September 2021, the tribunal (differently constituted) decided, on 27 September 2021, to set aside the decision and to depart from the administrative assessment of child support, so that:

• For the period from 15 August 2019 to 31 December 2019, the annual rate of child support payable by Dr Zentner is varied to be $0;

• For the period from 1 January 2020 to 31 December 2020, the annual rate of child support payable by Dr Zentner is varied to be $10,911.73; and

• For the period from 1 January 2021 to 31 December 2021, the annual rate of child support payable by Dr Zentner is varied to be $0.

1. Dr Zentner lodged an application for review of the AAT decision by the Federal Circuit and Family Court of Australia (the Court).

2. On 17 December 2021 the Court ordered, by consent, that the AAT decision of 27 September 2021 be set aside and the matter be remitted to the AAT for redetermination according to law.

3. On 25 May 2022 I reheard the matter. Dr Zentner participated in the hearing by Microsoft Teams audio and gave his evidence under affirmation. Ms Zentner also participated by Microsoft Teams audio and gave her evidence under affirmation. The Child Support Registrar did not participate in the hearing. I had regard to relevant documents provided by the Child Support Registrar (370 pages) and material lodged by Dr Zentner (folios A1-A99) and Ms Zentner (B1-B91), including after the hearing. I also had regard to the audio recording of the previous AAT hearing and the written reasons for the decision of 27 September 2021.

4. I note that the parties submitted additional information/documents after the hearing, some of which was a repetition of information and arguments made at the hearing or was not relevant to the decision I had to make, and was, therefore, not taken into evidence.

ISSUES

1. Pursuant to section 98C of the Act, a decision to depart from the administrative assessment may be made if the following requirements are met:

   (i)that one, or more than one, of the grounds for departure referred to in subsection 117(2) exists; and

   (ii)that it would be:

   (A)just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

   (B)otherwise proper;

   to make a particular determination under this Part …

2. As noted above, Dr Zentner’s application for departure from the administrative assessment of child support was made on the basis of the grounds set out in subparagraph 117(2)(c)(ii) of the Act, commonly referred to as Reason 5, and subparagraph 117(2)(c)(ia), commonly referred to as Reason 8A.

3. At the hearing in September 2021 and in the course of the rehearing of the matter, Dr Zentner indicated he is not pursuing departure from the administrative assessment of child support on the basis of Reason 8A, in relation to the income, property and financial resources of the parents.

4. The tribunal, therefore, must determine whether, in the special circumstances of the case, a ground for departure from the administrative assessment of child support is established on the basis of money, goods or property provided by Dr Zentner for the benefit of the children, and if so, whether it would be just and equitable and otherwise proper to make a particular determination.

CONSIDERATION

1. Dr Zentner lodged his application for departure from the administrative assessment of child support on 29 February 2020. At that time the administrative assessment of child support required him to pay child support to Ms Zentner in the amount of $43,190 per annum, based upon his overseas taxable income of $330,944 and Ms Zentner’s provisional income of $0.

2. As noted in the earlier AAT decision, had the decision now being reviewed not been made, the administrative assessment of child support applying from 15 November 2020 would have required Dr Zentner to pay child support in the amount of approximately $40,544 per annum, based upon Dr Zentner’s overseas taxable income of $339,213 and Ms Zentner’s adjusted taxable income of $51,151, which is the amount that applies when a person has not lodged their income tax return for the relevant year. Ms Zentner subsequently lodged her tax return for the 2019/20 financial year, which will increase Dr Zentner’s liability to approximately $44,118 per annum based upon Dr Zentner’s overseas taxable income of $339,213 and Ms Zentner’s adjusted taxable income of $10,637. The date from which this assessment applies depends on when Ms Zentner lodged her income tax return.

3. These are the administrative assessments in relation to which I considered Dr Zentner’s application for a departure from the administrative assessment.  

Is there a ground, or grounds, for departure?

1. All the grounds for departing from the administrative assessment of child support are prefaced by the term “… in the special circumstances of the case …”.  As noted by the Full Court of the Family Court in Gyselman v Gyselman [1991] FamCA 93:

   Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (at Fam LR 815 FLC 77,897), Kay J, adopting the view in In the Marriage of Philippe (1977) 4 Fam LR 153; [1978] FLC 90-433 at Fam LR 155 FLC 77,202 in a different context, said that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases" . The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.

Money, goods or property provided for the benefit of the children

1. This ground for departure may arise if, in the special circumstances of the case, the administrative assessment of child support is unjust and inequitable as a result of payment or transfer of money, goods or property by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child (subparagraph 117(2)(c)(ii) of the Act).

2. Dr Zentner lives in [Country 1] and Ms Zentner and the children, having relocated in 2019, live in Australia.  In December 2018 Dr Zentner and Ms Zentner entered into a notarised agreement in relation to their divorce settlement, which included terms in relation to the payment of child support.  It is those terms of the notarised agreement, as they relate to payments made for the support of the children, that Dr Zentner is seeking to have taken into account in his departure application.

3. Dr Zentner agreed the notarised agreement provides for the following:

   ·      Payment of child support of [Foreign currency amount 1] per month for each child for a period of six years.

   ·      An additional payment of [Amount 2] per month for health insurance for each child.

   ·      The child support for the 2019, 2020, 2021 and 2022 years to be paid as a lump sum in advance at the end of 2018 ([Amount 3] per child per month x two children x 12 months x four years equals [Amount 4]).

   ·      Child support for the 2023 and 2024 years to be paid as monthly payments of [Amount 5] ([Amount 3] per child) in advance during 2020 and 2021.

   ·      For the payments to be adjusted in accordance with “the new factual and legal situation” when Ms Zentner relocated with the children to Australia.

   ·      Child support to be paid beyond the children’s 18th birthdays, in March of 2022 and 2023 respectively.

4. In summary, the notarised agreement required Dr Zentner to make payments equivalent to [Amount 5] per month for a period of six years, from 1 January 2019 until 31 December 2024. All of this is paid in advance, so that Dr Zentner will, apart from any additional liability determined through these proceedings, have met his obligations under the notarised agreement after only four years, when he made his final monthly payment in December 2021. 

5. Ms Zentner argued the additional monthly amounts in the notarised agreement for health insurance should not be regarded as child support. She agreed, however, the payments are paid for the benefit of the children and are included under the heading “The Child Support” in the notarised agreement.

6. There is no dispute that Ms Zentner received the lump sum amount of [Amount 4] in December 2018. This is equivalent to about $124,000[2], using historical exchange rate data published by the Reserve Bank of Australia,[3] and equates to payments made for the benefit of the children of approximately $31,000 per year for 2019, 2020, 2021 and 2022.

   [2] [Exchange rate 1] = AUD$1.00 using an average exchange rate for the period from 15 August 2019 to 31 December 2021, when the payments under the notarised agreement ceased.

   [3] >

   There is also no dispute that Dr Zentner paid his child support liability for the 2023 and 2024 calendars years, to the extent required under the notarised agreement, by monthly payments of [Amount 6] in advance from 1 January 2020 until 31 December 2021. 

7. Dr Zentner’s obligations under the notarised agreement continue beyond the 18th birthday for both children, in March 2022 and March 2023 respectively, until December 2024.  The parties agreed this was intended to provide for the financial support of the children during their university studies.

8. In documents submitted after the hearing, including an unofficial translation of a newspaper article about the sale of a property in [Country 2], Ms Zentner sought to show the lump sum payment of [Amount 4] was not paid by Dr Zentner, but was paid using the proceeds from the sale of a property sold by Dr Zentner’s mother. Ms Zentner also submitted the property in [Country 2] was part of the matrimonial pool of assets but was not disclosed by Dr Zentner.  This issue was also raised at the earlier AAT hearing. At that time Dr Zentner said the monies were from the sale of a property inherited from his biological father. He said the property was transferred into his mother’s name and then sold by her but was intended for his benefit. He used the funds from the sale to meet his obligation under the notarised agreement. Dr Zentner also submitted a translated statement from his mother in relation to the sale of the property and the subsequent transfer of the monies to meet Dr Zentner’s obligations under the notarised agreement.

9. I considered the available evidence. I was satisfied Dr Zentner transferred monies to Ms Zentner in accordance with his child support obligations under the notarised agreement entered into by the parties in [Country 1] in December 2018.

10. As set out above, Ms Zentner questioned the source of those funds and also suggested they formed part of the pool of matrimonial assets. This is a matter about which I am not in a position to form a view. I was satisfied, however, that on 18 December 2018 Ms Zentner received a lump sum payment of [Amount 4] (about $124,000) in accordance with the terms of the notarised agreement for the benefit of the children. 

11. I was also satisfied that during 2020 and 2021 Dr Zentner made monthly payments of [Amount 6] to Ms Zentner for the benefit of the children, being equivalent to [Amount 7] per annum.[4]  Applying the average of the daily exchange rates from 1 January 2020 until 1 September 2021,[5] this equates to about $31,000 per annum.

    [4] [Amount 5] x 12 = [Amount 7]

    [5] [Exchange rate 2] = AUD$1.00

12. As noted above, Ms Zentner argued that the payments for health insurance for the children made under the notarised agreement should not be regarded as child support.  Dr Zentner asserted that the payments are a component of the child support.  I concluded that the portion of the payments made under the notarised agreement that relate to health insurance are paid to Ms Zentner for the benefit of the children and should be treated as child support. I note that although the health insurance payments are itemised separately in the notarised agreement, the liability is included in Part 4, under the heading “The Child Support”. 

13. I calculated that, assuming both children finish secondary education on or about 30 November 2022 and Ms Zentner’s adjusted taxable income is an amount below the self-support amount, Dr Zentner is liable to pay child support under the administrative assessments of child support as follows:

    ·      For the period from 15 August 2019 to 14 November 2020, an annual rate of child support of $43,190.

·      For the period from 15 November 2020 to 14 February 2021, an annual rate of child support of $44,118.

·      For the period from 15 February 2022 until a terminating event occurs in relation to the oldest child (i.e. on his birthday on 5 March 2022 or the end of the school year), an annual rate of child support of $46,684, and then, until the case ends, an annual rate of child support of $30,851.

1. This is equivalent to a liability for each year to which the notarised agreement applies, as follows:

2019	2020	2021	2022	2023	2024	Total
$16,444 (43,190/365 = 118.3/day x 139 days)	$44,118	$45,401	$45,338 (46,684 to 30/11/22 and then 30,851)	$6,001 (30,851/365 x 71 days)	-	157,302

1. I was satisfied the payments Dr Zentner has made under the notarised agreement are a special circumstance which renders the administrative assessments of child support unjust and inequitable.  I was satisfied, therefore, that a ground for departure is established under subparagraph 117(2)(c)(ii) of the Act.

Just and equitable

1. The requirement set out in subsection 117(4) of the Act, to consider whether a departure would be just and equitable, requires me to consider the impact of change in the administrative assessment for the parents and the children.  Regard must be had to a variety of factors such as the needs of the children, the parents’ commitments and any hardships that would be caused by departing, or not departing, from the statutory formula.

The children

1. Under the administrative assessment of child support, the costs of the children are at the maximum because of the level of Dr Zentner’s income.  The costs of the children are: $43,190 per annum for a child support period commencing in 2019; $44,118 per annum for a child support period commencing in 2020; and $46,684 per annum for a child support period commencing in 2022.

2. As noted above, the children live with Ms Zentner in Australia and are in her 100% care.  The children attend a public school and are both in their final year of secondary education. Ms Zentner noted both children are hoping to get into courses with high entry scores ([Subject 1] and [Subject 2]) and the youngest child has been doing extracurricular study, which is quite expensive, to improve her chances of entry.  Dr Zentner paid for the last semester of the course. Ms Zentner’s evidence was that the children are in reasonable health. She has had some out of pocket expenses for medical treatment. I considered the proper needs of the children, including in relation to their education and medical expenses.  I was satisfied the proper needs of the children are being met and neither child has a special need that significantly impacts on the costs of their care.

3. It was Ms Zentner’s evidence that both children have part-time jobs. There is no evidence, however, that the children have income, property, financial resources or earning capacity such as to affect the child support assessment.

Dr Zentner

1. Dr Zentner lives in [Country 1] and is employed full-time. I was satisfied Dr Zentner’s earning capacity is not an issue impacting upon whether a departure determination should be made.

2. Dr Zentner’s adjusted taxable income used in the administrative assessment from 15 August 2019 is his overseas taxable income of $330,994 for the 2018/19 income year.[6]  A new child support period commenced on 15 November 2020 and Services Australia assessed Dr Zentner’s adjusted taxable income to be a deemed amount of $339,218,[7] determined under the Act when up to date information about Dr Zentner’s overseas income has not been provided.

   [6] See folio 334.

   [7] Ibid.

1. At the hearing Dr Zentner said his gross income for the 2021 [Country 1] tax year was at least [Amount 8] (about $320,000). Dr Zentner agreed he receives some benefits through his employment, including in relation to his car and an accommodation allowance. He noted, however, that he pays tax on those benefits. Overall, his tax liability is almost 50% of his gross income.  I note that the adjusted taxable incomes used in the administrative assessment result in assessment of the costs of the child at the maximum amount permitted.  The use of a higher adjusted taxable income for Dr Zentner would have no impact on the administrative assessment of child support. I note, also, that Dr Zentner would have to have a large reduction in his income (the equivalent of almost $70,000) before there would be any impact on the child support liability. If, in fact, Dr Zentner has a higher tax liability in [Country 1] than is taken into account in the child support formula in Australia, any practical impact of this is nullified by the extent to which he is over the income cap for child support.  I was satisfied that the adjusted taxable incomes used in the administrative assessment adequately represent Dr Zentner’s income, property and financial resources. 

2. Dr Zentner has an obligation to support another child, now aged two.  It was not disputed by Dr Zentner that the dependent allowance for this child applied in the child support formula, of about $24,000 per annum, is adequate to meet the necessary costs of support for this child.

3. The child support formula includes a self-support amount of approximately $27,000 per annum (about $25,500 at the start of the child support case).  While it is evident, having regard to his Statement of Financial Circumstances and other evidence included in the documents before me, that Dr Zentner’s expenses exceed the self-support amount, he did not dispute that this amount is adequate to meet the necessary commitments for his own support.

1. At the hearing Dr Zentner indicated he has limited savings and considers he has been penalised for paying his child support liability under the notarised agreement in advance. He said he has been in an on-off relationship with his current partner and pays for two apartments in [City in Country 1]. He has another child to support also. He considers the way the payments he has made under the notarised agreement have been taken into account in Australia has not been fair. This is discussed further below.

Ms Zentner

1. Ms Zentner lives with the children in rented accommodation. It was Ms Zentner’s evidence at the hearing that she has had some casual/part-time employment since her relocation to Australia, but she has been unsuccessful in her attempts to secure permanent full-time employment. Ms Zentner stated she has recently established an online retail business, but has not yet recouped her set-up costs. Gross turnover for the business is estimated to be about $10,000 to date. Ms Zentner said she expects turnover to increase during the Australian Summer.  I concluded Ms Zentner is seeking employment in accordance with her earning capacity and there is no evidence that her earning capacity is an issue relevant to whether a departure determination should be made.

2. In the period from 15 August 2019, Ms Zentner’s 2018/19 adjusted taxable income of $0 was used in the administrative assessment. A new child support period commenced on 15 November 2020, and a provisional adjusted taxable income of $51,151 was used in the administrative assessment.  During the previous AAT proceedings Ms Zentner submitted documents indicating she has lodged her 2019/20 income tax return and her adjusted taxable income, if assessed under section 43 of the Act, would be $10,637.

3. I was satisfied that the adjusted taxable incomes used in the administrative assessment adequately represent Ms Zentner’s income, property and financial resources. 

4. Other than the children subject to the child support assessment under review, there is no other person Ms Zentner has a duty to support.

5. The child support formula includes a self-support amount of about $27,000 per annum (about $25,500 at the start of the child support case). Ms Zentner stated she has health issues and has incurred out-of-pocket expenses of about $600 in the last 12 months. I was not persuaded that this has a significant impact on Ms Zentner’s capacity for self-support. It is evident, having regard to her Statement of Financial Circumstances and other evidence before me, that Ms Zentner’s overall expenditure exceeds the self-support amount of about $27,000. She did not dispute that this amount is adequate to meet the necessary commitments for her own support.

6. Ms Zentner argued that a departure determination that reduced her child support would cause her hardship.  She stated she incurred expenses to relocate to Australia and she has not been able to secure an income to give her a regular cash flow. She said she has to be very careful and cannot afford expenses such as for dental and eye test/glasses for her daughter. Ms Zentner said she has about $230,000 in savings, including some of the payments made under the notarised agreement for child support and spousal support. She noted, however, that some of the funds are from an aunt in [Country 2] and from the sale of her mother’s jewellery. Ms Zentner said she has budgeted to make sure the funds received from Dr Zentner for child support are available for the period to which they relate, including when the children are at university.

Conclusion

1. Having considered the matters prescribed by subsection 117(4) of the Act, I was satisfied that it would be just and equitable to make a departure determination in this case, having regard to the monies paid by Dr Zentner under the notarised agreement for the benefit of the children.

2. I note that a departure of this kind requires the exercise of a broad discretion. There is no formula which applies to determining the appropriate outcome in a case such as this, apart from consideration of what is just and equitable and otherwise proper. It is evident that Dr Zentner and Ms Zentner have different notions of what is just and equitable.

3. In a written submission, lodged on 7 September 2021, Dr Zentner argued that the correct reduction in the rate of his child support was $30,253 for each of the years to which the notarised agreement applies. He noted that the children reach the age of 18 in March 2022 and March 2023 respectively and asked that a note be made of the payments made for the period beyond those dates, to the end of 2024, which he stated would reduce future claims for adult child support. This is consistent with the approach taken by Services Australia. Nevertheless, Dr Zentner disagreed with the decision and, at the hearing, said he disagreed with the application of an “imaginary six years” to the child support assessment:

   The fair thing is to look at what am I due to pay according to Australian regulations and what have I paid already, and if there is a [shortfall] I am happy to pay it. But there is no [shortfall] as I pay [Amount 6] a month. … If we adapt to Australian regulations, do it properly, not just cherry picking the things we like, such as from my ex-wife’s perspective, the higher monthly rate, and not adapt to things we don’t like, such as that child support ends at age 18.  … Adult child support is a different story.

4. The approach taken in the earlier AAT decision was, in effect, to reduce Dr Zentner’s child support liability to nil[8] in the period Ms Zentner received child support in advance, in the 2019, 2020 and 2021 years and reverting to the formula assessment for the years no payments were due, in 2022 and 2023.

   [8] Although the decision stated, in relation to the 2020 year, that: “from 1 January 2020 to 31 December 2020, the annual rate of child support payable by Dr Zentner is varied to be $10,911.73” this results in a nil rate as an amount of $10,911.73 had already been credited as a non-agency payment in the 2020 year.

5. Dr Zentner stated on more than one occasion that he feels ‘ripped off’ because he considers he has been assessed to pay child support twice for the same period. It was clear at the hearing that he considers there should be no residual child support liability for the period until the child support case in Australia ends. Dr Zentner agreed he is liable to pay child support while the children are at university but, despite his written statement of September 2021, argued that adult child support is a separate matter and, in effect, should be ignored in considering how the notarised agreement should be assessed in determining his child support liability in Australia.

6. The only approach which would allow for this outcome is to aggregate all of the payments made by Dr Zentner under the notarised agreement and apply them to the aggregate of the Australian child support liability (i.e. $157,302 – $186,000 = -$28,698).

7. This approach, however, ignores that payments made by Dr Zentner were intended as child support for a period before the commencement of the child support case in Australia, and for periods after the child support case has ended; an amount I calculated to be equivalent to $79,874. The notarised agreement clearly contemplated recalculation of the payments following the relocation of Ms Zentner and the children to Australia, according to the “new legal and factual situation”. I concluded that if I were to ignore the period to which the payments in the notarised agreement were intended to apply, it would undermine the agreement reached by Dr Zentner and Ms Zentner in December 2018.

8. I came to the view that the fairest way to take account of the payments made by Dr Zentner under the notarised agreement is to apportion the payments to the periods to which they were intended to apply. The impact of this approach on the administrative assessment is set out in detail in the table, below. I note, however, that the calculations are based on assumptions in relation to, for example, when the children finish their secondary education and the income of the parties until the end of the child support assessment, which could change. This would not, however, alter what I regard as an appropriate approach and a just and equitable outcome in the particular circumstances of this case.

Calendar year	Periods	Annual rate of CS ($)	Annual Reduction ($)	Adjusted Annual Rate ($)	Days in calendar year to which rate applies	Amount for CS period to which rate applies ($)	Liability for calendar year ($)
2019	15 August 2019 to 31 December 2019	43,190	– 31,000	12,190	139 days (4,642)	15,296	4,642
2020*	1 January 2020 to 14 November 2020	43,190	– 31,000	12,190	319 days (10,654)		12,307
	15 November 2020 to 31 December 2020	44,118 -	– 31,000	13,118	46 days (1,653)	16,389
2021	1 January 2021 to 31 December 2021	44,118 -	– 31,000	13,118	365 days (13,118)		13,118
2022	1 January 2022 to 14 February 2022	44,118 -	– 31,000	13,118	45 days (1,617)		15,339
	15 February 2022 to 30 November 2022	46,683 (to end of school year)	– 31,000	15,683	289 days (12,418)	12,418
	1 December 2022 to 31 December 2022	30,851	15,500	15,351	31 days (1,304)	4,290
2023	1 January 2023 to 12 March 2023	30,851	15,500	15,351	71 days (2,986)		2,986
*note that a non-agency payment of $10,911.73 was applied to the child support assessment in 2020 but is not reflected in these calculations ** as noted in paragraph 49, all figures are based on assumptions referred to.							TOTAL 48,392

1. The determinations I may make in departing from the administrative assessment of child support are set out in section 98S of the Act, including varying the annual rate of child support.  

2. I propose to make the following departure determinations, pursuant to section 98S of the Act, so that:

   ·     For the period from 15 August 2019 to 31 December 2019 the annual rate of child support is reduced by $31,000.

·     For the period from 1 January 2020 to 31 December 2020 the annual rate of child support is reduced by $20,008 (in effect a reduction of $31,000 due to the application of a non-agency payment in the amount of $10,911.73).

·     For the period from 1 January 2021 until a terminating event occurs in relation to one of the children, the annual rate of child support is reduced by $31,000.

·     For the period from the day after a terminating event happening in relation to one of the children, and until a terminating event happens in relation to the other child, the annual rate of child support is reduced by $15,500.

1. I was satisfied the proposed departure determination will not cause undue hardship for the parents or the children. Dr Zentner did not suggest a determination of the sort proposed would cause him hardship but, as discussed above, argued it would not be a fair outcome. Although Ms Zentner suggested a reduction in the child support assessment would cause her hardship, I was not persuaded this is the case as she has significant savings, including monies specifically paid for the support of the children. I accepted she needs to budget to ensure monies intended for the support of the children while there are at university are available throughout the period to the end of 2024 and, unlike Dr Zentner, she does not currently have a reliable cashflow. I was satisfied the proposed departure determination is just and equitable.

2. Although the proposed departure determination is contrary to the outcome Dr Zentner suggested would be a fair, it is an approach that clearly takes account of the support he has provided for the children, including for periods after the children’s 18^th birthdays.   

Otherwise proper

1. Section 3 of the Act provides that it is the primary duty of the parents to maintain a child, and this duty has priority over all commitments of the parent, other than commitments necessary to enable the parent to support himself or herself or any other child or another person the parent has a duty to maintain.

2. The requirement to consider whether a departure would be otherwise proper, set out in subsection 117(5) of the Act, directs my attention to what is fair to the community.  It is necessary to consider the effect, if any, a departure from the administrative assessment would have on entitlements to income tested pension, allowances and benefits, in particular, family tax benefit, taking into account it is the duty of the parents, rather than the community, to maintain their children.

3. It was Ms Zentner’s evidence that she is in receipt of family tax benefit for the children.  The outcome sought by Dr Zentner would reduce the child support liability to $0, transferring a greater burden for the support of the children to the community. I concluded that a more appropriate balance between the duty of the parents to support the children and the costs to be met by the community is achieved through the proposed departure determination, and is an otherwise otherwise proper outcome, having regard to the particular circumstances of the case. 

DECISION

The tribunal decided to set aside the decision under review and, in substitution, decided to depart from the administrative assessment of child support, so that:

·     For the period from 15 August 2019 to 31 December 2019 the annual rate of child support is reduced by $31,000.

·     For the period from 1 January 2020 to 31 December 2020 the annual rate of child support is reduced by $20,008.

·     For the period from 1 January 2021 until a terminating event occurs in relation to one of the children, the annual rate of child support is reduced by $31,000.

·     For the period from the day after a terminating event happening in relation to one of the children, and until a terminating event happens in relation to the other, the annual rate of child support is reduced by $15,500.