• For the period 1 January 2024 to 31 December 2024, vary the annual rate of child support payable by TVFHP by decreasing it by $2,620, constituting requiring FRFBF to make an equal contribution to the child's school fees that were paid by TVFHP.
• For the period 1 January 2025 to 31 December 2025, vary the annual rate of child support payable by TVFHP by decreasing it by $2,803.50, constituting requiring FRFBF to make an equal contribution to the child's school fees that are being paid by TVFHP.
• For the period 10 October 2023 to 31 December 2025 vary the adjusted taxable income of TVFHP to $140,000 per annum.
• For the period 10 October 2023 to 31 December 2025 vary the adjusted taxable income of FRFBF to $55,000 per annum.

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 (Cth).

CHILD SUPPORT - application for departure determination - education costs - additional income or financial resources available to parents - just and equitable considerations - period of departure - decision set aside and substituted.

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Carey and Carey [1994] FamCA 74; (1994) FLC 92-489; (1994) 18FamLR 116

Child Support Registrar & Crowley and Anor [2015] FamCAFC 76

Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

G v MIBP [2018] FCA 1229

Gyselman and Gyselman [1991] FamCA 93; (1992) FLC 92-279

Marsh & Eccles [2008] FMCAfam 1417

McDonald v Director General of Social Security [1984] FCA 57

Minister for Home Affairs v G and Another [2019] FCAFC 79

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666

Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305

Tanner & Dalton (SSAT Appeal) [2012] FMCAfam 732

Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886

Department of Social Services, Guides to Social Policy Law: Child Support Guide

1. FRFBF and TVFHP ('the parents') are the parents of one child ('the child'), aged 10. Prior to any proceedings seeking to have it change, TVFHP was the paying parent under the assessment. The parents are recorded in the assessment as sharing the child's care, with TVFHP initially providing 56% of the care, and FRFBF providing the balance (44%) of care. That changed to equal shared care on 29 April 2024.
2. A child support case was registered with Services Australia - Child Support ('Child Support'[1]) in respect of the child on 1 August 2022.
3. The Child Support (Assessment) Act 1989 ('the Act') provides for an administrative assessment of child support using a formula which contains variables such as the parents' adjusted taxable incomes and their respective patterns of care for their children, expressed as a percentage of care. Child Support administers the assessment by reference to the relevant legislation and to the 'Child Support Guide' ('the Guide') published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
4. The Act also provides for departure[2] from the administrative assessment if certain criteria are met. That is because the 'general formula may carry out the legislative intent in the large number of cases, [but] it is recognised that it will also produce cases of unfairness and inequity which call for a variation in the assessment if injustice is to be avoided.'[3]
5. On 10 October 2023 FRFBF lodged a change of assessment application on the basis of Reason 8A - that TVFHP's adjusted taxable income ('ATI') was not an accurate reflection of the financial resources available to her, and Reason 8B - that TVFHP had changed her working arrangements in order to affect the administrative assessment of child support.
6. TVFHP subsequently lodged a cross application on the basis of Reason 3 - the costs of maintaining the child are significantly affected because he is attending private schooling and is, in that respect, being educated in the manner expected by both parents.
7. The administrative assessment in place prior to the change of assessment applications was as follows:
   • for the period 1 September 2023 to 7 November 2023, TVFHP was assessed to pay FRFBF an annual rate of child support of $568. The assessment used TVFHP's 2022/2023 ATI of $35,278 and FRFBF's 2023/2024 estimated income of $19,162; and
   • for the period 8 November 2023 to 30 June 2024, TVFHP was assessed to pay FRFBF an annual rate of child support of $568. The assessment used TVFHP's 2022/2023 ATI of $35,278 and FRFBF's 2023/2024 amended estimated income of $25,393.
8. On 2 April 2024 a delegate of the Respondent ('Delegate') found Reason 3 to be established on TVFHP's application and Reason 8A to be established on both TVFHP and FRFBF's applications, and made the following change to the formula assessment of child support:
   • for the period 1 January 2024 to 31 December 2024, the annual rate of child support payable by TVFHP will decrease by $2,620 to reflect FRFBF's share of the child's private school fees paid by TVFHP;
   • for the period 10 October 2023 to 30 June 2025, the ATI of TVFHP is set[4] at $155,320; and
   • for the period 10 October 2023 to 30 June 2025, the ATI of FRFBF is set at $50,000.
9. On 13 April 2024 TVFHP objected to the decision of the Delegate. On 19 June 2024 an objections officer partially allowed TVFHP's objection ('objection decision') and made the following change to the formula assessment of child support:
   • for the period 1 January 2024 to 31 December 2025, the annual rate of child support payable by TVFHP will decrease by $2,620 which is FRFBF's share of the child's school fees;
   • for the period 10 October 2023 to 30 June 2025 the ATI of TVFHP is set at $145,305; and
   • for the period 10 October 2023 to 30 June 2025 the ATI of FRFBF is set at $50,000.
10. FRFBF sought review of the objection decision in the former Administrative Appeals Tribunal, which was later completed by this Tribunal.[5]
11. In a decision of 31 March 2025, the Tribunal decided to vary the objection decision only from 30 June 2024 and varied the departure thereafter in that:[6]
    • TVFHP's ATI is set at $84,162 for the period to 1 July 2024 to 31 December 2025;
    • FRFBF's ATI is set at $61,663 for the period 1 July 2024 to 31 December 2025; and
    • for the period 1 July 2024 to 31 December 2025 TVFHP's child support liability is reduced to zero.
12. FRFBF sought referral of the Tribunal's decision to the Guidance and Appeal Panel, on the basis that it may contain an error of fact or law materially affecting the Tribunal decision. The Respondent supported that application and another Senior Member of the Tribunal, acting under the delegated authority of the President, referred the matter on 18 June 2025.
13. On 9 July 2025 a directions hearing was conducted with all parties, and another Member of the Tribunal made directions for the parties to lodge their evidence and submissions in respect of the review. After that directions hearing, TVFHP lodged nothing further in respect of the review. She failed to comply with a direction that she complete and lodge an updated Statement of Financial Circumstances.
14. Prior to the hearing before me, a Registry officer of the Tribunal corresponded with TVFHP to try and confirm that she wished to attend the hearing. TVFHP was provided with a further copy of the [notice] that she had previously been sent. No response was received.

1. I heard the matter on 12 September 2025 and took evidence and submissions from FRFBF. TVFHP did not seek to participate in the hearing. As I was satisfied that she had notice of the date, time, and place of the hearing, and had not sought to engage in the opportunity to lodge further evidence nor to participate, I decided to proceed in her absence. The Respondent was represented by Ms L Liu, solicitor. I also had regard to the documents lodged in the application, as follows:

(a) A hearing bundle consisting of the material before the Tribunal on first review; the Respondent's Statement of Facts, Issues and contentions, and further written evidence and submissions of FRFBF; > > (b) An email lodged by FRFBF on 12 September 2025, titled 'Tax' ('Exhibit 2'); > > (c) An email lodged by FRFBF on 12 September 2025, with attachments, titled 'House sales complete' ('Exhibit 3'); and > > (d) Seven further pages of evidence lodged by FRFBF during the hearing ('Exhibit 4').

1. The parties did not put the relevant principles in respect of the Tribunal's role on review in issue.
2. The Tribunal had jurisdiction and power to conduct the review due to the combined effect of s 87 and item 2 of the table in s 89 of the Child Support (Registration and Collection) Act 1988, read with ss 12 and 105 of the Administrative Review Tribunal Act 2024 (the 'ART Act').
3. Briefly stated, the Tribunal 'stands in the shoes' of the original decision maker, in that it is to determine for itself, on the material before it, the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision maker for the purpose of making the decision under review. Where the Tribunal decides to vary or set aside a primary decision and make a decision in substitution, it exercises the same power or powers as the primary decision maker, subject to the same constraints.[7]
4. However, as the enactment of s 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, including the primary decision maker.
5. There is no presumption that the primary decision is correct.[8]
6. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence.[9] There is no legal onus of proof on a party where no such onus is imported by virtue of the enabling legislation.[10] However, the Tribunal's inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal's role is to respond to the case that the applicant advances.[11]
7. The parents have a duty to make full and frank financial disclosure of their financial circumstances in a manner that is both transparent and readily understandable. It is not the role of the Tribunal to carry out a forensic audit or major investigation of the financial circumstances of the parents. If a parent fails in their duty, they can expect that the Tribunal will be reasonably robust in assessing their financial circumstances adversely to them and in favour of the other parent.[12]
8. The period in which the Tribunal can consider departing from the administrative assessment is generally unconstrained save that, in the absence of leave being granted by a court, the Tribunal may not vary the rate of child support payable for a day earlier than 18 months before the date upon which the application was lodged.[13]
9. Subject to the need to provide procedural fairness to the parties, the outcome determined to be appropriate is not limited by the terms of the application.[14]
10. In conducting the review, the Tribunal should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control the decision and there are no cogent reasons not to do so.[15] The Tribunal is not bound to follow the Guide, though, and I will record any instance where I disagree with what it contains.
11. On referral to the Guidance and Appeals Panel, my role is to conduct a further merits review.[16] It is not necessary for the Applicant to identify a specific legal or other error to succeed once the matter has been referred.

1. Section 98C(1)(b) of the Act relevantly provides that a departure order may be made if:

(i) one, or more than one, of the grounds for departure referred to in [s 117(2) of the Act] exists; and

(ii) it would be:

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

(ii) (B) otherwise proper;

to make a particular determination under this Part;

1. Each reason for departure set out in s 117(2) of the Act is prefaced by the words 'in the special circumstances of the case'. That phrase is not defined in the Act. The Family Court has held that 'it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary'[17] and that the special circumstances are 'facts peculiar to the particular case which set it apart from other cases.'[18]
2. The form of application for a departure from an administrative assessment of child support requires an applicant to nominate one or more of eleven[19] bases (reasons) for departure, each of which correspond, in a shorthand fashion, with a basis for departure set out in s 117(2) of the Act.
3. Having regard to the history of the matter, I potentially need to consider:

(a) Reason 3 - There are extra costs in caring for, educating, or training the child(ren) in the way both parents intended; > > (b) Reason 8A - The assessment does not correctly reflect one or both parent's income, property, and/or financial resources; and > > (c) Reason 8B - The assessment does not correctly reflect one or both parent's earning capacity.

(a) s 117(2)(b)(ii) of the Act, which provides: > > that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: > > ...

(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents; ...

(b) and ss 117(2)(c)(ia)-(ib) of the Act, which provide:

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

(ib) because of the earning capacity of either parent;

1. Although a parent's most recent adjusted taxable income is generally used in the child support formula, the Tribunal can look beyond the parent's taxable income when considering an application for a change of assessment. Income, earning capacity, property, and financial resources which do not necessarily form part of a parent's taxable income can be added to or excluded from a child support assessment.[20]
2. The Tribunal can only find that a parent's earning capacity is greater than their actual income if the requirements of s 117(7B) of the Act are satisfied. That section states that, relevantly:

In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

(iii) the parent has changed his or her occupation, industry or working pattern; and

(b) the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:

(i) the parent's caring responsibilities; or

(ii) the parent's state of health; and

(c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

[i]n respect of the earning capacity of the unemployed or under-employed parent, the Registrar may enquire as to the "ability of" and "opportunity for" that person to seek and gain employment (DJM and JLM [1998] FamCA 97; (1998) FLC 92-816). The Registrar will consider the parent's qualifications, skills, age and employment history.

2. If one or more reasons is relied upon, and at least one reason for departure is established, it is then necessary to determine what would be a just and equitable and otherwise proper child support assessment. There is no obligation to consider whether each further purported reason for departure is established.[21]
3. In respect of the proper needs of the child, it is necessary to have regard to the manner in which he is being, and in which the parents expected him to be, cared for, educated or trained, and any special needs of the child.[22] In Eades & Cadell[23] Slack FM stated as follows (with citations omitted):

In considering the proper needs of the child [s 117(4)(b)] ...:

(a) would ordinarily consider the evidence of the parties about the needs of the children to assess the reasonableness and quantum of those needs;

(b) may have regard to published guidelines as to the needs of the children;

(c) may also have regard to the costs of children used in the assessment of child support under the existing formula arrangements (although it is not sufficient or appropriate to rely upon the formula to perform that task.

1. In that respect, FRFBF properly acknowledges that the child is attending an independent, fee-paying school in accordance with the expectations of the parents, such that, in the special circumstances of the case, the costs of maintaining the child are significantly affected. That was also the allegation made by TVFHP in her application for a change of assessment and was clearly maintained by her in the Tribunal on review. I accept that to be the case. The evidence is that the child's year 3 fees (2024) at the school were $5,240. At that time, the cost of maintaining the child used in the formulae assessment was $1,321. The child remains at the school.
2. Open source enquiries I conducted show that, in 2025, the school fees rose to $5,607 for the child's year group. Before the Tribunal in January this year, TVFHP gave evidence that she pays for the school bus, which was $450 last year. Open source enquiries indicate that the fee was $440 this year, which is broadly consistent. The parents otherwise say that they spend a combined amount of $320 per week supporting the child, which I accept as reasonable. His proper need for financial support totals $22,330 in the 2024 calendar year and $23,846 in the 2025 calendar year. It is apparent that the schooling costs significantly affect the cost of raising the child and that a ground for departure under s 117(2)(b)(ii) is established in 2024 and 2025.
3. Having determined that there is a basis to depart from the administrative assessment, I must consider whether any particular departure, as provided for in s 98S of the Act, would be just and equitable and otherwise proper.

Would departure from the administrative assessment be just and equitable?

1. The requirement to consider whether a departure would be just and equitable directs attention to what is fair to the parents and their children. I must have regard to the following non-exhaustive[24] matters set out in s 117(4) of the Act:

(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and

(b) the proper needs of the child; and

(c) the income, earning capacity, property and financial resources of the child; and

(d) the income, property and financial resources of each parent who is a party to the proceeding; and

(da) the earning capacity of each parent who is a party to the proceeding; and

(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

(i) himself or herself; or

(ii) any other child or another person that the person has a duty to maintain; and

(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

(g) any hardship that would be caused:

(i) to:

by the making of, or the refusal to make, the order; and

(B) any other child or another person that the liable parent has a duty to support;

by the making of, or the refusal to make, the order; and

(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

1. Section 3 of the Act provides that the parents have the primary duty to maintain the child, and the duty of a parent to maintain a child is not of lower priority than the duty of the parent to maintain any other child or person. It has priority over all commitments of the parent other than commitments necessary to enable the parent to support themselves and any other child or person the parent has a duty to maintain. It is not affected by the duty of any other person to maintain the child; or any entitlement of the child or another person to an income tested pension, allowance or benefit.
2. Sections 4 and 114 of the Act are also relevant. They provide, in part, that:
   • the level of support should be determined in accordance with the cost of the child, and according to the parents' capacity to provide for that cost; and
   • parents should share equitably in the support of the child, and the child should have his or her proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both parents.
3. Whilst I will consider each of those requirements, I will only detail those considerations where I am satisfied that they are engaged on the evidence before me and carry some weight in the particular circumstances of this matter. There is no need to set them all out 'slavishly'.[25]
4. It is not suggested that the child has special or unusual needs, beyond his independent school expenses. He has no income, property, or financial resources of his own.
5. Neither parent has an obligation to support anyone other than themselves and the child.
6. Both parents have historically raised allegations against the other in respect of hiding income and altering their affairs to affect the child support assessment.

The income, property, financial resources and proper expenses of TVFHP

1. Absent a departure from the administrative assessment, child support would be assessed based upon TVFHP's 2022/2023 ATI of $35,278.
2. TVFHP owns a rental property, subject to a mortgage. It is rented to her parents, for a declared gross income of $520pw ($27,040 annualised). However, after expenses the property runs at a loss.
3. TVFHP is a [work sector personnel] with over 25 years' experience. FRFBF alleges that she previously owned her own business, but that it was transferred to her family, who now act as her employers. The [business]'s website describes her as having 'a proven track record of [achievement].'
4. Open source enquiries before the original departure decision maker indicated that TVFHP had [made a number of sales] over the prior twelve months, with [an indicative] price of $[Amount]. It was by applying a [percentage] commission rate to TVFHP (as an employed [personnel]) that the decision maker arrived at the decision to vary her income in the assessment to $155,320pa.
5. However, the decision maker also referenced deposits made by her employer to two accounts held by TVFHP, in the periods 2 November 2023 to 2 February 2024 and 2 August 2023 to 1 February 2024.
6. The first group of deposits totalled $21,725. Noting that net income is paid by an employer, the decision maker annualised that as indicating TVFHP received gross taxable income of $118,118pa from her employer at that time.
7. However, in addition, the second group of deposits totalled another $15,761,61, and it was noted that the deposits coincided with TVFHP's obligation to make home loan repayments from that account. As the officer astutely noted, '[it] is ...unclear why TVFHP's employer will transfer money into a secondary account on the day or the day prior to the home loan payments being made.
8. FRFBF submits that those deposits are more accurately reflective of TVFHP's income or financial resources, noting that they related to a period before he brought his application for departure. Thereafter, he submits, TVFHP began 'messing around' with her income disclosure with the assistance of her family.
9. In objecting to the original departure decision, TVFHP told Child Support that her income was '$485 per week after tax, amounting to $25,220 annually.' She also claimed to have rental expenses of $580pw, [26] but as identified in the objection decision, no such payments can be found in her disclosed bank accounts.
10. TVFHP then submitted payslips from the [business] that showed that she received an annual gross income of $46,774. However, one of those payslips also referenced a motor vehicle allowance of an additional $200. Her evidence in the objections process, supported by a letter from her brother, was that she receives no percentage commission on the [sales made by] her, but only a fee of [amount] per sale.
11. Open source enquiries before the delegate indicated that TVFHP had [made a number of sales] [in] the 24 months to June 2024.
12. The objections officer obtained further bank statements in the name of TVFHP using the Respondent's powers of compulsion. Having done so, the officer noted that deposits into accounts held by TVFHP showed:

(a) deposits into one account in the period 2 August 2023 until 1 February 2024 totalled $15,761.61 reflecting an annualised financial resource of $31,523.22; and > > (b) deposits into a second account in the period 2 November 2023 to 2 February 2023 totalled $23,555.07 reflecting an annualised financial resource of $94,220.28.

13. The officer noted that TVFHP also declared meeting annual expenses of $97,915, which would require gross annual financial resources of approximately $140,000, a not dissimilar amount to the deposits to her account. The officer noted TVFHP had failed to make frank financial disclosure, including into the management of her rental [property].
14. TVFHP produced evidence to support an allegation that she had to reduce her work due to health concerns. She relied on a letter from her General Practitioner, dated 8 May 2024, stating that 'TVFHP has had to reduce her work hours to 2 to 3 days per week due to anxiety as a result of her separation' and another of the same date indicating that she 'would benefit from 6 to 12 sessions with a psychologist' and that the GP had prepared a mental health care plan.
15. Before the Tribunal in January 2025, TVFHP admitted that she was formerly a shareholder in the [business] but said that she 'resigned' as a shareholder. She claimed to have become a casual sales [personnel] for the business in February 2024, on a base wage and receiving [amount] per sale. She said she did not work at all between 7 November 2024 and 12 January 2025. She told the Tribunal she had only [done] four [sales] in 2024.
16. She provided a letter in support of that position from her brother, dated 13 January 2025. It claimed that that TVFHP's 'current' rate of pay included [amount] per sale, but that no such commission was payable to her in 'year 2023/2024' when she was an 'assistant [personnel].' The letter attached what were said to be the relevant [authorities] and tax invoices from the business for commission (to the business) and other expenses for each such [sale] for the period 1 July 2023 to date. The difficulty with that evidence is that each tax invoice describes TVFHP in the nameplate at the foot of the invoice as either the 'sales [personnel]' or 'sales manager' of the business. The term sales [personnel] is used prior to 1 July 2024, although not universally. It is also inconsistent with TVFHP's own evidence and the fact that the original decision maker interrogated the business's website prior to 2 April 2024 to record that it showed TVFHP as the sales [personnel] for two [sales] at that date and as having been lead [personnel] on [a number of other sales] in the previous 12 months. Furthermore, TVFHP was claiming the fee for her [business] licence as a deduction in her FY2022/23 income tax return. I place no weight in the letter for that reason.
17. What can be properly derived from the attached [authorities], though, is that the business commonly charges a fixed rate of commission negotiated in advance. It seems to start at $[Amount] but is more commonly $[Amount] or $[Amount] and there are examples of over $[Amount] per sale. It is closer to [percentage] of the anticipated sale price than any other comparator I could identify.
18. The Tribunal recorded TVFHP's then claimed weekly expenses of $1,215 but noted it did not include the shortfall in income over expenses of $12,271 declared for her rental property. It noted TVFHP said her brother sometimes helps her out in paying her rent and treats that as a loan to her.[27] The Tribunal recorded its satisfaction that TVFHP was meeting annual expenses of at least $75,451, and that this indicates annual gross financial resources of $97,656 (noting that TVFHP was in receipt of both parenting payment and family tax benefit totalling $13,494 annually).
19. During the hearing before me, FRFBF provided further evidence from open source enquiries from the business's own website that TVFHP had [made a number of sales] between March 2023 and March 2025, with a total value of $[Amount]. On all but five of those sales, she was shown as the lead [personnel]. I accept that evidence. It also indicates that TVFHP's anxiety and reduction in work hours has not significantly reduced her capacity to perform in her sales role to generate income, as [some] of those sales were made in the 10 months following the GP's letter, and where she only worked in eight of those months.
20. I also accept FRFBF's evidence that TVFHP has other bank accounts that TVFHP has failed to disclose but were discovered during concurrent property settlement proceedings in the Family Court. FRFBF did not rely on the accounts themselves, as they were subject to what is commonly described as the 'Harman' undertaking not to use them in other proceedings, and he had not obtained the permission to do so from the Family Court. However, without assistance from TVFHP I was, like FRFBF, unable to identify a disclosed account from which TVFHP was paying the sum she claimed as a rent expense, and so I infer it must be paid from funds in an undisclosed account.
21. TVFHP has failed to make the full and proper financial disclosure required of her as a party to this departure application. Having done so, it becomes necessary that I make whatever robust findings are appropriate on the material and evidence before me.
22. FRFBF relies on evidence that an employed [personnel] can expect to receive a base salary and to receive commission on each sale of approximately [percentage] of the sale price. That, he says, gives a more accurate representation of TVFHP's income than her payslips or tax returns, and this is borne out by the monies deposited to her account by her employer referenced in the original departure decision.
23. As I found earlier, TVFHP's employer only charges close to [percentage] of the sale price as total commission, and so I do not accept that evidence as applicable to TVFHP. However, I also do not accept that she was [involved] in [sales over a specified value] over two years for a wage of less than $50,000 per annum, or that she received either no commission, or [amount] commission per sale.
24. Doing the best I can, I think that TVFHP's access to income or financial resources is best reflected by that which she was being provided to meet her expenses as determined in the objection decision, by reference to the deposits to her disclosed accounts at that time.[28] I am satisfied that provides the best evidence of what her family have provided to her by way of income and financial resources from personal exertion or otherwise, no matter what changes may have been brought about subsequently to how that has been managed.
25. TVFHP otherwise has an unexceptional level of superannuation and no other significant assets or financial resources.
26. TVFHP has access to financial resources in excess of her ATI currently used in the assessment and in the special circumstance of the case which results in an unjust and inequitable determination of the level of financial support to be provided by TVFHP to the child. I will consider varying TVFHP's ATI in the assessment to $140,000.
27. If I do so, there will be no proper basis to go on to consider whether she has unexercised earning capacity.
28. TVFHP disclosed weekly expenses of $1,268.65 for self-support and support of the child. However, I note that appears to include the schooling expenses I am considering departing in respect of, in the sum of $100 per week.

The income, property, financial resources and proper expenses of FRFBF

1. Absent a departure from the administrative assessment, child support would be assessed based upon FRFBF's income estimates of $19,162, later amended to $25,393.[29]
2. As was found in the objection decision, prior to the parents' separation, FRFBF was the sole Director and shareholder in a company that operated [a] business. At around the time of separation, he resigned as a Director and transferred his shareholding to his (then) 84-year-old father, who did not work in the business. Despite FRFBF being the sole income earner for the business, his taxable income reduced from over $70,000pa to drawing a wage of $411.32 gross per week ($21,388.64pa). In addition, he was receiving Job Seeker payments of $735.30 per fortnight ($19,117.80pa).
3. FRFBF attributed this to a spinal condition preventing him from working as hard as he used to.
4. However, the objections officer noted that the company retained approximately $80,329.86 in a bank account that FRFBF was a joint signatory to, as of 5 February 2024, and determined that FRFBF had alienated income through his transfer of the company shareholding to his father.
5. In doing so, the objections officer had regard to the Guide, which provides,[30] relevantly, that:

A reduction of a parent's ATI by alienation of personal services income or other income will result in an artificially reduced or increased child support liability. > > Generally, income is alienated when the income generated or derived by a person is attributed to others and, consequently, reduces the first person's taxable income. Personal services income, or income derived through personal exertion, can be defined as income that an individual earns predominantly as a direct reward for their personal efforts. Personal services income paid to a company, trust or partnership is also alienation of income. > > If a parent is involved in alienation of their personal services income, this may indicate that they have additional income or financial resources that make the current child support assessment unjust and inequitable. > > The ATO has a published view in respect of the taxation consequences of arrangements that seek to alienate a person's taxable income. The ATO may make decisions concerning these arrangements for the purposes of taxation legislation and may have regard to the principles outlined in their publications. The Registrar may consider these principles in deciding whether such arrangements exist but can make a different decision about how they should be treated for the purposes of the child support legislation. > > ... > > In determining whether personal services income has been alienated through a company, trust or partnership, the Registrar will consider the following factors:

• - Nature of the parent's activities
• - Extent to which the income depends upon the parent's own skill and judgment
• - Extent to which the company's assets, or trust's assets, are used to derive the income
• - Number of employees and others engaged in the income-producing activity
• - Time at which the company, trust or partnership was established, and
• - Any other relevant matters.

1. The objections officer varied FRFBF's ATI in the assessment, not to the total of his income and job seeker payments of $40,506.44,[31] but to $50,000pa to take into account the funds available in the business account that may be available to FRFBF, given it formed profit that was derived solely through his personal exertion. In effect, it was found that FRFBF had alienated those monies through the transfer of the shareholding in the company to his father for no consideration.
2. Before me, FRFBF relied on a print from the ATO portal which indicates that in the 2024/25 financial year his income from the business was $32,615 gross and that he was attributed $7,603 in jobseeker payments.
3. I take the same view as the objections officer that the retained funds in the business when it was transferred by FRFBF to his father represent funds available to him as a financial resource. The fact that FRFBF may have subsequently been removed as a signatory from the company's bank account does not affect my view.
4. I note that FRFBF did not lodge any further evidence or make any specific submission to the contrary.
5. FRFBF otherwise has unexceptional levels of superannuation and no other significant assets or financial resources.
6. FRFBF has access to financial resources in excess of his estimates currently used in the assessment and in the special circumstance of the case this results in an unjust and inequitable determination of the level of financial support to be provided by him to the child.
7. I will consider varying FRFBF's ATI to $55,000 for the period of any departure to take into account FRFBF's access to that additional financial resource.
8. FRFBF has disclosed weekly expenses of $1,130 for himself and the child. However, that includes the mortgage on the former marital home, that he was ordered to pay but has only actually done so to a minimal extent to date. I accept his evidence that the house has now been sold and he will thereafter incur a rental expense.

1. I will consider departing from the assessment from the date of FRFBF's application for departure, which was lodged with Child Support on 10 October 2023. A departure determination would usually only be made pursuant to s 98S of the Act from the date of application. Here, FRFBF had unsuccessfully applied for a departure in 2022. He was clearly aware of the process, and I think it just not to backdate any departure I determine to be appropriate on the basis that it would be prejudicial to TVFHP, and FRFBF has not demonstrated any reason that he could not have availed himself of the departure process in the period between his first unsuccessful application, and this one.
2. I have considered extending the period of the departure further into the future than the previous decisions did, to provide a greater period of certainty to the parties. However, I have decided that would not be appropriate given the added layer of complexity caused by TVFHP's failure to participate in this review, and that the monies retained in FRFBF's employer's bank represented a finite resource.

1. It is necessary to consider any proposed departure against the underlying assessment.
2. In that regard, I am considering
   • for the period 1 January 2024 to 31 December 2024, varying the annual rate of child support payable by TVFHP by decreasing it by $2,620, constituting requiring FRFBF to make an equal contribution to the child's school fees that were paid by TVFHP.
   • for the period 1 January 2025 to 31 December 2025, varying the annual rate of child support payable by TVFHP by decreasing it by $2,803.50, constituting requiring FRFBF to make an equal contribution to the child's school fees that are being paid by TVFHP.
   • for the period 10 October 2023 to 31 December 2025 varying the ATI of TVFHP to $140,000 per annum.
   • for the period 10 October 2023 to 31 December 2025 varying the ATI of FRFBF to $55,000.
3. That would lead to an approximate departure:

(a) in the period 10 October 2023 to 31 December 2024 the annual rate of child support payable by TVFHP will increase from $568 per annum to $4,619 per annum; > > (b) in the period 1 January 2024 to 28 April 2024 the annual rate of child support payable by TVFHP will increase from $568 per annum to $1,999 per annum; > > (c) in the period 29 April 2024 to 30 June 2024 the child support payable by TVFHP of $661 per annum will change to $3,384 per annum; > > (d) in the period 1 July 2024 to 30 November 2024, the annual rate of child support payable by TVFHP of $259 per annum will change to $3,384 per annum; > > (e) in the period 1 December 2024 to 31 December 2024, the annual rate of child support payable by TVFHP will change to $3,470 per annum; and > > (f) in the period 1 January 2025 to 31 December 2024, the annual rate of child support payable by TVFHP will change to $3,286.50, per annum.

4. The Act requires the consideration of whether any departure determination or failure to make a departure will cause any hardship to the child, the carer, the liable parent or any other person the liable parent has a duty to support. I am satisfied that the above determination is reflective of TVFHP's capacity to pay child support based on her known circumstances and personal and household expenses and that hardship will not result to her by contributing on this basis. I am further satisfied that any hardship that may result to the child and to FRFBF if a proper level of support for the child is not provided will be alleviated.
5. Overall, I am satisfied that departing from the assessment in that way would be just and equitable.

1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community.[32] It is necessary to consider the effect of any departure from the administrative assessment on entitlements to income-tested pensions, allowances and benefits. Parents rather than the community have the primary duty to maintain a child.
2. TVFHP receives family tax benefit in respect of the child, but the proposed departure will likely have no effect on that. FRFBF may have an entitlement to family tax benefit, apparently unclaimed. Were he to make a claim, the departure would ensure a more appropriate apportionment of financial responsibility between the parents and the community. The proposed decision will be otherwise proper.

1. The objection decision under review, as varied by the Tribunal, is set aside and, in substitution, the Tribunal decides to:
   • For the period 1 January 2024 to 31 December 2024, vary the annual rate of child support payable by TVFHP by decreasing it by $2,620, constituting requiring FRFBF to make an equal contribution to the child's school fees that were paid by TVFHP;
   • For the period 1 January 2025 to 31 December 2025, vary the annual rate of child support payable by TVFHP by decreasing it by $2,803.50, constituting requiring FRFBF to make an equal contribution to the child's school fees that are being paid by TVFHP;
   • For the period 10 October 2023 to 31 December 2025 vary the adjusted taxable income of TVFHP to $140,000 per annum; and
   • For the period 10 October 2023 to 31 December 2025 vary the adjusted taxable income of FRFBF to $55,000 per annum.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Suthers

............[SGD]............................................................

[1] The entity administered by the Respondent.

[2] Commonly described as a change of assessment.

[3] Gyselman and Gyselman [1991] FamCA 93; (1992) FLC 92-279 at [28].

[4] The term commonly used by Child Support when a parent's ATI is 'varied' under s 98S of the Act.

[5] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

[6] After a correction dated 2 May 2025.

[7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the former Administrative Appeals Tribunal Act 1975.

[8] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.

[11] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].

[12] Tanner & Dalton (SSAT Appeal) [2012] FMCAfam 732; Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305.

[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]-[62].

[18] Philippe & Philippe (1978) FLC 90-433.

[19] Noting Reason 8 is broken into subparts A and B.

[20] Carey and Carey [1994] FamCA 74; (1994) FLC 92-489; (1994) 18FamLR 116.

[21] Marsh & Eccles [2008] FMCAfam 1417 at [13]; Child Support Registrar & Crowley and Anor [2015]

[23] Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275, [22].

[25] Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886, [16].

[27] TVFHP did not disclose this as a debt in her statement of financial circumstances dated 1 August 2024.

[29] If no departure from the assessment is made, these would eventually be reconciled when FRFBF's relevant income tax returns are lodged.

[31] My calculation, which differs modestly from the delegate's.

[32] The Act, s 117(5); Eades & Cadell (SSAT Appeal) [2009] FMCAfam 275.