CHILD SUPPORT - departure determination - income, property and financial resources - benefits derived from business - special circumstances - ground for departure - decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

1. Mr Haraby and Ms Boyale are the parents of [Child A] (born [year]) and [Child B] (born [year]).
2. A child support case was registered with Services Australia - Child Support (Child Support) on 8 May 2012. [Child A] has been in Ms Boyale's 100% care from 1 December 2022. [Child B] has been in Ms Boyale's 100% care from 3 September 2023.
3. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of child support payable. It uses a formula which contains variables such as the parents' adjusted taxable incomes and their percentages of the care of the children. The Act also provides a mechanism for departure from the administrative assessment (commonly referred to as a change of assessment) in certain circumstances.
4. On 28 February 2024, Ms Boyale applied to Child Support for a change of assessment on the basis that the assessment was unfair because of a parent's income, property and financial resources.
5. The underlying assessment of child support payable was set at nil for both parties pursuant to a previous change of assessment application made by Ms Boyale in May 2017. That application was resolved by a consent decision of the Administrative Appeals Tribunal issued on 6 June 2018, which set the annual rate of child support payable by Mr Haraby and Ms Boyale at $0 for the period 12 August 2017 until a terminating event happens in relation to [Child B].
6. Prior to the change of assessment application made by Ms Boyale on 28 February 2024, Mr Haraby's most recent income tax return for the financial year 1 July 2022 to 30 June 2023 disclosed his taxable income as $115,378.
7. On 21 March 2024, Child Support decided that a reason had been established to depart from the administrative assessment of child support on the basis that special circumstances existed and that Mr Haraby's income, property and financial resources rendered the existing child support assessment unfair. Child Support determined the administrative assessment be changed as follows:

The 6 June 2018 decision of the Administrative Appeals Tribunal (AAT) which set the rate of child support payable by Mr Haraby and Mrs Boyale at $0 per annum, will end effective 29 February 2024.

From 1 March 2024 until a terminating event occurs on the case for [Child B], the adjusted taxable income of Mr Haraby is set at $180,000 per annum.

The adjusted taxable income of Mr Haraby is to be adjusted annually commencing 1 July 2025, by the Consumer Price Index (CPI) National Weighted Average results for the preceding March quarter.

1. Mr Haraby objected to Child Support's decision and on 25 June 2024, a Child Support objections officer decided as follows:

The 6 June 2018 decision of the AAT which set the rate of child support payable by Mr Haraby and Mrs Boyale at $0 per annum, will end effective 29 February 2024.

From 1 March 2024 until 31 October 2026, the adjusted taxable income of Mr Haraby is set at $174,129 per annum.

The adjusted taxable income of Mr Haraby is to be adjusted annually commencing 1 July 2025, by the CPI National Weighted Average results for the preceding March quarter.

1. Mr Haraby applied to the Tribunal on 4 July 2024 seeking an independent review of Child Support's decision.
2. The Tribunal conducted a hearing on 13 March 2025. Mr Haraby appeared at the hearing in person and Ms Boyale participated in the hearing by telephone. Both gave evidence under affirmation.
3. In considering the application, the Tribunal took into account the oral submissions made by each party as well as:
   • documentary evidence provided by Child Support (Exhibit 1, comprising pages 1-364);
   • documents provided by Mr Haraby prior to hearing (Exhibit A, marked as pages A1-A390);
   • documents provided by Ms Boyale prior to hearing (Exhibit B, marked as pages B1-B23).

1. The statutory provisions relevant to this review are contained in the Act.
2. Child support legislation is interpreted with the aid of the Child Support Guide. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. As observed by the Federal Court in G v MIBP [2018] FCA 1229, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
3. A parent can apply to Child Support for a change of assessment, or a departure, from an administrative assessment of the amount of child support payable. Such an application is made under Part 6A of the Act.
4. Under section 98C of the Act, a decision-maker can make a change of assessment only if satisfied that:

(a) a ground for a change of assessment has been established;

(b) a change of assessment would be just and equitable as regards the children and each parent; and

(c) a change of assessment would be otherwise proper.

1. There are 10 possible grounds for a change of assessment set out in section 117 of the Act. Each ground for departure is prefaced by the words "in the special circumstances of the case". It is not possible to define with precision the meaning of what is meant by "special circumstances". In Gyselman and Gyselman [1991] FamCA 93; (1992) FLC 92-279 (Gyselman), it was held that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". It is clear that the administrative assessment formula is intended to be applied by a decision-maker in ordinary cases, and a departure from that formula should only be made where the facts of a particular case establish something which is special or out of the ordinary. The Tribunal's approach to the interpretation and application of the particular grounds in subsection 117(2) of the Act must be guided by this qualification that "special circumstances" exist.
2. If satisfied that a ground or grounds exist, and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make any of a range of determinations prescribed in section 98S of the Act. This includes varying the rate of child support payable, the adjusted taxable income of a parent or the cost percentage for a child.
3. It follows that the issues to be determined in this matter are as follows:

(a) Does a ground, specified in subsection 117(2) of the Act, exist to depart from the administrative assessment in the special circumstances of the case?

(b) Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support?

(c) Would it be otherwise proper to make a particular departure determination?

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

1. Paragraph 117(2)(c) of the Act (commonly referred to as reasons 8A and 8B) provides as a ground for departure:

(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

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

1. Mr Haraby considered that the Child Support assessment was unfair because:
   • His business had experienced a significant slow down, reducing the amount he is earning from the business.
   • The amount "added back" to his income for motor vehicle and phone expenses exceeded the full cost of those expenses paid by his company, [Business 1]. Those costs are legitimate business deductions and his personal use was minimal.
   • He is required to retain earnings in the company to meet licencing requirements imposed by [an industry regulator] for him to be able to continue operating his business.
2. Ms Boyale confirmed that she thought Mr Haraby's income figure assessed by the Child Support objections officer was reasonable. Ms Boyale considered that Mr Haraby's income and financial resources was significantly higher than was indicated by his taxable income.
3. In considering whether a ground for departure is made out under reason 8A, on the basis that the income, property and financial resources of either parent makes the assessment unfair, the Tribunal reviewed a large volume of financial material submitted by the parties.
4. The Tribunal is not required to undertake a "forensic audit" or major investigation of the financial circumstances of a party in assessing their income, property or financial resources. Rather, the Tribunal must be satisfied on the balance of probabilities as to the party's income, property or financial resources (see for example Morse & Potts (SSAT Appeal) [201] FMCAfam 1305 and Shearer & Benson & Anor (SSAT Appeal) [2011] FMCAfam 623).
5. Ms Boyale confirmed at hearing that she is a PAYG employee, and apart from receiving a small amount of income from dividends (approximately $9 per week), she had no other sources of income. Ms Boyale does not receive any family tax benefit payments. She is re-partnered and shares household expenses with her partner.
6. Ms Boyale's taxable income for the 2022-23 financial year was $102,400. Payslips provided to the Tribunal by Ms Boyale indicate that she is employed full time and her current gross salary is approximately $105,000 per annum. I am satisfied that Ms Boyale's income is accurately reflected by her taxable income.
7. Mr Haraby provided his tax returns from 2020-21 to date, which disclose:
   • For the 2020-21 financial year, Mr Haraby's taxable income was $53,632. His income consisted of $29,082 in salary or wages, $24,500 in "allowances, earnings, tips, directors fees etc" and $5,236 in business income. Deductions included a claim of $1,800 for work-related car expenses.
   • For the 2021-22 financial year, Mr Haraby's taxable income was $92,297. His income consisted of $93,044 in salary or wages and $5,236 in business income. Deductions included a claim of $3,600 for work-related car expenses.
   • For the 2022-23 financial year, Mar Haraby's taxable income was $115,378. His income consisted of $118,447 in salary or wages and $2,181 in business income. Deductions included a claim of $3,900 for work-related car expenses.
8. Some deductions, which are legitimate for taxation purposes, should appropriately be added back to Mr Haraby's taxable income when considering his income and financial resources for child support purposes. This includes deductions for which a person obtains a personal benefit and which they would otherwise have to meet from their personal income - for example, deductions for motor vehicle expenses and telephones which are used for both personal and business purposes.
9. An examination of Mr Haraby's bank statements shows that over a period of approximately 18 months between May 2023 and November 2024, there are no transactions from Mr Haraby's personal accounts for vehicle registration, insurance, tyres or maintenance, and a single transaction to purchase petrol in the amount of $16.50. Mr Haraby told the Tribunal that he owns an old [Car model 1] ute and a [Car model 2] that was purchased by his company. He said that the vehicles are used for work purposes and there is minimal personal usage, although he said he would drive [Car model 2] to golf. He said he and his new partner, [Partner A], mostly use [Partner A's] car to run errands.
10. Mr Haraby confirmed that all of the expenses associated with his vehicles were paid by the company.
11. Mr Haraby's bank statements for his personal accounts also reveal no transactions for phone or internet expenses. Mr Haraby confirmed that these expenses were also paid by his company. Mr Haraby told the Tribunal that he predominantly worked from home and did not have a separate office, although on larger builds there would be a temporary on-site office that he would work from.
12. There are minimal payments shown in Mr Haraby's personal bank accounts over a period of 18 months for utilities such as water (2 payments in March and July 2024 only) and electricity (1 payment in March 2024). Rates and insurances are paid from a separate account where [Partner A's] wage is deposited. Mr Haraby told the Tribunal that he occasionally tops up the amounts required for insurance. [Partner A] sometimes helps out with mortgage payments, but the mortgage is solely in his name and he generally pays the full mortgage repayment himself.
13. Apart from payments for the mortgage and groceries, Mr Haraby's bank statements otherwise disclose mostly discretionary spending coming from his personal accounts.
14. Mr Haraby's bank statements show an amount of $3,009.25 being deposited to his account each fortnight as wages in the period 15 May 2023 to 13 September 2023. In addition, $5,000 payments described as "director reimbursements" were received by Mr Haraby on each of 15 August 2023, 19 September 2023 and 9 October 2023.
15. From 16 October 2023 to 18 April 2024, Mr Haraby's bank statements show an amount of $5,001.01 being deposited to his account each fortnight as wages. Deposits for wages then reduce to $3,387.38 per fortnight from 3 May 2024 and increase again slightly to $3,491.38 per fortnight from 24 July 2024.
16. Over a similar period, [Business 1] financial documents show that [Partner A] was paid wages of:
    • $3,009.25 per fortnight from 10 July 2023 to 15 September 2023;
    • $3,387.38 from November 2023 to 29 May 2024; and
    • $5,001.01 from 12 June 2024 increasing to $5,174.01 from 7 August 2024 onwards.
17. Mr Haraby told the Tribunal that [Partner A] is a [Occupation 1] who works full time doing the [business operations] for [Business 1]. She was previously employed as a [Occupation 2] at [Business 2] earning $200,000 per annum. Mr Haraby explained that the reason for the significant increase in [Partner A's] salary from June 2024 was due to he and [Partner A] separating for a short period. Mr Haraby said he needed to pay [Partner A] a market salary in order to keep her on, otherwise she would have left [Business 1] to work elsewhere where she could earn more money. This would have been very damaging to his business operations. He and [Partner A] have since reconciled. Both are continuing to be paid a salary from [Business 1] of $3,491.38 per fortnight for Mr Haraby and $5,174.01 per fortnight for [Partner A].
18. Conversely, Mr Haraby said that the increase to his own wage in the period from October 2023 to April 2024 was intended to be for a short time only as he was refinancing his mortgage and needed to demonstrate additional financial capacity. He said that his accountant is telling Mr Haraby that he is paying he and [Partner A] too much.
19. Financial documents for [Business 1] provided to the Tribunal show the following:
    • For the 2020-21 financial year, total income of $258,749 and expenses of $227,416 (profit of $31,333).
    • For the 2021-22 financial year, total income of $312,507 and expenses of $369,121 (loss of $56,614).
    • For the 2022-23 financial year, total income of $4,311,467 and expenses of $3,882,966 (profit of $428,501).
20. Tax returns are not available for the 2023-24 financial year, however [Business 1's] quarterly BAS statements show a gross income of $5,709,973 from 1 July 2023 to 30 June 2024. Payment of salaries total $421,538. If I assume [Business 1's] profit margin would be similar to the profit disclosed in the previous financial year (9.9%), this suggests a company profit for the 2023-24 financial year of around $565,000.
21. Mr Haraby told the Tribunal that apart from himself and [Partner A], [Business 1] employs one other permanent employee ([Employee A]). Deducting a gross salary of $99,996 per annum for this employee (based on fortnightly payments to [Employee A] shown in [Business 1's] accounts) leaves an amount of $321,542 paid in salaries to Mr Haraby and [Partner A] in the 2023-24 financial year.
22. If I have regard to the net payments made to Mr Haraby's personal account representing his salary or fees from [Business 1], as set out in paragraphs 33-34 above, this would equate to Mr Haraby having a gross income for the 2023-24 financial year of $181,941.
23. While Mr Haraby's salary being paid in the current financial year is less ($3,491.38 per fortnight), it is relevant that Mr Haraby, although he is the owner and managing director of [Business 1], continues to pay himself a significantly lower salary than his employee [Partner A]. While such income splitting may be perfectly legitimate for taxation purposes, it suggests that Mr Haraby's financial resources may be more fairly represented by assuming his earnings to be an amount at least equivalent to that being paid to [Partner A]. This would equate to a gross salary of $196,118 per annum, ignoring any profit distributions from [Business 1].
24. In addition, Mr Haraby has the benefit of not being required to pay a significant amount of expenses that are covered by [Business 1], which an ordinary PAYG employee would have to meet from their after-tax income. This includes the costs of purchasing, registering and maintaining his vehicles as well as all expenses for petrol, telephone and internet.
25. [Business 1's] financial statements for the 2022-23 financial year show motor vehicle expenses of $14,809 and $5,660 for telephone and internet. [Business 1's] credit card statements for a card issued to Mr Haraby indicate expenditure for petrol of $2,584 in this financial year (although it is unclear whether this expense forms part of the claimed deduction for motor vehicle expenses). I accept that a proportion of these expenses would relate solely to business use, however as Mr Haraby has no personal expenses at all disclosed for vehicle costs, petrol, phone and internet, it is evident that he gains some degree of personal financial benefit from having such expenses met in full by [Business 1].
26. Mr Haraby's bank statements from his personal account for the period May 2023 to May 2024 show total expenditure of over $128,000 in this 12-month period. This level of expenditure equates to a gross income of more than $185,000 per annum. Again it is noted that Mr Haraby's expenditure excludes any amounts for rates, insurances, phone, internet and petrol, and includes minimal expenditure on utilities. This suggests that his true financial resources are significantly higher than $185,000 and well in excess of his taxable income.
27. Mr Haraby told the Tribunal that his turnover from [Business 1] has decreased to less than $50,000 per month, with projects that were to start in January and February 2025 falling over. However, this decline was not evident in the financial information provided to the Tribunal, noting that [Business 1's] gross income for 2023-24 increased by more than $1 million from the previous financial year.
28. I find that Mr Haraby's true financial resources for child support purposes is significantly higher than his adjusted taxable income and in excess of $185,000 per annum. This renders the child support assessment, under which Mr Haraby pays no child support to Ms Boyale although she has 100% care of both children, unjust and inequitable.
29. I am satisfied that in the special circumstances of the case, reason 8A (provided for in subparagraph 117(2)(c)(ia) of the Act) is established and there is a ground to depart from the administrative formula.

Issue 2 - Would it be just and equitable as regards the children and each parent to depart from the administrative assessment of child support?

1. Subsection 117(4) of the Act requires that regard must be had to the following factors in determining whether it would be just and equitable to make a particular determination to depart from the administrative assessment:

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

(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

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.

1. The Tribunal is not limited by the matters listed in subsection 117(4) and may consider any other relevant matters (subsection 117(9) of the Act).
2. In Gyselman, the Full Family Court noted that:

some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section [117] (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).

1. While I have had regard to all of the matters specified in subsection 117(4), I will discuss only those factors of particular relevance in this application.
2. Mr Haraby and Ms Boyale each have a duty to maintain the children. As noted in sections 3 and 4 of the Act:
   • The duty of a parent to maintain his or her child has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or person that the parent has a duty to maintain; and
   • The level of support should be determined in accordance with the costs of the children, and according to the parents' capacity to provide financial support.
3. In determining the proper needs of the children for the purposes of paragraph 117(4)(b) of the Act, subsection 117(6) of the Act requires the Tribunal to have regard to the manner in which a child is being, and in which the parents expect them to be, cared for, educated or trained, and any other special needs they may have. Ms Boyale advised the Tribunal that [Child B] would require braces in the future, however there was no evidence provided as to the necessity for and cost of such treatment. There is no evidence that the children have any special needs requiring expenditure beyond what would usually be captured in the child support assessment formula.
4. Mr Haraby's written submissions suggested that the self-support amount allowed for each parent was not adequate given the cost of living increases. However, such expenses are common to both parties and there is no evidence that either party has any special needs such that the self-support amount provided under the administrative assessment formula is inadequate. I consider the commitments of each parent necessary to enable them to support themselves are appropriately reflected in each parties' Statement of Financial Circumstances and do not require any adjustment to the self-support amount.
5. Both parties submitted Statements of Financial Circumstances. Ms Boyale's total average weekly income was disclosed as $1,992, and her weekly expenditure for herself and the children as $2,234. It is noted that there is additional income for the household from Ms Boyale's partner's income.
6. Mr Haraby's total average weekly income was disclosed as $2,218 and his weekly expenditure as $1,840. Again it is noted that there is additional income for the household from Mr Haraby's partner's income. Mr Haraby's bank statements disclose a reasonably high level of discretionary spending.
7. Mr Haraby told the Tribunal that [Child A] has recently started working and suggested that this should be taken into account in assessing the appropriate amount of child support. Ms Boyale told the Tribunal that [Child A] started working under a trial period in November 2024. This is casual employment and he sometimes works 2 or 3 days per week and sometimes none. He earns $20 per hour and has never earned more than $300 or $400 in a week. I am satisfied that the child's income is sporadic and minimal and does not require any adjustments to be made to the costs of the child in any departure.
8. Mr Haraby said that if he was required to pay child support calculated on the taxable income currently applied by Child Support under the objections officer decision, this would place him in financial hardship. He said that he would struggle to meet his mortgage payments. Mr Haraby noted that he had already depleted the retained earnings in [Business 1] and now held under $100,000. He submitted that his child support liability should be based on his taxable income and that $118,000 was a reasonable income amount. Mr Haraby also submitted that it was unfair to alter the child support liability fixed pursuant to the previous AAT decision as the parties had relied on this and he had forfeited receiving child support payments from Ms Boyale for a significant period while he had shared care of the children.
9. Ms Boyale is employed full-time and derives income as a PAYG employee. There is no evidence that suggests that she has access to other financial resources, or that she is not exercising her full earning capacity. I am satisfied that Ms Boyale's income is adequately reflected in her adjusted taxable income.
10. Ms Boyale told the Tribunal that there is a substantial amount of arrears of child support owing. She has had to support the children 100% from her own income, which is expensive, and her financial situation has been greatly impacted. If the child support payable was reduced from that assessed under the decision of the objections officer, this would impact negatively on her ability to meet her own current expenses and expenses for the children.
11. Ms Boyale submitted that the assessment should be changed from September 2023 when [Child B] came 100% into her care. She has had 100% care of both children since that time and the care arrangements are not expected to change. She asked that a change of assessment be applied until a terminating event occurred for [Child B].
12. Mr Haraby noted that under the previous AAT decision the parties had an agreement which was to continue until a terminating event occurred. He otherwise had no submissions on the length of any period of departure that may be made by this Tribunal.
13. The Tribunal may not (without the leave of a court) depart from an assessment for a period which is more than 18 months prior to the date of application: subsection 98S(3B) of the Act.
14. I find that starting the change of assessment from 3 September 2023, the date from which both children were 100% in Ms Boyale's care, and continuing until a terminating event occurs with respect to [Child B], would be just and equitable in the circumstances. I take into account that Mr Haraby's declared income over several financial years has significantly under-represented his true financial resources, and the desirability of minimising the need for the parties to seek further changes of assessment.
15. I am satisfied that the proposed departure would not cause undue financial hardship to Mr Haraby, and to the extent that any financial hardship may be caused to Mr Haraby, this is outweighed by the fact that refusing to make a departure would be likely to cause consequential hardship to Ms Boyale and to the children and mean that their proper needs may not be adequately met.
16. I therefore find that the departure to the administrative assessment should start on 3 September 2023 and end when a terminating event occurs with respect to [Child B]. I am satisfied that it is just and equitable to make a departure in the following terms:
    • The decision of the Administrative Appeals Tribunal dated 6 June 2018, which set the rate of child support payable by Mr Haraby and Ms Boyale at $0 per annum, will end with effect from 2 September 2023.
    • From 3 September 2023 until a terminating event occurs with respect to [Child B], the adjusted taxable income of Mr Haraby is set at $185,000 per annum.
    • The adjusted taxable income of Mr Haraby is to be adjusted annually from 1 July 2025 by the CPI National Weighted Average results from the preceding March quarter.
17. As I have found it appropriate to set a different period of departure and a different figure for the adjusted taxable income of Mr Haraby than that set by the Child Support objections officer, the decision under review will be varied.

Issue 3 - Would it be otherwise proper to make a particular departure determination?

1. Subsection 117(5) of the Act sets out the matters that must be considered when deciding whether it would be "otherwise proper" to make a departure determination. This requirement directs attention to what is fair to the community and requires consideration of whether the level of a benefit, in particular family tax benefit, received by the party caring for a child may be affected by the level of child support. It is also appropriate to have regard to community expectations that children should be primarily supported by their parents.
2. Neither party is in receipt of family tax benefit. A change in assessment to increase Mr Haraby's adjusted taxable income to $185,000 would not result in any increased cost to the community. The Tribunal considers that it is otherwise proper to make the particular determination proposed.

The Tribunal varies the decision under review so that:

• The decision of the Administrative Appeals Tribunal dated 6 June 2018, which set the rate of child support payable by Mr Haraby and Ms Boyale at $0 per annum, will end with effect from 2 September 2023.
• From 3 September 2023 until a terminating event occurs with respect to [Child B], the adjusted taxable income of Mr Haraby is set at $185,000 per annum.
• The adjusted taxable income of Mr Haraby is to be adjusted annually from 1 July 2025 by the CPI National Weighted Average results from the preceding March quarter.