Sabella and Tadeo (Child support)

[2018] AATA 3991

Sabella and Tadeo (Child support) [2018] AATA 3991 (24 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013289

APPLICANT:  Ms Sabella

OTHER PARTIES:  Child Support Registrar

Mr Tadeo

TRIBUNAL:Member J Thomson

DECISION DATE:  24 August 2018

DECISION:

The decision under review is varied to provide that for the period 29 November 2016 to 31 October 2019, Mr Tadeo’s adjusted taxable income is set at $55,951.

CATCHWORDS
Child support - Departure determination - Whether the liable parent should be assessed on his earning capacity - Criteria for earning capacity satisfied - Decision under review varied

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

REASONS FOR DECISION

BACKGROUND

1. Ms Sabella and Mr Tadeo are the parents of six children, [Child 1], [Child 2], [Child 3], [Child 4], [Child 5] and [Child 6] (the children), ranging in ages from seven to 17. The care percentages currently being assessed by the Department of Human Services – Child Support (the Department) are as follows: the eldest child, [Child 1], (born 2001) is in the 100% care of Mr Tadeo; the five younger children, [Child 2], (born 2003),   [Child 3] (born 2005), [Child 4] (born 2007), [Child 5] (born 2010), and [Child 6] (born 2011), are all in the 100% care of Ms Sabella.

2. Ms Sabella seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 8 December 2017. This decision partially allowed Mr Tadeo’s objection to a decision dated 13 September 2017, setting Mr Tadeo’s adjusted taxable income for the period 1 February 2017 to 31 January 2020 at $69,845.

3. The objections officer in the decision under review set aside the Department’s decision of 13 September 2017, and, in substitution, decided that, for the period 29 November 2016 to 31 January 2017, Mr Tadeo’s adjusted taxable income should be varied from the adjusted taxable income of $69,845 set by an earlier Department decision maker, DM Ross dated March 2016, to $55,951, and also set him at that income for the period 1 February 2017 to 18 September 2017.

4. The Tribunal heard the matter on 19 July 2018. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department, Ms Sabella, and Mr Tadeo. Ms Sabella had copies of these documents with her at hearing. Mr Tadeo only had copies of the documents he provided. He was unable to account for the whereabouts of his copies of the Department’s or Ms Sabella’s documents, but, in the event, was content to proceed with the hearing without copies of those documents.

5. The Department’s documentation was admitted into evidence and marked Exhibit 1.  With respect to Ms Sabella’s documents, the documents marked A15, A31 to A37, A39 to A44, and A47 to A69 were considered irrelevant and not admitted into evidence. The remainder were admitted into evidence and marked Exhibit A, and Mr Tadeo’s documents were admitted into evidence and marked Exhibit B.

ISSUES

1. The issues which arise in this case are Mr Tadeo’s income, financial resources and property for child support purposes, and the period for which the amount of his income financial resources and property determined by the Tribunal should be set.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence of both parents given at hearing, and the documents contained in Exhibit’s 1, A and B.

The legislative framework

1. The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Child Support (Assessment) Act 1989, (the Act).  A formula is used. It takes into account variables including each parent’s adjusted taxable income for the last relevant year of income, the number of children and the level of care provided by each parent. Part 6A of the Act allows for a departure from the administrative assessment (a process commonly known as a “change of assessment”). Under subsection 98C(1), the Registrar may make such a departure determination if three matters are established:

   ·One, or more than one, of the grounds for departure referred to in subsection 98C(2) exists (subparagraph 98C(1)(b)(i));

   ·A departure is just and equitable as regards the children and each parent (sub-subparagraph 98(1)(b)(ii)(A)); and

   ·It is otherwise proper to make a departure decision (sub-subparagraph 98C(1)(b)(ii)(B))

2. Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2) of the Act.

3. 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 Registrar may make one of the determinations prescribed in section 98S of the Act. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income of the parents or the cost percentage for a child.

Grounds for departure

1. Subparagraph 117(2)(c)(ia) – commonly referred to as Reason 8 – 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….

2. The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, 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 legislation in subsection 117(2) must be guided by the qualification that the Tribunal will not interfere with the administrative formula result in the ordinary run of cases. In Gyselman and Gyselman [1991] FamCA 93, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The Tribunal will consider whether the application of the administrative assessment would result in an unjust and inequitable determination of child support payable, having regard to the evidence relevant to the parents’ financial position.

3. Prior to Ms Sabella’s application for a change of assessment on 23 June 2017, Mr Tadeo’s annual rate of child support for the period 1 February 2017 to 30 December 2017 was set at nil, based on his 2016/17 income estimate of $0.00, and Ms Sabella’s adjusted taxable income of $19,014. This assessment was based on the two eldest children, [Child 1] and [Child 2] being in Mr Tadeo’s 100 % care, the four youngest children, [Child 3], [Child 4], [Child 5] and [Child 6], being in Ms Sabella’s 100% care.

4. At the time of the determination of her objection by the objections officer on 8 December 2017, [Child 2] was in Ms Sabella’s 100% care. At the time of hearing the application for review, Mr Tadeo’s annual rate of child support had reverted from the amount of $55,951 set by the objections officer in his decision under review for the period 29 November 2016 to 31 January 2017, to $0.00, and the care percentages being assessed by the Department had changed from 1 January 2017 to 14 February 2017, and again, from 19 September 2017 to the date of hearing by the Tribunal, to the care percentages reflected in paragraph 1 above.

5. At hearing, Ms Sabella requested the Tribunal set a longer period for whatever determination it made with respect to Mr Tadeo’s adjusted taxable income for child support purposes for the sake of certainty and to accommodate the regular fluctuations in the care percentages which appear to occur with respect to the children.

Ms Sabella’s evidence

1. Ms Sabella’s evidence at hearing was to the following effect.

2. She is currently unemployed and pursuing a disability care course which she expects to complete in December 2018. She also gave evidence that since 24 December 2017, she had 100% care of [Child 2], [Child 3], [Child 4], [Child 5] and [Child 6].

3. She challenged Mr Tadeo’s reason for leaving his regular employment with [Company 1], [in] November 2016, asserting his termination was voluntary, and that his allegation that he had done so because of embarrassment due to abusive conduct on her part in the precincts of his work place, his employer and his work colleagues was specious, without reasonable cause or foundation, and motivated by a desire to reduce his income and his liability to her to pay child support for the children.

4. She also challenged Mr Tadeo’s inability to find gainful employment because of his back injury, asserting that since resigning his position with [Company 1], he had not actively sought employment, that his assertion that he was seeking to improve his skill sets by undertaking Certificate [level] courses in [an industry area] (the industry in which she asserted he was already qualified and highly experienced) was a sham, and that, as a highly qualified [occupation] with many years of experience in [the industry area], friends and family involved in the [industry] (his father is still active in the [industry]), and a recognised reputation in the [industry], he was readily employable and capable of earning an income in the range of $300 to $500 per hour.

5. Ms Sabella referred the Tribunal to the enrolment acceptance form issued by [company name] (the training company), confirming Mr Tadeo’s enrolment in that company’s Certificate [course], commencing [in] August 2017 (see Exhibit 1, page 420), and specifying the course requirements, namely, 15 hours per week study time based on self-paced learning and online project work, with an additional eight hour visit per month with an assessor.

6. She said that she had contacted the training company and confirmed that it was still operating and conducting training courses, contrary to the assertions made by Mr Tadeo that the training company was no longer in operation.

7. The Tribunal also contacted the company and was advised that the Certificate [course] was still available, and that, because of his previous experience in the [industry], it was likely that Mr Tadeo could qualify for the certificate through on site assessment by one of the course assessors, assuming Mr Tadeo was employed or otherwise working in the [industry], and able to demonstrate his level of competency, on site, to a course assessor.

8. Ms Sabella challenged Mr Tadeo’s assertion that he was unable to continue working for [Company 1] because the level of child support being deducted from his wages precluded him from affording the costs of obtaining specialist treatment for his [medical condition] (the consequence of an accident in 2001). He asserted he requiring fortnightly injections of a drug, [in] order to continue working, which he claimed was only obtainable by prescription from [a] specialist, whose fees, and the cost of the drug itself, he could not afford .

9. Ms Sabella said her enquiries of her general medical practitioner revealed that the drug [can] be prescribed by general medical practioners on a bulk billing basis for consultations, and the cost of the drug was approximately $5.40, assuming Mr Tadeo was able to produce a Centrelink Health Care card, or otherwise, at a cost of $38.00 per prescription. The [drug] injections are [self- administered].

10. Mr Tadeo’s treating general practitioner, [Dr A], provided a very brief report dated [in] June 2018 (see Exhibit B, page B107) in which he described Mr Tadeo’s suffering from [a medical] condition referred to above. Whilst he describes the [medical] condition as causing severe [symptoms], relevantly, he notes the condition is treatable. He also notes Mr Tadeo has not been able to avail himself of the specialist prescribed treatment due to his financial status in the 2016/17 year, and consequently, in his opinion, was unable to work in a manual capacity. [Dr A] did not comment on the likely duration of the [condition] or the prognosis with the appropriate treatment he suggests is available.

11. Ms Sabella asserted Mr Tadeo has been working for various friends in the [industry] since leaving [Company 1] in November 2016, receiving payments in cash for his services, and not declaring the same for income tax purposes.  Specifically, she provided copies of text messages between Mr Tadeo and his daughter, [Child 2] (see Exhibit A, page 70) which she asserted was evidence that Mr Tadeo was working for [Mr B], the proprietor of  a [business], [in] or about [May] 2017.

12. She also gave evidence of sighting Mr Tadeo [in] June 2017 outside a medical centre where his daughter, [Child 2], was being treated, wearing [work] clothes. A photograph she said depicted Mr Tadeo on that occasion was provided post hearing. The Tribunal does not consider this evidence supportive of Ms Sabella’s assertion and has not received it into evidence.

13. Ms Sabella said she had been informed by the children, [Child 2], [Child 4] and [Child 5], that they had witnessed Mr Tadeo performing [work] for [Mr B’s] firm – [doing work] at [a] University, and that [Child 2] had informed her she had witnessed [Mr B] paying Mr Tadeo for his [services]. The Tribunal considers this evidence, by virtue of its hearsay nature, generally unreliable and accordingly, has given it little weight.

14. There are also file notes in the Department’s papers of Ms Sabella reporting sightings of Mr Tadeo driving a utility vehicle containing concreting equipment and work tools since leaving his employment with [Company 1], but there is no substantive evidence of Mr Tadeo actually working for remuneration on that occasion.

15. Otherwise, Ms Sabella was unable to provide any convincing evidence that Mr Tadeo was performing concreting or other work for reward since leaving the employ of [Company 1].

16. As regards Mr Tadeo’s assertion that his mother, [Mrs C], is supporting him and the children when they have been in his care, Ms Sabella referred the Tribunal to a sworn statement provided by [Mrs A] dated [in] June 2018 at page 106 of Exhibit B, and suggested that as an aged pensioner on $420 per week, it was unlikely Mr Tadeo’s mother would be in a position to provide any significant financial support for Mr Tadeo and his children.

17. Ms Sabella also asserted that the eldest child, [Child 1], is no longer attending school, and, at almost 17 years of age, has entered the work force, and is paying board to Mrs Tadeo. However, she was unable to offer more specific evidence in support of these assertions, and acknowledged that she and [Child 1] are no longer on speaking terms.

18. Ms Sabella gave evidence as to Mr Tadeo’s lifestyle, suggestive of his having undisclosed financial resources. In this respect, she referred to his smoking habits, the cost of which she said was not reflected in his Statement of Financial Circumstances dated 13 July 2018, the recent purchase of new tyres for his [motor] vehicle at a cost of $2,000, also not reflected in his Statement of Financial Circumstances, and trips to Sydney and Melbourne to attend [football] matches, with attendant accommodation costs, in or about June 2018.

19. She also made reference to Mr Tadeo’s accessing his superannuation entitlements whilst they were a couple and experiencing a period of hardship. The Tribunal does not consider the accessing of superannuation funds in such circumstances constitutes a readily available financial resource for child support purposes.

20. In concluding her evidence, she said she considered Mr Tadeo should be assessed at an annual income of approximately $55,000.

Mr Tadeo’s evidence

1. Mr Tadeo conceded in evidence that he voluntarily resigned his position with [Company 1] [in] November 2016 (where he had been working since July 2014), but asserted he did so because of the embarrassment caused to him by Ms Sabella’s abusive conduct within the precincts of his workplace. He conceded that his resignation had nothing to do with his [medical] condition referred to in [Dr A’s] report referred to above.

2. He said that during the course of his employment with [Company 1], he went from full-time employment to casual employment in the period when he had 50% shared care of the children on a week about basis in 2015. He said he took this decision to reduce his working hours in order to devote more time to his children during the period he had week about care, but he acknowledged that his decision to resign his position with [Company 1] was not motivated by the need to spend more time with his children.

3. Mr Tadeo provided copies of his payslips for the period of his employment with [Company 1] for the period [June] 2015 to the date of his resignation [in] November 2016, together with copies of his [bank] statements for the period [May] 2015 to [November] 2016 evidencing the payment of his [Company 1] wages into his bank account, and his income tax assessment notices for the 2015, 2016 and 2017 financial years.  Post hearing, he also provided a copy of his 2015 financial year income tax return reflecting the unremarkable deductions claimed against his gross income of $39,874 for that year (see Exhibit B, pages B10 to B105, and B109 to B114).

4. In his evidence, he said his payslips, bank statements and tax returns reflected his reduced weekly pay during the periods he had week about care of the children, and also his pattern of depositing his weekly pay to his bank account on withdrawing of funds for weekly living expenses.

5. Relevantly, his payslip at page B10 of exhibit B reflects a gross annual salary of $38,393.68 for the financial year ended 30 June 2015. The unremarkable deductions reflected in the tax return he provided for that year of $438 result in a taxable income of $39,051, which accords the assessment and he provided it Exhibit B, page B103.

6. His payslips for the 2015/16 financial year reflected an annual gross salary of $38,393.68 up until 25 August 2015, rising to $42,484 to the end of that financial year. However, his income tax assessment notice for that year reflected taxable income of $54,652.

7. Mr Tadeo’s payslips for the 2016/17 financial year (1 July 2016 to the date of his resignation [in] November 2016) reflect an anticipated gross annual salary of $49,400 (see Exhibit B, page B71) and a taxable income of $20,081 up to [November] 2016, annualised to $55,951 ($20,081 /131 days x 365 = $55,950.87).

8. Mr Tadeo gave evidence regarding his [medical] condition as described in [Dr A’s] report at Exhibit B, page B107 in response to the evidence given by Ms Sabella set out above. He said he has suffered from this [medical] condition for the past 10 years since he sustained [an] injury in an accident in 2001. He said he experiences pain in his [body], radiating into his [other body] region, and generally occurring when he undertakes lifting and twisting in the course of his daily activities, including at work.

9. His pay slips describe his occupation variously as [an occupation], [and] [another role]. He said the work he was performing at [Company 1] involved [certain work] of [different sizes] and weighing up to [a size], and[other tasks].

10. He acknowledged in evidence that he was able to work comfortably with the aid of regular injections of the [drug]. Indeed, he acknowledged in evidence that he has been self- administering this drug [for] the past six months, the last occasion being two weeks prior to the date of the Tribunal hearing.

11. He acknowledged in evidence that currently, he needs to see a medically qualified specialist only once every six months (previously, it was once every three months) for prescriptions for [medication]. He said he is currently seeing [Dr D] at [a] Hospital for treatment and [drug] prescriptions at a cost of $140 per consultation.

1. He said that since resigning his position at [Company 1], he has been unsuccessful in his attempts to find work, and because he has had no income, he has not been able to afford the necessary consultations with [Dr D] and the corresponding [drug] prescriptions. He said the most recent consultations were funded by his brother and sister who also give him money to cover the cost of his ongoing treatment and medication.

2. No medical report from [Dr D] was provided by Mr Tadeo.

3. Mr Tadeo acknowledged in evidence that the pharmaceutical cost of the [drug] [medication] is $6.40 for healthcare cardholders, and otherwise at approximately the cost nominated by Ms Sabella of $38.

4. Mr Tadeo also acknowledged in evidence that he can work, and has been looking for work. His evidence in this respect was spartan, to say the least; he said he has sent in applications to [different places]. No evidence of other job applications was provided.

5. Mr Tadeo said that he was accustomed to working 12 to 14 hour days when he and Mrs Sabella were living as a couple. However, he said that working such long hours has taken a serious toll on his [medical] condition, and at 39 years of age, he had doubts he would be able to obtain work in the [industry] without further qualifications. He said it was for that reason that he decided to enrol in the Certificate [course] conducted by [the training company] in about October 2017 with the expectation that upon completing a [Certificate] course, he could progress to undertaking a [next level] Certificate course, and obtain a job in a supervisory capacity, rather than a manual role.

6. He gave as his reason for not proceeding with the course that he did not have funds to cover the cost of the course. When questioned by the Tribunal, Mr Tadeo acknowledged that he had not applied for newstart allowance or any other form of assistance to cover the cost of the course; he was unable to provide a satisfactory explanation, other than to say he did not wish to become liable to Centrelink for any form of unemployment related assistance. On further questioning, he acknowledged that he was not aware of the cost of the course for which he had enrolled with the training company referred to above.

7. He said that the last time he worked in the [industry] was when he was employed by [another company], a company which subsequently went into liquidation prior to his obtaining employment with [Company 1] in July 2014. He said he was intending to qualify for his [certification] via the on-site assessment method, but the company went into liquidation before he could do so, and he doubted he would be able to obtain employment with a [company] to avail himself of the opportunity of an on-site assessment because of his [medical] condition.

8. The Tribunal finds Mr Tadeo’s evidence with respect to his inability to work in either the [industry] or in the capacity in which he was employed by [Company 1] unconvincing and unacceptable. On his own admission his evidence suggests he can work in both capacities with the assistance of regular injections of [the drug], which he acknowledges he is currently receiving on a regular basis, albeit with the financial assistance of his siblings to cover the costs of the necessary specialist medical consultations and the pharmaceutical costs of the medication.

9. He provided no evidence of his efforts to obtain employment within the [industry] or related industries; there is no evidence he sought re-employment with his former employer, [Company 1], or that he has actively pursued his options to fund and pursue the [certificate] course with the training company.

10. In response to Ms Sabella’s allegations suggesting he was performing [work] for [Mr B] [in] respect of which she provided copies of the text messages passing between Mr Tadeo and his daughter, [Child 2] (see Exhibit A, page 70), Mr Tadeo denied he had performed any [work] for [Mr B’s] company at [the] university or elsewhere. He said the text messages reflected an occasion when he had arranged to collect [Mr B] from his [home] at [one suburb] and drive him to [another suburb] for an appointment with [Mr B’s] doctor for treatment for [Mr B’s] [medical condition] and recurring [symptoms] which he said precluded [Mr B] from driving a motor vehicle.

11. With respect to the allegation regarding his having undertaken [work] at [the] University, he said he had week about care of the children at that time and was unable to undertake any work, and had arranged for his father to undertake that work for [Mr B’s] company.

12. However, Mr Tadeo also gave evidence of the support provided by his mother for himself and the children and the financial assistance provided by his siblings. He also gave evidence that he reduced his normal working hours when he was employed with [Company 1] to afford more time with the children when he had week about care. There is no reason to suggest he could not have made arrangements for the care of the children while at work when he had week about care, or that he could not have made similar arrangements to permit him to undertake some form of occasional or casual work of the type he arranged his father to undertake in his place, referred to above.

13. Pursuant to an earlier change of assessment application lodged by Ms Sabella in March 2016, Mr Tadeo was assessed to pay child support to Ms Sabella for the period 9 March 2016 to 31 January 2017 on an adjusted taxable income of $69,845.

14. On 28 June 2017, the Department accepted Mr Tadeo’s estimate of income for the 2016/17 financial year. Mr Tadeo estimated his income for the period 1 July 2016 31 January 2017 at $9,358, and $0.00 for the remainder of the 2017 financial year.

15. Because the change of assessment pursuant to Ms Sabella’s earlier application did not expire until 31 January 2017, Mr Tadeo’s $0.00 income estimate did not take effect until 1 February 2017, and he has been assessed to pay child support at an annual rate of $0.00 from 1 February 2017 to 30 December 2017, based on his $0.00 income estimate provided to the Department on 28 June 2017, and Ms Sabella’s 2015/16 adjusted taxable income of $19,014.

16. The objections officer in the decision under review adopted the taxable income reflected in Mr Tadeo’s 2016/17 personal income tax return (see Exhibit B105) as the basis for assessing Mr Tadeo’s income earning capacity, annualising the 131 calendar days over which that income was earned to an annual income of $55,951.

17. The Tribunal considers that an appropriate methodology to adopt, and accordingly, finds that Mr Tadeo had the capacity to earn this level of income for the financial year ended 30 June 2017, and had the capacity to earn income at least at that level beyond that date.

18. The Tribunal also considers the objections officer’s decision to set Mr Tadeo at that income from 29 November 2016 appropriate, and just and equitable in the circumstances.

19. The Tribunal finds the evidence, on balance, is that Mr Tadeo voluntarily resigned from his position with [Company 1] [in] November 2016. He acknowledged in evidence that his decision to do so was not due to his caring responsibilities or his state of health, and he has failed to rebut the presumption that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to his children. The criteria set out in subsection 117(7B) have therefore been satisfied, and a ground for departure pursuant to subparagraph 117(2)(b)(ii) is established.

20. The Tribunal also finds that Mr Tadeo’s $0.00 income estimate used in the assessment from the date of the Department’s acceptance on 28 June 2017 of his $0.00 income estimate from 1 February 2017, is not reflective of the $55,951 annualised income the Tribunal has determined he was capable of earning when he voluntarily resigned his job with [Company 1] [in] November 2016. This makes the administrative assessment unfair, the case special and a departure from the administrative assessment warranted.

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. Regard must be had to a variety of factors such as the needs of the children, the parents’ commitments and any hardship that would be caused by departing or not departing from the formula.

2. Mr Tadeo provided a Statement of Financial Circumstances dated 13 July 2018, exhibited at pages B1 to B9 of Exhibit B. It discloses his occupation is a “[occupation]”, and his only current source of income is a parenting payment of $132.50 per week. He lists his 68-year-old mother as the only other income earner in his household with an estimated average weekly income of $420, reflecting her status as a pensioner, and presumably no longer in full-time employment.

3. Ms Sabella gave evidence that the eldest child, [Child 1], has left school and is currently in employment, and possibly contributing to her board and upkeep, but no precise details were provided as to the amount involved. She also asserted that Mr Tadeo was partnered and had omitted to disclose his partner’s income details in his statement. Mr Tadeo acknowledged that he does have a partner but they are not living as a couple, and no substantive evidence to the contrary was provided.

4. Mr Tadeo’s statement reflects that he does not own any real property and his only assets, totalling $3,307.65, comprise a 2002 model [a] motor vehicle valued at $3,000, negligible bank savings and personal items totalling $300.

5. Ms Sabella challenged the value of a wedding ring included amongst Mr Tadeo’s personal items, asserting it was worth considerably more than the value he ascribed, but no substantive evidence was offered as to the precise value of the ring.

6. Ms Sabella also asserted that Mr Tadeo owned a collectible [motor] vehicle which he kept in [storage], and personalised motor vehicle numberplates valued at $2,000. Mr Tadeo denied this and said that the vehicle had been destroyed in the 2011 floods. He also denied Ms Sabella’s assertion that he had recently outlaid $2,000 for the purchase of new tires for his [motor] vehicle. He said the vehicle is currently not serviceable, and he does not have funds to repair it.

7. Mr Tadeo reported [superannuation] currently amounting to $29,306.85, no personal liabilities or personal expenditure, and average weekly household expenses of $133.51, none of which was remarkable.

8. Ms Sabella generally challenged Mr Tadeo’s weekly household expenditure, asserting it made no reference to the cost of interstate air fares and accommodation associated with his trips to Sydney and Melbourne, his cigarette smoking and alcohol habits. Mr Tadeo responded, giving evidence that the limited interstate travel to which Ms Sabella referred was funded by his partner, and his current financial circumstances no longer permit him the luxury of affording cigarettes or alcohol.

9. The substance of Ms Sabella’s Statement of Financial Circumstances dated 21 June 2017 appears at page187 to 194 of Exhibit 1. In response to questioning by the Tribunal, she provided the following evidence updating that statement.

10. She said she is currently unemployed and in receipt of Centrelink benefits amounting to $19,255 per annum, reflected in her adjusted taxable income in the administrative assessment.

11. As noted above, she is currently pursuing a course in individual support training to become a disability carer, which she hopes to complete in December 2018.

12. Ms Sabella said she does not own any real property and currently lives in rented premises for which she pays $250 per week. She said she does not receive rental assistance.

13. She currently has a 2010 model [sedan] motor vehicle valued at approximately $5,000, which replaced her previous motor vehicle, [written] off in a motor vehicle accident last year, the insurance payout for which funded the purchase of the Audi motor vehicle.  She has household contents to the value of $2,000. She sold her [other vehicle], reflected in her statement, to enable her to buy the [previous] motor vehicle, since written off.

14. Ms Sabella gave evidence of average weekly household expenses totalling approximately $872, which were unremarkable.

Conclusion

1. The evidence in this case suggests Ms Sabella has the greater care responsibility for the majority of the six children in the assessment and no significant income, financial resources or property with which to support them. She is therefore dependant on Mr Tadeo for assistance to support their children.

2. The evidence also suggests that Mr Tadeo, although not currently working, has the capacity to do so, with the assistance of the medication he is currently taking for his [ailment], as he was up until he voluntarily resigned his job with [Company 1] for no satisfactorily explained reason in November 2016.

3. Despite ceasing employment [in] November 2016, Mr Tadeo did not lodge his income estimate with the Department until 28 June of 2017, resulting in the acceptance of his nil income estimate for the period 1 February 2017 to 30 June 2017, only a matter of days after Ms Sabella applied to the Department for a change of assessment on 23 June 2017.

4. The Tribunal concurs with the objections officer in the decision under review in finding that Mr Tadeo has the capacity to generate an income of $55,951 per annum and intends leaving his adjusted taxable income set at that amount from 29 November 2016. However, the Tribunal considers it appropriate to extend the period for which that income has been set from 29 November 2016 to 31 October 2019, in order to afford Ms Sabella and the children in her care some certainty into the future.

Otherwise proper

1. The requirement to consider whether a departure would be otherwise proper directs attention to what is fair to the community. 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. Leaving the adjusted taxable income of $55,951 as set by the objections officer in the decision under review, and, in order to provide some certainty for Ms Sabella, varying the objections officer’s decision by extending the period for which that assessment is to apply from 29 November 2016 to 31 October 2019, will result in an appropriate apportionment of financial responsibility between the parents and the community. Such a result would be otherwise proper.

DECISION

The decision under review is varied to provide that for the period 29 November 2016 to 31 October 2019, Mr Tadeo’s adjusted taxable income is set at $55,951.