Sabino and Sabino (Child support)

[2018] AATA 4470

Sabino and Sabino (Child support) [2018] AATA 4470 (9 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC014327

APPLICANT:  Mr Sabino

OTHER PARTIES:  Child Support Registrar

Mrs Sabino

TRIBUNAL:Member C Breheny

DECISION DATE:  09 October 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – date of change to the likely pattern of care – date of change correctly determined – decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1. Mrs Sabino and Mr Sabino are the separated parents of [Child 1], born September 2000. A child support case has been registered with the Department of Human Services – Child Support (the Department) since 24 October 2013 and from 10 August 2015 child support has been payable on the basis that Mrs Sabino had 25% care of [Child 1] and Mr Sabino had 75% care of [Child 1].

2. On 4 February 2018, the Family Assistance Office made a decision that Mrs Sabino had 100% care of [Child 1] from 2 October 2017. On 7 February 2018 Mrs Sabino applied to the Department for collection of child support from Mr Sabino and for three months of arrears to be paid. The Department decided on 13 February 2018 that Mrs Sabino had not notified the change of care until 4 February 2018 and thus any care change would only take effect from that date.

3. On 15 March 2018, the ‘date of notification’ was clarified with the Family Assistance Office and corrected such that Mrs Sabino had notified on 11 October 2017 that [Child 1] had been in her care from 2 October 2017.

4. On 21 March 2018, Mr Sabino contacted the Department to object to the decision that Mrs Sabino had care of [Child 1] from 2 October 2017. He stated that his son had only moved to Mrs Sabino’s house on 28 October 2017, but he (Mr Sabino) had at least 25% care of [Child 1] since that date.

5. On 23 May 2018, an objections officer of the Department decided to disallow the objection. The objections officer determined that Mrs Sabino had 100% care of [Child 1] and Mr Sabino had 0% care of [Child 1] from 2 October 2017 and effective from that date.

6. On 14 June 2018, Mr Sabino applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 4 September 2018. Mrs Sabino and Mr Sabino attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975, received on 20 July 2018 and 28 August 2018 respectively (documents numbered 1–615).

7. On 4 September 2018, I deferred making a decision and asked Mrs Sabino to provide additional evidence. The documents received from Mrs Sabino were marked B1–B38 and provided to Mr Sabino for comment. On 8 October 2018, Mr Sabino advised that he had no further comments to make.

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act).

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. In this case, departmental records indicate that since 10 August 2015 child support liability had been calculated on the basis that Mr Sabino had 75% and Mrs Sabino had 25% care of [Child 1]. In a decision of 7 February 2018 the Family Assistance Office determined that Mrs Sabino had 100% care of [Child 1] from 2 October 2017.

4. Mr Sabino disagreed with this assessment and submitted that a care change did not occur until 28 October 2017 and Mrs Sabino had 75% care and he had 25% care of [Child 1] from that date.

5. I note that since then the Department has made a further care determination on 23 August 2018 to the effect that Mr Sabino has 21% and Mrs Sabino has 79% care of [Child 1] from 3 May 2018.

Mr Sabino’s evidence

1. Mr Sabino submitted that the objections decision was incorrect because the objections officer did not consider the additional material he provided in relation to this matter.

2. Mr Sabino noted that [Child 1] was 17 years old at the time and he did not keep written records of his son’s whereabouts. He was certain however that [Child 1] only moved to Mrs Sabino’s place on 28 October 2017. The house he jointly owned with his parents and Mrs Sabino was to be put on the market for sale. The house needed some work done to be ready for sale by early November 2017.

3. [Child 1] moved to Mrs Sabino’s home so the house could be cleaned up, but that was only on 28 October 2017 and it was only to be for a short period of time. [Child 1] decided in early February 2018 that he wanted to attend a school closer to his mother’s home, thus the care change should only be regarded as permanent from about early February 2018.

4. Mr Sabino also contended that Mrs Sabino never had 100% care of [Child 1]; but that it had been agreed [Child 1] would stay at least two nights per week with him. Mrs Sabino’s care of [Child 1] was therefore at the most only about 75%.

Mrs Sabino’s evidence

1. Mrs Sabino agreed that the Department’s processes had been difficult. There had been a lot of confusion about the information transmitted from the Family Assistance Office.

2. Mrs Sabino noted that she and Mr Sabino initially had 50:50 care of [Child 1]. He then stayed with her before going to live with his father. Since about early 2017 [Child 1] had spent more and more time with her and he had really returned to her full-time care by August 2017.

3. She initially did not do anything about this, as she was not sure whether [Child 1] would change his mind again. She contacted the Family Assistance Office in October 2017 to notify a care change, as it appeared [Child 1] was continuing to stay with her for the longer term.

4. Mrs Sabino acknowledged that [Child 1] spent some time with his father, but it was not regularly two nights per week. Mrs Sabino contended that between 2 October 2017 and late April 2018 [Child 1] only spent about nine or ten nights in his father’s care.

5. Mrs Sabino said that she keeps a diary and she makes a daily record of events, including [Child 1’s] care. She has done so for a long time.

Mr Sabino: additional evidence

1. Mr Sabino provided a substantial amount of additional evidence; however most of it was copies of information already provided by the Department and material relating to a ‘change of assessment’ application, which Mr Sabino had also submitted to the Department.

2. In relation to the care change in October 2017, Mr Sabino states in his written submission (folio 4):

   My partner [Ms A] and I worked tirelessly preparing the house for sale with a view of putting it on the market in November 2017. In August 2017 [Ms A] and I went on a cruise…[Child 1] agreed to stay [with his mother] whilst we were away. We were away from 8^th August to 20 August 2017. Following our return… he returned to live with me at [an address]…I asked [Child 1] to have a discussion with his mother about staying with her whilst the house was on the market…[Child 1] went to stay with his mother on 28 October 2017. I clearly recall the day because it coincided with [Ms A] being in [City 1] [participating] at the [event]…

   The house was placed on the market on 4^th November 2017 and a deposit placed on the property six days later…

   I reiterate that [Child 1’s] stay with his mother was only ever going to be a short term arrangement…

   His change of schooling [in early February 2018] was the catalyst for his decision to remain at his mother’s house…We agreed that he would stay at least two days a week with me, as I was teaching him to drive…

   Again, I did not see the need to keep a diary. The days he stayed with me changed according to my shift work and appointments for my mother.

3. Mr Sabino also provided a statutory declaration from his partner ([Ms A]), dated 21 May 2018 (folio 501–504). She relevantly states in her declaration:

   During the period May 2016 to end of October 2017 [Child 1] was in full-time residence with his father. I know that because generally [Child 1] was always there when I visited outside of school hours and during school holidays.

   In May 2017 [Child 1’s] bedroom flooded…I then helped to completely renovate [Child 1’s] bedroom to reflect his musical interests…I respectfully suggest that the renovation is hardly something Mr Sabino would undertake, if [Child 1] was living with his mother or contemplating moving in with her on a full-time basis.

   When [we] decided to go on a cruise in August 2017 I was present when Mr Sabino discussed with [Child 1] the prospect of staying with his mother for the two weeks…we were away …a period of 13 days.

   On our return…it became increasingly obvious that the current living arrangements were untenable given the size of the house, increasing frailty of Mr Sabino’s father and his mother’s deteriorating health…we decided that the house should be prepared for sale…[Child 1] who was still living there helped out when his father asked…On 8^th September 2017 Mr Sabino’s parents moved out…

   …it became increasingly clear that in order to ‘style’ the house for sale, both [Child 1] and Mr Sabino would need to move out of the house, as it was difficult to keep it clean and tidy with two men living there, especially a teenager. It was then decided that it would be best for [Child 1] to stay with his mother for a few weeks whilst we were busy preparing the house for sale…it was always intended that [Child 1] would move into my home with his father and I…[Child 1] went to stay with his mother on a temporary basis on 28^th October 2017…

   Thereafter [Child 1] stayed with us from time to time and house sat our dogs whilst we were in [City 1] in December…

   In summary, [Child 1] went to live with his mother at best on 28 October 2017, but we do not consider it to be a permanent arrangement until 4^th February 2018 and at best she has him for 75% of the time with Mr Sabino having him 25% of the time.

4. In a further letter of 31 May 2018 (folio 505) Mr Sabino’s partner writes:

   I clearly recall it being the 28^th October 2017as it was the weekend I went to [City 1] for the [event] where I [participated]…I recall that at the time it was a very welcome break from the work we were doing on Mr Sabino’s house…I left my home on the afternoon of Tuesday 24^th October 2017…as the [event] didn’t finish until late in the day, I did not head home until Sunday morning 29^th October 2017…I recall I had concerns about being away at the time…due to the tight timeframes…to get the house on the market. Mr Sabino indicated that it would be fine as [Child 1] was there until the weekend to assist if required…

   By the time I returned on the Sunday [Child 1] had gone to stay with his mother, but I maintain it was only ever intended to be a temporary arrangement…

5. Mr Sabino also provided a statutory declaration from his sister, [Ms B], dated 25 May 2018 (folio 523–526). She relevantly states:

   Over the years I have taken time out of my [work] to travel to [State 1] to support Mr Sabino and the children…[Child 1] was certainly residing at [an address] when I visited in December/January, July and September 2017… 

   [Child 1] was living there when I visited my parents in September 2017. [Child 1] continued to answer the telephone at [an address] up until the end of October 2017…by that stage I had taken to calling my brother daily to discuss sale of the family home…

   I recall specifically when [Child 1] moved out because there were discussions at that time (with both Mr Sabino and my mother) about [Child 1’s] impending move…and my inability to travel to [State 1] …due to work commitments. I recall that happening around the time of a particularly contentious matter at work which came to a head in the latter part of October 2017…

   [Child 1] stayed regularly with my brother who had moved in with his current partner. I know this because I spent about seven weeks in [State 1] from…early November 2017 to…April 2018. [Child 1] stayed overnight at time with my brother and his partner during those visits.

6. [Ms B’s] diary (folio 527) appears to indicate that she was in [State 1] on 21 July 2017 and possibly the weekend of 22/23 July 2017 and from 20 September 2017 to 22 September 2017, but possibly also the weekend of 23/24 September 2017.

7. Mr Sabino lastly provided a letter from his partner’s sister, [Ms C], dated 2 June 2018 (folio 529). [Ms C] notes that she regularly visits her sister, who lives near her.

   My husband…and I helped with the move [of Mr Sabino’s parents], which was on 9 September 2017…[Child 1] also helped us…Over the following weeks I visited several times to help clean out cupboards and see how they were preparing the house…[Child 1] would often ‘emerge’ from his room where he had been either sleeping or playing guitar… I remember [Ms A] and [Mr Sabino discussing that Mr Sabino and [Child 1] should move out of the house to make final preparations for sale. My recollection is that [Child 1] and Mr Sabino moved out on the weekend of the 28^th October 2017 when [Ms A] was in [City 1].

8. Mr Sabino also provided a record (logbook) of [Child 1’s] driving lessons (folio 565). Pertinent dates to the period of review in this case are 18 April 2018 (location ‘[Town 1]’), 24 April 2018 (location ‘[Town 1]’, 25 April 2018 (location ‘[Town 2]’) and 27 April 2018 (location ‘[Town 2]’). Mr Sabino noted in the accompanying email of 2 August 2018 (folio 564) that location entries noting ‘[Town 2]’ referred to Ms Sabino’s home and entries noting ‘[Town 1]’ referred to his home.

Mrs Sabino: additional evidence

1. Mrs Sabino writes in her response to Mr Sabino’s objection (folio 426):

   Centrelink records will verify that I had made contact in August 2017 and again on 2 October 2017 to advise them that [Child 1] wanted to live with me full-time and in fact had done so for various periods, while the 75/25 orders were in place. I…had tried to discuss the matter with Mr Sabino. He did not want to change the care percentage…

2. Mrs Sabino provided several letters of support from various colleagues, friends and neighbours (folio 428–433):

   ·[Ms D] (a friend) writes on 30 April 2018 that ‘early last year [Child 1] decided to live with his mother and I know that [Child 1] has been living with Mrs Sabino fulltime from the beginning of October until now.’

   ·[Mr E] (a friend) states that [Child 1] and his son are best friends and to ‘my knowledge and the boys talking each day [Child 1] has lived full time with his mother the last few months of last year around the time of [Child 1’s] birthday in September/early October to present’.

   ·[Ms F] (a work colleague) writes on 19 January 2018 that Mrs Sabino ‘has held almost full custody of car [sic] for her son [Child 1] these past few months’ and that Mrs Sabino is going through divorce proceedings.

   ·[Ms G] (another work colleague) states in her letter of 25 January 2018: [Child 1] has been in [Mrs Sabino’s] care since she separated from his father, but she has had [Child 1] for the majority of time since around July 2017, and to my knowledge fulltime since October 2017 when his father’s living arrangements changed.

   ·[Ms H] (a neighbour) writes on 24 January 2018 that is aware that [Child 1] has been living with Mrs Sabino ‘most of the time since July 2017 and full time since October 2017’.

   ·[Ms I] (rental property manager) writes on 25 January 2018 that [Child 1] was living with Mrs Sabino when [Ms I] attended the house during routine property inspections.

3. Mrs Sabino noted during the hearing that she keeps a regular diary and she was asked to provide a copy of her diary from October 2017 to May 2018 (folio B5–B38). Mrs Sabino’s diary contains many entries, most of which are not relevant to this review. She also notes every day whether or not [Child 1] was in her care. The relevant entry reads ‘[Child 1] overnight’.

4. The diary shows that [Child 1] stayed at his mother’s home from 2 October 2017, with the exceptions of:

   ·11 December 2017 – 16 December 2017 (6 nights) ‘Mr Sabino and [Ms A] away in [City 1] [Child 1] has to look after the dogs’.

   ·26 March 2018 – 27 March 2018 (1 night) ‘Mr Sabino picks [Child 1] up at 9:30…’

   ·18 April 2018 – 19 April 2018 (1 night) ‘I drop [Child 1] off at 8:30am to his father…’

   ·26 April 2018 – 27 April 2018 (1 night) ‘[Child 1] with his father, driving lesson…’

5. This amounts to a period of nine nights in the seven months (213 nights) period from 2 October 2017 to 2 May 2018 (prior to the new care decision coming into effect). This equates to a care percentage of 4% for Mr Sabino and 96% to Mrs Sabino.

Conclusion

1. Care is generally calculated over a ‘care period’, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but may be a shorter period depending on the circumstances of the case.

2. In this case Mrs Sabino notified the Family Assistance Office on 11 October that she had 100% care of [Child 1] from 2 October 2017. Records also show that a new care decision was made on 23 August 2018 that Mrs Sabino has 79% and Mr Sabino has 21% care of [Child 1] with effect from 3 May 2018. I find therefore that the relevant care period in this case is the seven-month period from 2 October 2017 to 2 May 2018 (213 nights).

3. Having considered the evidence from both parties, I believe that Mrs Sabino’s diary presents the most helpful information in this case.

4. The statutory declarations provided by Mr Sabino focus on his submission that [Child 1] left his care on Saturday 28 October 2017 and not earlier. His partner notes that she was at [an event] that weekend and thus she can clearly recall the date. Mr Sabino’s sister remembers the date because she had a ‘contentious matter’ to deal with at work. [Ms C’s] statement is not detailed enough in this regard to indicate why she recollects that [Child 1] moved out on 28 October 2017, when her sister was at the [event]. I note that all of these declarations were made some seven months after the event.

5. Mr Sabino’s sister also indicates that she saw [Child 1] at his father’s home during her visits in July and September 2017 and between November 2017 and April 2018. She does not provide exact dates, but I note that Mrs Sabino agrees that [Child 1] spent time at his father place in July and September 2017 and also later in December 2017 and March and April 2018.

6. I am persuaded that Mrs Sabino writes in her diary every day and she makes a contemporaneous note about her son’s whereabouts. I am not persuaded that the entries were made at a later stage. Mrs Sabino did not ask the Department to collect child support from Mr Sabino until 7 February 2018 and would not have been aware of a formal objection to the care decision and therefore the need to provide evidence until February/March 2018. Some of her diary entries are so prolific that it would have been impossible to add a note about [Child 1’s] care afterwards, for example on 26 October 2017, 7 November 2017 and 9 November 2017.

7. I also note that Mr Sabino contends he had (at least) 25% care of [Child 1] from October 2017 on the basis that his son would stay with him two nights per week. If Mr Sabino did have [Child 1] in his care for two nights per week on a regular basis, his care percentage would amount to 28%, not 25%. It is possible that Mr Sabino was endeavouring to reach such an agreement with his son, but this did not seem to have occurred in practice. I note Mrs Sabino’s diary entry of 14 November 2017 (folio B11) reads ‘Mr Sabino calling [Child 1] nearly every day asking [Child 1] about going there’.

1. Mr Sabino’s partner comments on the significant work that needed to be done to the family home to make it ready for sale, after Mr Sabino’s parents had moved out on 8 September 2017. She states ‘It was then decided that it would be best for [Child 1] to stay with his mother for a few weeks whilst we were busy preparing the house for sale…’, yet according to Mr Sabino, [Child 1] only left about six days prior to the house being put on the market. I am inclined to believe that it takes a significant amount of time to bring a much-loved family home to a ‘show house condition’ and it was difficult to keep it clean and tidy, particularly, as Mr Sabino’s partner states ‘with a teenager still living there’. This supports the case that [Child 1] moved out much earlier.

2. Based on these deliberations, I have decided and find that a care change did occur on 2 October 2017 and that Mrs Sabino had 96% care and Mr Sabino had 4% care of [Child 1] from that date.

3. The Department initially recorded that Mrs Sabino had 25% care (and Mr Sabino had 75% care) of [Child 1] and, in accordance with section 55 of the Act; her cost percentage was 24%. The Family Assistance Office advised that Mrs Sabino had 100% care of [Child 1] from 2 October 2017 and this changed her cost percentage to 100% and the original care determination had to be revoked. The objections officer affirmed this decision.

4. I have found that a care change occurred from 2 October 2017 and Mrs Sabino has 96% and Mr Sabino has 4% care of [Child 1] from that date. This is a slightly different conclusion than that reached by the objections officer, however there is no practical impact, as either of these care percentages (100% or 96%) result in a cost percentage of 100% for Mrs Sabino; thus there is no practical impact on the amount of child support payable.

5. As there is no practical impact, I have decided not to change the care determination reached by the objections officer and this means Mr Sabino has 0% and Mrs Sabino has 100% care of [Child 1] from 2 October 2017 and the decision under review is affirmed.

DECISION

The decision under review is affirmed.