Sabo and Sabo (Child support)

Sabo and Sabo (Child support) [2020] AATA 4412 (19 June 2020)

Date: 19 June 2020

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2020/BC018980 & 2020/BC018981
APPLICANT:  Mr Sabo
OTHER PARTIES:  Ms Sabo
Child Support Registrar

TRIBUNAL:Member P Jensen
DATE OF DECISIONS: 19 June 2020
THE FIRST DECISION:

The decision to record Mr Sabo as providing 0% care and Ms Sabo as providing 100% care to [Child 1] and [Child 2] with effect from 28 December 2017 is varied so that Mr Sabo is recorded as providing 40% care to [Child 1] and 33% care to [Child 2], and Ms Sabo is recorded as providing 60% care to [Child 1] and 67% care to [Child 2], with effect from 28 December 2017.

In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from the date on which Mr Sabo objected to the original care decision, which was 25 February 2020.

Note: the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.

THE SECOND DECISION:

The decision to record Ms Sabo as providing 77% care to both children with effect from 27 March 2018, and Mr Sabo as providing 23% care to both children with effect from 17 January 2020, is set aside, and in substitution, the Tribunal decides to not record a further change in care.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – different new care percentages determined by the Tribunal – decision under review varied

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been 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 DECISIONS

Mr Sabo and Ms Sabo are the parents of [Child 1] and [Child 2]. A child support case was registered with effect from 12 November 2017, and each parent was recorded as providing 50% care to both children. Ms Sabo could have elected to have the CSA collect the child support payable, but she elected to attend to its collection privately.
On 3 January 2018, Ms Sabo reported a change in care from 28 December 2017. On 22 January 2018 the CSA decided to record Ms Sabo as providing 100% care to both children with effect from 28 December 2017. On 25 February 2020, Mr Sabo objected to that decision. An objections officer disallowed his objection. Mr Sabo promptly applied to the Tribunal for further review.
Meanwhile, on 17 January 2020, Ms Sabo reported another change in care from 1 January 2020. She also elected to have the CSA collect the ongoing child support payable, and the arrears, if any, that were owing in respect of the preceding three months. The CSA decided to record Mr Sabo as providing 17% care and Ms Sabo as providing 83% care to both children with effect from 1 January 2020. Mr Sabo promptly objected to that decision. An objections officer allowed his objection and recorded Ms Sabo as providing 77% care with effect from 27 March 2018, and Mr Sabo as providing 23% care with effect from 17 January 2020. Mr Sabo promptly applied to the Tribunal for further review.
I heard both matters on 19 June 2020. Mr Sabo and Ms Sabo gave sworn evidence by conference phone.
Mr Sabo provided records of the parents’ care of the children since the start of 2018. Ms Sabo acknowledged that she had only kept records of the parents’ care of the children since the start of 2020. Further, she stated that Mr Sabo is good at keeping records of events, and his records of the parents’ care of the children appeared to be correct. I consider his records to be the best evidence on point.
Mr Sabo stated that for many years he has been required to undertake international and interstate travel as part of his work. His calendars show that he tends to provide blocks of care that overlap school holidays. For example, from the start of 2018 to the end of the 2018-19 Christmas period, his care of [Child 1] included the following blocks of care: 27 March 2018 to 1 May 2018 (apart from one night); 12 June 2018 to 30 July 2018 (apart from sixteen nights); 21 September 2018 to 3 October 2018; and 8 November 2018 to 29 January 2019 (apart from twelve nights).
As noted earlier, Ms Sabo informed the CSA on 3 January 2018 of a change in care. The CSA noted:
Ms Sabo advised that from 28/12/17 she has 100% care as … Mr Sabo has gone to [Country 1] to live/work. He will return 19/1/18 for child’s birthday and she is not sure how long he will stay or if children will stay with him.
At the hearing, Ms Sabo said that at the time, Mr Sabo told her he was moving to [Country 1] but he would return to Australia on school holidays, and he would have “50 - 50 care”. I clarified whether Ms Sabo had understood Mr Sabo to be saying that he would provide care during half the year (which the CSA had recorded him as providing from when the child support case was registered) or half the school holidays, and she confirmed that she had understood him to be saying that he would provide care during half the year.
I appears that when the child support case was registered, and again when Ms Sabo reported the change in care from 28 December 2017, Mr Sabo had been providing, and was likely to continue to provide, a significant amount of care to both children. It also appears that neither parent had calculated their respective percentages of care, but they were left with the impression that they were each providing similar levels of care, hence the reference to 50 - 50 care.
Mr Sabo calculated that in 2018 he provided 129 nights of care to [Child 1] and 93 nights of care to [Child 2], and in 2019 he provided 169 nights of care to [Child 1] and 155 nights of care to [Child 2]. Both parents agreed that their provision of care was predominantly determined by the children’s wishes and Mr Sabo’ availability. He said there was no particular reason why he provided more nights of care in one year than the other. Importantly, he said he was providing a similar pattern of care prior to 2018. Ms Sabo did not dispute that evidence and I accept it as correct. Given the irregularity in Mr Sabo’ provision of care, I consider the best evidence of the general pattern of care he providing prior to 28 December 2017, and was likely to provide thereafter, to be the care he provided during 2018 and 2019.
Care decisions are made pursuant to the Child Support (Assessment) Act 1989. Decision makers are required to determine the pattern of care each parent “has had, and is likely to have,” during the relevant care period. Mr Sabo’ general pattern of care of [Child 1] equated to (129 + 169) / (365 x 2) = 40.8%, and his general pattern of care of [Child 2] equated to (93 + 155) / (365 x 2) = 33.9%. Percentages less than 50% are rounded down to the nearest whole percentage: section 54D of the Act. For those reasons, the preferable decision at first instance would have been to record Mr Sabo as providing 40% care and Ms Sabo as providing 60% care to [Child 1], and to record Mr Sabo as providing 33% care and Ms Sabo as providing 67% care to [Child 2], with effect from 28 December 2017,[1] and that remains the preferable decision on review: sections 50 and 54F of the Act.
[1]Ideally, at least one of the parents would have objected to the earlier decision to record each parent as providing 50% care to both children. However, that did not occur, so when Ms Sabo subsequently contacted the CSA to notify it of a change in care, the parents’ actual pattern of care did not accord with the CSA’s earlier undisputed care decision, and it was appropriate to record a change in care.
When Ms Sabo contacted the CSA again on 17 January 2020 to inform it that Mr Sabo was no longer providing 0% care and she was no longer providing 100% care, she was not notifying it of a new change in care; she was belatedly informing it of a pattern of care that had been in place for some years. In the context of the earlier care decision being varied to reflect that pattern of care, the preferable decision concerning the notification on 17 January 2020 was to not record a further change in care, and that remains the preferable decision on review.
There is one further issue to discuss. Section 87AA of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) relevantly states:

Date of effect of objections relating to care percentage decisions that are allowed
(1)If:
(a)a person lodges …an objection to a care percentage decision; and
(b)the objection is lodged more than 28 days … after notice of the care percentage decision was served; and
(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

the date of effect of the review decision is the day on which the person lodged the objection.
(2)If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
…

(b)… the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

On 22 January 2018 the CSA sent a letter by pre-paid post to Mr Sabo’s last known residential address notifying him of its decision to record him as providing 0% care to both children with effect from 28 December 2017. At the hearing, Mr Sabo said he did not receive the letter. He explained that in January 2017 the parents separated but continued living in the same residence, and in December 2017 they each moved to separate residences. He said he did not inform the CSA of his new postal address, but he utilised a service provided by Australia Post whereby government agencies would be notified of his new postal address and his mail would be redirected to his new postal address. He said that despite utilising that service, the CSA was apparently not notified of his new postal address and the letter sent on 22 January 2018 was not redirected to his new postal address. He said he received correspondence from the CSA in December 2017, and did not have any further dealings with, or receive correspondence from, the CSA until 2020. (It will be recalled that Ms Sabo originally elected to collect the child support payable privately.)
Subsection 28A(1) of the Acts Interpretation Act 1901 relevantly provides that where “any Act … permits a document to be served on a person … then the document may be served … by sending it by pre-paid post to … the address of the place of residence … of the person last known to the person serving the document”.
Subsection 29(1) of the same Act states:
Where an Act authorises or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Mr Sabo stated he did not receive the letter dated 22 January 2018. The evidence does not establish that the letter was not delivered to his place of residence last known to the CSA. Mr Sabo is therefore deemed to have been served with the letter dated 22 January 2018 in the ordinary course of the post. Whether he actually received the letter is another issue.
On 25 February 2020, Mr Sabo objected to the decision referred to in the letter dated 22 January 2018. It follows that my decision, which will apply in substitution of the objections officer’s decision, will have effect from 25 February 2020: subsection 87AA(1) of the Registration Act. The CSA will then need to make an original decision as to whether to make a subsection 87AA(2) determination. If either parent disagrees with that decision, they will have further review rights. Importantly, I cannot make that original decision in the current proceedings. It is clear that an objections officer’s care decision and an objections officer’s section 87AA decision (if one is made) are separate decisions with separate review rights: sections 80 and 80A and items 2 and 3 of section 89 of the Registration Act.

DECISIONS

The decision to record Mr Sabo as providing 0% care and Ms Sabo as providing 100% care to the two children with effect from 28 December 2017 is varied so that Mr Sabo is recorded as providing 40% care to [Child 1] and 33% care to [Child 2], and Ms Sabo is recorded as providing 60% care to [Child 1] and 67% care to [Child 2], with effect from 28 December 2017.

Note: the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.

[2020] AATA 4412

19 June 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Appeal

Procedural Fairness