Chernoff and Ciesielski (Child support)

[2020] AATA 1041

Chernoff and Ciesielski (Child support) [2020] AATA 1041 (25 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017877

APPLICANT:  Mr Chernoff

OTHER PARTIES:  Child Support Registrar

Ms Ciesielski

TRIBUNAL:Member J Thomson

DECISION DATE:  25 February 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that neither parent had care of [Child 1] from 18 May 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether a child support terminating event had occurred – 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 omitted 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. Mr Chernoff seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 8 November 2019. This decision allowed Ms Ciesielski’s objection to a decision dated 23 July 2019 recording that neither parent had care of their daughter, [Child 1] from 18 May 2019. The objections officer set aside that decision, and in substitution, decided that Ms Ciesielski had 100% care of [Child 1], with effect in the assessment from 10 September 2019, that being the date upon which Ms Ciesielski lodged her objection. The objections officer also decided Ms Ciesielski had not demonstrated special circumstances existed preventing her from lodging her objection within time.

2. The Tribunal heard the matter on 20 February 2020. Mr Chernoff attended the hearing via conference telephone and gave affirmed evidence. Ms Ciesielski did not attend the hearing in spite of being notified of the time and place for the hearing, and the hearing proceeded in her absence.

3. The Tribunal had before it documentation provided by the Department. These documents were admitted into evidence and marked Exhibit 1. Mr Chernoff provided further evidence in the form of a statement by [Ms A], dated 18 February 2020, and an undated statement by [Mr B] both of which were received by the Tribunal the day before the hearing. The Tribunal admitted these statements into evidence, and they were marked Exhibit 2. Copies of these statements will be sent to Ms Ciesielski with this decision.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Chernoff at the hearing, and the documents contained in Exhibits 1 and 2 referred to above.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent may notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened up until the date of the notification and what was likely to happen thereafter.

3. Prior to his notification of a change in care on 27 May 2019, the care percentages being assessed by the Department were 100% to Ms Ciesielski and 0% to Mr Chernoff. At hearing, Mr Chernoff’s case was that a change in care with respect to [Child 1] occurred on 18 May 2019 when a dispute between Ms Ciesielski and [Child 1] occurred in the course of which Ms Ciesielski removed [Child 1]’s clothes from the house in which Ms Ciesielski, [Child 1] and her elder sister [Child 2] were residing, and set fire to them, as a consequence of which, [Child 1] and her sister contacted Mr Chernoff’s mother, [Mrs C], with whom Mr Chernoff said his daughters had a close relationship, and arranged for her to collect them from Ms Ciesielski’s house that day.

4. Mr Chernoff gave evidence that following his mother’s removal of [Child 1] and her sister from Ms Ciesielski’s house on 18 May 2019, [Child 1] went to live with her friend [Ms D] and her mother, with whom Mr Chernoff said [Child 1] had been staying from time to time prior to the incident referred to in the preceding paragraph occurring on 18 May 2019. Mr Chernoff’s mother provided a statement recording that, following her collection of [Child 1] and her sister from Ms Ciesielski’s house on 18 May 2019, [Child 1] went to live with [Ms D] and her mother until 1 July 2019, when [Child 1] came to stay with [Mrs C] and her partner, [Mr B], where she continues to reside on a permanent basis.

5. On 27 May 2019, Mr Chernoff notified the Department of the change in care with respect to [Child 1] which occurred on 18 May 2019. The Department’s file notes contained in Exhibit 1 dated 28 May 2019 record the Department contacting Ms Ciesielski to discuss Mr Chernoff’s change in care notification. Ms Ciesielski advised the Department that she still had 100% care of [Child 1], and the Department invited her to provide evidence to support her assertion in that respect.

6. A Department file note dated 4 June 2019 records a further unsuccessful attempt to contact Ms Ciesielski to request she provide further evidence in support of her case, but no further response was received from Ms Ciesielski, and it appears she took no further part in the Department’s investigative process leading to its care determination on 23 July 2019.

7. Meanwhile, Mr Chernoff’s mother, [Mrs C] provided a statement dated 19 July 2019 which, as noted above, corroborated Mr Chernoff’s evidence that from 18 May 2019, [Child 1] had been residing with her friend, [Ms D] and her mother until 30 June 2019, when she moved to [Mrs C]’s house where Mr Chernoff said she continues to reside. Although [Mrs C] makes reference in her statement to [Child 1] having returned to Ms Ciesielski for brief periods on 30 June 2019 and overnight on 7 July 2019, and also staying, on odd occasions, with friends, the Tribunal finds this behaviour consistent with the normal practices of [age]-year-old adolescent children of [Child 1]’s age, and does not consider any of these instances to be of a permanent nature, or forming any discernible pattern of care.

8. On 23 July, the Department made its care determination on the evidence available to it, accepting Mr Chernoff’s notification and deciding to record neither parent as having care of [Child 1], and a terminating event having occurred on 18 May 2019. Ms Ciesielski was notified of the Department’s decision by letter sent to her on 23 July 2019, as was Mr Chernoff.

9. The Department’s file note dated 20 August 2019 records a telephone call from Ms Ciesielski regarding her child support payments, in the course of which the Department’s officer informed her that, pursuant to its decision of 23 July 2019, it had determined that [Child 1] had not been in Ms Ciesielski’s care from 18 May 2019 and that she had been overpaid child support in the amount of $3,587.73. This appears to have prompted Ms Ciesielski to contact the Department by telephone again on 10 September 2019 to lodge an objection to the Department’s care determination of 23 July 2019. During the course of that telephone conversation, the Department’s file note records Ms Ciesielski informing the Department that she had a letter showing that [Child 1] was residing at her address and in her care from February 2019 until 11 September 2019 pursuant to a bail undertaking entered into by [Child 1], a copy of which was before the Tribunal, and which Ms Ciesielski contended supported her assertion that [Child 1] was in her 100% care for at least that period.

10. At the hearing, Mr Chernoff gave evidence that he was in regular contact with his mother, [Mrs C] from 18 May 2019 onward and kept informed of [Child 1]’s whereabouts and welfare, and throughout that period, his mother, [Mrs C] was providing both emotional and financial support for [Child 1] while she was residing with her friend, [Ms D] and her mother from 18 May 2019 until [Child 1] moved to [Mrs C]’s house from 1 July 2019 onward. Mr Chernoff said he was reimbursing [Mrs C] for expenses incurred by her for [Child 1]’s maintenance and support from 18 May 2019 onward.

11. At the Tribunal hearing, Mr Chernoff provided further documentary evidence in the form of statements by his niece, [Ms A], and [Mrs C]’s partner, [Mr B].

12. [Ms A]’s statement records that [Child 1] is currently residing with [Mrs C], and has been living with her for around 6 months, and [Mr B]’s statement records that he shares [Mrs C]’s house and that [Child 1] has been residing there since March 2019 and continues to reside there.

13. In support of her case, Ms Ciesielski provided a statement by [Child 2], her [age]-year-old daughter and [Child 1]’s sister, dated 10 October 2019, in which [Child 2] states, relevantly, that she and [Child 1] have been residing with Ms Ciesielski at Ms Ciesielski’s home for the past 6 years. The remainder of her statement is directed towards personal comments regarding the relationship between Mr Chernoff, [Child 1] and her, and not relevant to the issue of [Child 1]’s residential circumstances.

14. The Tribunal prefers the evidence of Mr Chernoff and the supporting statements by [Mrs C], [Ms A] and [Mr B] to that of Ms Ciesielski and her daughter, [Child 2].

15. In the objection decision under review, the objections officer notes that the only reliable evidence before him, upon which he appears to have founded the decision to allow Ms Ciesielski’s objection was a copy of [Child 1]’s bail undertaking showing that [Child 1] was required to reside at Ms Ciesielski’s address for the period of her undertaking from February 2019 to 11 September 2019, and absent any reliable evidence to the contrary, the objections officer could not be satisfied that [Child 1] was not in Ms Ciesielski’s 100% care during the period specified in the bail undertaking.

16. The Tribunal finds, with respect, the objections officer’s reasoning in this regard was flawed. The issue for determination is what was the actual care taking place up until the date of Mr Chernoff’s change in care notification on 27 May 2019, and what was likely to happen thereafter. The bail undertaking of itself is not evidence of what was occurring up until 27 May 2019 and what was likely to occur thereafter. Mr Chernoff gave evidence that his mother informed him that on the occasions that the police gave notice of their intention to call at Ms Ciesielski’s house to confirm [Child 1] was abiding by the terms of her bail undertaking, [Mrs C] returned [Child 1] to her mother’s house for that purpose, but returned with [Child 1] to [Mrs C]’s house thereafter.

17. Ms Ciesielski elected not to attend the hearing and accordingly, Mr Chernoff’s evidence as set out above was unchallenged.

18. The Tribunal finds that the evidence, and the weight of the evidence suggests that [Child 1] was not abiding by the terms of her bail undertaking to reside at Ms Ciesielski’s house from February 2019 to 11 September 2019, either prior to or following the event which took place at Ms Ciesielski’s house on 18 May 2019, in consequence of which [Child 1] went to live with her friend, [Ms D] and her mother and subsequently, from 1 July 2019, with [Mrs C].

19. The Tribunal also finds that the evidence on balance is that a change in care for [Child 1] occurred on 18 May 2019 when [Mrs C] collected her and her sister from Ms Ciesielski’s house following which [Child 1] went to stay with her friend and subsequently went to stay with [Mrs C], and that it was likely that Ms Ciesielski would have no identifiable pattern of care of [Child 1] from 18 May 2019 onward.

20. The Tribunal therefore finds that neither parent had care of [Child 1] from 18 May 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that neither parent had care of [Child 1] from 18 May 2019.