Silverman and Child Support Registrar (Child support)

[2018] AATA 4901

Silverman and Child Support Registrar (Child support) [2018] AATA 4901 (23 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014434

APPLICANT:  Mr Silverman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  23 November 2018

DECISION:

The Tribunal sets aside the decision under review, and, in substitution, decides that Mr Silverman had a percentage of care of 50% equal shared care and Mrs Silverman had a percentage of care of 50% equal shared care for [Child 1] for the interim period commencing 26 January 2018 and ending on 26 July 2018, and from 27 July 2018, Mrs Silverman had 100% care of [Child 1].

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 - court orders not complied with - reasonable action taken - interim period applied - special circumstances exist to extend interim period to 26 weeks - 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 DECISION

BACKGROUND

1. Mr Silverman seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 13 June 2018. This decision partially allowed his objection to a decision dated 7 April 2018 to accept Mrs Silverman’s notification that she had 100% and Mr Silverman had 0% care of [Child 1], (born 2006) from 30 December 2017.

2. In the objection decision under review, the objections officer decided to accept an interim care determination for [Child 1] for the period 5 January 2018 to 13 April 2018, and that the actual care for [Child 1] from 14 April 2018 should be recorded as 100% to Mrs Silverman, and 0% to Mr Silverman.

3. The Tribunal heard the matter on 6 November 2018. Mr Silverman attended the hearing via conference telephone and gave affirmed evidence. Mrs Silverman did not attend the hearing. The Tribunal had before it documents provided by the Department, pages 1 to 121, and documents provided by Mr Silverman, pages A1  to A18. These documents were admitted into evidence and marked Exhibits 1, and A respectively. Mr Silverman did not have copies of those documents with him at hearing, but was content for the hearing to proceed.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Silverman at hearing, and the documents contained in Exhibits 1 and A.

2. Mr Silverman and Mrs Silverman are the parents of three children, [Child 2], (born 2001), [Child 3], (born 2003), and [Child 1] (the children).

3. On 29 November 2016, The Federal Circuit Court of Australia at [City 1] made final orders by consent (the Court Orders) regarding care arrangements for the children. A copy of these Court Orders was before the Tribunal as Exhibit A, pages A3 to A8.

4. The Court orders provided, relevantly that the parents would have equal shared parental responsibility for the children, that the children would live with each parent on a week about basis, with the change-over to occur at the conclusion of school on Friday, but with the proviso that [Child 2] and [Child 3] should be at liberty to vary the times they spent with each parent. Consequently, only the child, [Child 1], is the subject of the care percentage issue in the decision before the Tribunal for review.

5. The Court Orders also made provision, relevantly, for the care arrangements for the children during the Christmas school holidays, providing that the children would spend blocks of two weeks with each parent, alternating every two weeks, with the change-over to occur at 12 noon on Saturday, at a location agreed between the parties, and in default of agreement, at [a specified location], [near Town 1], the district in which the parents were residing at the time the Court Orders were made.

6. Mr Silverman gave evidence that he and Mrs Silverman had substantially abided by the terms of the Court Orders up until 23 January 2018, when he became aware Mrs Silverman had taken the children to the [Region 1] in [State 1] to live with her in rented premises in [Town 2], and had enrolled [Child 1] in the local High School, [School 1], for the commencement of her first year of High School (see copies of his correspondence with the [State 1 Education] Regional office, Exhibit A, pages A10 to A13, and the General Tenancy Agreement signed by Mrs Silverman on 21 December 2017 at pages 69 to 90 of Exhibit 1).

7. Mr Silverman gave evidence that, prior to the commencement of the Christmas holidays in 2017 he and Mrs Silverman were both residing at separate addresses in the [Town 1] district, [in State 1]; he at [Town 3], and Mrs Silverman in [the specified location], approximately [distance] south of [Town 1]. He said [Child 1] had requested that she spend Christmas day with Mr Silverman, as she had spent the previous 2016 Christmas day with Mrs Silverman.

8. The parents had agreed to extend their court ordered blocks of Christmas holiday care from two weeks to three weeks. To accommodate [Child 1’s] request, the parents agreed to adjust their Christmas holiday care periods for the 2017/18 Christmas holidays, and Mr Silverman had care from the commencement of the 2017 Christmas school holidays, following [Child 1’s]s graduation from primary school on 4 December 2017. Mrs Silverman’s text message at page 55 of Exhibit 1 requested  Mr Silverman to collect [Child 1] from her graduation function on 4 December 2017 for the commencement of his agreed care period from that date until 31 December 2017, and on 1 January 2018, [Child 1] went to stay with Mrs Silverman until the conclusion of the Christmas/New Year holidays on Friday, 26 January 2018, when she was to return to Mr Silverman for his Court Ordered week about care period commencing on that date, in time for the commencement of the first term of the 2018 school year.

9. Mr Silverman said he was looking forward to this care period because [Child 1] was due to commence her first year at High School. He said he had enrolled [Child 1] at the local state public high school, [Town 1] State College, and she was to commence at that school on Monday 22 January 2018, the last week of Mrs Silverman’s agreed three week block of the Christmas school holidays, following which, she was to return [Child 1] to Mr Silverman for his regular week about care after school on Friday 26 January 2018.

10. He said Mrs Silverman had foreshadowed her intention to precipitate changes in care for the children in the past, and had done so in the lead up to the 2017 Christmas school holidays. However, Mr Silverman said that in the past, she had never actually taken steps to alter the care arrangements, nor had she had any meaningful discussions to that effect with him prior to or during the course of the 2017/18 Christmas/New Year school holidays, and he did not believe she was seriously intending to effect a change to the care arrangements prior to the commencement of the Christmas school holidays or subsequently. He said he was anticipating having [Child 1] returned to him for his usual week about care, as per the Court Orders on Friday, 26 January 2018.

11. On Tuesday, 23 January 2018, he became aware that Mrs Silverman had removed the children to the [Region 1] when he was contacted by the [Town 1] State College that morning and was advised that [Child 1] was not at the school. He said it was not until after he contacted the [Region] office of [State 1 Education] on 23 January 2018 (see his email correspondence with the Department at pages A10, A12, and A13 of Exhibit A), that he became aware that Mrs Silverman had enrolled [Child 1] at the [School 1] on the [Region 1], and would not be returning her to him for his regular week about care on 26 January 2018.

12. He said Mrs Silverman did not return [Child 1] to him on 26 January 2018, nor did she contact him to advise that she would be taking the children to the [Region 1] to live permanently with her, or that she had enrolled [Child 1] at [School 1] for the commencement of her first year of high school.

13. Mr Silverman said he contacted his solicitors on 25 January 2018 and instructed them to file an application to The Federal Circuit Court of Australia at [City 1] for contravention of the Court Orders of 29 November 2016. A copy of that application and Mr Silverman’s supporting affidavit, filed on 29 January 2018 was before the Tribunal at pages 48 to 54 of Exhibit 1.

14. However, Mr Silverman said he was not aware he was obliged to notify the Department of the change in care which Mrs Silverman had precipitated, and it was not until Mrs Silverman notified the Department on 28 March 2018 that the Department became aware of a change in care which had occurred with respect to [Child 1], as appears from the Department’s file note of that date at pages 14 and 15 of Exhibit 1.

15. The Department sent Mr Silverman a letter on 28 March 2018, advising him of Mrs Silverman’s notification of a change in care for [Child 1], inviting him to contact  the Department by 11 April  2018 to discuss the matter (see page 16 of Exhibit 1), and spoke with him on the telephone on 7 April 2018 regarding the matter. Mr Silverman’s comments to the Department in the course of that telephone discussion, as recorded in The Department’s file note at pages 18 and 21 of Exhibit 1, do not reflect his mentioning he had filed an application in The Federal Court to enforce the care arrangements as per the Court Orders of 29 November 2016, and consequently, the Department proceeded to make a care determination on 7 April 2018 that Mrs Silverman had 100% care of [Child 1] from 30 December 2018, with effect from the date of notification of the change on 28 March 2018.   

16. Mrs Silverman did not attend the Tribunal hearing to challenge Mr Silverman’s evidence as set out above, despite being afforded the opportunity to do so.

17. The Tribunal finds that from 4 December 2017 to 23 January 2018, the parents were substantially abiding by the Court Orders of 29 November 2016, each having equal shared care of [Child 1] prior to the commencement of the 2017 Christmas school holidays, and that Mrs Silverman was to return [Child 1] to Mr Silverman for his court ordered week about care commencing from Friday 26 January 2018, but failed to do so.

18. The Tribunal finds that the change in care with respect to [Child 1] took place on 26 January 2018 when Mrs Silverman failed to return [Child 1] to Mr Silverman’s care, in accordance with the Court Orders of 29 November 2016, and that Mr Silverman took steps to enforce compliance with the Court Orders of 29 November 2016, when his solicitors filed his application in the [City 1] registry of The Federal Circuit Court of Australia on 29 January 2018, as a consequence of Mrs Silverman’s contravention of those orders, within 14 weeks of the change in care occurring.

19. The Tribunal also finds that the Department was notified of the change in care with respect to [Child 1] by Mrs Silverman on 28 March 2018.

20. On 15 June 2018, The Federal Circuit Court of Australia heard Mr Silverman’s application, finding Mrs Silverman had contravened the Court Orders of 29 November 2018 without reasonable excuse on counts 1 to 5 inclusive, set out in Mr Silverman’s contravention application filed on 29 January 2018.

21. The Court also ordered that [Child 1] spend two weeks of the June/July holidays with Mr Silverman and adjourned the further hearing of the application to a date to be fixed. 

22. Mr Silverman gave evidence that a Court ordered mediation between the parents, following the hearing on 15 June 2018, failed to resolve the matter, and the matter has been listed for further hearing in the Federal Circuit Court on 5 December 2018.

23. The legislation relevant to this application is contained 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”.

24. 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”.

25. 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 divergences occurs, a parent can 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 until the date of the notification and what was likely to happen thereafter?

26. Subsection 51(1) of the Act provides that if:

    (a)  the Registrar is required to make a determination of a responsible person’s (in this case, Mr Silverman’s) percentage of care of a child during a care period; and

    (b)  a care arrangement applies in relation to the child (in this case the care pursuant to the Court Orders referred to above); and

    (c)  the registrar is satisfied that the actual care of the child that the responsible person (Mr Silverman) has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

    (d)  the person who has reduced care of the child, (in this case, Mr Silverman), has taken reasonable action to ensure that the care arrangement is complied with; 

    then, under section 50 the Registrar is required to determine two percentages of care in     relation to the responsible person (Mr Silverman).

27. The first care percentage is the percentage that corresponds with the extent of care of the child that the responsible person (Mr Silverman) should have had, or is to have, under the care arrangement during the care period – in this case, 50% equal shared care (subsection 51(3). Accordingly, the Tribunal finds that the first care percentage to be attributed to Mr Silverman pursuant to the Court Orders is 50% equal shared care.

28. The second care percentage is to be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person (Mr Silverman) would be likely to have during the care period if the action referred to in paragraph 21 above were not to succeed. Accordingly, the Tribunal finds that the second care percentage to be attributed to Mr Silverman would be nil.

29. Under section 54C, the first percentage of care based on the extent of care will be applied to an ‘interim period’ no longer than 14 weeks, starting from the day that the care changed for the responsible person. The second percentage of care (0% or the percentage that corresponds with the actual care) applies after the end of the interim period. If a single percentage of care is determined in accordance with subsection 51(5), it applies from the application day (see subsections 54C(6) and 54B(2)).

30. Subsection 54C(4) of the Act (prior to 23 May 2018) included a discretion to extend and interim period of care beyond 14 weeks and up to a maximum of 26 weeks. Subsections 54C(3) and (4), relevantly, provided:

    (3)  Subject to subsection (5), the day specified by the registrar under subparagraph (2)   (b)(i) must be the last day in the 14 week period, or such other longer period as is specified under subsection (4), that starts on the change of care day for the responsible person.

    (4)  If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may specify a period of up to 26 weeks for the purposes of subsection (3).

31. The term ‘special circumstances’ is not defined in the Act. Chapter 2.2.4 of the Child Support Guide states what factors the Registrar will take into account when considering special circumstances for the purposes of subsection 54C(4). It states:

    “In special circumstances, the interim period may be extended to up to 26 weeks. Whether a person’s circumstances are considered special will depend on the facts of the case, but will include circumstances that are out of the ordinary and affect the resolution of the issues relating to care. For example, a parent may have travelled overseas with the child without the consent of the other parent, resulting in delays in mediation and/or court action. Normal delays associated with mediation or the court process will not generally be considered to constitute special circumstances unless there are other factors that make the case unusual.”

32. The Guide referred to in the preceding paragraph is not exclusive or binding on the Tribunal.

33. In this case, Mr Silverman resides in [Town 3] in the [Town 1] district of [State 1], and [Child 1] and Mrs Silverman are residing in [Town 2], [in Region 1], some 1,500 km distance from [Town 1], and even further from the precincts of The Federal Circuit Court in [City 1], the jurisdiction in which Mr Silverman has commenced his enforcement proceedings.

34. Those proceedings are still on foot. The Tribunal considers the tyranny of distance in this case makes it special, and accordingly, is satisfied special circumstances exist and that the exercise of the discretion to order an extended interim care period of 26 weeks is warranted.

Conclusions

1. The Tribunal has found that a change in care occurred when Mrs Silverman did not return [Child 1] to Mr Silverman for his regular week about care pursuant to the Court Orders.

2. The Tribunal has found that a care arrangement in the form of the Court Orders referred to earlier applies in relation to [Child 1], and that the parents had been substantially abiding by the terms of the Court Orders prior to Mrs Silverman withholding care of [Child 1] on 26 January 2018.

3. The Tribunal has found that Mr Silverman took reasonable action to ensure that the care arrangements with respect to [Child 1] were complied with when he caused his solicitors to file a contravention application in the [City 1] registry of The Federal Circuit Court of Australia on 29 January 2018, within 14 days of the change in care occurring, and accordingly, an interim care determination, pending the outcome of the court proceedings is appropriate.

4. The Tribunal has determined that the care percentage to be attributed to Mr Silverman for the interim care period is 50% equal shared care, and thereafter, Mrs Silverman would have 100% care.

5. The Tribunal is satisfied special circumstances exist to warrant the extension of the interim care period to 26 weeks from the date of the change in care which occurred on 26 January 2018.

6. The Tribunal therefore intends setting aside the decision under review, and in substitution, decides that Mr Silverman had a percentage of care of 50% equal shared care and Mrs Silverman had a percentage of care of 50% equal shared care for [Child 1] for the interim period commencing 26 January 2018 and ending on 26 July 2018, and from 27 July 2018 Mrs Silverman had 100% care of [Child 1].

DECISION

The Tribunal sets aside the decision under review, and, in substitution, decides that Mr Silverman had a percentage of care of 50% equal shared care and Mrs Silverman had a percentage of care of 50% equal shared care for [Child 1] for the interim period commencing 26 January 2018 and ending on 26 July 2018, and from 27 July 2018, Mrs Silverman had 100% care of [Child 1].