Michelangeli and Michelangeli (Child support)

[2020] AATA 2678

Michelangeli and Michelangeli (Child support) [2020] AATA 2678 (2 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018324

APPLICANT:  Ms Michelangeli

OTHER PARTIES:  Child Support Registrar

Mr Michelangeli

TRIBUNAL:Member M Douglas

DECISION DATE:  2 June 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 31 July 2019 the care percentages for [Child 1], [Child 2] and [Child 3] are 50% for Mr Michelangeli and 50% for Ms Michelangeli.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of change – 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. The Tribunal is reviewing, on Ms Michelangeli’s application, an objection decision a delegate of the Child Support Registrar made on 20 January 2020 relating to the care percentages for her and Mr Michelangeli’s children, [Child 1], [Child 2] and [Child 3].

2. It is common ground between Ms Michelangeli and Mr Michelangeli that:

   a.    In accordance with orders made, with their consent, [in] November 2018 in the Federal Circuit Court of Australia Mr Michelangeli’s care of their children was from that date 21% and Ms Michelangeli’s 79%;

   b.    Subsequent to those orders being made, the care of the children changed such that Mr Michelangeli and Ms Michelangeli now share equally the care of their children on a week about basis.  The Federal Circuit Court made orders on 31 July 2019, again with the consent of Mr Michelangeli and Ms Michelangeli, to reflect that change.

3. What is in dispute between Mr Michelangeli and Ms Michelangeli is the date upon which that change in the care of their children occurred. 

4. On 19 July 2019 Mr Michelangeli contacted the Department of Human Services – Child Support (the Department) (now Services Australia), which was how the relevant Commonwealth Department through which the Child Support Registrar acts was then described and advised the officer with whom he then spoke that the change in the care of the children occurred on 17 May 2019. 

5. The Department then contacted Ms Michelangeli, also on 19 July 2019, who told it that, at that particular time, the children would be with Mr Michelangeli for a week, but that was in accordance with the orders made [in] November 2018 because at that time it was school holidays, and the orders made [in] November 2018 provided for  the children to stay with Mr Michelangeli for half of the school holidays.  She told the Department that Mr Michelangeli’s care of the children was not then 50%. 

6. In a subsequent conversation Ms Michelangeli had with the Department on 29 July 2019, she indicated to the Department that she and Mr Michelangeli were due to go to Court that week and that Mr Michelangeli was “hoping to have 50/50 care”.   

7. On 6 August 2019 Mr Michelangeli contacted the Department and advised it that orders had been “signed off for 50%” that “were finalised last week”.  He also told the Department that care arrangement had commenced in May. 

8. On 12 August 2019 Mr Michelangeli’s solicitor forwarded the Department a copy of the orders the Federal Circuit Court made on 31 July 2019.  Mr Michelangeli’s solicitors also provided the Department with brief statements from [Ms A], [Ms B], [Ms C] and [Ms D], all dated [August] 2019, in which each advised, in substance, that Mr Michelangeli had care of the children every second week.  [Ms B] advised in her statement that that care arrangement had been in place for a couple of months; [Ms A] said it had been in place since May and [Ms C] and Ms [D] advised that it had been in place since April. 

9. On 15 November 2019 the Department decided to revoke Ms Michelangeli’s existing percentages of care for the children with effect on 16 May 2019 and determined new percentages of care for her of 51% for all children, which applied from 17 May 2019.  The Department also decided to revoke Mr Michelangeli’s existing percentages of care with effect on 18 July 2019 and determined new percentages of care for him of 49% for all children that applied from 19 July 2019. 

10. On 18 November 2019 Ms Michelangeli objected to that decision.  In support of her objection she provided a calendar to the Department covering the period 1 April 2019 to 2 February 2020 in which she had recorded both her appointments and the dates on which, according to her, the children had stayed with Mr Michelangeli until 18 November 2019 and the dates on which the children were due to stay with him thereafter.

11. On 20 January 2020 the Department disallowed her objection and hence, the care percentages that the Department had determined in its decision of 15 November 2019 remained in place.

12. On 31 January 2020 Ms Michelangeli applied to the Tribunal for a review of the Department’s objection decision.

13. The Tribunal heard her application on 5 May 2020. She and Mr Michelangeli both participated in the hearing by telephone and each gave sworn oral evidence. The Department did not appear but provided the Tribunal, in accordance with subsection 37(1) of the AdministrativeAppeals Tribunal Act 1975 the documents that were relevant to the objection decision it made on 20 January 2020.  Ms Michelangeli also forwarded to the Tribunal, prior to the hearing, brief statements she had obtained from [Ms E] dated [February] 2020, and [Ms F] and [Mr G] dated [February] 2020, and an email from [Mr H] dated [February] 2020.

14. The Tribunal deferred making a decision on the day of the hearing so as to allow Mr Michelangeli the opportunity to present further evidence to it relating to text messages and telephone calls he said he made to Ms Michelangeli preceding 31 July 2019.  Mr Michelangeli subsequently provided to the Tribunal eight pages of documents relating to “Facetime” calls between him and Ms Michelangeli and text messages that passed between them in the period 2 April 2019 and 14 August 2019.   

ISSUES

1. The Department, and the Tribunal in its place, must revoke care percentages in the circumstances set out in sections 54F and 54G of the Child Support (Assessment) Act1989 (the Act). Section 54F is only engaged if section 54G is not. The requirements for section 54G to be engaged include that a parent has no care or less than regular care of a child. In this case, both parents have had at least regular care at all relevant times. Hence, section 54G is not applicable and section 54F is the relevant section to determine if the care percentages should have been revoked, and from what date.

2. Subsection 54F(1) requires that a care percentage be revoked if:

   ·The care of a child that is actually taking place does not correspond with a parent’s existing percentage of care for the child; and

   ·The pattern of care of the child has changed such that if care were to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (under section 55C of the Act) would apply.

3. If those criteria are met then, if the Department was notified or otherwise became aware of the change in care within 28 days of the change occurring, the existing care percentages must be revoked on the date before the change in care occurred.  If the Department was notified or otherwise became aware 28 days or more after the change in care, occurred, then the care percentage of the parent who has more care of a child will be revoked on the day before the Department became aware of the change, and for the parent who has reduced care of the child the parent’s care percentage will revoked on the day before the change in the children’s care occurred.

4. In this case, given Ms Michelangeli and Mr Michelangeli agree that a change in the children’s care occurred such that they now share equally the care of their children, the only issues the Tribunal must consider is the date on which the change in the children’s care occurred,  the date on which Ms Michelangeli and Mr Michelangeli’s respective existing care percentages are to be revoked and the date from which their new care percentages are to apply. 

CONSIDERATION

1. As mentioned, Mr Michelangeli and Ms Michelangeli do not dispute there was a change in the care of the children such that it changed from a circumstance where Mr Michelangeli was having care of the children for three nights a fortnight during school terms and for half of the school holidays to a circumstance where he and Ms Michelangeli shared equally the care of the children on a week about basis.  Mr Michelangeli says that change occurred on 17 May 2019 and Ms Michelangeli says that it did not occur until court orders were made on 31 July 2019 providing for it.

2. Ms Michelangeli’s evidence to the Tribunal was to the effect that there had been family violence and that there was, until July 2019, an apprehended violence order in place that prohibited Mr Michelangeli from approaching or contacting her.  Her evidence was to the effect that as a consequence of that order there was very limited direct communication between them and their communication with each other with respect to the arrangements in place for the care of the children was done through their respective solicitors.  She said in February 2019 they attended a conference relating to the children at which they were both represented by their solicitors and that there was no direct communication from that date until 31 July 2019 regarding a change in the arrangements for the care of their children.  On 31 July 2019 she and Mr Michelangeli appeared at the Federal Circuit Court at [Suburb], where they were then represented by their respective solicitors.  Ms Michelangeli’s evidence was to the effect that it was only then that she agreed to a change in the children’s care and that orders were made to enable that.  Her evidence was that until that time the care of their children occurred in accordance with the orders that were made [in] November 2018.

3. Mr Michelangeli’s evidence was that he and Ms Michelangeli had spoken by telephone on multiple occasions before 31 July 2019 regarding his sharing the care of their children on a week about basis.  He confirmed that the apprehended violence order that was in place was discharged in July 2019 but his evidence was that it did not prevent him from speaking with Ms Michelangeli regarding the care of the children.  As mentioned, he presented to the Tribunal, subsequent to the hearing, documents that indicated that there were Facetime calls made between him and Ms Michelangeli and also that text messages had passed between them.  The text messages that occurred before 31 July 2019 were [in] April 2019 and [May] 2019.  In those messages Ms Michelangeli requested Mr Michelangeli to “call me”.  There were six Facetime calls; three of which were for just seconds, and the other three ranged between five and 13 minutes.

4. It is unlikely in the Tribunal’s view, that Mr Michelangeli and Ms Michelangeli would have finalised something as important as changing the arrangements for the care of their children over the course of three Facetime calls that lasted between five and 13 minutes, particularly in a circumstance where each party was being represented by solicitors with respect to this issue of with children.  In other words, the Tribunal considers that, in all likelihood, the situation between the parties in terms of changing the arrangements for their children’s care was as described by Ms Michelangeli in her evidence. 

5. Saying that another way, given the limited communication that existed between Mr Michelangeli and Ms Michelangeli and the fact that each had retained solicitors to represent them with respect to the care arrangements for their children, it seems unlikely that the change in the arrangement such that they share equally the care of the children on a week about basis would have been finalised without advice from and the assistance of their solicitors. 

6. The Tribunal considers that the statements dated 7 August 2019 from [Ms A], [Ms B], [Ms C] and [Ms D] that Mr Michelangeli’s solicitor presented to the Department do not provide reliable evidence, such that the Tribunal could accept it, regarding the date in which the change in the care arrangements for the children occurred.  [Ms D] in her statement indicated that she had visited Mr Michelangeli on six occasions over two months.  With such limited opportunity to observe the children at his residence, what she says about Mr Michelangeli having care of the children every second week is unreliable.  [Ms A] does not in her statement say when, where or how often she observed Mr Michelangeli with the children and does not disclose the basis upon which she is able to say that the children were with Mr Michelangeli every second week from May 2019.  Similarly [Ms C] in her statement says that she had witnessed the children at Mr Michelangeli’s place on a number of occasions, but provides no specificity with the frequency with which she did that.   Accordingly, her evidence too is unreliable on this point.  Further, insofar as she says that that occurred from April 2019, her statement differs from what Mr Michelangeli says on the point, thereby reinforcing the Tribunal’s conclusion that her statement is unreliable evidence on the issue.  [Ms B] in her statement merely certifies that the children have been with Mr Michelangeli on a week about basis since April 2019.  She does not provide any detail of the times or circumstances in which she made observations to provide that certification and hence, her statement also provides unreliable evidence on the matter.

7. Simply put, the Tribunal is satisfied that, more likely than not, the change in the children’s care to a week about basis occurred on the date orders were made in the Federal Circuit Court of Australia, being 31 July 2019.  Hence, the existing care percentages for both parents ought to have been revoked with effect on 30 July 2019 and new care percentages should have been determined under section 50 of the Act of 50% for Mr Michelangeli and 50% for Ms Michelangeli to apply from 31 July 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 31 July 2019 the care percentages for [Child 1], [Child 2] and [Child 3] are 50% for Mr Michelangeli and 50% for Ms Michelangeli.