Mignogna and Arliss (Child support)

[2021] AATA 1264

Mignogna and Arliss (Child support) [2021] AATA 1264 (9 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020418

APPLICANT:  Mr Mignogna

OTHER PARTIES:  Child Support Registrar

Ms Arliss

REVIEW NUMBER:  2020/MC020473

APPLICANT:  Ms Arliss

OTHER PARTIES:  Child Support Registrar

Mr Mignogna

TRIBUNAL:Member M Douglas

DECISION DATE:  09 March 2021

DECISION IN REVIEW NUMBER 2020/MC020418:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Child 1] and [Child 2] from 27 October 2015 are 35% for Mr Mignogna and 65% for Ms Arliss.

This decision has effect from 31 July 2020.

DECISION IN REVIEW NUMBER 2020/MC020473:

The decision under review is affirmed.

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 – decision under review set aside and substituted – date of effect – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – decision under review affirmed

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 Mignogna and Ms Arliss are the parents of [Child 2] and [Child 1], in regards to whom the Child Support Registrar has issued administrative assessments of child support with effect from 25 August 2005.

2. The Child Support Registrar acts through staff employed within the Government instrumentality known as Services Australia – Child Support (formerly known as Department of Human Services – Child Support).  A reference hereafter to Child Support is to be taken as a reference to the Child Support Registrar.

3. On 27 November 2020, Child Support made two decisions relating to the assessment of child support.  One decision was in response to an objection that Ms Arliss had lodged on 31 July 2020 relating to a care percentage decision that Child Support had made on 18 November 2015 (the objection decision).  The care percentage decision of 18 November 2015 was:

   a.To revoke the existing percentages of care for the children, which were 78% to Ms Arliss and 22% for Mr Mignogna, with effect from 26 October 2015;

   b.To determine new percentages of care for the children of 59% for Ms Arliss and 41% for Mr Mignogna, with those determinations taking effect from 27 October 2015.

   (the care percentage decision)

4. Child Support allowed Ms Arliss’ objection.  In a document titled “Details of objection decision”, by which Child Support advised Ms Arliss and Mr Mignogna of the objection decision, Child Support told Ms Arliss and Mr Mignogna that it had decided “to record the care of [Child 1] and [Child 2] as 67% care to Ms Arliss and 33% care to Mr Mignogna from 1 January 2015”. 

5. The second decision that Child Support made on 27 November 2020 was to refuse to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection)Act 1988 (the Registration and Collection Act) (the 87AA decision). Child Support’s refusal to make that determination meant that the date of effect of the objection decision, by which it substituted the existing care percentages for Ms Arliss and Mr Mignogna with care percentages of, respectively, 67% and 33%, did not take effect until 31 July 2020.

6. Mr Mignogna has applied to the Tribunal for a review of the objection decision dated 27 November 2020.  Ms Arliss has applied for a review of the 87AA decision.  It is convenient to deal with both of those applications together.

7. The Tribunal conducted a hearing on 9 March 2021 of both Mr Mignogna’s application for review of the objection decision and Ms Arliss’ application for review of the 87AA decision. Both Mr Mignogna and Ms Arliss participated in that hearing through Microsoft Teams and each gave sworn oral evidence. Child Support did not participate in the hearing, but it did provide the Tribunal in accordance with its obligation under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 with the documents that are relevant to its decisions that under review.

CONSIDERATION

1. It was common ground between Mr Mignogna and Ms Arliss that as at October 2015 Mr Mignogna had care of the children from Friday evening to Monday morning in one week and on Wednesday evening in the following week.  It was also common ground between Mr Mignogna and Ms Arliss that during the school holiday periods Mr Mignogna would also have care of the children on additional nights.  There was dispute between them regarding how many additional nights Mr Mignogna would have care of the children during the school holiday periods.  Mr Mignogna’s evidence at the hearing was that, to the best of his recollection, as at 2015 it was around 20 additional nights a year.  Ms Arliss’ evidence at the hearing was that the children were not staying with Mr Mignogna as often as an additional 20 nights a year in 2015.  She said that after the children commenced school in 2010, they would progressively stay a greater number of nights with Mr Mignogna during school holidays in each later year, but she did not believe it was as many as 20 in 2015.

2. Ms Arliss said that after her and Mr Mignogna’s separation she had kept a diary in which she recorded the nights on which the children resided with Mr Mignogna.  Her evidence, based on her reference to those diaries, was that in 2012 the children spent a total of 106 nights with Mr Mignogna, in 2013 a total of 120 nights, in 2014 a total of 143 nights and in 2015 a total of 131 nights.  As the Tribunal understood her evidence, all those nights on which the children resided with Mr Mignogna, included the standard nights the children would spend with Mr Mignogna each fortnight, being Friday through to Monday mornings in one week and Wednesday evening the following week.

3. Assessing care under the Child Support (Assessment) Act1989 (the Assessment Act) fundamentally turns on findings as to the actual or likely pattern of care parents will have of their children by reference to an appropriate care period. That consideration is done at the point in time the original decision was made.

4. In this case, as mentioned, it is common ground that as at 27 October 2015, when Mr Mignogna contacted Child Support to advise it his and Ms Arliss’ respective care of their children did not correlate with the existing percentages of care, which were 78% for Ms Arliss and 22% for Mr Mignogna, Mr Mignogna was having care of the children each fortnight for 4 nights, comprising Friday evening to Sunday evening in one week and the Wednesday evening in the next week.  That was the evidence of both Mr Mignogna and Ms Arliss. 

5. With respect to the additional care that Mr Mignogna had of the children during school holiday periods, the Tribunal considers that Ms Arliss’ evidence is more reliable than Mr Mignogna’s evidence, given that Ms Arliss’ evidence is based on her diaries which represent a contemporaneous record of what was occurring, whereas Mr Mignogna’s evidence is based on his recollection of matters many years after the event.  Based on Ms Arliss’ evidence, it would appear that between 2012 and 2014 Mr Mignogna’s care of the children increased during the school holidays in each year.  However, in the 2015 year the nights on which he had care of the children during school holidays, in addition to his normal nights, dipped from that in which he had care of the children in the 2014 year.  But based on Ms Arliss’ evidence, Mr Mignogna was having care of the children from 2014 on more than 20 nights of the year in addition to the normal 4 nights on which he had care of the children each fortnight.

6. Considering the matter from the point in time of 18 November 2015, when Child Support made the care percentage decision, it would seem that at that time Mr Mignogna’s care of the children was 131 nights out of the year, which correlates with 35% of the time, when rounded down in accordance with section 54D of the Assessment Act, and Ms Arliss’ care was correspondingly 65%. Consequently, the correct decision that Child Support ought to have made on 18 November 2015, and the correct decision that Child Support ought to have made on 27 November 2020 in response to Ms Arliss’ objection to the care percentage decision, was to revoke the existing percentages of care, in accordance with paragraph 54F(2)(c) of the Assessment Act (as enacted on 18 November 2015), on the day before it became aware that the existing percentages of care did not correlate with Mr Mignogna’s and Ms Arliss’ actual care of their children, and to determine new percentages of care of 65% for Ms Arliss and 35% for Mr Mignogna.

7. The Tribunal must accordingly set aside the objection decision and determine those care percentages for Mr Mignogna and Ms Arliss.

8. Turning now to the 87AA decision, the Tribunal notes that unless an objection to a care percentage decision is lodged within 28 days from the notice of the decision being served on the person lodging the objection, then under subsection 87AA(1) of the Registration and Collection Act any decision Child Support makes in response to the objection that varies the original care percentage decision will only have effect from the date the objection was lodged. If however, Child Support is satisfied that there were special circumstances that prevented the person from lodging an objection within 28 days from service of the notice of the care percentage decision, then subsection 87AA(2) allows Child Support to determine a longer period within which the person was required to lodge the objection. In other words, if Child Support were, in effect, to determine a longer period for the parent to lodge his or her objection, the objection decision would take effect from the date of the care percentage decision as distinct from the date of objection.

9. Ms Arliss’ evidence to the Tribunal was that there were no special circumstances that prevented her from lodging her objection to the care percentage decision within 28 days of her having received notice of that decision. Consequently, given her evidence, Child Support was correct to refuse to make a determination under subsection 87AA(2) and the Tribunal affirms its decision not to do so.

DECISION IN REVIEW NUMBER 2020/MC020418:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for [Child 1] and [Child 2] from 27 October 2015 are 35% for Mr Mignogna and 65% for Ms Arliss.

This decision has effect from 31 July 2020.

DECISION IN REVIEW NUMBER 2020/MC020473:

The decision under review is affirmed.