Saffer and Podmore (Child support)

[2023] AATA 2942

Saffer and Podmore (Child support) [2023] AATA 2942 (21 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025541

APPLICANT:  Mr Saffer

OTHER PARTIES:  Child Support Registrar

Ms Podmore

TRIBUNAL:Member R Anderson

DECISION DATE:  21 July 2023

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 15 July 2022 the percentage of care attributed to Mr Saffer in respect of [Child 1] is 51% and the percentage of care attributed to Ms Podmore is 49%. The date of effect is 13 September 2022.

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 – date of effect provisions – no special circumstances exist – 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 Saffer and Ms Podmore are the separated parents of [Child 1]. According to Services Australia – Child Support (Child Support) records, the child support assessment was registered on 20 October 2017.  Child Support has been responsible for collection of child support from Mr Saffer from the outset.

2. Mr Saffer contacted Child Support on 18 July 2022 to advise that the registered care of 14% to him and 86% to Ms Podmore no longer reflected the actual care provided by the parents as both parties had signed a Parenting Plan on 12 July 2022.  The Parenting Plan provided that beginning on the week commencing Monday, 11 July 2022, [Child 1] would be in the care of Mr Saffer for three nights per week on week one and two nights per week on week two. In addition, any other times as agreed between the parties.

3. In respect of school holidays, the Parenting Plan provided that during the Term 1, Term 2 and Term 3 holiday periods, [Child 1] would be in the care of Mr Saffer for six nights of the first week of the school holiday periods.  In addition, any other times as agreed between the parties. The Parenting Plan did not specify overnight care arrangements for the long Summer holiday period.

4. On 19 July 2022, after discussions with both parents and mutual agreement, a delegate of the Child Support Registrar determined that from 15 July 2022, Mr Saffer was to be attributed with 41% care of [Child 1] and Ms Podmore was to be attributed with 59% care. The care was recorded by Child Support as being determined on the basis of a court order.  The parents were advised in writing on the same day.

5. On 20 July 2022, Mr Saffer uploaded further evidence, including a calendar of nights he had [Child 1] in his care between November 2020 and May 2022.  Mr Saffer contacted Child Support again on 13 September 2022 to advise that since commencement of the Parenting Plan he has had care of [Child 1] for additional nights on a regular basis, as agreed by the parents. He maintained that his pattern of care since July 2022 had been 57% and the care provided by Ms Podmore was 43%.

6. On 11 October 2022, Ms Podmore confirmed to Child Support that she had agreed to Mr Saffer having additional nights of care.  However, she stressed that it was not a “consistent and ongoing arrangement”, as care was currently being considered by the Court. 

7. On 14 November 2022, during a discussion between Mr Saffer and Child Support, the officer decided that it was more appropriate for Mr Saffer to lodge an objection to the decision of 19 July 2022, rather than his contact in September be coded as advice of a  change in the care of [Child 1].  Mr Saffer confirmed that he considered that his pattern of care of [Child 1] was more aligned to 50%. At that time, Mr Saffer also requested consideration of special circumstances in relation to his objection being lodged more than 28 days after receiving notification of the original decision of 19 July 2022. He uploaded additional evidence on 24 November 2022 and advised Child Support that a new Court Order in respect of the care of [Child 1] will commence on 16 December 2022.

8. The objections officer was unable to contact Ms Podmore, despite numerous attempts and a letter requesting her to make contact in respect of the change in care advised by Mr Saffer.  As no contact was made and no substantive evidence had been provided by either party, the objections officer proceeded to make a decision on 25 January 2023 to disallow Mr Saffer’s objection to the decision of 19 July 2022.

9. On 1 February 2023, Mr Saffer applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of Child Support’s decision of 25 January 2023.

10. On 27 June 2023, Mr Saffer participated in a hearing by conference telephone and gave oral evidence on affirmation.  A reschedule request was submitted by Ms Podmore the day before the hearing on the basis that she had not received the hearing papers. The tribunal refused the request and notified Ms Podmore that the hearing would proceed.  She was also advised that the tribunal would allow additional time for her to receive the papers, peruse them and make any further submissions and/or responses after the hearing.

11. Five attempts by the tribunal officer to contact Ms Podmore on the day of the hearing between 0925 and 0940 (Perth time) were unsuccessful.  This included an attempt by the local case manager.  As Ms Podmore was unable to be contacted the tribunal decided to proceed with the hearing.

12. It became evident at hearing that Mr Saffer was also yet to receive the hearing papers.  The tribunal proceeded, as it did not impact on the oral evidence required by the tribunal.  The tribunal had before it a bundle of documents numbered 1 to 188. On 27 June 2023, the tribunal decided to defer making a decision in this matter to allow time for both parties to receive the hearing papers and make any further submissions.

13. Child Support provided tracking numbers to the tribunal in respect of the hearing papers that were reissued to the parties on 30 June 2023.  Following the hearing, Mr Saffer provided further information numbered A1 to A22.  As both parties had agreed to receiving information from the tribunal via email, this information was provided to all parties on 30 June 2023, allowing seven days for comment. 

14. Tracking information records Mr Saffer as receiving the hearing papers on 3 July 2023 and Ms Podmore as receiving them on 11 July 2023.  As no further response was received from either party by 21 July 2023, the tribunal proceeded to make a decision.

ISSUES

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. This matter relates to the percentage of care to be attributed to each parent in respect of [Child 1] from 15 July 2022. While it is apparent that new court orders commenced on 16 December 2022, no evidence of a corresponding care decision is before the tribunal, albeit Mr Saffer told the tribunal that Child Support has been advised.  The tribunal notes that any subsequent care decision is not before this tribunal.

3. The issues for determination in this review are:

   •    Should the existing determinations of the percentages of care in respect of [Child 1] be revoked? If so, from when should they be revoked?

   •    Should new determinations of percentages of care be attributed to Mr Saffer and Ms Podmore in respect of [Child 1]?

   •    If there is a change in the percentages of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. In accordance with section 50 of the Act, as at 18 July 2022, when Mr Saffer contacted Child Support, the registered care of [Child 1] was recorded as 14% to Mr Saffer and 86% to Ms Podmore.

19.Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. In this case, the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1] before revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

20.Section 49 applies 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”. As the existing care recorded by Child Support is not based on a written care agreement, section 51 of the Act is not applicable in this case.

21.The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care.

1. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraphs 49(1)(b)(ii) and 50(1)(b)(ii) of the Act). Government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal and the tribunal can determine a different care period.

2. In this case, Mr Saffer advised that new court orders commenced from 16 December 2022 whereby care of [Child 1] is to be shared equally by the parents at 50% each.  This requires a new care determination to be made by Child Support.  As such, the tribunal is satisfied that an appropriate care period in this case is the period from 15 July 2022 to 15 December 2022.

Issue 1 – Should the existing determinations of the percentages of care in respect of [Child 1] be revoked? If so, from when should they be revoked?

1. Based on Child Support records, Ms Podmore did not dispute that Mr Saffer was having care of [Child 1] on nights in addition to those set out in the Parenting Plan signed on 12 July 2022.  It was agreed that the corresponding change in the pattern of care commenced on 15 July 2022. Based on the available evidence at the time, the delegate of the Child Support Registrar was satisfied that the likely pattern of care in the twelve-month care period commencing 15 July 2022 was 41% to Mr Saffer and 59% to Ms Podmore.

2. The tribunal notes that evidence in the form of an email from Mr Saffer was provided to Child Support on 18 September 2022 stating that his actual care of [Child 1] was 17 out of 31 nights in the months of July 2022 and August 2022 and would likely be 19 out of 30 nights in September 2022.

3. On 14 November 2022, Mr Saffer confirmed to the objections officer that his actual care in September 2022 was 19 out of 30 nights and in October 2022 was 12 out of 31 nights, asserting that his attribution of care in respect of [Child 1] should be 50%.

4. On 24 November 2022, Mr Saffer provided a series of text messages as evidence.  According to Child Support records, Ms Podmore failed to answer calls or respond to text messages and a letter to provide a response to Mr Saffer’s assertion that based on the actual care of [Child 1], care should be attributed at 50% to each parent from 15 July 2022.

5. On 6 December 2022, Mr Saffer advised Child Support that recent court orders in respect of care of [Child 1] are due to commence on 16 December 2022, whereby the care is shared equally by the parents at 50% each.

6. Mr Saffer told the tribunal that while the intention of both parents on 18 July 2022 was that the likely pattern of care in respect of [Child 1] going forward, based on the Parenting Plan, was 41% to him and 59% to Ms Podmore, it became evident that the actual care taking place differed to this. 

7. Mr Saffer provided a calendar to the tribunal in respect of his nights of care between 15 July 2022 and 30 November 2022.  He also provided a written statement that he had care of [Child 1] for five nights in the period 1 December 2022 to 15 December 2022, immediately before the new court orders took effect.  Based on the evidence provided, the tribunal calculates the care provided for [Child 1] by Mr Saffer in the 154-day period from 15 July 2022 to 15 December 2022 to be as follows:

Period (154 days)	Nights of care provided by Mr Saffer
15/07/2022 to 31/07/2022	10
01/08/2022 to 31/08/2022	18
01/09/2022 to 30/09/2022	20
01/10/2022 to 31/10/2022	12
01/11/2022 to 30/11/2022	13
01/12/2022 to 15/12/2022	5
Total number of nights	78

1. The submission was sent to Ms Podmore for comment.  As noted earlier, no response was forthcoming.  As such, the tribunal draws an inference from Ms Podmore’s lack of response that she has no objection to the information in the hearing papers and the submissions and evidence from Mr Saffer in relation to the actual care recorded by him during the care period and commencement of 50/50 care on 16 December 2022 in accordance with a new court order. 

2. The tribunal had regard to all of the evidence before it, including the evidence that was not before the objections officer.  In doing so, the tribunal considered the recent case of Child Support Registrar v DQFY [2023] FCA 601 (DQFY). In this matter, Farrell J found that the tribunal is to make the decision having regard to all the evidence before it, and not only the evidence before the objections officer. In the circumstances of this case, in particular due to the delay on the part of Child Support in deciding to accept Mr Saffer’s contact on 13 September 2022 as an objection and not a notification of a change in care, the tribunal is satisfied that it is appropriate to rely on DQFY. On this basis, the tribunal is satisfied that the actual care provided by Mr Saffer in respect of [Child 1] in the care period is 78 nights and the care provided by Ms Podmore in respect of [Child 1] is 76 nights. In accordance with the rounding provisions under section 54D of the Act, this equates to 51% care to Mr Saffer (78/154) and 49% care to Ms Podmore (76/154) and the tribunal finds accordingly.

3. Subsection 54F(1) of the Act provides that if an existing determination of care was made under section 49 or 50 of the Act, then the existing care determination must be revoked if all of the four criteria are met. The criteria are not mutually exclusive and all of them must be met before the tribunal can consider revoking the existing care percentages.

4. There is no dispute that on 18 July 2022, when Mr Saffer contacted Child Support, there were existing determinations for Mr Saffer and Ms Podmore of percentages of care for [Child 1], being 14% and 86% respectively, made in accordance with section 50 of the Act.

5. In relation to paragraph 54F(1)(a) of the Act, Mr Saffer notified Child Support on 18 July 2022 of a change in the level of care that he and Ms Podmore provided to [Child 1] from 15 July 2022. As the new care percentages accepted by the tribunal of 51% to Mr Saffer and 49% to Ms Podmore do not correspond to the care registered with Child Support, the tribunal finds that the first criterion, under paragraph 54F(1)(a) of the Act, is met.

6. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Relevantly, section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

7. Section 55C of the Act contains a table that is used to work out a person’s cost percentage. Under the child support assessment based on the existing percentage of care determinations at 18 July 2022, the cost percentages of Mr Saffer and Ms Podmore were 24% and 76% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentage applicable to Mr Saffer and Ms Podmore would be 50% each. Therefore, as the cost percentages of both parties would change if new determinations were to be made, the tribunal finds that the second criterion, under paragraph 54F(1)(b) of the Act, is also met.

8. As the tribunal has found that both parents have had a pattern of care in respect of [Child 1] in the care period commencing 15 July 2022, that is at least “regular care” (defined in subsection 5(2) of the Act as at least 14% and less than 35%), the tribunal is satisfied that section 54G of the Act is not applicable in this case, thereby satisfying the third criterion, under paragraph 54F(1)(c) of the Act. In addition, as found above, section 51 does not apply for the purposes of the fourth criterion, under paragraph 54F(1)(d) of the Act.

9. As all of the criteria of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care in respect of [Child 1].

10. Subsection 54F(3) of the Act sets out when the revocation of the determinations takes effect. The date of effect depends on whether Child Support was notified of the care change within 28 days after it occurred. As discussed above, the tribunal found that the care change advised by Mr Saffer took effect from 15 July 2022. As the notification was made on 18 July 2022, less than 28 days after the change in care occurred, the revocation of the existing determinations takes effect in accordance with paragraph 54F(3)(a) of the Act. That is, the day before the change of care day, being 14 July 2022.

Issue 2 – Should new determinations of percentages of care be attributed to Mr Saffer and Ms Podmore in respect of [Child 1]?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Saffer and Ms Podmore in respect of [Child 1]. As there was no written care agreement relating to the existing care percentages, the tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the child. These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 14% care of [Child 1] to Mr Saffer and 86% care to Ms Podmore should be revoked under section 54F of the Act.

2. Based on the evidence before it, the tribunal is satisfied that the actual pattern of care of [Child 1] that the parents have had during the care period 15 July 2022 to 15 December 2022 was 51% to Mr Saffer and 49% to Ms Podmore. Accordingly, a new care determination is to be made under section 50 of the Act.

Issue 3 – From what date should the administrative assessment be amended to reflect the change?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. The tribunal has revoked the existing determinations in respect of Mr Saffer and Ms Podmore with effect from 14 July 2022. Therefore, the new determinations would ordinarily apply in respect of [Child 1] for both parents from 15 July 2022.

2. While there is no time limit to object to a care percentage decision, where an objection is made more than 28 days after receiving notification of the decision, subsection 87AA(1) of the Registration Act limits the date of effect of a change in care percentages to the day upon which the objection was lodged. However, if the Registrar (or the tribunal standing in its shoes) is satisfied that special circumstances existed that prevented Mr Saffer from lodging his request for a review within 28 days of receiving notification of the decision of 19 July 2022, subsection 87AA(2) of the Registration Act provides that the decision maker may determine the reference to 28 days to be the number of days considered to be appropriate.

1. While Child Support have recorded Mr Saffer’s request for a review as 14 November 2022, the tribunal is satisfied that Mr Saffer contacted Child Support in respect of a change in care on 13 September 2022.  It was Child Support who determined in November 2022 that this contact should be treated as an objection to the decision of 19 July 2022.  After consideration of the circumstances of the case, the tribunal concurs.  However, the tribunal finds that the objection date is 13 September 2022.  Because 13 September 2022 is more than 28 days after receiving notification of the decision of 19 July 2022, the tribunal must consider whether special circumstances existed that prevented Mr Saffer from lodging an objection within the required timeframe.

2. Section 87AA of the Registration Act was introduced as an amendment Bill in 2010 (Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010) (the Bill). The Bill explains that subsection 87AA(2) is intended to provide some flexibility for unusual cases. Elsewhere in the Bill the phrase “special circumstances” is explained by reference to a judgment from the Administrative Appeals Tribunal where in Re Beadle and Director-General of Social Security [1984] AATA 176 Judge Toohey (presiding) said:

   An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

3. The legislation does not define “special circumstances”. However, the Guide contains guidelines at chapter 4.1.8 in regard to special circumstances in the context of subsection 87AA(2) of the Registration Act. It states that the circumstances preventing timely lodgement of the objection must be “sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date”. Examples given include the following:

   ·      the parent was seriously ill or had an accident that stopped them from lodging an objection;

   ·      the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent’s property;

   ·      the parent had communication difficulties, including isolation, illiteracy or poor English-language skills; and

   ·      the parent reasonably relied upon inaccurate or misleading information.

4. The tribunal is not bound by government policy. However in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the tribunal accepts that the policy is consistent with the objects of the Act and assists in making a decision under the legislation.

5. This is not a case of inaccurate calculations by Child Support.  Their decision was based on evidence provided at the time.  Based on the oral evidence of Mr Saffer he understood the necessity to contact Child Support if the care differed to the original decision.  Mr Saffer was aware that the care decision was not correct within 28 days of receiving notification of the decision of 19 July 2022, as his recorded actual care in the period 15 July 2022 to 31 August 2022 alone equates to some 60%.  Regardless, Mr Saffer did not contact Child Support until 13 September 2022.  There is no evidence to persuade the tribunal that special circumstances existed that justify Mr Saffer receiving the same benefit as if he had lodged his objection within the required timeframe.

6. This means that for the purposes of the administrative assessment, the date of effect of the decision made by the tribunal in relation to the percentages of care to be attributed to the parents from 15 July 2022, is 13 September 2022, the day upon which the tribunal is satisfied that Mr Saffer objected to the decision of 19 July 2022.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 15 July 2022 the percentage of care attributed to Mr Saffer in respect of [Child 1] is 51% and the percentage of care attributed to Ms Podmore is 49%. The date of effect is 13 September 2022.