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

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.
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.
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.
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.
On 20 July 2022, Mr Saffer uploaded further evidence, including a calendar of nights he had [Child 1] in his care between November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 2942
Decision Date: 21 July 2023

CaseChat Overview and Summary

This matter concerned an appeal by Saffer against a decision of the Child Support Registrar concerning the percentage of care for the parties' child. The Registrar had revoked existing percentage of care determinations and made new determinations, which Saffer sought to have set aside.

The primary legal issue before the court was whether there had been a change to the likely pattern of care of the child, which would justify the revocation of existing percentage of care determinations and the making of new ones. The court was also required to consider the date of effect of any new determinations and whether any special circumstances existed that would warrant a departure from the usual application of the relevant provisions of the *Child Support (Registration and Collection) Act 1988*.

The court found that the Registrar had erred in revoking the existing percentage of care determinations. It determined that the evidence did not establish a change to the likely pattern of care that would justify such a revocation. Consequently, the court concluded that no special circumstances existed to warrant a departure from the usual provisions regarding the date of effect of any new determinations.

The court ordered that the decision under review be set aside and substituted with a new determination that the existing percentage of care orders remain in effect.

Orders