Banerjee and Child Support Registrar (Child support)

[2019] AATA 5732

Banerjee and Child Support Registrar (Child support) [2019] AATA 5732 (12 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017475

APPLICANT:  Mr Banerjee

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  12 December 2019

DECISION:

The decision under review is varied so that Ms [A] had a care percentage of [Child 1] of 100% from 11 April 2014 and Mr Banerjee had a care percentage of [Child 1] of 0% from 11 April 2014.

The Tribunal refused to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and so the date of effect of the Tribunal’s decision is 19 July 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change - existing percentage of care determinations revoked and new determinations made - decision under review set aside and substituted - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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 Banerjee and Ms [A] are the parents of [Child 2] (born 2002) and [Child 1] (born 2004). This review relates to the care percentages used in the assessment of child support for [Child 1].

2. The assessment of child support for [Child 1] was based on a care percentage of 82% for Ms [A] and 18% for Mr Banerjee. On 7 April 2014, Mr Banerjee contacted the Department of Human Services (the Department) and advised the care of the children would change. Ms [A] confirmed on 8 April 2014 that the care would change from 14 April 2014. On 14 April 2014 Mr Banerjee advised the Department that arrangements for the care of [Child 1] had changed from 11 April 2014 and he had 0% care.

3. On 28 February 2019, Ms [A] contacted the Department and advised she had 100% care of [Child 1] from 4 April 2014. On 2 April 2019, a decision was made to change the care percentages used in the assessment to reflect that Ms [A] had 100% care of [Child 1] from 4 April 2014.  The change of care was applied to the assessment from 4 April 2014 in respect of Mr Banerjee and 28 February 2019 in respect of Ms [A]. Mr Banerjee objected to the decision on 19 July 2019. On 17 September 2019, an objections officer disallowed Mr Banerjee’s objection.

4. On 17 September 2019, Mr Banerjee made an application to this Tribunal for a review of that decision. The application was heard on 12 December 2019. The Tribunal spoke to Mr Banerjee who attended the hearing in person. Ms [A] did not apply to be added as a party to the proceedings. The Tribunal had regard to documents provided by the Department (folios 1 to 353).

ISSUES

1. The issues the Tribunal must decide are:

   ·         whether there was a change to the care arrangements for [Child 1]; and if so

   ·         what care percentages should be used in the child support assessment; and

   ·         what is the date from which they have effect.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called ‘particulars of the assessment’. This includes the ‘percentage of care’ and a ‘cost percentage’ for each parent in relation to each child.

3. The Department makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

4. Where a parent has a pattern of care for a child, the Department determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Department makes care decisions at a point in time based on what has happened up until the change in care is considered and the likely care thereafter.

5. The Department revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

What care percentages should be used in the child support assessment?

1. Mr Banerjee confirmed that the consent orders signed by the parents in 2010 broadly provided that the parents were to have equal shared parental responsibility with the children spending two nights per fortnight in his care. The orders were not being followed and Mr Banerjee has not sought to have them enforced or amended.

2. Mr Banerjee stated it had been agreed that when Ms [A] moved to [an Australian state] [Child 1] would live with her and [Child 2] would live with him. A few months later she removed [Child 2] from his care and he has not seen his son since. The Department recorded a change of care for [Child 2] from 14 July 2014.

3. It is not in dispute that there was a change to [Child 1’s] pattern of care. Although Ms [A] advised the change was to occur on 14 April 2014 and subsequently advised it had occurred on 4 April 2014, Mr Banerjee advised the Department on 14 April 2014 that the change occurred on 11 April 2014. Ms [A] did not take part in these proceedings and so the Tribunal decided to rely on Mr Banerjee’s contemporaneous evidence and is satisfied that from 11 April 2014 Ms [A] has 100% care of [Child 1] and Mr Banerjee has 0% care of [Child 1].

4. Therefore, in accordance with section 54F of the Act, the previous care percentage is revoked. The Tribunal finds that Mr Banerjee notified of the change to this care arrangement on 14 April 2014. Although the notification was not actioned and there has been subsequent legislative amendments regarding the care provisions, the Tribunal finds that the legislation which was in place in 2014 applies in this case. The previous care determination is revoked from the day before the change occurred, 10 April 2014, and the new care percentages apply from 11 April 2014 in respect of both Mr Banerjee and Ms [A.

15. As this is a care percentage decision made following an objection that was lodged more than 28 days after the original decision the Tribunal is required to make a further decision under section 87AA of the Registration and Collection Act. That section states:

Date of effect of objections relating to care percentage decisions that are allowed

(1)      If:

(a)      a person lodges, under section 80A, an objection to a care percentage decision;                and

(b)      the objection is lodged more than 28 days or, if the person is a resident of a   reciprocating jurisdiction, 90 days after notice of the care percentage decision   was served; and

(c)      the Registrar decides (the review decision), under section 87, to allow the   objection in a way that has the effect of varying the determination to which the   care percentage decision relates, or substituting a new determination;

the date of effect of the review decision is the day on which the person lodged the               objection.

(2)      If the Registrar is satisfied that there are special circumstances that prevented the person                from lodging the objection within the period referred to in paragraph (1)(b), the Registrar            may determine that subsection (1) applies as if:

(a)      in a case where the person is a resident of a reciprocating jurisdiction--the   reference to 90 days in that paragraph were a reference to such longer period as   the Registrar determines to be appropriate; or

(b)      otherwise--the reference to 28 days in that paragraph were a reference to such                  longer period as the Registrar determines to be appropriate.

16. Under subsection 87AA(1) of the Registration and Collection Act, because Mr Banerjee did not lodge his objection to the original decision of the Department made on 2 April 2019 within 28 days, of receiving it, the date of effect of the Tribunal’s decision would be the date on which he lodged his objection, that being 19 July 2019. However subsection 87AA(2) of the Registration and Collection Act provides that if there are special circumstances that prevented a person from lodging their objection within 28 days the period for lodging the objection may be extended.

17. It is relevant that subsection 87AA(2) of the Registration and Collection Act provides that, not only must special circumstances exist, a person must be prevented by them from applying within 28 days.

18.  After Mr Banerjee was notified of the original decision dated 2 April 2019 he spoke to the Department on a number of occasions. He did not dispute that he had no care of [Child 1], but advised the Department that the children were living with their grandmother, and not Ms [A]. He also expressed the view that he was unhappy that the Department had not actioned his notification of the change in care of [Child 1] in 2014. He also advised he was undergoing medical treatment, which made it difficult for him to pay the assessed amount, let alone the arrears of more than $7,000.

19.  Mr Banerjee advised the Tribunal that he is concerned that the decision regarding the care of [Child 1] has been backdated, effectively resulting in large arrears, particularly as he had paid the assessed amount and had not realised the Department did not action his notification. Due to a combination of factors, including ill health, he has had to give up his rental accommodation and has returned to live with his mother.

20. The Tribunal decided that while there are some unusual circumstances in this matter, the relevant consideration is whether Mr Banerjee was prevented from lodging his objection within 28 days of receiving it due to special circumstances. The Tribunal decided that this was not the case, so the date of effect of the Tribunal’s decision is 19 July 2019 in accordance with subsection 87AA(1) of the Registration and Collection Act.

21. Mr Banerjee’s arrears arise from the decision to change the care percentage in respect of [Child 1] from 18% to 0% from 11 April 2014. There is no practical effect of the Tribunal refusing to make a determination under 87AA(2) of the Registration and Collection Act.

DECISION

The decision under review is varied so that Ms [A] had a care percentage of [Child 1] of 100% from 11 April 2014 and Mr Banerjee had a care percentage of [Child 1] of 0% from 11 April 2014.

The Tribunal refused to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and so the date of effect of the Tribunal’s decision is 19 July 2019.