Macfarlane and Child Support Registrar (Child support)

[2017] AATA 2899

Macfarlane and Child Support Registrar (Child support) [2017] AATA 2899 (21 November 2017)

DIVISION:     Social Services & Child Support Division

REVIEW NUMBER:  2017/HC012276

APPLICANT:  Mr Macfarlane

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  21 November 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Extension of time to object to a decision of the Department – Decision under review affirmed

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 Macfarlane and [Ms A] are the parents of [Child 1] (born March 2014) and there has been a child support assessment in place since 11 July 2016.  Mr Macfarlane is the liable parent.

2. For the period 11 July 2016 to 10 October 2017 Mr Macfarlane was assessed to pay child support at the minimum rate of $414 per year based on his advised income of $0 for the 2015/16 financial year and [Ms A’s] derived adjusted taxable income for the same year of $16,422.

3. On 3 March 2017 the Department of Human Services, Child Support (the Agency) made a decision to change the child support assessment by setting the adjusted taxable income for Mr Macfarlane at $60,000 from 1 December 2016 to 18 February 2017 and then from 19 April 2017 to 31 October 2018 (the original decision).

4. On 9 June 2017 Mr Macfarlane objected to the original decision and as his objection was not made within the prescribed period he applied for an extension of time (EOT).

5. On 6 July 2017 the request for an EOT was refused (EOT decision) and on 4 August 2017 Mr Macfarlane sought a review by the Administrative Appeals Tribunal (the Tribunal).

6. The matter was heard on 21 November 2017.  The Tribunal had before it a bundle of documents provided by the Agency (266 pages) and copies of the documents were provided to Mr Macfarlane prior to the hearing.  Mr Macfarlane gave evidence on affirmation by conference telephone.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. The issue which arises in this case is whether or not to grant Mr Macfarlane’s request for an EOT to lodge an objection to the original decision.

CONSIDERATION

1. Part VII of the Act is about the procedures related to objections made for certain decisions.  Section 81 is about time limits on lodging objections and provides that a person has 28 days in which to lodge an objection after a notice of the decision is served on them.  Section 82 provides for a person to apply for an EOT to lodge an objection after the 28 day period has elapsed.  Section 83 requires the Registrar to either grant or refuse an EOT application and serve notice in writing of the decision.

2. In the event the Agency refuses the EOT application the person applying may apply to the Tribunal for review (item 1 of the table in subsection 89(1) of the Act).

3. Mr Macfarlane was advised about the outcome of the original decision in a letter from the Agency dated 8 March 2017 and under provisions of the Evidence Act 1995 he was therefore taken to be served with written notice of this decision by 21 March 2017.  Given Mr Macfarlane lodged his objection more than 28 days after he was served with notice the Tribunal is satisfied an EOT was required.

4. The Tribunal is required to consider whether it is reasonable or proper for an EOT to be granted to Mr Macfarlane to lodge his objection to the decision made on 3 March 2017.  From other decisions, which provide guidance to the Tribunal on this matter, it is clear that generally the statutory time limit of 28 days is to be enforced unless there are acceptable reasons for departing from this prescribed timeframe.

5. A consideration of other relevant authorities establishes that when considering matters relating to an EOT the Tribunal should consider and balance a range of factors.  These factors are a guide and are not exhaustive, but generally include:

   ·      the reasons for the delay and whether the applicant rested on their rights;

   ·      the merits of the substantive application;

   ·      any prejudice to the other party including any difficulties they will experience in providing evidence as a result of the delay;

   ·      any prejudice to the general public; and

   ·      fairness in granting an EOT.

Reasons for the delay

1. The Tribunal finds that Mr Macfarlane’s application on 9 June 2017 in relation to the decision on 3 March 2017 and served on him by 21 March 2017 was approximately 51 days out of time.

2. In seeking an EOT, Mr Macfarlane said his tax return needed to be completed which was “later than the 28 days”.  Mr Macfarlane also believes the statement made by the Agency that he did not disclose his complete financial position was untrue.

3. Mr Macfarlane told the Tribunal at hearing the delay in submitting his objection to the original decision was not just related to the need to finalise his tax return but also because of an injury he received in mid-February.  Mr Macfarlane explained he had [injured] his spine and had spent three months in bed as a result.

4. Mr Macfarlane has not provided medical evidence of his injury such as a doctor’s certificate or hospital records.  The Tribunal notes, however, that in its original decision the Agency had accepted Mr Macfarlane was injured around that time in 2017.  The Tribunal also accepts Mr Macfarlane’s evidence in this regard.

5. In a conversation with the Agency on 21 March 2017, Mr Macfarlane’s representative was advised of the objection process and the need to provide evidence in relation to his income.  Evidence provided by the Agency confirms Mr Macfarlane lodged his 2015/16 personal tax return on 1 May 2017 and yet his objection was not received until 9 June 2017.  When asked to explain this delay Mr Macfarlane told the Tribunal he needed time to pull together the information required for the objection.  This was made more difficult by his injury and the pain medication he was taking.  In the end he needed his mother to help him complete it.

6. In addition a family court matter involving his daughter had been taking up much of his time and was all he could think about because seeing his daughter was more important than trying to sort out his child support.

7. Given the explanation provided by Mr Macfarlane, the Tribunal does not consider the delay in lodging his objection unreasonable and does not believe Mr Macfarlane rested on his rights.

Merits of the application

1. In the original decision the Agency set Mr Macfarlane’s adjusted taxable income at $60,000 on the ground of his income, property and financial resources (Reason 8A). 

2. Mr Macfarlane is a self-employed [worker].  He told the Tribunal he had not worked much since his injury and had only been able to take on occasional jobs which had provided little in terms of income.  Mr Macfarlane pointed to his 2015/16 personal tax return showing his taxable income of $11,136 as evidence of this.

3. The Tribunal alerted Mr Macfarlane to the original decision where the Agency explains that, in assessing income for the purposes of child support, the process looks beyond personal income and considers total financial circumstances including business structures which can also provide the parent with a financial benefit.  This was especially so with parents who were self-employed.

4. Despite being advised by the Agency during the change of assessment process of the importance of providing written financial information in relation to his business, [Company 1], Mr Macfarlane did not.  No tax returns have been lodged for the company and there is no detailed financial information available as evidence.

5. Mr Macfarlane pointed to the draft P&L Statement for [Company 1] provided in his objection application which shows a loss of $8,654 for the period 1 June 2015 to 8 May 2016.  He said he was not aware if the 2015/16 returns for the company had been finalised.

6. Mr Macfarlane explained to the Tribunal he was “definitely not” across the financial details of his business as this was not his expertise.  He said the reason nothing had been completed by way of financials was because [Ms A] had done it all previously using accounting software she was familiar with and when she left this had stopped.

7. Mr Macfarlane added that given the Agency had requested copies of the bank statements for his business they should have been able to see there was no money going in or out.

8. The Tribunal concludes, given the limited financial evidence available, there is little merit in reviewing the substantive application Mr Macfarlane has made in relation to his income, property and financial resources.

Prejudice to [Ms A] and the wider public

1. Should Mr Macfarlane be successful in his application there would be some prejudice to [Ms A] as it would be reasonable for her to rely on the child support income that had been set once the period for challenging the original decision had past.

2. The legislation prescribes timeframes in which to lodge objections.  The public has an expectation that these timeframes will generally be observed.  In addition, as [Ms A] is in receipt of family tax benefits from Centrelink, a decrease in the child support entitlement should Mr Macfarlane be successful may increase the family tax benefit payments to the detriment of the taxpayer.

Fairness in granting an EOT as between Mr Macfarlane and other persons in similar positions

1. While the Tribunal was satisfied the reasons provided by Mr Macfarlane for the delay in objecting were reasonable, the Tribunal also found his application had little merit and therefore it would not be fair to others to grant Mr Macfarlane an EOT.

2. The Tribunal accepts that Mr Macfarlane’s financial circumstances may have changed and notes that it is open to him to lodge a change of assessment application to take account of these circumstances.  It would be up to Mr Macfarlane to then provide the relevant detailed financial information for his business to accompany this application.

3. On balance, given the reasons above, the Tribunal does not consider it appropriate to grant an EOT for Mr Macfarlane to object to the decision made by the Agency on 3 March 2017.  Accordingly the decision under review is affirmed.

DECISION

The decision under review is affirmed.