Strachan and Child Support Registrar (Child support)

[2018] AATA 1723

Strachan and Child Support Registrar (Child support) [2018] AATA 1723 (30 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC013172

APPLICANT:  Ms Strachan

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Letch

DECISION DATE:  30 April 2018

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mrs Strachan objected to the decision made on 2 November 2017 on 8 November 2017.

CATCHWORDS

Child support – Adjusted taxable income of parent - Refusal to grant extension of time to object - The objection was lodged within the required timeframe - Decision under review set aside and remitted for reconsideration with the direction that the objection was lodged within time

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. Mrs Strachan and Mr  Strachan are the parents of [Child 1], born January 2001. Mrs Strachan has been assessed as liable to pay child support to Mr Strachan.

2. For the period 16 January 2017 to 31 July 2017, Mrs Strachan’s adjusted taxable income had been assessed as $17,300 (provisional 2014/15 income). On 19 June 2017, in absence of current information form the Australian Taxation Office, the Department of Human Services (“the Department”) decided that, for the period 1 August 2017 to 31 October 2018, Mrs Strachan’s adjusted taxable income would be calculated on a 2015/16 provisional income of $48,308 (two thirds of the male total average weekly earnings).

3. Mrs Strachan returned from overseas on 9 September 2017. On 2 November 2017, Mrs Strachan advised the Department that her income remained low; from 2 November 2017 (and not an earlier date), her adjusted taxable income would be assessed as $10,613 on the basis of a provisional 2016/17 taxable adjusted income.

4. Mrs Strachan sought to have the assessment corrected for the period she had been assessed on an adjusted taxable income of $48,308. She made an objection on 8 November 2017.

5. The Department treated Mrs Strachan’s objection on 8 November 2017 as being against the decision of 19 June 2017; her application, being more than 28 days after that date, was “late”, and the Department refused her application for an extension of time on 23 November 2017.

6. On 21 December 2017, Mrs Strachan applied for review by the Tribunal against the Department’s decision to refuse her an extension of time. The Tribunal conducted a hearing on 27 March 2018; Mrs Strachan participated by conference telephone.

CONSIDERATION

1. Mrs Strachan told the Tribunal she does not understand or accept the Department’s decision. They have always known that her income is very low; there was no basis to arbitrarily assess it as some $48,000. She told the Tribunal that Mr Strachan had also been assessed on the same figure; she said the Department has subsequently retrospectively reduced his income, but has not afforded her the same treatment.  

2. In the Tribunal’s assessment, the Department has fundamentally mischaracterised Mrs Strachan’s objection made on 8 November 2017. Her objection should not be treated as an objection to the decision on 19 June 2017; rather, she is objecting to the decision on 2 November 2017 to not backdate the assessment of her lesser income, and to continue to maintain her adjusted taxable income as $48,308 for the period 1 August 2017 to 1 November 2017. [1]

   [1] Section 58A of the Child Support (Assessment) Act 1989 allows, when components of adjusted taxable income are subsequently ascertained, for retrospective determinations if certain preconditions are met.

3. Accordingly, the decision will set aside the decision with a direction requiring a new objection decision to be made. In the event that decision does not go in Mrs Strachan’s favour, she will retain the right to re-apply to the Tribunal.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the direction that Mrs Strachan objected to the decision made on 2 November 2017 on 8 November 2017.