Conlee and Runcie (Child support)

[2021] AATA 5205

Conlee and Runcie (Child support) [2021] AATA 5205 (23 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022460

APPLICANT:  Mr Conlee

OTHER PARTIES:  Child Support Registrar

Ms Runcie

TRIBUNAL:Member C Breheny

DECISION DATE:  23 November 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – limited child support agreement – application to terminate agreement correctly refused – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Ms Runcie and Mr Conlee are the separated parents of [Child 1], born February 2017. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since 25 June 2018. Mr Conlee is the parent liable to pay child support to Ms Runcie.

2. On 8 February 2019 Ms Runcie contacted Child Support and lodged an application for acceptance of a limited child support agreement (LCSA). The agreement was signed by both Ms Runcie and Mr Conlee and states that Mr Conlee is to pay child support of $150 per week (or $7,800 per year). The agreement is to end on the last day of school in the year the [Child 1] turns 18 years of age (likely to be the end of 2035).

3. On 10 April 2019 Child Support accepted the LCSA with effect from 1 February 2019. On 3 May 2019 Child Support issued a notional assessment indicating that under the statutory provisions Mr Conlee’s child support liability was $2,181 per year.

4. On 15 February 2021 Mr Conlee contacted Child Support and advised that he now had 50% care of [Child 1] and that his income had decreased. He asked how he could end the LCSA. He was told that a new notional assessment would be issued on 10 March 2021 and that he could end the agreement by making a written request after that date. The notional assessment issued on 10 March 2021 indicates that Mr Conlee’s child support liability would be $61 per year, pursuant to the statutory provisions.

5. On 6 June 2021 Mr Conlee wrote to Child Support requesting to end the LCSA. On 12 June 2021 his application to terminate the LCSA was refused. On 7 August 2021 Mr Conlee objected to the decision and on 3 October 2021 a Child Support objections officer disallowed the objection.

6. On 5 October 2021, Mr Conlee applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objection decision. The application was heard on 23 November 2021. Ms Runcie and Mr Conlee attended the hearing by conference telephone and gave evidence on affirmation. I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 25 October 2021 (documents numbered 1–122).

ISSUES & CONSIDERATION

1. The child support scheme provides for the parents of a child to make a limited child support agreement (a child support agreement that does not require legal advice) or a binding child support agreement (requiring legal advice).

2. The Child Support (Assessment) Act 1989 (the Act) contains specific provisions regulating the terms of such child support agreements and setting out a framework for the agreements to be accepted and implemented by the Registrar. 

3. In this case there is no dispute that Ms Runcie lodged a LCSA with Child Support on 8 February 2019. Child Support accepted and implemented this agreement with effect from 1 February 2019, the date the last person (in this case Mr Conlee) signed the agreement.

4. Ms Runcie stated that she was in the process of refinancing her mortgage at the time and the bank requested that there be a more formal arrangement to the child support payments she received. Ms Runcie stated that Mr Conlee had been paying $150 per week for some time, so she asked him to sign the agreement, as it was merely formalising their private arrangement.

5. Mr Conlee contended that he did not understand what he was signing. He thought it was some form of “income declaration” that Ms Runcie needed to take to the bank. He did not understand that the document was about his child support payments and he also did not understand that the agreement is to run until [Child 1] turns 18 years of age. He said he would never have signed the document had he been aware of these provisions.

6. Mr Conlee said that he did not give it further thought at that time, as he was able to afford the child support payments. His income however has reduced considerably now and he also has increased care of [Child 1] (from 14% care to 49% care). He can no longer afford to pay child support at that level and the agreement should be terminated.

7. Mr Conlee felt that he had been manipulated into signing the agreement, but he conceded that he did not read the document in detail prior to signing it. He also noted that some aspects of the agreement may have been changed after he signed it and therefore it should not have been accepted in the first place.

8. Mr Conlee was particularly concerned that “Question 49” which provides that “The agreement is to change or end when the receiving parent has a care percentage below (a certain level)” had been changed. That care percentage now reads “35%” but he thought that Ms Runcie may have originally written “70%” and changed the numbers afterwards. Ms Runcie stated that she originally wrote “20%” but changed that to “35%” and she also ticked “yes” to “Question 53” which provides that the agreement would be suspended for 26 weeks if the receiving parent’s care falls below 35%.

9. I appreciate Mr Conlee’s concern in this regard however he did not lodge an objection to the decision made on 10 April 2019 to accept the LCSA. He objected to the decision to refuse his application to terminate the agreement and that is the only decision I can consider in this review.

10. A limited child support agreement can only be terminated in accordance with the legislation (section 80G of the Act).  Subsection 80G(1) provides that a LCSA can be terminated in any of the following ways:

    a)by making a new limited or binding child support agreement,

    b)by both parties stating in writing that the agreement should be terminated,

    c)by a court setting aside the agreement,

    d)if there is a 15% variation in the notional child support assessments in circumstances not envisaged by the parties and written notice of termination is given by one party within 60 days of that party receiving notice of the variation,

    e)if the agreement was made three or more years ago and a party gives written notice to the Registrar terminating the agreement, or

    f)the parent receiving child support ceases to be an eligible carer.

11. Most of these provisions do not apply in this case. The agreement was made less than three years ago and there is no evidence that both parties wish to end the agreement. The only relevant provision is therefore paragraph 80G(1)(d) as there is a 15% variation in notional child support assessments.

12. In this case Child Support accepted that there was a 15% variation between the notional assessments issued on 3 May 2019 and 10 March 2021 in a manner not envisaged by the parties (i.e. an increase in Ms Runcie’s income) and I concur with this conclusion.

13. There is also no dispute that Mr Conlee made a written request to terminate the agreement on 6 June 2021, however this request was made more than 60 days after the notice of the variation (i.e. the most recent notional assessment) was issued on 10 March 2021. In accordance with the legislative provisions Mr Conlee’s request should have been made on or about 9 May 2021.

14. I note Mr Conlee was also informed of the variation in the notional assessment when he contacted Child Support on 15 February 2021. He was advised that a new assessment would be issued on 10 March 2021 and that he should lodge his request to terminate the agreement after that date. Mr Conlee stated that he was not aware of the legislative timeframes and he was not very good at “putting things in writing”, so it took him a while to contact Child Support.

15. I appreciate Mr Conlee’s submissions, but as he lodged his request to terminate the LCSA more than 60 days after he received the notice of the last notional assessment, Mr Conlee’s request does not meet the requirements of paragraph 80G(1)(d) of the Act.

16. There is no discretion within section 80G of the Act for the limited child support agreement to be terminated in ways other than are specified in that section. This means that Mr Conlee’s application to terminate the agreement was correctly refused and I affirm the decision under review.

DECISION

The decision under review is affirmed.