Legrand and Follweiler (Child support)

[2020] AATA 2025

Legrand and Follweiler (Child support) [2020] AATA 2025 (16 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018566

APPLICANT:  Mr Legrand

OTHER PARTIES:  Child Support Registrar

Ms Follweiler

TRIBUNAL:Member A Schiwy

DECISION DATE:  16 April 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – registrable maintenance liability – whether the overseas maintenance liability should have been registered – liability correctly registered – 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. Mr Legrand and Ms Follweiler are the separated parents of two children and this application is about whether Ms Follweiler’s application to have a [Country] child support agreement registered should have been accepted.

2. The parents had been residing in [Country].  On 18 August 2015 consent orders were made in the Supreme Court of [Jurisdiction].  The orders stated, amongst other things, that Mr Legrand was to pay Ms Follweiler [an amount in Country currency] (around $1,450 AUD per month) in child support.

3. The parents are now currently residing in Australia.  On 12 March 2019 Ms Follweiler made an application to the Department of Human Services (“Child Support”).  On 25 March 2019 Child Support treated the application as an application for a child support case to be registered in Australia and accepted it on that basis.  Assessments were then issued based on a provisional income for Mr Legrand with a liability of around $605 per month.

4. On 7 June 2019 Ms Follweiler objected to the decision and an extension of time to lodge her objection was granted on 29 July 2019.

5. On 7 February 2020 a Child Support objections officer allowed the objection and decided that Ms Follweiler had applied to have the [Country] agreement registered and to accept that registration. 

6. Mr Legrand applied to the Administrative Appeals Tribunal (“the tribunal”) on 5 March 2020 for a review of the decision of the objections officer.

7. A hearing was held on 16 April 2020.  Mr Legrand and Ms Follweiler both spoke to the tribunal via teleconference and gave evidence on affirmation.   

8. In considering this matter the tribunal took into account the oral evidence of Mr Legrand and Ms Follweiler and the relevant documentation provided by the Child Support Registrar. 

CONSIDERATION

1. The relevant law is contained in the Child Support (Registration and Collection) Act 1988 (the Act).

2. Subsection 25(1) of the Act states that a payee of a registered maintenance liability (“RML”) may apply to the Registrar to have the liability registered under the Act.

3. Section 4 of the Act defines an RML to include a registrable overseas maintenance liability (“ROML”) as defined in section 18A of the Act.  Subsection 18A(1) of the Act states that a ROML is a liability of a parent to pay a periodic amount for the maintenance of a child; and is an overseas maintenance liability (“OML”).  Section 4 of the Act defines an OML to include a maintenance order made by a judicial authority of a reciprocal jurisdiction.

4. In this case it is not disputed that a maintenance order was made by a judicial authority of [Country].  As [Country] is a reciprocal jurisdiction for Child Support purposes the tribunal decided that the court orders are an RML for the purposes of the Act and therefore registrable as a liability under the Act.

5. Mr Legrand has submitted that the orders should not have been registered because his income, since coming to Australia has reduced.  The tribunal noted that the orders allow for the parents to exchange tax returns and review the child support each year.  The tribunal decided that the fact that Mr Legrand’s income may have reduced since the orders were made does not alter the fact that the orders are a RML that is registrable under the Act. 

1. Accordingly, the Child Support decision is affirmed.

DECISION

The decision under review is affirmed.