Reace and Mamakos (Child support)

[2024] AATA 3939

Reace and Mamakos (Child support) [2024] AATA 3939 (25 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027719

APPLICANT:  Ms Reace

OTHER PARTIES:  Child Support Registrar

Mr Mamakos

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  25 September 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – departure determination – income, property and financial resources – mother’s stable employment – father’s higher income but contract work uncertain to be extended – father’s payment of child’s school fees, and both parents’ household expenditure – some hardship to mother balanced against needs of father and child – 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. This review is about whether or not there should be a departure from the administrative assessment of child support.

2. Ms Reace and Mr Mamakos are the parents of [the child] (born April 2010).  There has been a child support assessment in place since 1 July 2011 and Ms Reace is currently the parent liable to pay child support.

3. The following administrative assessments of child support are under consideration:

   ·     for the period from 1 July 2023 to 30 November 2023 Ms Reace is assessed to pay an annual rate of $3,089 based on a 2021–22 adjusted taxable income of $88,202 for Ms Reace and a 2021–22 adjusted taxable income for Mr Mamakos of $93,202; and

   ·     for the period from 1 December 2023 to 28 February 2025 Ms Reace is assessed to pay an annual rate of $565 based on a 2022–23 adjusted taxable income of $71,371 for Ms Reace and a 2022–23 adjusted taxable income for Mr Mamakos of $100,653.

4. The Tribunal notes a change to the care arrangements for [the child] was determined by Services Australia – Child Support (Child Support) with Ms Reace providing 0 per cent care and Mr Mamakos providing 100 per cent care from 29 June 2023.

5. On 16 August 2023 Ms Reace applied to Child Support for a change to the assessment on the basis of the special needs of the child (the ground more commonly known as Reason 2) and a parent’s income, property, financial resource or earning capacity (Reasons 8A and 8B).

6. On 24 October 2023 Child Support made the decision to change the assessment so that for the period from 1 September 2023 to 31 August 2025 the adjusted taxable income of Mr Mamakos is set at $128,800 (the original decision).

7. On 19 November 2023 Mr Mamakos objected to this decision and on 19 December 2023 Child Support allowed the objection in part and made the decision to change the assessment (the objection decision) so that:

   ·     for the period from 1 September 2023 to 31 August 2025 the adjusted taxable income of Mr Mamakos is set at $128,800; and

   ·     the decision will end in the event the current income Mr Mamakos receives based on a casual employment contract commencing on 15 August 2023 ceases and special circumstances no longer apply.

1. On 21 January 2024 Ms Reace applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).

2. A directions hearing was held on 21 June 2024. Ms Reace and Mr Mamakos attended by Microsoft Teams audio. Prior to the directions hearing, Child Support provided the Tribunal and the parties with a bundle of documents in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (521 pages).

3. Ms Reace and Mr Mamakos were directed to provide further information and both complied to the satisfaction of the Tribunal.

4. A hearing was held on 20 September 2024.  Ms Reace and Mr Mamakos gave evidence on affirmation by Microsoft Teams audio.  Prior to the hearing, the Tribunal received documents folioed A1 to A58 from Ms Reace and B1 to B73 from Mr Mamakos and these were distributed to the parties.  Due to an administrative oversight Ms Reace did not receive part of the documents from Mr Mamakos (B64–B73).  Ms Reace said nonetheless she wanted the Tribunal to proceed and make a decision.  Additional documents were also received from Child Support (pages 522–532).

5. At the directions hearing and at the commencement of the hearing, the Tribunal sought clarification from Ms Reace and Mr Mamakos as to the reasons for their concerns.

6. Ms Reace told the Tribunal she believed the income determined by Child Support for Mr Mamakos may be incorrect.  Ms Reace said she was struggling financially and could not afford to meet her child support obligations as well as her living expenses.  Ms Reace agreed it was not necessary for the Tribunal to review costs associated with any special needs.  Mr Mamakos said he was broadly satisfied with the decision made by Child Support.  Mr Mamakos said he would like the Tribunal to consider private school costs he was meeting for [the child].

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The rate of child support payable by the liable parent is usually based on an administrative assessment under Part 5 of the Act.

3. Under Part 6A of the Act, the liable parent or the carer of the child or children may apply to the Child Support Registrar for a determination to depart from the administrative assessment (section 98B).

4. Section 98C provides that the Registrar may make a determination to depart from the administrative assessment and establishes a three-step process, such that the issues for determination by this Tribunal are:

   ·     whether or not a ground is established to depart from the administrative assessment of child support; and if so,

   ·     whether or not it is just and equitable to make a particular departure determination; and if so,

   ·     whether or not it is otherwise proper to make a particular departure determination.

5. The grounds for departure from an administrative assessment of child support are set out in subsection 117(2) of the Act.

6. Each ground is prefaced by the words “in the special circumstances of the case”.  The meaning of this expression is not defined in the Act, but the Family Court in Gyselman and Gyselman [1991] FamCA 93 has held that:

   as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

7. In Philippe and Philippe (1978) FLC 90-433 the court held that “special circumstances” are “facts peculiar to the particular case which set it apart from other cases”.

8. If satisfied that a ground exists and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Act.

9. The range of determinations which can be made includes variations to the annual rate of child support payable; or to the adjusted taxable incomes of the parents and/or carer; or to other components of the statutory formula used to calculate child support.

CONSIDERATION

Issue 1 – Is there a ground for departure?

1. A ground for departure exists where, in the special circumstances of the case, application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by the liable parent in respect of the child because of the income, property and financial resources of either parent (subparagraph 117(2)(c)(ia) of the Act).

2. Ms Reace told the Tribunal she worked for [work sector company] [Company 1] and had done so for around three years.  Ms Reace said it was a full-time role and her income from employment remained stable.  Ms Reace added she was not expecting any significant changes to her salary in the near future although the allowances she received may fall slightly in 2024–25 as the system had changed.

3. In response to directions Ms Reace provided the Tribunal with a copy of her Australian Taxation Office (ATO) income statement for 2023–24.  It shows gross income from [Company 1] of $81,760.  The Tribunal notes in evidence from Child Support a copy of Ms Reace’s individual tax return for 2022–23.  It shows a gross income of $82,028 comprised of her salary of $77,828, allowances of $4,130 and interest of $70.  After allowing for various deductions totalling $10,657, the majority of which were work-related motor vehicle and other work-related expenses, Ms Reace had an adjusted taxable income of $71,371.

4. Ms Reace said at one point she had been receiving a contribution towards costs, such as electricity, from her cousin who was living with her for a period.  Ms Reace explained this had ceased in around mid-June 2023 when her cousin moved out.

5. Ms Reace also provided the Tribunal with a Statement of Financial Circumstances received on 30 April 2024.  Ms Reace lists total weekly household expenditure of approximately $1,432, including mortgage costs of $300, food of $250, telephone costs of $200 and education expenses of $55.  Ms Reace has total personal expenditure of approximately $700 per week including child support of $150 per week ($650 per month).  Ms Reace said she also had an outstanding child support debt which she was repaying.  Ms Reace declares total assets valued at $838,000, including her home valued at $800,000, a [motor vehicle 1] worth $18,000 and household contents.  Her liabilities include her home mortgage of $300,000, a personal loan of $8,000, a motor vehicle loan of $12,000 and credit card debt of $3,000.  Ms Reace has superannuation of approximately $200,000.

6. Ms Reace pointed out that her telephone costs were higher than normal because she had a work mobile telephone and a private mobile telephone.  Ms Reace said she paid for her work mobile costs.  Ms Reace said the home maintenance expenses were for costs to date but she expected this to be ongoing as she would soon be required to replace her hot water system.  She provided a quote for this work from a plumbing company of $6,350 plus GST.  Ms Reace said the education costs were for her own ongoing professional development. She said the personal loan was for a new lounge suite which she had previously purchased.

7. Ms Reace is employed as a salary and wage earner.  The Tribunal is satisfied that any board she received from her cousin to assist with the cost of utilities and the like should not be considered as income for the purposes of child support.  Ms Reace is currently assessed on her 2022–23 adjusted taxable income of $71,371 and the Tribunal is satisfied her adjusted taxable income in 2023–24 will not be significantly different.  The Tribunal finds that Ms Reace is fairly assessed under the usual administrative process.

8. The Tribunal also considered the income, property and financial resources of Mr Mamakos.

9. Mr Mamakos told the Tribunal he was working as [an occupation] on a contract basis through recruitment agency [Company 2].  Mr Mamakos said his initial contract was for a 12-month term starting on 15 August 2023 but the contract had recently been extended for a further six months on the same terms.  Mr Mamakos said he was uncertain if his contract would be extended again.  Mr Mamakos added that prior to his contract work he was employed in a similar role but as a full-time employee and this ended in mid-August 2023.

10. The Tribunal notes according to evidence obtained by Child Support from the ATO that Mr Mamakos was employed in a full-time capacity with one employer from 8 March 2021 to 11 August 2023.  He then commenced his contract on 15 August 2023.

11. In response to directions Mr Mamakos provided the Tribunal with a copy of his contract of employment from [Company 2].  It shows his contract as [an occupation] commenced on 15 August 2023 with an anticipated end date of 16 August 2024.  According to the terms of the contract, Mr Mamakos is to be paid on a weekly basis at a daily rate of $560.

12. Mr Mamakos also provided the Tribunal with a Statement of Financial Circumstances received on 14 May 2024.  Mr Mamakos states his total average weekly expenditure is $1,860, including $800 for mortgage costs, $300 for food and $100 for education costs.  Mr Mamakos said his mortgage costs included a loan from his parents which he used to help purchase his villa and was also repaying.  Mr Mamakos declares personal expenditure of $833 per week, including income tax of $600 and minimum weekly credit card payments of $220.  He has assets totalling $700,000 including his home valued at $550,000, a [motor vehicle 2] at $80,000 and household contents of $70,000.  Mr Mamakos lists liabilities of $526,000 including his mortgage of $450,000, motor vehicle finance of $45,000 and credit card debts.  Mr Mamakos does not record a loan from his parents.  He has superannuation of $300,000.

13. Mr Mamakos said his mother was currently living with him and helping contribute to utility and other costs but as she was a pensioner this did not amount to much.

14. Mr Mamakos is employed on a full-time basis as a contractor.  His weekly gross income is $2,800 which equates to $145,600 per annum.  The Tribunal is satisfied that any board he receives from his mother to assist with the cost of utilities and other expenses should not be considered as income for the purposes of child support.  Taking into consideration he is employed on a casual basis and allowing for unpaid leave of six weeks, the Tribunal finds Mr Mamakos would be more fairly assessed as if he had access to income, property and financial resources equivalent to a person with an adjusted taxable income of $128,800.

15. The administrative assessment in place at the time Ms Reace made her application for a change of assessment on 16 August 2023 was based on a 2021–22 adjusted taxable income for Mr Mamakos of $93,202.  With the change in care applying from 29 June 2023 Ms Reace was assessed to pay an increased annual rate of $11,380.  The Tribunal has found, however, that Mr Mamakos has access to income, property and financial resources equivalent to a person with an adjusted taxable income of approximately $128,000.  When this amount is applied in the child support formula, the annual rate of child support payable by Ms Reace would be approximately $10,227.

16. The Tribunal finds this to be significantly less than her liability under the administrative assessment.  The Tribunal is satisfied that special circumstances exist and the application of the administrative assessment of child support would result in an unjust and inequitable determination of child support to be provided by Ms Reace.  On this basis, the Tribunal finds there is a ground for departure from the administrative assessment.

Issue 2 – Is it just and equitable to make a particular determination?

1. As the Tribunal finds there is a ground to depart from the administrative assessment of child support, the next step is to consider whether it is just and equitable as regards the child, the liable parent and the carer entitled to child support to make a particular determination in accordance with sub-subparagraph 98C(1)(b)(ii)(A) of the Act. This in turn requires the Tribunal to consider the matters discussed below,[1] which are as set out in subsection 117(4) of the Act:

   [1] The Tribunal is required to give “overt consideration” to relevant factors listed in subsection 117(4) of the Act: Tyagi & Meares(SSAT Appeal) [2008] FMCAfam 886.

   (4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   (a)the nature of the duty of a parent to maintain a child (as stated in section 3); and

   (b)the proper needs of the child; and

   (c)the income, earning capacity, property and financial resources of the child; and

   (d)the income, property and financial resources of each parent who is a party to the proceeding; and

   (da) the earning capacity of each parent who is a party to the proceeding; and

   (e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:

   (i)himself or herself; or

   (ii)any other child or another person that the person has a duty to maintain; and

   (f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and

   (g)any hardship that would be caused:

   (i)to:

   (A)the child; or

   (B)the carer entitled to child support;

   by the making of, or the refusal to make, the order; and

   (ii)to:

   (A)the liable parent; or

   (B)any other child or another person that the liable parent has a duty to support;

   by the making of, or the refusal to make, the order; and

   (iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.

The nature of the duty of a parent to maintain a child

1. Section 3 of the Act states that it is the primary duty of a parent to maintain the child and this has priority over nearly all other commitments.  In this case the parents have a duty to support [the child].

2. The Tribunal was not made aware that either parent has a legal responsibility to any other child or person.

The proper needs of the child

1. In relation to the proper needs of the child, regard must be had to the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained, and any special needs of the child (subsection 117(6) of the Act).

2. Mr Mamakos told the Tribunal the parents had enrolled [the child] in a fee-paying Catholic primary school and he was now attending [College] in [City].  Mr Mamakos said [the child] commenced at [College] in in 2023 and was currently in Year 8.  Mr Mamakos said [the child] was at [Catholic Primary School] in [City] until Year 3 but then transferred to a government school where he continued his education until starting at [College].

3. In response to directions Mr Mamakos provided the Tribunal with a copy of the enrolment application for [the child] to attend [Catholic Primary School] (in [Parish]).  The application is signed by both parents and dated 20 August 2015.

4. Mr Mamakos said he was meeting the school fees and other costs associated with [the child] attending [College] with no assistance from Ms Reace.  Mr Mamakos said, for example, he was required to pay for [the child] to go to his school camp which was an additional $600.  Mr Mamakos confirmed the school fees in 2024 were $4,016 and the school fees in 2023 were $3,645.  Mr Mamakos said he was paying the fees fortnightly but was currently in arrears.

5. Ms Reace told the Tribunal she was not involved in the decision to send [the child] to [College] and did not sign the enrolment form.  Ms Reace said Mr Mamakos wanted [the child] to attend the college and she did not feel she should make any contribution towards the costs.

6. Ms Reace acknowledged that she had signed the form for [the child] to attend [Primary School] but said the courts had ordered that Mr Mamakos meet the full cost.

7. The Tribunal notes in evidence from Ms Reace a copy of consent orders handed down in the Federal Circuit Court of Australia [in] May 2015.  In relation to his education, the orders state that the parents will take all steps to enrol [the child] at [Primary School] with Mr Mamakos to pay for the school fees.

8. [The child] attended a fee-paying Catholic primary school from the beginning of his education, however, the courts determined that Mr Mamakos was to meet this cost.  [The child] then went to a government primary school before Mr Mamakos enrolled him at [College].  It is clear Ms Reace was not involved in the decision to send [the child] to [College]

1. The Tribunal is not satisfied, based on the evidence provided, that [the child] is being educated in a manner that both parents expected.

2. The Tribunal will not consider the costs of school fees associated with [the child] attending [College] further.  Mr Mamakos also raised other costs associated with [the child]’s schooling such as a school camp.  The Tribunal is of the view that costs for such things as books, school camps and ordinary extracurricular activities are part of the usual costs across all schools and not unique to a private school education.  These costs are allowed for in the normal child support assessment.  The Tribunal will not consider them further.

3. Ms Reace told the Tribunal she raised the matter of [the child]’s special needs in her change of assessment application out of concern he might need orthodontic work.  Ms Reace said as this had not transpired there were no costs to be considered.

4. The Tribunal is satisfied it is therefore appropriate to calculate the costs of [the child]’s needs by reference to the Costs of the Children Table (provided for in Schedule 1 to the Act).

The income, earning capacity, property and financial resources of the child

1. The Tribunal is satisfied that [the child] has no income, earning capacity, property and financial resources that should be taken into account for the purpose of child support.

The income, property, financial resources and earning capacity of each parent

1. The Tribunal has already considered in detail the income, property and financial resources of both parents.

2. In her application for a change of assessment Ms Reace raised the earning capacity of Mr Mamakos.  In order to establish that Mr Mamakos’s earning capacity might be greater than that reflected in the child support assessment and render the assessment unfair, all three compulsory criteria set out in subsection 117(7B) of the Act must be satisfied.  Those three criteria are:

   (a)    one or more of the following applies:

   ·the parent does not work despite ample opportunity to do so (subparagraph 117(7B)(a)(i));

   ·the parent has reduced the number of hours per week of their employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged (subparagraph 117(7B)(a)(ii));

   ·the parent has changed their occupation, industry or working pattern (subparagraph 117(7B)(a)(iii)); and

   (b)    the parent’s decision not to work, to reduce the number of hours, or to change their occupation, industry or working pattern is not justified on the basis of:

   ·the parent’s caring responsibilities (subparagraph 117(7B)(b)(i)); or

   ·the parent’s state of health (subparagraph 117(7B)(b)(ii)); and

   (c)    the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child (paragraph 117(7B)(c)). 

3. Mr Mamakos left his employer on 11 August 2023 and started working as [an occupation] on a contract basis on 15 August 2023.  As Mr Mamakos has changed his working pattern the first criterion is met.  There is no evidence to indicate the changes to his employment were justified by his state of health or caring responsibilities.  The second criterion is also met.  Mr Mamakos is working in the same field and working full-time hours.  The income from his current role has increased when compared to recent previous financial years.  On this basis, the Tribunal is not satisfied that a major purpose of Mr Mamakos changing roles was to affect the child support assessment.  Criterion three is not met.

4. As all three criteria must be satisfied, it follows that if one is not satisfied, then this ground cannot be considered.  The Tribunal finds that the earning capacity criteria (set out in subsection 117(7B) of the Act) are not met for Mr Mamakos in this case.

5. The Tribunal is also satisfied the earning capacity criteria are not met in relation to Ms Reace.

Any hardship that would be caused

1. The Tribunal has found that Mr Mamakos would be more fairly assessed as if he had an adjusted taxable income of approximately $128,800.  Mr Mamakos is a contractor and is uncertain if his contract will be extended again beyond mid-February 2025.

2. Mr Mamakos lists total estimated household expenditure of approximately $96,720 per annum, however, this includes mortgage costs of approximately $41,600 part of which relate to a loan from his parents of which there is no detail.  Otherwise he has no unusual or out of the ordinary expenses.  Mr Mamakos has annual personal expenditure amounting to $43,316.

3. Mr Mamakos told the Tribunal he was struggling financially and relied on child support from Ms Reace to help meet expenses for [the child] including his schooling costs.  Mr Mamakos reiterated there was some uncertainty about his employment contract and no guarantee he would have an income after the current contract ended.

4. Ms Reace is working full-time and her adjusted taxable income in 2022–23 was $71,371.  The Tribunal has found this will not change significantly going forward.  Her total estimated household expenditure is approximately $74,464.  This includes an amount of $8,996 for household repairs which Ms Reace has stated are ongoing because she needs to replace her hot water system at some point in the future.  It also includes a cost of $10,400 for two mobile telephone plans which appears high given a premium Telstra mobile phone plan is approximately $90 per month (equal to $2,160 per year for two plans).  Ms Reace estimates her total personal expenditure at $36,400 including her child support payments.  In addition to this amount Ms Reace has said she is repaying a child support debt.

5. Ms Reace told the Tribunal she was struggling financially particularly given her child support debt.  Ms Reace said it was extremely challenging to meet her ongoing child support obligations as well as her daily living costs.  Ms Reace said she was already finding it difficult to survive but had additional maintenance costs associated with her home that she would be required to meet.  Ms Reace reiterated that because she had taken on loans before the change in care for [the child] this was also contributing to her financial hardship.

6. Ms Reace applied for a change of assessment on 16 August 2023.  The Tribunal finds it just and equitable, in the circumstances of this case, to commence its determination from 1 September 2023 and not an earlier date.  This is the beginning of the month after the application was lodged and is the approximate mid-point between when Ms Reace lodged her application and Mr Mamakos was informed a change may occur.

7. Having considered the interests of both parents the Tribunal proposes to make the following determination:

   ·     for the period from 1 September 2023 to 31 August 2025 the adjusted taxable income of Mr Mamakos is varied to $128,800.

8. The Tribunal has varied the income of Mr Mamakos until 31 August 2025.  In doing so the Tribunal acknowledges his contract of employment is currently due to end on around 16 February 2025 and may not be extended for a further period.  The Tribunal notes the objections officer has varied the income of Mr Mamakos by the same amount and for the same period but determined under section 75 of the Act the objection decision will cease in the event special circumstances no longer apply.  The Tribunal further notes that to enact this clause Mr Mamakos will be required to provide sufficient evidence to show his contract has ceased and the option to renew was not available.  The Tribunal considers this approach to be appropriate in the circumstances.

9. In accordance with the decision of the Tribunal, as previously calculated, the annual rate of child support payable by Ms Reace will be approximately $10,227 from 1 September 2023.

10. The decision of the Tribunal will result in a reduced level of child support payable by Ms Reace when compared to the administrative assessment.  The Tribunal nonetheless acknowledges the change in care for [the child] has meant her child support liability has increased and Ms Reace has limited capacity to meet this obligation as well as her living costs and other financial commitments.  The Tribunal notes in evidence provided by Ms Reace, however, that she continued to make lifestyle purchases – in this case a television – after the change in care took place.  The Tribunal is also satisfied that Ms Reace has some capacity to reduce her ongoing personal expenditure.

11. In reaching this conclusion the Tribunal is also conscious that a long standing principle of the child support scheme is that parents have a primary duty to maintain the child. This duty has priority over all commitments of the parents apart from their necessary commitments for self-support or necessary commitments to support another child or person.

12. There may be some hardship arising to Ms Reace from 1 September 2023 as a result of the determination made by the Tribunal, however, this must be balanced against the needs of Mr Mamakos and [the child].  Ms Reace also has the option of entering into an arrangement with Child Support for the payment of any arrears.

13. The Tribunal finds the proposed determination will not cause hardship to Mr Mamakos or [the child] and is otherwise just and equitable.

Issue 3 – Is it otherwise proper to make a particular determination?

1. The third step is to consider whether it would be otherwise proper to make a particular departure determination in accordance with sub-subparagraph 98C(1)(b)(ii)(B) of the Act. Subsection 117(5) sets out the matters that must be considered when deciding whether it would be otherwise proper to make a departure determination. It focuses on the balance of support carried between the parents on one hand and the taxpayer on the other. It is appropriate for the children to be primarily supported by their parents rather than by government assistance. The Tribunal must consider whether the level of a benefit, in particular family tax benefit, received by the party caring for the children may be affected by the level of child support.

2. Mr Mamakos has not indicated he is in receipt of family tax benefit for [the child].  The Tribunal is satisfied that its determination will result in an appropriate apportionment of financial responsibility between the parents and the community and would be otherwise proper.

DECISION

The decision under review is affirmed.