Ayers and Carter (Child support)

[2020] AATA 2167

Ayers and Carter (Child support) [2020] AATA 2167 (18 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017484

APPLICANT:  Miss Ayers

OTHER PARTIES:  Child Support Registrar

Mr Carter

TRIBUNAL:Member A Schiwy

DECISION DATE:  18 February 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Carter remains a resident of Australia for child support purposes and a terminating event has not occurred.

CATCHWORDS

CHILD SUPPORT – resident of Australia – domiciled in Australia - no permanent place of abode established outside Australia – decision under review set aside and substituted

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. Miss Ayers and Mr Carter are the parents of [Child 1] who is eight years old. A child support case has been registered since 2014. Mr Carter has been assessed to pay child support to Miss Ayers. This application is about whether Mr Carter has ceased being an Australian resident and therefore no longer liable to pay child support to Miss Ayers.

2. In March 2017 Miss Ayers informed the Department of Human Services (‘Child Support’) that Mr Carter was living overseas. A review was commenced and on 30 October 2018 Child Support decided that Mr Carter ceased to be a resident for child support purposes on 2 October 2017 and the child support case was terminated from that date.

3. On 18 December 2018 Miss Ayers objected to this decision and an extension of time to lodge her objection was granted. On 12 September 2019 a Child Support objections officer disallowed the objection.

4. Miss Ayers applied to the tribunal on 24 September 2019 for a review of the decision of the objections officer.

5. A hearing was held on 13 February 2020. Miss Ayers spoke to the tribunal via teleconference and gave evidence on affirmation. Mr Carter was informed of the hearing in writing on 17 December 2019. The letter was posted to him and emailed to his current email address. He was sent an SMS reminder on 12 February 2020. An attempt was made to ring Mr Carter for the hearing and another person answered the phone. They stated that Mr Carter was not present. The tribunal is not aware of any attempt by Mr Carter to contact the tribunal about the hearing. The tribunal decided to proceed with the hearing without Mr Carter present. He was given the opportunity to attend and offered no explanation as to why he would not/did not attend.

6. The matter was adjourned until 18 February 2020 to allow Miss Ayers the opportunity to provide further documentary evidence.

7. In considering this matter the tribunal took into account the oral evidence of Miss Ayers; and the relevant documentation provided by the Child Support Registrar (numbered 1 to 227). Copies of these documents were provided to all parties. In addition the tribunal took into account additional documentation lodged by Miss Ayers (A1 to A7); a copy has been attached to the decision.

ISSUES

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (‘the Act’).

2. Section 12 of the Act provides for child support terminating events. A child support terminating event can happen, in relation to the parent liable to pay child support, if the person ceases to be a resident of Australia, unless they reside in a reciprocating jurisdiction to which international maintenance arrangements can apply. In this case, Mr Carter has submitted that he is living in [Country 1] and this country is not a reciprocating jurisdiction.

3. Therefore, if Mr Carter is not a resident of Australia, a child support terminating event will have occurred and Mr Carter’s liability to pay child support to Miss Ayers for [Child 1] will have ended.

4. The issue for the tribunal to determine is whether Mr Carter is a resident of Australia for child support purposes.

CONSIDERATION

1. Section 10 of the Act provides that for the purposes of the Act a person is a resident of Australia on a day if on that day the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

2. Section 6 of the Income Tax Assessment Act 1936 sets out the definition of a resident or a resident of Australia. The Income Tax Assessment Act 1936 establishes four tests to determine whether an individual is a resident. The relevant tests are:

• residence according to ordinary concepts;

• the 183 day test;

• the Commonwealth superannuation fund test; and

• the domicile and permanent place of abode test.

1. In relation to the concept of residence according to ordinary concepts, the Preamble to Taxation Ruling IT 2650 indicates that the dictionary meaning of the word to reside is relevant, stating:

   The ordinary meaning of the word “reside”, according to the Shorter Oxford English Dictionary, is to dwell permanently, or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.

2. In relation to domicile, Taxation Ruling IT 2650 refers to the relevance of section 10 of the Domicile Act 1982, which provides:

   The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his or her home indefinitely in that country.

3. Taxation Ruling IT 2650 goes on to state:

   In determining a person’s domicile for the purposes of the definition of “resident” in subsection 6(1), it is necessary to consider the person’s intention as to the country in which he or she is to make his or her home indefinitely. Thus, a person with an Australian domicile but living outside Australia will retain that domicile if he or she intends to return to Australia on a clearly foreseen and reasonably anticipated contingency e.g., the end of his or her employment. On the other hand, if that person has in mind only a vague possibility of returning to Australia, such as making a fortune (a modern example might be winning a football pool) or some sentiment about dying in the land of his or her forebears, such a state of mind is consistent with the intention required by law to acquire a domicile of choice in the foreign country - see In the Estate of Fuld (No. 3)(1968) p.675 per Scarman J at pp. 684-685 and Buswell v.I.R.C (1974) 2 All E.R. 520 at p. 526.

4. In relation to the concept of a permanent place of abode, Taxation Ruling IT 2650 cites the leading case on this issue, Federal Commissioner of Taxation v Applegate [1979] FCA 37, and states:

   The word “permanent” in subparagraph (a)(i) of the definition of “resident” does not have the meaning of everlasting or forever but is used in the sense of being contrasted with temporary or transitory (Applegate 79 ATC at p.4314; 9 ATR at p.907).

   It is clear from Applegate and Jenkins that a person’s permanent place of abode cannot be ascertained by the application of any hard and fast rules. It is a question of fact to be determined in the light of all the circumstances of each case. Some of the factors which have been considered relevant by the Courts and Boards of Review/Administrative Appeals Tribunal and which are used by this Office in reaching a state of satisfaction as to a taxpayer’s permanent place of abode include:

   (a)     the intended and actual length of the taxpayer's stay in the overseas country;

   (b)     whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time;

   (c)      whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia;

   (d)     whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence;

   (e)    the duration and continuity of the taxpayer’s presence in the overseas country; and

   (f)      the durability of association that the person has with a particular place in Australia, i.e. maintaining bank accounts in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer’s children, family ties and so on.

5. The tribunal noted that Child Support’s policy in relation to residency is consistent with the taxation ruling (refer to the Child Support Guide at part 1.6.1).

Evidence

1. The papers provided by Child Support include the following evidence contained in file notes and correspondence:

   ·Mr Carter was born in [Country 2] but has been an Australian citizen since 2008. He was living substantially in Australia until September 2016.

   ·On 10 March 2017 Miss Ayers had contacted Child support to advise them that Mr Carter had possibly moved to [Country 3] and was living there with his new girlfriend. She believed he was working for [Business 1].

   ·On 30 March 2017 Child Support wrote to Mr Carter and asked him to complete a questionnaire about his residency.

   ·On 30 May 2017 Child Support made three attempts to contact Mr Carter by phone and attempts were also made by letter and email. He had made no contact with Child Support. Child Support contacted Miss Ayers and she said Mr Carter had a new girlfriend in [Country 1] and spent a great deal of time with her when he was not working. She said Mr Carter’s assets were still in Australia.

   ·Mr Carter lodged a tax return in Australia for 2015-16.

   ·On 30 May 2017 Child Support decided that Mr Carter was still a resident of Australia and had been since the case was registered.

   ·On 30 May 2017 Miss Ayers advised Child Support that Mr Carter was now working in [Country 4] (based on his LinkedIn profile). She said that his family, who live in [Country 2], advised her that Mr Carter planned to visit them in September 2017.

   ·On 6 October 2017 Mr Carter contacted Child Support and stated that he was leaving Australia tomorrow to live in [Country 1] permanently. He was only in Australia to sort a few things out before returning to [Country 1]. He is married to a [Country 1 national] and has no ties left in Australia. He advised that he was working in [Country 4] on a FIFO basis but was not residing there. He said he has a multiple entry business visa with [Country 1] and does not expect to come back to Australia. He said his income was $155,000 and he would be lodging a tax return but it might be his last in Australia. Mr Carter was advised that more information was needed and he said he would call back ‘next week’.

   ·On 29 March 2018 Miss Ayers rang Child Support to state that Mr Carter had not paid her. She believed he was currently in the process of bringing his ‘new [Country 1] bride’ to Australia.

   ·In April 2018 Child Support obtained bank statements for the period 1 January to 31 March 2018 for [Bank 1] accounts held by Mr Carter.

   oThe transaction account showed three large transfers in USD of around $4,000 per month and payments to a loan, a credit card and small cash withdrawals overseas.

   oA flexi loan (limit of $10,000).

   oA credit card used to pay some regular payments including $184 per month for storage; and foreign transactions in [three countries, and] [Country 4] (including cash and groceries), and [Country 1] (flower delivery, cash).

   ·Details of a further account were later provided from [Bank 1]. The account was a US currency account and opened on 12 January 2018. From 12 January 2018 there were numerous transfers into the account in USD from ‘[Ms A name variant]’ with transfers out mostly to Mr Carter’s transaction account and some referenced as ‘international’.

   ·On 1 October 2018 Mr Carter provided a completed residency questionnaire stating that he left Australia permanently on 13 September 2016 and that he normally lived in [Country 1] where he was renting a residence. He was currently employed on a FIFO basis and had been working in [Country 5] since 1 May 2018 for [Business 2]. He said he has no plans to return to Australia. He provided a marriage certificate which shows he married in 2017 and he stated that he had a baby with his current wife. The questionnaire asked if he had been granted permanent residency in another country and he left this question blank.

   ·On 24 October 2018 Miss Ayers told Child Support that Mr Carter was employed by [Business 3] and working overseas. (An internet search shows that [Business 3] are an Australian company and that they operate the [Business 2].) She said that Mr Carter has things in storage in [a named suburb] and he still owns a $40,000 motor bike in Australia. She said Mr Carter was working four weeks in [Country 5] and then two weeks off in [Country 1].

   ·Child Support were informed by [Business 3] that Mr Carter was employed by an associated company.

   ·A DIAC search showed that Mr Carter had left Australia for the following periods:

   o17/3/14 to 26/3/14

   o10/6/14 to 27/6/14

   o4/4/16 to 20/4/16

   o4/7/16 to 14/7/16

   o13/9/16 to ? (date missing)

   oDeparture date 13/1/17

   oDeparture date 10/3/17

   ·A search showing Mr Carter was in [Country 2] as follows:

   o? to 23/11/16

   o12/1/17 to ?

   o3/10/17 to 7/10/17

   ·An incoming passenger card with the date “-/20/2017” stating that Mr Carter had flown from [another country] and his country of residence was [Country 3]. His intended stay was for one day. (This would appear to relate to a visit to Australia in January 2017.)

   ·An incoming passenger card dated 1 March 2017 stating that Mr Carter had arrived from [Country 2] and his country of residence was [Country 4]. His emergency contact was [name] (his mother). His intended stay was for nine days.

   ·An outgoing passenger card dated 10 March 2017 stating that Mr Carter was travelling to [Country 2]. He declared that he had an Australian passport and that his ‘country of residence’ was [Country 4].

   ·An incoming passenger card dated 8 October 2017 stating that Mr Carter was in Australia for four days and his country of residence was [Country 1].

   ·A search on ‘[an industry website]’ showing Mr Carter was ‘actively seeking a new role due to suspension of [business operations]’ in December 2016. His CV showed he was with [a named business] until September 2016.

   ·A LinkedIn page showing that Mr Carter is a [specified occupation].

   ·A search (origin unknown – but possibly from a credit check) stating that [Business 1] was Mr Carter’s employer on 29 December 2016.

   ·Miss Ayers stated in her objection that when Mr Carter visited Australia in October 2017 he had finished work in [Country 4] and was looking for work in Australia.

   ·Miss Ayers provided an email from Mr Carter dated 19 April 2018 stating that he was out of work and ‘I am now living in [Country 1]’. He sent a further email to her in May 2018 stating that he would be happy to pay child support if she provided more reasonable access to [Child 1]. He noted that [Country 1] is not a reciprocal country for child support.

   ·On 21 December 2018 Miss Ayers told Child Support that Mr Carter was no longer working in [Country 5] but had taken up residence in [Country 3] and she had been informed that Mr Carter has lodged a spouse application (visa) for his wife.

   ·In April 2019 Miss Ayers provided a copy of Mr Carter’s LinkedIn page which shows he commenced working in Australia in 1998. He continued to work in Australia in various locations; apart from working in [Country 6] from July 2002-November 2003, [Country 7] and [Country 7] from February 2007 to September 2011, and [Country 7] for various times during October 2011 to March 2014. He finished at [Business 4] in September 2016 and worked in [Country 4] from December 2016 to March 2018. He then states he was working for [Business 5] ([Country 3]) from December 2018. There is no mention of the employment in [Country 5].

   ·Mr Carter was informed of Miss Ayers’ objection but did not respond.

2. In her written application for review Miss Ayers stated Mr Carter has not resided in [Country 1] since December 2018; he was living and working in [Country 3] and since August 2019 he has been living in [Country 9].

3. Miss Ayers provided the following documentary evidence:

   ·A text from Mr Carter sent in April 2016 stating he was looking for work outside of [Business 4] including overseas positions.

   ·LinkedIn message dated [in] July 2017 stating Mr Carter was working with [Business 6] and “actively seeking [industry] roles to suit family life and willing to relocate.”

   ·Screenshot from Mr Carter’s [social media] page showing a conversation with a friend in January 2018. He states “Job is very uncertain here so madly trying to find something else. I can get work in Australia but visa for [Ms A] is a long process so still looking for something else.

   ·LinkedIn account showing Mr Carter was working in [Country 4] from December 2016 to March 2018 and for [Business 5] from December 2018 to July 2019.

   ·Screenshot from Mr Carter’s [social media] page showing a conversation [in] August 2019 where he states he has a [specified] motor bike in storage in Australia.

   ·Screenshot from Mr Carter’s mother’s ([named]) [social media] page dated [in] September 2019 showing photos from a visit to [Country 9]. She states that Mr Carter and [Ms A] were living at the [company] apartment but were moving into their own apartment next week.

4. At the hearing Miss Ayers stated:

   ·When she was with Mr Carter he moved around a lot. At one stage they were living in [Country 4]; [Child 1] was born there.

   ·Mr Carter did not own any property as he moves so often.

   ·She and Mr Carter separated in 2014 when [Child 1] was three and Mr Carter has had very little contact since then.

   ·She was aware he was planning to move overseas in late 2016.

   ·Mr Carter is paying for storage in Australia.

   ·She thinks he met his current wife in [Country 3] in late 2016 but is not sure.

   ·His wife has a child the same age as [Child 1] and a child with Mr Carter.

   ·A mutual friend told her that Mr Carter had applied for a visa for his wife to live in Australia.

   ·He is currently living in [Country 9] and was living in [Country 3] before that; she does not believe he is living in [Country 1].

   ·Mr Carter has not worked in [Country 1].

   ·He was born in [Country 2] but has lived in Australia for many years. He did not have any links to [Country 1] prior to marrying a [Country 1 national].

Discussion of evidence

1. Mr Carter has provided very little information about his living arrangements and has chosen not to engage in the objection process and current review. He did not respond to the question about obtaining a visa in [Country 1] when he completed his residency questionnaire.

2. Miss Ayers was a credible witness however she has very little contact with Mr Carter and has not had conversations with him about his plans. However the documents she provided were considered by the tribunal to be genuine.

3. Mr Carter’s resume, contained in his LinkedIn profile shows that he has moved around a lot during his career and worked overseas.

4. Mr Carter’s LinkedIn account does not appear to accurately reflect his jobs and work locations. Given the evidence that he was employed by [Business 5] in December 2016 it would appear that he left Australia in September 2016 to take up a job in [Country 3] (this is also supported by the ‘incoming passenger card’ stating that he was residing in [Country 3]). In or around January 2017 he commenced working with [Business 6] in [Country 4]. It is unknown if this was on a FIFO basis but his incoming passenger card supports the view that it was not; he was living in [Country 4].

1. His LinkedIn account states he worked in [Country 4] until March 2018 and he told Child Support that he commenced working in [Country 5] in May 2018; so he was possibly unemployed for one to two months. He told Child Support the work in [Country 5] was on a FIFO basis and given he was married at this stage it is likely his base was in [Country 1] with his wife.

2. The [Country 5] job appears to have ended in late 2018 when Mr Carter commenced working in [Country 3] again and there is no evidence that this was on a FIFO basis. He then appears to have commenced working in [Country 9] in July 2019 and is living there (supported by Mr Carter’s mother’s [social media] post).

3. It is not known how, when or where Mr Carter met his wife; it is possible it was online sometime after March 2017 (when he stated on his incoming passenger card that he resided in [Country 4]). It would appear from his credit card transactions that Mr Carter was physically in [Country 1] on 25 December 2017 and sent his wife flowers in January 2018 and again in February 2018.

4. There is no evidence that Mr Carter has applied for permanent residency in [Country 1] and he has in fact been living in [Country 3] and [Country 9] since December 2018.

5. There is evidence that Mr Carter intends to return to Australia and that he has applied for a visa for his wife to live in Australia. His [social media] comments suggest that he wants to return to Australia where he knows he can obtain work but cannot because the visa process is taking so long. This is also supported by the evidence that he has retained his personal belongings and a motor bike in Australia; and he retains his Australian bank accounts.

Findings of fact

1. After reviewing all of the evidence the tribunal found that:

   ·      Mr Carter was born in [Country 2] but is now an Australian citizen. He has lived in Australia since 1998.

   ·      Mr Carter has a history of frequent moves due to work. Up until September 2016 he lived predominantly in Australia.

   ·      In September 2016 Mr Carter left Australia as his job in Australia had finished and he took up new employment in [Country 3].

   ·      Mr Carter lived and worked in [Country 3] from September 2016 to December 2016/January 2017.

   ·      Mr Carter lived and worked in [Country 4] from January 2017 to March 2018. It is possible he commenced working on a FIFO basis at some time in 2017 to enable him to spend time in [Country 1].

   ·      From March 2018 to December 2018 Mr Carter lived in [Country 1] and worked on a FIFO basis from May 2018 to December 2018.

   ·      Since December 2018 Mr Carter has resided with his wife in [Country 3] and [Country 9].

   ·      Mr Carter has applied for his wife to have a visa to Australia on a long-term basis.

   ·      Mr Carter intends on returning to Australia when his wife can accompany him.

‘Residence’ according to ordinary concepts

1. The tribunal has found that since September 2016 Mr Carter has been living in [Country 3], [Country 4], [Country 1] and [Country 3] (again) and [Country 9].

2. On the basis of the evidence the tribunal was satisfied that Mr Carter has not been a resident of Australia within the ordinary meaning of the word since September 2016.

Domicile and ‘permanent place of abode’

1. The tribunal then considered whether Mr Carter is domiciled in Australia, and, if he is, whether he had established a permanent place of abode outside Australia.

2. A person whose domicile is Australia will maintain their Australian domicile unless they acquired a different domicile of choice or by operation of law. A person will have adopted a new domicile if they can demonstrate an intention to make their home indefinitely in another country (e.g. if the person has obtained a migration visa). A working visa, even for a substantial period such as two years, would not be sufficient evidence of an intention to acquire a new domicile of choice.

3. In this case it is clear that Mr Carter’s domicile by choice, since 1998, is Australia.

4. The expression ‘place of abode’ refers to a person’s residence, where one lives with one’s family and sleeps at night. In essence, a person’s ‘place of abode’ is that person’s dwelling place or the physical surroundings in which a person lives. As noted in Taxation Ruling IT 2650 discussed above, ‘permanent’ in this context does not have to mean ‘forever’ but should be used in the sense of being contrasted with ‘temporary’ or ‘transitory’.

5. As discussed above, the tribunal has found that Mr Carter has lived in several countries since he left Australia in 2016 and there was no evidence that he has established a permanent abode anywhere. He has been living where his work takes him.

6. Mr Carter has several ties to Australia. The first being that he has a young child living in Australia, who according to his communication with Miss Ayers, he wants to see. Mr Carter holds bank accounts, a motor bike and some personal possessions in Australia.

7. Mr Carter has ties in [Country 1]; his wife is a [Country 1] citizen and they have a child. There is no evidence that he has any significant assets in [Country 1] or a permanent residence.

8. Having considered the evidence, the tribunal was not persuaded that Mr Carter has established a permanent place of abode in [Country 1] or any other country. It is more likely than not that Mr Carter is working in a country where he can obtain employment and live with his wife; and that he is aiming to return to Australia when his wife obtains a visa.

9. On the basis that Mr Carter has not established a permanent place of abode outside of Australia, the tribunal concluded that Mr Carter remains a resident of Australia and therefore a child support terminating event has not occurred. For these reasons the decision under review is set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Carter remains a resident of Australia for child support purposes and a terminating event has not occurred.