Bally and Bally (Child support)

[2018] AATA 2411

Bally and Bally (Child support) [2018] AATA 2411 (24 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013792

APPLICANT:  Mr Bally

OTHER PARTIES:  Ms Bally

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  24 May 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Acceptance of an application for an administrative assessment - Residency of the liable parent - Liable parent was a resident of Australia - Decision under review affirmed

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

1. Mr Bally and Ms Bally are the parents of [Child 1] and[Chi 2]. On 17 March 2017, Ms Bally applied to register a child support case. The Department of Humans Services – Child Support (“the CSA”) subsequently decided to grant Ms Bally’s application. Mr Bally objected to that decision. An objections officer affirmed the decision. Mr Bally belatedly sought further review. He also applied for an extension of time in which to apply for further review. This Tribunal, differently constituted, granted his extension of time application. I heard the substantive matter on 24 May 2018. I spoke to Mr Bally and Ms Bally by conference phone.

2. Section 23 of the Child Support (Assessment) Act 1989 (“the Assessment Act”) provides that an application to register a child support case is properly made if it complies with certain requirements. Relevantly, paragraph 25(d) of the Assessment Act states:

   A parent ... of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:

   ...

   (d)if either parent of the child is not a resident of Australia on the day on which the application is made – the application meets the requirements of sections 29A and 29B [which concern reciprocating jurisdictions].

3. Mr Bally claims that he has been a resident of [Country 1], and therefore not a resident of Australia, since 2013.

4. Section 10 of the Assessment Act states that a person is a resident of Australia on a day if on that day they are a resident of Australia for the purposes of the Income Tax Assessment Act 1936, and section 6 of that Act states, relevantly:

   resident or resident of Australia means:

   (a)a person ... who resides in Australia and includes a person:

   (i)whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia; ...

5. The CSA has developed policy to assist decision-makers. The Tribunal is not bound by Departmental policy but the Tribunal will apply lawful Departmental policy unless there are cogent reasons to the contrary: Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179. The relevant policy is contained at 1.6.1 of the Child Support Guide which is available on the internet. It includes the following:

Domicile test

This test generally applies to Australian residents who leave Australia.

A person whose domicile is in Australia continues to be a resident of Australia unless their permanent place of abode is outside Australia.

Domicile

A person acquires a domicile of origin at birth. This is the domicile of their parents.

A person whose domicile is Australia will maintain their Australian domicile unless they acquire a different domicile by choice or by operation of law.

Generally, a person will have acquired a new 'domicile of choice' in a particular country if:

·they are legally present in a country, and

·they have formed an intention to remain in that country for the foreseeable future, and for a period that they regard as indefinite.

...

Permanent place of abode

A permanent place of abode does not have to be 'everlasting' or 'forever'. A person who intends to return to live in Australia in the foreseeable future can still set up a 'permanent place of abode' elsewhere. If a person whose domicile is in Australia is residing elsewhere, the Registrar will take into account the following factors when deciding if that other country is their permanent place of abode:

·the intended and actual length of the person's stay in the overseas country:

·...

·the duration and continuity of the person's presence in the overseas country:
If a person has no fixed or habitual place of abode overseas but moves, for example, from one country to another, this may tend to suggest that the person has not established a permanent place of abode outside Australia;

1. Mr Bally was born in Australia in 1981. Mr Bally and Ms Bally married in 2002. Their children were born in 2008 and 2010. There is no dispute that Mr Bally was a resident of Australia until at least 2012 when the family decided to travel throughout the world. Mr Bally earned income via his travel [blog]. . From the time Mr Bally departed Australia in May 2012 until the time Ms Bally applied to register a child support case in March 2017, Mr Bally was in Australia for one two-week period in 2013; one fifteen-week period in 2014; and one eight-week period in 2015.

2. Ms Bally stated that, to date, Mr Bally has been to [Country 1] for one two-month period in 2013; a one-month period in 2014 when his father was terminally ill; and one period of a few weeks in March 2017. I asked Mr Bally whether he agreed with Ms Bally’s evidence on that issue. His answers were surprisingly vague for someone who claims to have been residing in [Country 1] since 2013. He eventually stated that he had been to [Country 1] for “several months” in 2013; “at least six weeks” during December 2013 and January 2014 when his father was terminally ill; and “at least three weeks” in 2017. He said he might have been in [Country 1] in 2015; “I can’t recall”. Ms Bally replied that Mr Bally had not been in [Country 1] in 2015. (Mr Bally and Ms Bally did not separate until December 2016 or January 2017.) Having heard from both parents, I considered Ms Bally’s evidence to be the more reliable evidence on point.

3. Mr Bally obtained an [Country 1] passport in 2013. He retains his Australian passport. Ms Bally’s written submissions included the following:

   [Mr Bally] only found out he was a citizen of [Country 1] during our visit in 2013 by accident when he went to [Country 2] and was stopped at the border. His mother did it when he was a child. He has never lived there and his parents only returned there recently after [Mr Bally] married approx 7 yrs ago.

4. At the hearing, Mr Bally said he had been an [Country 1] citizen since birth. I asked him whether he had been aware of that fact prior to 2013. He replied: “My mother might have mentioned it when I was a child; I don’t recall.”

5. The CSA spoke to Mr Bally on 2 May 2017 and noted the following:

   Back in Australia at the moment for the purpose of settling affairs/court proceedings

   Intention is to remain in Australia whilst the custody is being sorted out but to depart to the [COUNTRY 3] upon completion

   Custody and financial issues are before the family court at the moment

   Believes himself to be a nomad. He has been nomadic for the last 5 years

   Doesn’t consider himself to be a resident of Australia. All his belongings here are in a suitcase

   If he was to chose [sic] a country he would say he is a resi of [COUNTRY 3] – not a permanent resident there officially but intention to move there

   Intention to return to the [Country 3] when the custody issues are sorted out

   Belongings are currently with him as they are confined to his personal belongings in a suitcase

   Own a joint property with ex-wife in [a city in Australia] (financial split so this is likely to be part of the settlement)

   No immediate family in Australia

   Mother is in [Country 1]

   Born in Australia – nationality on passport is Australian

   Short term rental in Australia

   Self-employment: employment travels with him depending on where he is located

   ...

6. On the same day the CSA noted:

   Resi:

   Explained purpose of resi decision is to determine which [country’s financial year] of income is used in the assessment and to determine if an application is valid

   Need to be a resi of Aus or a recip jurisdiction for an app to be accepted. Advised [COUNTRY 3] is recip jurisdiction

7. In response to one of my questions, Mr Bally stated that if he had been asked on 2 May 2017 about his country of residence he would have replied that he was a resident of [Country 1]. I referred him to the CSA’s file note dated 2 May 2017. He said he had read the hearing papers and he did not agree with the accuracy of a number of the CSA’s file notes. He complained about the lack of professionalism of some of the CSA staff. He said that the file note to which I had referred him was of a conversation that had occurred either while he was at court or while he was in the back of an Uber ride with his children. He said he had answered the CSA’s questions without being able to fully focus on the relevant issues. Nevertheless, he acknowledged that he had probably used the words “nomad” and “nomadic”. He did not specifically dispute any statement in the CSA’s file note. Ms Bally added that there are numerous references in his travel blog to him being a nomad.

8. On 10 May 2017 the CSA wrote to Mr Bally and informed him that it had decided to register the child support case.

9. On 19 May 2017, Mr Bally phoned the CSA and it noted:

   Have completed residency referral macro as [Mr Bally] has mentioned that [he] intends to go to live with his mother in June and take the children of the case and this is what part of the court order is about.

   Have advised that if we deem him to be a resident of [Country 1] then the case will be ineligible.

10. Mr Bally did not return to [Country 1]. On 4 August 2017 he phoned the CSA and it noted:

    [Mr Bally] questioned if rego was correct due to him not being in Australia at time of registration and believes this to be invalid as he was residing in [Country 1] which is a non-reciprocating jurisdiction without a court ordered child support assessment.

11. On balance, I accept the accuracy of the CSA’s contemporaneous file notes of its conversations with Mr Bally.

12. There is no dispute that Mr Bally was an Australian resident from birth until at least 2012. His domicile was Australia. I accept the accuracy of his statement to the CSA that since 2012 he has led a nomadic lifestyle. That conclusion is supported by his submissions to the effect that his strongest argument that he is a resident of a country other than Australia is his argument that he is a resident of [Country 1], and yet, following his separation from his wife of fourteen years, he travelled to [Country 1] in March 2017 for the first time in three years, and he spent approximately three weeks with his mother who lives in [Country 1], and then he departed [Country 1]. He has not returned to [Country 1] to date.

13. Viewing the evidence as a whole, I find that, as at March 2017, Mr Bally had not formed an intention to reside in another country for the foreseeable future and an indefinite period. He had not acquired a domicile in another country. Further, as a result of his nomadic lifestyle, he had not acquired a permanent place of abode in another country. For those reasons, Mr Bally remained an Australian resident. The CSA’s decision to register the child support case was correct.

DECISION

The decision under review is affirmed.