Carrigan & Fredericks (SSAT Appeal)
[2011] FMCAfam 544
•15 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARRIGAN & FREDERICKS (SSAT APPEAL) | [2011] FMCAfam 544 |
| CHILD SUPPORT – Appeal from decision of SSAT – error of law – terminating event for child support purposes – payer of child support resident in [Q] – whether error of law established in reasoning of SSAT – error established – appeal upheld. |
| Child Support (Assessment) Act 1989, ss.12(3), 12(4A)(b), 25, 29A, 74, 100, 117(7B) Child Support (Registration and Collection) Act 1988, ss.17, 72D, 110B, 110E, 110F, 110G, 110G(2) Family Law Act 1975 (Cth), s.117 Income Tax Assessment Act 1936, ss.6(a), 7A(2) |
| Taxation Ruling IT2650 Maider & Carrigan [2009] FamCA 483 SSAT Reasons for Decision dated 24 May 2010 Neal v Secretary, Department of Transport (1980) 3 ALD 97 Comcare v Etheridge [2006] FCAFC 27 Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No.2) (1980) 33 ALD 38 Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 Apthorpe v Repatriation Commission (1987) 13 ALD 656 Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280 LDME & JMA [2007] FMCAfam 712 Browne v Green (2002) 29 Fam LR 428 |
| Applicant: | MR CARRIGAN |
| Respondent: | MS FREDERICKS |
| File Number: | ADC 2519 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 29 March 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 15 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ross |
| Solicitor for the Applicant: | Matthew Mitchell |
| Counsel for the Respondent: | Ms Fredericks in Person |
ORDERS
The decision of the Social Securities Appeals Tribunal made on 24 May 2010 and despatched on 7 June 2010 be set aside.
It is declared that the appellant ceased to be a permanent resident of Australia on 17 January 2008 and this constituted a terminating event for the purposes of all pre-existing administrative assessments of child support pertaining to the parties in these proceedings.
The notice of appeal filed on 2 July 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carrigan & Fredericks (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2519 of 2010
| MR CARRIGAN |
Applicant
And
| MS FREDERICKS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by Mr Carrigan (“the appellant”). The respondent in the proceedings is Ms Fredericks (formerly
Ms Maider) (“the respondent”). The proceedings are concerned with a decision of the Social Securities Appeal Tribunal “the SSAT” made on 24 May 2010.[1]
[1] The decision was despatched to the parties on 7 June 2010.
On 2 July 2010, the appellant filed a notice of appeal, in this court, in respect of the decision. He seeks an order that the decision of the SSAT be set aside. The decision concerns the appellant’s residency in Australia, for the purpose of calculating child support, particularly the exact date on which he ceased to be a resident of Australia.
The SSAT found that Mr Carrigan ceased to be an Australian resident on 15 June 2009. In lieu of this decision, the appellant seeks that this court should substitute its own finding regarding his residency in this country and find that he ceased his residence in Australia on 17 January 2008, which was the date he took up employment in [Q] [in the Middle East].
Primarily, the case concerns the application of section 12(3) of the Child Support (Assessment) Act 1989, “the Assessment Act” to the circumstances of this case. This section provides the definition of the expression “child support terminating event” in respect of a parent who is liable to pay child support to the other parent of any child or children concerned.
The definition includes as one such terminating event the fact of a liable parent ceasing to be a resident of Australia. In such an eventuality, pursuant to section 74 of the Assessment Act, the Registrar of the Child Support Agency “the CSA” is mandatorily required to give effect to any such terminating event, whether by amending the applicable administrative assessment of child support or otherwise.
Mr Carrigan has been previously assessed as a parent liable to pay child support to Ms Fredericks. It is agreed between the parties that, on 17 January 2008, the appellant took up employment in [Q]. [Q] is not a jurisdiction with which Australia has a reciprocating international maintenance arrangement.
It is the appellant’s contention that a terminating event took place, in respect of the child support assessment applicable to him, on 16 January 2008, when he took up the position in [Q], as he ceased to be a resident of Australia on this date.
In its decision dated 24 May 2010, the SSAT concluded that
“Mr Carrigan ceased to be an Australian resident for child support purposes on 15 June 2009.”In so concluding, the applicant submits that the SSAT has made an error of law, which is correctible by this court.
For this reason, the appellant seeks the following orders:
a)That the decision made by the Child Support Agency that the applicant is not a resident of Australia but a resident of [Q] be affirmed.
b)That the decision of the Child Support Agency dated 14 December 2009 that Mr Carrigan was not a resident of Australia but was a resident of [Q] since 17 January 2008 be reinstated.
c)That payments of Child Support $34,614.05 since 17 January 2008 be refunded to the Applicant Mr Carrigan.
d)That the applicant have his costs of this Appeal.
The respondent contends that the SSAT made appropriate findings of fact and properly applied the legal principles applicable to its decision, when it found that Mr Carrigan ceased to be a resident of Australia, for child support purposes, on 15 June 2009. Accordingly, she submits that the SSAT has not fallen into legal error in its decision of 24 May 2010.
Background
The parties are the parents of two children, [X] born [in] 1997 and [Y] born [in] 2003. The parties married, in Pakistan, [in] 1991. In 2001, they moved to Australia. Mr Carrigan and Ms Fredericks finally separated in 2006.
The parties were both born in Pakistan. Mr Carrigan became an Australian citizen on 30 October 2003. He has not formally renounced this citizenship.[2]
[2] See SSAT decision at paragraph 48
On 1 August 2006, Mr Carrigan was assessed to pay child support to Ms Fredericks in respect of [X] and [Y]. Following the parties’ separation, there were proceedings between them, in the Family Court of Australia at Adelaide, in respect of parenting issues relating to the children and the division of their matrimonial property.
During the course of these proceedings, the parties agreed that [X] and [Y] should live predominantly with their mother and spend time with their father during regular school holiday periods in Australia. Orders to this effect were made on 11 February 2009.
No agreement could be reached in respect of the property issues in dispute between the parties. These issues were determined by Burr J on 29 May 2009, following a trial of nine days, which had commenced on 21 October 2008. The reasons for judgement, relating to this aspect of the proceedings were before the SSAT.
Concurrently with her application for property settlement,
Ms Fredericks had sought a payment of child support, in a lump sum, from Mr Carrigan, which sum was to be credited against any future administrative assessments of child support applicable to him. This application was brought pursuant to sections 124 and 141 of the Assessment Act. Burr J declined to make such a lump sum child support order.
The appellant has qualifications as an [omitted]. In the past, he has worked for [P], both as a [omitted]. The respondent has extensive qualifications in financial planning and management. She lives in suburban Adelaide, with the two children concerned and her current partner.
At the time of the hearing before Burr J, there was no dispute between the parties that Mr Carrigan had taken up employment with [Q], as a [omitted], in early 2008. He had also obtained residential accommodation, for himself and current partner, in Doha, the capital of [Q]. Burr J made a finding to this effect, in the applicable reasons for judgment.[3]
[3] See Maider & Carrigan [2009] FamCA 483 at paragraph 27
There was discussion, in Burr J’s judgement, of the possible significance of Mr Carrigan living in [Q] in terms of the regularity or reliability of his future payment of child support to Ms Fredericks, but no apparent discussion of possible implications arising from his residency in regards to the calculation of the actual amount of child support to be paid by him, particularly whether he personally would be amenable to an administrative assessment of child support.
During the trial, it was the respondent’s position that the appellant had been unreliable and irregular in his payment of child support to her, particularly that he had concealed earnings and not pursued appropriate employment opportunities for himself. These factors were the rationale for her seeking a lump sum assessment of child support.[4] The sum the respondent sought, by way of lump sum, was equivalent to the sum she asserted the applicant was entitled to by way of property settlement.
[4] Ibid at paragraph 87
As previously indicated, Burr J declined to make an order for lump sum child support, in the form proposed by the respondent. Rather he accepted what he categorised as a “comprehensive” undertaking from Mr Carrigan that he would “promptly pay child support…in accordance with all assessments issued from time to time by the Child Support Agency”. Coupled with this undertaking, Mr Carrigan provided an irrevocable authority directed to his employer and bank, which compelled them to pay the child support as so assessed.
Given this undertaking, Burr J was satisfied that Mr Carrigan would “honour his periodic child support obligations as and when they fall due”. In reaching this conclusion, His Honour took into account the possible application of Departure Prohibition Orders to the appellant’s circumstances, if he failed to comply with this undertaking.
Departure Prohibition Orders are created by the provisions of Division 1 of Part VA of the Child Support (Registration and Collection) Act 1988, “the Collection Act”. Essentially, the Registrar of the CSA is granted a discretion to prevent a person from leaving Australia, if he or she has a child support liability, after a persistent and unreasonable history of non-payment of child support and the person concerned has not satisfied the Registrar that satisfactory arrangements have been made to honour such liability.
Burr J accepted that Mr Carrigan would continue to visit Australia regularly to spend time with [X] and [Y], in accordance with the orders made in his favour, as well as to see his parents, who live in this country. In addition he found that Mr Carrigan would not be willing to jeopardise his employment with [Q] by making himself liable to the imposition of a departure prohibition order, which would prevent his easy egress from Australia and so impinge upon his obligations to the [employer].
His Honour found as follows:
“ The father has a further 4 years of working with [Q] before he will be eligible to be promoted to [omitted]. Indeed, if he ceases employment with [Q] before this time, he will be liable to repay US $50,000 (on a diminishing scale) for the costs of his training. The father’s promotion depends on him having a blemish free record and being available to work at all required times. I accept that a departure prohibition order would have the effect that the father would be prevented from leaving Australia and would thus likely lose his employment. That in turn would terminate his right to live in [Q] with his current wife.
If the father sought to avoid the imposition of a departure prohibition order by not coming to Australia, he would effectively be prevented from seeing his children for the foreseeable future, the very children in respect of whom he sought extensive orders in proceedings before this Court. He would further not be able to visit his parents in Australia. Yet a further factor is that his employer [Q] operates [work in Australia omitted]. Any refusal on his part to undertake [work omitted] could lead to the termination of his employment and the visitation of the consequences outlined above.”[5]
[5] Ibid at paragraph 100-101
Mr Carrigan provided the necessary irrevocable authorities, directed to [Q] and the HSBC Bank on 22 June 2009. These documents were also before the SSAT. The SSAT found that the provision of the documents evidenced “a genuine intent by Mr Carrigan to comply with the detail, spirit and intent” of Burr J’s orders.[6]
[6] See SSAT Reasons for Decision dated 24 May 2010 at paragraph 55.
What seems to have been unforeseen is the possibility that there would be no child support debt or registrable maintenance liability, pertaining to Mr Carrigan, to which section 72D of the Collection Act could attach or that the CSA itself would not have authority to create any assessments of child support in respect of him because of his residential circumstances.
At the time of this judgement, there were and had been child support assessments in place applicable to the parties. In particular, from 27 July 2006 onwards, Ms Fredericks had made application for an administrative assessment of child support to be made in respect of
Mr Carrigan’s liability to pay child support for the children concerned.
Initially the appellant was assessed to pay child support to the respondent in the sum of $26.67 per month. This assessment was subject to internal review processes, provided within the CSA, on application made by both parties.
Ultimately Ms Fredericks was aggrieved at the level of income attributed to Mr Carrigan for child support assessment purposes and she lodged an appeal to the SSAT on 27 September 2007 (“the first SSAT appeal”). Her appeal was heard on 12 December 2007. In respect of the first appeal, the SSAT noted that Mr Carrigan had declined to take part in the hearing.
On 8 January 2008, the SSAT upheld Ms Fredericks’ appeal and set
Mr Carrigan’s child support income in the sum of $45,000.00 per annum, for the period from 1 August 2006 to 30 June 2008. The basis of this decision was the provisions contained in section 117(7B) of the Assessment Act, which deals with a liable parent’s capacity to earn income in circumstances where that capacity has not been fully utilised.
As previously indicated, Mr Carrigan had taken up his contract of employment with [Q] in early 2008. This is a circumstance which does not seem to have been brought to the attention of the SSAT which determined Ms Fredericks’ first appeal of 27 September 2007.
Mr Carrigan did not take an active role in this appeal.
After 1 July 2008, Mr Carrigan was assessed to pay child support at the statutory minimum rate of $333.00 per annum, on the basis of an income deemed to him by the CSA of $11,067.00. Ms Fredericks objected to this decision on 12 May 2008. Her objection was determined by Senior Case Office H “SCO H” on 15 August 2008.
During the course of the property proceedings, before Burr J, it seems orders had been made requiring Mr Carrigan to disclose documents relating to his employment with [Q] to Ms Fredericks. As a result,
Ms Fredericks’ then solicitors wrote to the CSA on 28 July 2008 advising that Mr Carrigan was in receipt of a salary package equivalent to A$102,900.00 and providing the Agency with a copy of his employment contract. This information was before SCO H.
On 15 August 2008, SCO H determined to change the applicable assessment of child support so that Mr Carrigan’s income was fixed in the sum of $120,000.00 for the period from 1 February 2008 to 14 November 2009. This was based on the finding that Mr Carrigan was receiving a monthly payment of 19800.00 [Q] Riyals, which equated to A$6260.00. It was also found that Mr Carrigan received an accommodation allowance.
SCO H found that the offer of employment in [Q] was made to
Mr Carrigan on 22 October 2007, which was prior to the hearing of Ms Fredericks’ appeal to the SSAT. The offer was open until 2 November 2007. Accordingly SCO H found as follows:
“…on the balance of probabilities Mr Carrigan was aware of the offer of employment prior to the finalisation of the SSAT proceeding and failed or refused to advise the tribunal of same.”
This was apparently the rationale for the decision being backdated to 1 February 2008 and for the period of the departure to be set at 15 months.
Burr J was aware of this decision, particularly the level of income which had been attributed to the appellant by the CSA.[7] His Honour also found that Mr Carrigan’s “recent record” of paying what was characterised as a “significant amount” of child support had been “good”.[8] This was a further factor which influenced the court against the making of a lump sum child support order.
[7] See Maider & Carrigan [2009] (supra) at paragraph 76.
[8] Ibid at paragraph 98
Accordingly, at the time of the hearing before Burr J and at the time of the making of various administratively made departure orders, it cannot be said that there was any concealment of the fact that Mr Carrigan was pursuing employment opportunities in [Q]. This was a circumstance known to all the parties concerned.
As the SSAT noted in regards to the orders of Burr J made on 29 May 2009:
“The Tribunal respectfully notes that these Orders were made in reference to a threat of a Departure Prohibition Order being made to Mr Carrigan. They were not made in contemplation of a terminating event being applied retrospectively to the child support assessment.”[9]
[9] See SSAT Reasons for Decision dated 24 May 2010 at paragraph 54.
Indeed, it does not seem to be an unreasonable inference to draw that no consideration was given by the court to the possibility that
Mr Carrigan’s decision to take up employment in [Q] might have severed the required nexus between him and the system of administrative assessment of child support based in Australia.
However it should be pointed out that one of the major reasons motivating Ms Fredericks’ application for a lump sum of child support, to be made in her favour, was her concern that future payments of child support due to her may be difficult to collect if there was an element of extra-territoriality to the appellant’s employment.
Following the conclusion of the first SSAT appeal, the records of the CSA, relating to the Agency’s dealings with the parties, indicate that Mr Carrigan’s father, who was authorised to speak on Mr Carrigan’s behalf, contacted the CSA on 29 February 2008 and informed it that
Mr Carrigan was employed overseas, although the record concerned does not specify a precise country.[10]
[10] See bundle of documents provided by the SSAT at folio 233
This record appears to constitute the basis of the SSAT’s finding, in the current case, that the CSA were advised on 29 February 2008 that
Mr Carrigan was employed overseas.[11] The fact that a liable parent is employed overseas or is even resident overseas does not, of itself, constitute a terminating event.
[11] See SSAT Reasons for Decision dated 24 May 2010 at paragraph 2
What is germane is whether the country concerned does or does not have a reciprocating international maintenance agreement with Australia. In addition, a person may be regarded as a resident of Australia, for taxation purposes (and so for the purposes of the Child Support system) whilst living in another country.
In the past, Mr Carrigan has worked in Pakistan, which is in a reciprocating international maintenance with Australia. As previously indicated, [Q] does not have such a relationship with Australia.
On 16 October 2008, a representative of the CSA wrote to
Mr Carrigan’s father, who had been authorised by him to correspond with the Agency. The salient passage of the correspondence is as follows:
“You also advised your son does not reside in Australia. CSA may need to make a residency determination in relation to your son to determine if as per CSA legislation the case should remain active. Whilst your son does not live in Australia he can still be classified as an Australian resident or a resident of a reciprocating jurisdiction for Child Support purposes. Can you please either advise us of an address to which we can forward a residency questionnaire for [Mr Carrigan] to complete or alternatively ask [Mr Carrigan] to contact the Agency so we can discuss this matter further.”
For reasons which are unclear from the reasons for decision of the SSAT, it was not until the following year, on 16 June to be precise, that Mr Carrigan contacted the CSA and completed the questionnaire which had been requested. Mr Carrigan apparently completed the questionnaire over the phone. This was a few days after he had completed and forwarded the irrevocable authorities directed to [Q] and the HBSC Bank, envisaged by the orders of Burr J made on
29 May.
The completed questionnaire read as follows:
Have you ever resided in Aus – yes, arrived November 2006 then departed in Dec 2007 for Pakistan. Departed Pakistan for [Q] in Jan 2008.
Do you intend to return to Aus – no (currently in Aus visiting family, father still resides at postal address held)
Are you employed – yes by [Q] as an [omitted]. Completing a training bond which he has signed for 4 years and this is due to be completed April 2012
Not receiving any benefits in Aus
Superannuation – has approx $4000 in super in [omitted] Super in Aus from period residing in Aus in 2006 but does not contribute into this account any more
Residence – in [Q] as per residential address. Accommodation is supplied by employer
Other information – holds an Australian passport however it is stamped by [Q] for [Q] resident for period 2008-2012
No other information provided in Residency questionnaire.[13]
[13] Ibid at folio 227
At the time the questionnaire was completed, the CSA officer who was assisting Mr Carrigan made a file note which provides details of the conversation which was had between the two. It reads as follows:
“Explained to [first name omitted] that if CSA determine he is a resident of [Q] that we would need to end our case as this country is not reciprocating. Explained if ended that that he or RP could then apply for a court order to assess him to pay CS still or he could make a private arrangement with the RP.
[First name omitted] advised that there is a court order however it states that he is to pay as assessed by CSA – explained that this would not suffice as if case ended then we would no longer be assessing him to pay CS.”[14]
[14] Ibid at folio 228
The implication of this conversation seems to be that Mr Carrigan, at the time, was previously unaware of two salient matters. Firstly that [Q] was not a reciprocating jurisdiction, unlike Pakistan, where he had been employed in the past. Secondly his being a resident of [Q] might have implications for the on-going application of the orders made by Burr J.
Neither party to the present appeal or in the proceedings before the SSAT asserted that there were any inaccuracies in respect of the answers provided by Mr Carrigan to the questions posed to him in the questionnaire administered by the CSA officer on 16 June.
On 6 July 2009, Ms Fredericks provided the CSA with copies of the various orders made by Burr J in February and May of 2009.
On 28 September 2009, following his completion of the questionnaire, Mr Carrigan contacted the CSA “for update on residency decision”. At this stage, he stated that he was “definitely a resident of [Q] and not Aus and has worked and lived in [Q] since 2008.”[15]
[15] Ibid at folio 203
In October of 2009, Mr Carrigan again contacted the CSA regarding a decision being made on his place of residence. He reiterated that he was a resident of [Q] and planned to work there until he reached retirement at aged 65. He further advised that he had ceased paying child support, pursuant to the previous determinations and would not make any further payments until his residency status had been clarified.[16]
[16] Ibid at folio 201
Ms Fredericks also contacted the CSA. She confirmed that she had not received any child support from Mr Carrigan since August of 2009. She was advised that the CSA regarded the payments as being voluntary and as Mr Carrigan was living in [Q], the CSA was not in a position to enforce payment.[17]
[17] Ibid at folio 153
As a result of information supplied to it, on 14 December 2009, the CSA determined that Mr Carrigan was a resident of [Q] and had been since 16 February 2008. Accordingly, this was a terminating event for the purposes of the assessment of child support, which was effective from 16 February 2008. This had the consequence of creating a situation whereby Ms Fredericks had been paid child support, to which she was not administratively entitled.
Ms Fredericks objected to this decision and both she and Mr Carrigan made further written submissions to the CSA in respect of the issue. The objection was determined on 11 February 2010 and was disallowed.
In her submissions to the objections officer concerned, Ms Fredericks raised the following issues:
·Mr Carrigan’s contract of employment was for four years commencing January 2008;
·Mr Carrigan’s entitlement to reside in [Q] was tied to his employment;
·Otherwise Mr Carrigan had dual citizenship in both Australia and Pakistan;
·Mr Carrigan has assets in Australia;
·The Family Court orders of 2009 provided for Mr Carrigan to spend time with the children in Australia;
·Issues of fairness arose from how the CSA had administered the child support assessment from February 2008 onwards and how Mr Carrigan had behaved in regards to it, particularly as follows:
Ø The change of assessment decision in August 2008 was based on the fact that Mr Carrigan was employed by a [Q] entity and he himself was based in [Q];
Ø The CSA continued to administer the case from June 2008 to December 2009, whilst aware of Mr Carrigan’s employment situation in [Q] and the residency issues, which it raised;
Ø Mr Carrigan had complied with the CSA assessments from February 2008 until August of 2009.
In his objections to the assessment officer, Mr Carrigan raised the following issues:
·He had never concealed the fact that he had lived in and worked from [Q] from early 2008 onwards;
·His contract with [Q] was indefinite and was subject only to his medical fitness and the completion of his training bond, which was for four years;
·His Australian superannuation account had been inactive since 2006;
·He held a [Q] residency permit and work visa which expires on 16 January 2010;
·His service undertaken with [Q] stipulated that he was to remain by the [employer] for a minimum of four years from the date of his initial training session;
·He had no assets in Australia;
·His residential address was in [Q];
·His Australian passport was stamped by [Q] officials as that of a [Q] resident for the period 2008-2012;
·He planned to continue to work for [Q] until his retirement;
·He would return to live in Australia eventually, but was uncertain as to whether this would be on his retirement or in the eventuality of him obtaining suitable employment in Australia.
In addition, the objections officer had information from the Australian Taxation Office and the Department of Immigration & Citizenship regarding Mr Carrigan’s taxation status within Australia and his travel to and from this country. The taxation information indicated that
Mr Carrigan had lodged his last Australian tax return on 18 November 2005.
The immigration records indicated that since leaving Australia on 12 December 2007, Mr Carrigan had returned to Australia seven times for a total period of ninety-three days. His average stay was between one and a half and two and a half weeks. This equated to him being in Australia for approximately twelve percent of the time since 12 December 2007.
In reaching her decision, as to whether or nor Mr Carrigan was a resident of Australia for child support purposes, the objections officer considered one primary test and three secondary tests, which are set out as follows.
Primarily, whether a person resided in Australia should be determined in accordance with the ordinary meaning of the word, which was defined by the Macquarie Dictionary as “to dwell permanently or for a considerable time; have ones abode for a time” and by the Shorter Oxford English Dictionary as “to dwell permanently or for a considerable time, to have one settled or usual abode, to live, in or at a particular place.”
The three secondary tests related to provisions within the Income Tax Assessment Act 1936 and were as follows:
·the domicile and permanent place of abode test;
·the one hundred and eighty-three day rule test (this relates to how many days each year a person is present in Australia);
·the superannuation test (this relates to Australian Government employees who are employed at Australian Posts overseas).
The objections officer found that Mr Carrigan’s domicile continued to be Australia but found his place of permanent abode was [Q]. In the applicable financial year, he had been present in Australia for seventeen days.
One of the planks of Ms Fredericks’ position, put to the objections officer, was that the CSA had been aware of Mr Carrigan’s residence in [Q], when it had changed the assessment in August 2008 and it had not been until 14 December 2009 that it had made a decision regarding the implication of his place of residence for child support purposes. In regards to this issue, the objections officer said as follows:
“The only issue that this objection can consider is whether the residency decision made on 14 December 2009 was correct, not was it made within a ‘reasonable’ timeframe from when CSA first became aware that [Mr Carrigan] was no longer in Australia. There are currently no timeframes set in which a residency decision is required to be made from when CSA is first advised a parent has changed the country they are residing in.[18]
[18] Ibid at folio 70
In terms of the issue of Mr Carrigan’s place of residence, the objections officer found as follows:
“Although [Mr Carrigan] has advised CSA that it is his intention to return to Australia at some point in time, at the time the decision was made it was, and still is, his intention to remain working and living in [Q] for the foreseeable future.
[Mr Carrigan]’s employment has no set end date; he can continue to work for [Q] until he retires or is medically unfit. He is currently half way through his four year training bond period with [Q] and his commencement with this employer was on
17 January 2008.
I am satisfied that under ordinary concept [Mr Carrigan] is a resident of [Q] and although [Mr Carrigan] has not changed his domicile from Australia, under the permanent place of abode test he is a resident of [Q] for child support purposes and has been since 17 January 2008.
As no court orders have been made ordering that [Mr Carrigan] is required to pay child support if he is no longer required to under the Child Support Assessment (1998) Act, the decision to end the case as at 16 January 2008 is correct.”[19]
[19] Ibid at folio 70
In terms of the issue of Mr Carrigan having made payments of child support to Ms Fredericks from the date of his arrival in [Q] until August 2009, the objections officer said as follows:
“The fact that [Mr Carrigan] continued to make child support payments until August 2009 has no impact on this decision. At the time the payments were made there was an active assessment in place requiring him to pay child support to Ms Fredericks. The fact that he continued to make payments while he was living in [Q] can not be considered when making a residency decision.”[20]
[20] Ibid at folio 70
Accordingly, the objections officer determined to disallow
Ms Fredericks’ objection to the decision of the CSA that there had been a terminating event, occasioned by Mr Carrigan’s decision to live and work in [Q], in respect of the previous child support assessments. The terminating event was effective from 16 January 2008. It is this decision which was the subject of the appeal to the SSAT.
The SSAT hearing
I have not been provided with a transcript of the proceedings before the SSAT. However, from the Tribunal’s decision, it is clear that evidence was taken from each of the parties and it considered the various documents held on the CSA’s file in respect of the matter, to which reference has already been made.
The SSAT summarised Ms Fredericks’ case as follows. Firstly, she argued that Mr Carrigan was not a resident of [Q] because his employment with [Q] was for a limited time. In addition, he continued to travel regularly to Australia, which remained his place of domicile.
Secondly, if Mr Carrigan was found to be a non-resident of Australia, Ms Fredericks submitted it should only be from 15 June 2009 onwards, which was the first time the CSA’s records indicated Mr Carrigan had formally raised the issue with the Agency.
Thirdly, Ms Fredericks submitted that Mr Carrigan had consciously delayed raising the issue of his residency with the CSA in order to defeat her application for a payment of lump sum child support to be made in her favour from the parties’ pool of matrimonial assets, in the proceedings before Burr J. It was her case that when the orders of
29 May 2009 were made, it was on the understanding that Mr Carrigan would continue to pay child support pursuant to a child support assessment.
Mr Carrigan’s evidence was that he had always been open with
Ms Fredericks, the Family Court and the CSA in respect of the fact that he had moved to live and work in [Q] in early 2008. As such, it was not for any reason attributable to him that it had taken some time for the CSA to determine that a terminating event had occurred pursuant to the relevant provisions of the Assessment Act.
Accordingly, it was submitted on Mr Carrigan’s behalf that the objection officer’s decision had been properly made in accordance with the definition of resident of Australia appearing in the applicable legislation.
As far as I can apprehend, from the material before me, neither the SSAT nor Ms Fredericks questioned Mr Carrigan about what was his level of understanding, as at the time of the hearing before Burr J, in respect of the status and significance of [Q] as a non-reciprocating child support jurisdiction.
In addition, it does not appear that any specific evidence was led as to what was Mr Carrigan’s understanding (if any) of the connection between his execution of the various irrevocable authorities and his residency status in Australia.
At any event, I have not been provided with any specific evidence dealing with what was the intention of Mr Carrigan, when he gave effect to the undertaking which he had provided to Burr J in the earlier Family Court proceedings, particularly in terms of what was his intention at the time regarding his residency status or otherwise within Australia.
The applicable legal framework
The relevant portion of section 12(3) of the Assessment Act states as follows:
“3. A child support terminating event happens in relation to a person who is a liable parent in relation to a child if:
….
(b) the person ceases to be a resident of Australia.”
This section is qualified by section 12(4A)(b) which effectively stipulates that if a liable parent ceases to be a resident of Australia, by becoming a resident of a country with which Australia has an international arrangement regarding the enforcement of family maintenance obligations, the cessation of Australian residence by that liable parent is not a terminating event.
The expression “resident of Australia” is defined by section 10 of the Assessment Act, which stipulates as follows:
“For the purposes of this 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 otherwise than because of subsection 7A(2) of that Act.”
Subsection 7A(2), referred to above, is not relevant to these proceedings. It refers to the Australian external territories of Norfolk Island, the Cocos (Keeling) Islands and Christmas Island.
Section 6 of the Income Tax Assessment Act 1936 defines the term “resident or resident of Australia” as follows:
“resident or resident of Australia" means:
(a) a person, other than a company, who resides in Australia and includes a person:
(i) whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia;
(ii) who has actually been in Australia, continuously or intermittently, during more than one‑half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or
(iii) who is:
(A) a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; or
(B) an eligible employee for the purposes of the Superannuation Act 1976 ; or
(C) the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B); and”
Section 74 of the Assessment Act stipulates what the Registrar of the CSA is required to do on becoming aware of a child support terminating event. The section reads as follows:
74(a) (1) If:
(a) child support is payable for a child; and
(b) the Registrar is notified of, or otherwise becomes aware of:
(i) the happening of a child support terminating event in relation to the child, a liable parent, or a carer entitled to child support, or all 3; or
(ii) the happening of an event or change of circumstances that affects the annual rate at which the child support is payable under this Act;
·the Registrar must immediately take such action as is necessary to take account of the happening of the event or change of circumstances (whether by amending any administrative assessment or otherwise).”
Accordingly, the Registrar must give effect to a child terminating support event.
The findings of the SSAT
In my view, the SSAT correctly identified the issues, which it had to determine in the case, pursuant to the applicable legal provisions set out above. These issues were as follows:
·had Mr Carrigan ceased to be a resident of Australia;
·if so, did this constitute a terminating event, for child support purposes;
·and, if there had been such a terminating event, what was its operative date.
The SSAT found that Mr Carrigan was an Australian citizen, whose parents and children lived in this country. It further found that although he lived mostly in [Q] and was two years through a four year period of bonded employment there, he had not renounced this Australian citizenship or adopted a new domicile. Accordingly, the Tribunal found that Mr Carrigan’s domicile remained in Australia.
This finding engaged the considerations contained within section 6(a) of the Income Tax Assessment Act, particularly whether Mr Carrigan’s permanent place of abode was outside of Australia.
In determining whether Mr Carrigan’s permanent place of abode was outside of Australia, the SSAT had regard to the matters raised in Taxation Ruling No.IT2650. The ruling provided a number of criteria to be considered as to whether a person did or did not have a permanent place of abode outside Australia. These can be summarised as follows:
·The adjective “permanent” in the definition did not have the meaning of “everlasting or forever” but was used in contrast with a person whose abode outside of Australia was “temporary or transitory”;
·As such, a person’s permanent place of abode could not be ascertained by the application of any “hard and fast rules”, rather it was a question of fact to be determined in the light of all the circumstances of each case.
·Some relevant considerations, applicable to determining whether a person’s permanent place of abode was outside of Australia, included the following:
ØThe intended and actual length of the tax payers stay in the overseas country;
ØWhether the tax payer intended to stay overseas only temporarily and then move to another country or return to Australia at some definite point in time;
ØWhether the tax payer has established a home, in the sense of a dwelling place, outside of Australia;
ØWhether the tax payer had abandoned a residence in Australia as a consequence of moving overseas;
ØThe duration and continuity of the tax payers presence in the overseas country; and
ØThe “durability of association” that the tax payer has with a particular place in Australia in terms of such things as: maintaining a bank account in Australia; informing government departments, such as social security, of the fact of the person concerned is leaving Australia permanently; the place of education of the tax payer’s children; family ties; and so on.
The SSAT found that Mr Carrigan had left Australia, in January of 2008, to work in [Q], on an ongoing basis, until at least January of 2012. He had produced residency and work permits for [Q].
As such, the Tribunal made the following finding:
“It follows that he [Mr Carrigan] has established a residence in [Q]. The Tribunal also accepts that Mr Carrigan holds no property in Australia and does not conduct business in Australia. Despite maintaining significant family ties in Australia, the Tribunal finds that Australia is not his permanent place of abode. Mr Carrigan’s permanent place of abode is [Q].”
As is apparent there is no controversy between the parties that
Mr Carrigan has not been in Australia for 183 days, during any financial year, since early 2008. Accordingly, the definition set out in section 6(a)(ii) of the Income Tax Assessment Act did not apply to him. In addition, it was self apparent that Mr Carrigan was not an Australian Government employee, who was subject to the superannuation test provided by section 6(a)(iii).
Accordingly, the SSAT found, as at the date of the hearing, that
Mr Carrigan did not meet any of the applicable tests for Australian residency and therefore a terminating event had occurred pursuant to section 12(3) of the Assessment Act. It then turned to consider when that terminating event had occurred.
In determining this issue, the SSAT placed significant weight on the findings of Burr J, in the reasons for judgment arising from the parties competing property and child support applications. In particular, the finding that Mr Carrigan intended to observe his child support obligations in future and his recent record of payment, post his departure for [Q], had been good.
It was these circumstances, when coupled with the applicant’s comprehensive undertaking to the court to pay child support, as assessed pursuant to the Australian regime, which caused Burr J to make the following finding:
“I am satisfied therefore that there are severe consequences facing the father if he chooses to default on his periodic child support obligations.
In addition, the father tendered (Exhibit 11) a comprehensive undertaking to the Court in the following terms:-
“I undertake to the Court that:
(a) I will promptly pay child support in respect to the children [X] born [in] 1997 and [Y] born [in] 2003 in accordance with all assessments issued from time to time by the Child Support Agency;
(b) I will provide my Employer with an irrevocable authority to pay my entire salary to HSBC Bank or such other bank with whom I may bank from time to time;
(c) I will provide the HSBC Bank or such other bank with whom I may bank from time to time an irrevocable authority to automatically deduct and pay to the CSA the full amount of my child support obligations in accordance with assessments issued from time to time by that agency;
(d) to forthwith notify the CSA of any increase in my salary from time to time.”
In all of the circumstances, I am satisfied that the father will honour his periodic child support obligations as and when they fall due. I deem it inappropriate that he be deprived of the fruits of his labour over 15 years in the nature of the property settlement that I am satisfied should be awarded to him. He too is entitled to make a fresh start. I am satisfied, as expressed above, that the end result is a just and equitable one and the payment required of the mother to the father will not impose any significant, or indeed any, hardship upon her.”[21]
[21] See Maider & Carrigan [2009] FamCA 483 at paragraphs 102-104
As a consequence of these matters, the SSAT made the following findings, which resulted in its determination that the child support terminating event occurred on 15 June 2009:
“The Tribunal notes that the undertakings made by Mr Carrigan were made in June 2009. Provision of this irrevocable authority evidences a genuine intent by Mr Carrigan to comply with the detail, spirit and intent of the Orders. The authorities were signed by Mr Carrigan in June 2009 after the Orders had been delivered.
It also evidences a significant attempt by Mr Carrigan to retain his residency in Australia with respect to his child support assessment and liability. This is a significant circumstance to
Mr Carrigan and relevant to the factors discussed above used to determine residency.
The history given above was not disputed by the parties. The first incidence of Mr Carrigan actively seeking to have his residency in Australia revoked by the Child Support Agency occurred when he contacted the Child Support Agency and completed the questionnaire on 15 June 2009. The Tribunal concluded this event crystallised the intention to Mr Carrigan to become a non resident of Australia and in his particular circumstances this is the correct and preferable date of Mr Carrigan ceasing to be a resident of Australia.”[22]
[22] See reasons for decision at paragraphs 55-57
The nature and legislative basis of appeals to this court from the SSAT
The nature of an appeal to this court, from a decision of the SSAT, is governed by the provisions of Division 3 of Part VIIA of the Collection Act, in particular section 110B, which reads as follows:
“A party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.”
This court is authorised to hear such appeals from the SSAT by virtue of the provisions of section 110E of the Collection Act. Pursuant to section 110F of the Collection Act, having determined any such appeal, I am authorised to make any order, which I believe is appropriate but particularly may:
·affirm or set aside the decision of the SSAT; or
·remit the case to be heard again by the SSAT, either with or without the hearing of further evidence.
The first question to consider is what is the nature of an appeal on a “question of law”? The provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 have significantly reformed the review process in respect of administrative decisions of the Child Support Registrar. The legislation has inaugurated an independent process of review through the SSAT. This process is external of the Agency’s processes and is administrative in nature.
Pursuant to the provisions of section 110B, any further appeal from the SSAT is limited in nature. It is limited only to an examination of how the SSAT applied or failed to apply the applicable principles of law, which were relevant to the determination of the appeal issue which came before it.
As such, an appeal to this court, pursuant to section 110B, does not constitute a rehearing on the merits of the case nor should this court, other than in exceptional circumstances, challenge findings of fact made by the SSAT.[23]
[23] See Child Support (Registration and Collection) Act 1988 at section 110G(1)
The power of this court, in an appeal from the SSAT, to make finding of facts is limited by the provisions of section 110G of the Collection Act. The court may make a finding only if the following two provisos are satisfied:
·Such a finding of fact is not inconsistent with findings of fact made by the SSAT – other than findings made by the SSAT as a result of an error of law.
·It is convenient for the court to make such findings of fact.
Pursuant to section 110G(2) for the purpose of making such findings of fact the court may either have regard to the evidence given in proceedings before the SSAT itself or receive further evidence. However, it is clear that the power to receive further evidence is dependant upon the court discerning an error of law in the decision of the SSAT, which is subject to appeal.
Essentially, this court, in its appellant jurisdiction from the SSAT, must be careful not to allow evidence to be adduced in the hope advocated by any appellant that an error of law will thus be demonstrated.
Accordingly, this court should not be concerned as to whether or not it would have come to the same conclusion as the SSAT did, but only whether the SSAT erred in law,[24] as it is only in “exceptional circumstances” that the decision of the Tribunal should not be the final decision.[25]
[24] See Neal v Secretary, Department of Transport (1980) 3 ALD 97 at 100 per Franki J and Comcare v Etheridge [2006] FCAFC 27 at paragraph [14] per Branson J.
[25] See Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (No 2) (1980) 33 ALD 38 at 49 per Fisher J.
It is the function of this court to determine whether the decision of the SSAT was within its legal powers. That is what is meant by a question of law. It is not the function of this court to examine the merits of that decision.
As such, I should be cautious to approach the decision of the SSAT with “an eye [which is] too keenly attuned to perception of error”.[26]Rather I should take a commonsense approach to what the SSAT was saying in its decision and the reasons why it did said what it said.
[26] See Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 258
An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
·fails to construe properly the legislative provisions applicable;
·identifies the wrong issues or asks itself the wrong questions;
·ignores relevant material or relies on irrelevant material;
·fails to accord procedural fairness to the party before it;
·makes an erroneous finding of such a magnitude that it goes to the very jurisdiction which it purports to exercise rendering its decision perverse or unreasonable or otherwise offending logic.[27]
[27] See Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 666
As Gleeson C.J. pointed out in Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002:[28]
“To describe reasoning as illogical, or unreasonable or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision maker, and to identify the legal principal or statutory provision that attracts the suggested consequence.”
[28] Re Minister for Immigration & Multicultural Affairs: Ex Parte Applicant S20/2002 (2003) 198ALR 59 at 61
In Collector of Customs v Pressure Tanker Pty LtdandPazzolanic Enterprises Pty Ltd,[29] the Full Court of the Federal Court, in respect of the Administrative Appeals Tribunal, characterised the nature of an appeal, restricted to a question of law, from a fact finding and decision making tribunal as follows:
“… the nature of the task of this court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.”
[29] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd [1993] 43 FCR 280
In summary, an appeal on a question of law:
·is not a review on the merits or a rehearing;
·as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;[30]
·however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
·in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye “keenly attuned to the perception of error”.
[30] See LDME & JMA [2007] FMCAfam 712 at paragraph 29
The applicant’s submission on the appeal
The applicant submits that the SSAT fell into an error of law when it concluded that the applicable child support terminating event had occurred on 15 June 2009, given the Tribunal’s other findings regarding Mr Carrigan’s departure from Australia in January of 2008, in the light of him taking up permanent employment in [Q].
In particular, it is submitted that it was an erroneous finding that
Mr Carrigan had made a “significant attempt … to retain his residence in Australia with respect to his child support assessment and liability” as a consequence of him providing the irrevocable authorities specified in the reasons for judgment of Burr J.
In particular, Ms Ross, counsel for the appellant submitted that the SSAT had fallen into legal error, in its construal of the relevant provisions of the Assessment Act, by inferring an intention to the appellant by reason of his actions following his departure from Australia.
Essentially, it is submitted that the SSAT relied on irrelevant material, in the form of the various irrevocable authorities executed by the appellant and ignored relevant material surrounding his departure from Australia and the circumstances of his employment in [Q], when it concluded that the terminating child support event occurred in June of 2009, when Mr Carrigan completed the CSA questionnaire.
In addition, it is submitted that the SSAT ignored relevant evidence, in the form of the contact from Mr Carrigan’s representative to the CSA, in February of 2008, when the CSA was advised that Mr Carrigan was no longer resident in Australia.
The respondent’s submissions on the appeal
The respondent submits that the appellant should be estopped from asserting that the terminating event occurred earlier than June of 2009, given his conduct in the proceedings before Burr J, particularly the undertaking which he provided to the court and the resulting irrevocable authorities, which he later executed.
Conclusions
In my view the evidence available to the SSAT could only lead to a conclusion that Mr Carrigan’s place of abode was [Q] and this was intended to be a permanent arrangement on his part, from the date he arrived in that country to take up his employment. Certainly the evidence is, in my view, incapable of being construed to indicate that his move to [Q] was either a temporary or transitory one. In addition, it seems to be incontrovertible that the operative time of the move, from Mr Carrigan’s perspective, was when he took up his position with [Q] in early 2008.
There was no evidence available to the SSAT to indicate Mr Carrigan would be returning to live in Australia in the future. He had employment and a permanent place of abode in [Q]. He owned no real property in Australia and did not pay tax in this country.
Accordingly the SSAT determined, in my view correctly, that
Mr Carrigan’s was no-longer a resident of Australia for child support purposes and this constituted a terminating event. The question for the SSAT was therefore what was the operative date of this event.
In a physical sense, again the evidence was incontrovertible.
Mr Carrigan ceased to be a resident of Australia, when he began to live and work in [Q] in early 2008. At this stage he acquired accommodation for himself in [Q] and was provided with the necessary documents required by the [Q] authorities to live in that country. In the ordinary meaning of the phrase, he was a resident of [Q] from the time he took up his employment in that country.
The question for the SSAT turned on the level of Mr Carrigan’s on-going association with Australia and whether it was capable of being construed as indicating that he remained a permanent resident of Australia, notwithstanding his physical departure from this country. The question depends on the evidence available regarding his family ties with Australia, particularly the durability of those ties.
Mr Carrigan’s two children and his parents live in Australia and, as a result, he has returned regularly to visit them. This situation has remained the same both before and after the date which the SSAT regarded as being the operative one for child support purposes, namely 15 June 2009. Accordingly it is illogical to regard this state of affairs as being influential in any way in determining that Mr Carrigan ceased to be a resident of Australia in mid 2009.
Indeed, Mr Carrigan did not conceal from either the Family Court or Ms Fredericks that he would be returning periodically to Australia to spend time with [X] and [Y], but his source of income would be in [Q] and he would have to remain based in [Q] to earn this income. An outcome which obviously raised issues to do with how the children’s on-going financial needs were to be met.
The answers provided by Mr Carrigan to the questionnaire submitted to him by the CSA were instrumental in the SSAT determining that it was the date of the questionnaire’s completion which marked the end of
Mr Carrigan’s permanent residence in Australia. However it seems to be to be axiomatic that Mr Carrigan would have provided the same answers, which reflected the reality of his situation in early 2008, as soon as he had arrived in [Q].
The only factual basis which had changed between the two dates was the completion of the Family Court proceedings before Burr J and the making of the undertaking by Mr Carrigan that he would continue to pay child support in terms of the assessment made by SCO H and any subsequent assessments which might follow.
It was because of Ms Fredericks’ concerns that Mr Carrigan was no longer a resident of Australia and so might be beyond the reach of the CSA that she sought a lump sum child support departure order, which was to be satisfied by an award in her favour from the parties’ stores of matrimonial capital available at that time to be divided between them.
Mr Carrigan opposed this order on the basis that it would be unfair to him. A submission with which Burr J ultimately agreed, when His Honour deemed “it inappropriate that he [the appellant] be deprived of the fruits of his labour over 15 years in the nature of the property settlement that I am satisfied should be awarded to him.”[31]
[31] See Maider & Carrigan [2009] FamCA 483 at paragraph 104
The evidence, on which the SSAT relied, to ground its finding that
Mr Carrigan continued to be a permanent resident of Australia, until 15 June 2009, is his execution of the various irrevocable authorities, directed to his employer and bank, as a consequence of the orders of Burr J, which were intended to ensure Mr Carrigan’s compliance with the then in existence child support assessment through the threat of a departure prohibition order.
In the key passage, the SSAT characterised Mr Carrigan’s execution of the applicable authorise as “a significant attempt by [him] to retain his residency in Australia in respect of his child support assessment and liability.” In turn this became the significant factor leading to the SSAT determining that Mr Carrigan retained his permanent residency status in Australia, notwithstanding the severance of other ties with this country.[32]
[32] See reasons for decision at paragraphs 55-57
I can find no evidence to ground this conclusion, which in the light of Mr Carrigan’s subsequent actions appears to be both a non sequitur and at odds with the Tribunal’s direction to itself that it was to consider the durability of Mr Carrigan’s particular associations with Australia.
The salient issue in dispute between the parties before Burr J, so far as child support was concerned, was the appellant’s desire to avoid a lump sum departure order and the respondent’s contention that the only way she was likely to be able to receive financial support for the children from the appellant, given he was a resident of [Q], was if such an order was made.
Clearly Dr Fredericks’ view was that Mr Carrigan did not have a durable connection with Australia and was unlikely to remain voluntarily amenable to the payment of child support. It is also axiomatic that, when he completed the questionnaire submitted to him by the CSA, on 15 June 2009, Mr Carrigan was of the view that he was not a resident of Australia and had not been one since his assumption of employment with [Q].
What was Mr Carrigan’s precise understanding of the application of the child support regime to his personal circumstances, after his move to [Q], particularly the application of a terminating event to any previously struck administrative assessment is unknown to me. However, once he became aware that this occurrence was likely to render the child support assessment applicable to him otiose, he ceased paying child support to Ms Fredericks and regularly sought clarification from the CSA as to when it would make a decision regarding his residential status.
As such, the evidence does not support the conclusion that Mr Carrigan had a durable commitment to apply himself to the detail, spirit and intent of the orders made by Burr J. To the contrary, as soon as the opportunity presented itself, Mr Carrigan indicated the lack of durability in his connection to this country in the answers which he provided to the CSA and the actions which he took in respect of the payment of child support.
The orders made by Burr J regrettably rest on a false premise, namely that a non resident of Australia can acquiesce to an assessment of child support being made in respect of him or her, even if the essential criteria relevant to the establishment of residency in this country, by such a person, are not first satisfied.
The making and continuation of a child support assessment requires an Australian residential nexus, with the liable parent concerned, (or residence in a reciprocating jurisdiction), as an essential precondition to any child support assessment being made or continuing.[33]
[33] See Assessment Act at ss.25 & 29A
Accordingly the severe consequences, to which Burr J referred, resulting from Mr Carrigan defaulting in respect of the payment of child support, could not arise without the existence of a registrable maintenance liability as defined by section 17 of the Collection Act, which in turn depends on a liability to pay periodic child support or a court order to pay child maintenance.
As the SSAT correctly pointed out, the question of whether a person is or is not a permanent resident of Australia is a matter of fact to be determined in each case according to it circumstances. In this particular case, the preponderance of evidence available to the SSAT indicated that Mr Carrigan had ceased to be a permanent resident of Australia in early 2008.
At best, Mr Carrigan’s continued payment of child support, pursuant to the assessment, after the date of his departure from Australia, rested on a misapprehension regarding the on-going application of the child support scheme to his changed circumstances. A misapprehension neither the CSA nor the proceedings before Burr J did anything to dispel.
At worst, Mr Carrigan’s provision of the various authorities, in accordance with the undertakings provided by him to Burr J, was a cynical exercise intended to defeat Ms Fredericks’ application for a lump sum payment of child support to be made in her favour from his share of the parties’ accumulated stores of matrimonial capital.
I am not in a position to resolve what was Mr Carrigan’s precise understanding of his child support situation, at the time he provided the various undertakings to the Family Court. However, it was only a matter of days after he had provided the undertakings that he made it clear to the CSA, in the answers he provided to their questionnaire, he regarded his residence as being in [Q].
Thereafter he ceased to pay child support. Neither such action is consistent with a person intent on abiding by the detail, spirit and intent of the Family Court orders through a determined attempt to maintain a connection with Australia. In my view there was no probative evidence available to the SSAT to sustain such a finding.
The question of a person’s permanent residential status is, for obvious reasons, primarily an issue to be resolved by an examination of the physical circumstances pertaining to the person concerned. As such, it seems illogical that the resolution of such a question can turn on either a misapprehension of fact or an actual intended deception relating to that person.
In this particular case, the SSAT ultimately determined that because of his provision of the various undertakings to the Family Court of Australia in June of 2009, Mr Carrigan had made a “significant attempt” to retain his residency in Australia. For the reasons provided above, I am of the view that this finding is so contrary to the actual factual circumstances of the case, as found by the SSAT, it constitutes a jurisdictional error.
Accordingly, this finding constitutes an error of law pursuant to the provision of section 110B of the Collection Act, which is correctable by this Court pursuant to the provisions of section 110F. The applicable legislation authorises me to set aside the finding of the SSAT made on 24 May 2010 and make the order which I consider to be appropriate.
In my view, it is appropriate that a finding be made that Mr Carrigan ceased to be a resident of Australia, for child support purposes, on 17 January 2008. This constitutes a terminating event for the purposes of section 12(3) of the Assessment Act.
I appreciate that this decision has the consequence of creating an overpayment of child support by Mr Carrigan to Ms Fredericks. He has sought an order requiring the CSA to refund these over payments, which he calculates to amount to $34,614.05, to him.
Ms Fredericks, as she is entitled to do, has commenced proceedings in this Court, pursuant to the provisions of Division 7 of Part VII of the Family Law Act 1975, seeking a child maintenance order for [X] and [Y] payable by Mr Carrigan.
Such a maintenance order does not require any specific Australian residential nexus as a precondition to its making. Ms Fredericks’ application has been listed for hearing before me on 15 July 2011. In these circumstances, I do not propose to make the consequential orders sought by Mr Carrigan.
Mr Carrigan has sought an order for costs. Pursuant to section 100 of the Assessment Act, the question of costs is governed by the provisions of the Family Law Act 1975 particularly section 117.
Section 117(1) abolishes, for the purposes of Family Law Act 1975 proceedings, the general rule that in civil proceedings costs follow the event. Section 117(2) then provides the court with a general discretion to make costs orders if it is of the opinion that there are circumstances that justify it in so doing. Section 117(2A) sets out the matters that the court shall have regard to.[34]
[34] See Browne v Green 29 Fam LR 428 at 432
The matters delineated in section 117(2A) include the following: the financial circumstances of the parties concerned; the conduct of the parties to the proceedings; whether the proceedings were necessitated by the failure of a party to comply with previous court orders; whether one of the parties to the proceedings have been wholly unsuccessful; and any other relevant matter.
These proceedings concern the provision of financial support to the parties’ two children. As a result of the decision of the CSA to terminate the child support assessment because of Mr Carrigan’s relocation to [Q] there are to be further proceedings between the parties, in this court, in respect of an application brought by
Ms Fredericks regarding child maintenance.
One of the consequences of my decision upholding Mr Carrigan’s appeal is that there is now, in nominal terms, a significant overpayment of child support which has been paid by him to Ms Fredericks. In addition, as I have enumerated at some length, there was level of misconception implicit in the orders of the Family Court and the undertakings made by Mr Carrigan on which they depended. In all these circumstances, I do not think that it would be just to make an order for costs in the appellant’s favour.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 15 June 2011
[12] See bundle of documents provided by the SSAT at folio 230
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