Eberhardt and Stubbs (Child support) - [2020] AATA 880

Eberhardt and Stubbs (Child support) [2020] AATA 880 (5 February 2020)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/CC017522
APPLICANT:  Mr Eberhardt
OTHER PARTIES:  Child Support Registrar
Ms Stubbs

TRIBUNAL:Member S Letch
DECISION DATE: 5 February 2020
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether the liable parent ceased to be a resident of Australia – the liable parent remained a resident – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

Mr Eberhardt has been assessed by the Child Support Agency (CSA) as liable to pay child support to Ms Stubbs.
On 20 March 2019, the CSA discussed with Mr Eberhardt his residency status. He became an Australian citizen in 2009; he travelled to [Country] for the period 18 July 2014 to 24 December 2015. He did so to undertake a course of education with a view to securing employment in Australia.
On 28 May 2019, the CSA determined that Mr Eberhardt had continued to be resident of Australia during his absence in [Country].
Mr Eberhardt objected to that decision; an objections officer disallowed the objection on 4 September 2019. Mr Eberhardt applied to the Tribunal for review on 29 September 2019.
Ms Stubbs advised the Tribunal she did not wish to participate in the Tribunal’s hearing. Mr Eberhardt participated in the Tribunal’s hearing by conference telephone.
The significance of Mr Eberhardt’s application is that if he ceased to be a resident of Australia, this would give rise to a “terminating event”: section 12 of the Child Support (Assessment Act) 1989 (the Assessment Act). Terminating events in relation to a liable parent affect the administrative assessment in relation to all of the children in the administrative assessment. The liability under the administrative assessment ends on the day before the day of the terminating event. There is no time limit unlike the notification of many other events in a child support case; the result is that the case can be retrospectively ended many years after an event, leading to potentially very significant impacts on a party to a case (for example, a receiving parent being overpaid child support in respect of all the liability arising after the terminating event).
Mr Eberhardt raised issues concerning the assessment of the level of his income during, and around, his absence. The Tribunal observes those matters are not before it in this application; the only issue before it is the determination of the objections officer that Mr Eberhardt had not at any stage during his absence in [Country] ceased to be a resident of Australia. Mr Eberhardt holds separate objection rights to the decisions about his income and other particulars of the assessment, which he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eberhardt and Stubbs (Child support)

Details

AGLC: Eberhardt and Stubbs (Child support) [2020] AATA 880
Case: [2020] AATA 880
Decision Date: 5 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the dispute between the liable parent, Mr Eberhardt, and the payee parent, Ms Stubbs, concerning the particulars of an administrative assessment of child support. The core of the disagreement revolved around whether Mr Eberhardt had ceased to be a resident of Australia for the purposes of the assessment.

The Tribunal was required to determine whether Mr Eberhardt had, in fact, ceased to be a resident of Australia. This involved an examination of the evidence presented regarding his circumstances and his connection to Australia.

The Tribunal found that Mr Eberhardt remained a resident of Australia. In reaching this conclusion, the Tribunal applied the principles governing residency for child support purposes, which typically consider factors such as the intention to reside, the location of a person's home, and their ongoing ties to the country. Based on the evidence, the Tribunal was satisfied that Mr Eberhardt's residency in Australia had not been terminated.

The decision under review, which affirmed the administrative assessment, was therefore affirmed by the Tribunal.

Orders