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

1. Mr Eberhardt has been assessed by the Child Support Agency (CSA) as liable to pay child support to Ms Stubbs.

2. 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.

3. On 28 May 2019, the CSA determined that Mr Eberhardt had continued to be resident of Australia during his absence in [Country].

4. 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.

5. 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.

6. 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).

7. 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 can take up separately with the CSA (whilst not relevant to this review, the Tribunal observes there are time limits in which to object to a decision, unless an extension of time is granted).

8. The issue for the Tribunal is whether or not Mr Eberhardt ceased to be a resident of Australia during his absence from 18 July 2014 to 24 December 2015. The term “resident of Australia” has the meaning given by section 10 of the Assessment Act (subsection 5(1)).  Section 10 provides 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."

9. The definition of the term “resident of Australia” is contained in subsection 6(1) of the Income Tax Assessment Act 1936 and it relevantly states:

   (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 the person's 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 the person's usual place of abode is outside Australia and that the person 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

   ..."

10. The policy on how the Registrar will determine the residency of a person is stated in chapter 1.6.1 of the Child Support Guide (the Guide).  On appeal from a decision of the Tribunal, the Federal Magistrates Court considered residency in Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 (Carrigan), although the issue in dispute was confined to the date from which the liable parent became a non-resident.

11. Simply put, if Mr Eberhardt continued to be a resident of Australia under ordinary concepts, his application must fail. There is no need to consider the domicile or superannuation tests.

12. Mr Eberhardt maintains he should not be regarded as a resident of Australia during the disputed period. He also has children (not in the child support case) in [Country]. He submits the period of absence of at least two years as a “rule of thumb” to lose Australian residency to be arbitrary. He did not undertake any work, or derive any income, whilst studying in [Country]. It appears not in dispute that he concedes he had travelled to [Country] for a defined period (ultimately around 18 months) with a view to study and return to Australia for an employment opportunity (in Canberra). In other words, the absence was always intended to be temporary. There is no evidence that he established his own residency in [Country]. His Australian‑based possessions stayed in storage, and he maintained an Australian bank account.

13. In Carrigan, reference is made to the Taxation Ruling No.IT2650, which provides guidance on whether an Australian resident ceases to be so for taxation purposes during an overseas stay. It requires consideration of the intended and actual length of the individual’s stay in the overseas country; any intention either to return to Australia at some definite point in time or to travel to another country; the establishment of a home outside Australia; the abandonment of any residence or place of abode the individual may have had in Australia; the duration and continuity of the individual’s presence in the overseas country; and the durability of association that the individual has with a particular place in Australia. It advises that the weight to be given to each factor will vary with individual circumstances of each case and no single factor is conclusive.

14. In the Tribunal’s assessment, the weight of the indicia very strongly point to Mr Eberhardt continuing to be resident of Australia. His absence was for a defined period for a defined purpose, and he always intended to return to Australia (which he did). Accordingly, he did not establish any permanent domicile in [Country], and consistent with his intentions to return, he stored his belongings in Australia and maintained an Australian bank account. Clearly, Australia was always “home”, and he always intended to return.

15. Accordingly, the Tribunal concludes that Mr Eberhardt did not cease to be a resident of Australia. Consequently, no “terminating event” for child support purposes arises on that basis.

16. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.