Hudnall and Beasant Hudnall (Child support)

[2021] AATA 3687

Hudnall and Beasant Hudnall (Child support) [2021] AATA 3687 (3 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC021192

APPLICANT:  Mr Hudnall

OTHER PARTIES:  Child Support Registrar

Ms Beasant-Hudnall

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  3 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 28 December 2020 Mr Hudnall is no longer a resident of Australia or a reciprocating jurisdiction for the purposes of child support.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether paying parent has ceased to be a resident of Australia or a reciprocating jurisdiction – whether a terminating event has occurred – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been 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

BACKGROUND

1. This decision relates to the residency status of Mr Hudnall for the purposes of child support.

2. Mr Hudnall and Ms Beasant-Hudnall are the parents of [Child 1] (born June 2005).  There has been a child support assessment in place since 12 July 2012.

3. On 5 January 2021 the Child Support Agency made the decision to reflect that Mr Hudnall continued to be a resident of Australia or a reciprocating jurisdiction for the purposes of child support.

4. On 27 January 2021 Mr Hudnall objected to this decision and on 7 April 2021 the Child Support Agency disallowed the objection (the objection decision).

5. On 8 April 2021 Mr Hudnall applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 15 July 2021.  Mr Hudnall and Ms Beasant-Hudnall gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the review (249 pages).  During the hearing the Tribunal requested a written copy of the opening remarks made by Mr Hudnall.  This was received on 15 July 2021 (A1–A11).  A copy was provided to Ms Beasant-Hudnall for her comments, however, none were received.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The application requirements for a child support assessment are in Division 1 of Part 4 of the Act. A child support assessment can be made and continue where the payer resides overseas in a reciprocating jurisdiction provided that the other parent is a resident of Australia (section 29A of the Act). Reciprocating jurisdictions are listed in Schedule 2 of the Child Support (Registration and Collection) Regulations 1988. Section 12 of the Act provides for the “happening of child support terminating events” including when a parent liable to pay child support ceases to be a resident of a reciprocating jurisdiction.

3. The issue which arises in this case is whether or not Mr Hudnall is no longer a resident of Australia or a reciprocating jurisdiction for the purposes of child support.

CONSIDERATION

1. Mr Hudnall told the Tribunal he was currently a resident of [Country 1] having relocated from [Country 2] on [date] December 2020.  Mr Hudnall explained the move was primarily for lifestyle reasons as he and his wife wanted to live in [Country 1] and raise their daughter there.

2. Mr Hudnall said he had started a [company] in [City 1 in Country 1] with his wife a couple of years ago and it had been incorporated in 2020 so they could expand and grow the business.  He said the company was called [Company 1] and was a significant investment.  Mr Hudnall added he had a visa allowing him to stay in [Country 1], was a resident of that country for tax purposes, had a long-term lease on a home in [Country 1] and his daughter had recently commenced school at [an] Early Learning.

3. Mr Hudnall argued that, in his view, he had met all the relevant criteria for the test of residency and the Child Support Agency had failed to apply appropriate weighting to the evidence he supplied.  Mr Hudnall reiterated he no longer lived in [Country 2].  He said it was his intention to reside in [Country 1] with his wife and family for the foreseeable future.  Mr Hudnall added that he was not trying to avoid paying child support for [Child 1] and would continue meeting his financial needs which included paying his school fees.

4. The Tribunal notes in evidence from the Child Support Agency a document issued by the Minister of Law and Human Rights in [Country 1] showing a company, [Company 1], was registered as a legal entity on 26 August 2020.  An attachment to this document confirms that Mr Hudnall is a director and equal shareholder in the company which has an issued capital of 2,500,000,000 Rp. (approximately A$235,500).  A separate document, issued by the [City 1 in Country 1] Regional Office of the Directorate General of Taxes, states that [Company 1] was registered for taxation purposes and issued with a tax file number on 7 September 2020.

5. Mr Hudnall told the Tribunal he held a temporary visa, [to] live and work in [Country 1].  He said the process to obtain a permanent residency permit was a lengthy one and required the applicant to first renew [the temporary visa] four times including the initial application.  Mr Hudnall said he had provided correspondence from his lawyer in [Country 1] explaining the process and advising that he planned to apply for permanent residency when he could.

6. The Tribunal notes in evidence from the Child Support Agency a copy of a limited stay permit issued by [Country 1] to Mr Hudnall.  The permit allows multiple entries and expires on 28 December 2022.  The Tribunal further notes a letter from a senior legal associate [in] [City 1] dated 4 March 2021.  It states that Mr Hudnall is a holder of a temporary stay permit issued by the [Country 1 government]and that Mr Hudnall will be eligible for a permanent stay permit in coming years.

7. Mr Hudnall said that foreigners were unable to own residential land in [Country 1] on a freehold basis and so instead he had a long-term lease on the family residence in [City 1].  He said the lease expired in 2039 and was considered a permanent abode in [Country 1].  Mr Hudnall added that the durability of his residency was also illustrated by the enrolment of his daughter in a school in [City 1].  Mr Hudnall said he also held a bank account with [a] Bank in [Country 1], although he did not consider this directly relevant to his residency status as he still had bank accounts in [Country 2] and Australia as well.

8. The Tribunal notes in evidence from the Child Support Agency a leasehold transfer agreement to Mr Hudnall dated 1 November 2019.  The agreement is for two villas in [City 1] and is valid until 6 March 2039.  The Tribunal further notes invoices dated 24 November 2020 and 26 February 2021 for full-time attendance at [an] Early Learning for the periods from 11 January 2021 to 19 March 2021 and 5 April 2021 to 18 June 2021.

9. Ms Beasant-Hudnall told the Tribunal she believed Mr Hudnall remained a resident of [Country 2].  She said Mr Hudnall continued to work in [Country 2] and had strong ties to the country.  Ms Beasant-Hudnall said she understood his business in [Country 1] was only small and he would never be able to survive on the income derived from that business.  Ms Beasant-Hudnall acknowledged that Mr Hudnall was currently paying school fees for [Child 1] but said he had not paid any fees from 2018 to 2020.

10. Mr Hudnall said he did not dispute he still had employment in [Country 2].  He said he was employed by a [company] [and] seconded to [Company 2] in [Country 2].  Mr Hudnall explained that it was a regional role with responsibility for the Asia Pacific and he was able to execute his responsibilities from his base in [Country 1].  He acknowledged the role required him to travel to [Country 2] regularly as well as other countries in the region.  Mr Hudnall said before the COVID-19 pandemic he was travelling extensively and would continue to do so once travel restrictions had eased.  He said he expected to be in [Country 2] a few days every month in normal circumstances.  Mr Hudnall said he would continue to maintain ties with [Country 2], as his wife was [from Country 2], but he believed this was not relevant to his residency status.  Mr Hudnall added that he did not hold any assets in [Country 2] and no longer leased a residential property in [Country 2] but his wife had an apartment in [Country 2].

11. A child support assessment can continue in circumstances where the payer resides overseas in a reciprocating jurisdiction provided that the other parent is a resident of Australia.  The Tribunal is satisfied Ms Beasant-Hudnall is a resident of Australia.

12. Mr Hudnall told the Tribunal he had not resided in Australia for many years and did not plan to return to Australia to live at any time in the near future. A person is a resident of Australia for the purposes of the Act and the R&C Act if they are a resident of Australia for the purpose of the Income Tax Assessment Act 1936. The Tribunal is satisfied that Mr Hudnall is not a resident of Australia for the purposes of child support.

13. Part 1, section 4 of the R&C Act defines a resident of a reciprocating jurisdiction as a person who is habitually resident in the reciprocating jurisdiction. The Tribunal must determine whether or not Mr Hudnall is habitually resident in [Country 2]. The Child Support Guide, at 1.6.3, provides some context to this matter. It states:

    In making a decision about whether a person is a resident of a reciprocating jurisdiction the ordinary meaning of 'resident' needs to be considered.

    The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'.

    A person who has always lived in a reciprocating jurisdiction will be resident there.

    A person who has moved to a reciprocating jurisdiction from another country intending to reside there permanently will generally be a resident of that country from the time they arrive.

    Where a person has arrived in a reciprocating jurisdiction and they are not intending to reside there permanently or their intention is not clear, the Registrar will take into account all the following factors when deciding if they are resident in the reciprocating jurisdiction:

    ·the reason for the person's presence in the country

    ·the actual and intended length of the person's stay

    ·the person's family and business/employment ties in the reciprocating jurisdiction and any other country, and

    ·the person's social and living arrangements in the reciprocating jurisdiction and any other country.

    The weight given to each factor will vary according to the circumstances of the individual.

14. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

15. Mr Hudnall has told the Tribunal he has retained the same role in [Country 2] with [Company 2] but is now fulfilling that role while residing in [Country 1].  He has said that, in the ordinary course of events, he will travel to [Country 2] on a regular basis as part of his responsibilities with [Company 2] but will also continue travelling to other locations in the Asia Pacific region as this is what the role requires.  Mr Hudnall has provided evidence showing his family has moved to [Country 1], that he has a business in [Country 1], has a home in [Country 1] and has financial ties to [Country 1].  While his [Country 1] visa would, at face value, suggest he is a temporary resident of [Country 1], the Tribunal accepts that Mr Hudnall has the intention of applying for permanent residency when permitted to do so by the relevant [Country 1] authorities.

16. While Mr Hudnall maintains the same employment in [Country 2], the Tribunal also accepts that he is able to perform this role while residing in [Country 1].  This is not unusual with regional roles in modern digital economies.  Mr Hudnall continues to have other ties in [Country 2], including bank accounts, but the Tribunal finds this to be no different to ties he may have with, for example, Australia.  It is natural for him to maintain some connection to the country where his current wife has presumably been raised and remains a citizen.

17. The Tribunal is satisfied that, on balance, Mr Hudnall is no longer habitually resident in [Country 2].   Based on the evidence provided the Tribunal finds that Mr Hudnall now lives in [Country 1] and has done so since 28 December 2020.

18. The Tribunal notes, in making this determination, that [Country 1] is not listed as a reciprocating jurisdiction in Schedule 2 of the Child Support (Registration and Collection) Regulations 1988.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 28 December 2020 Mr Hudnall is no longer a resident of Australia or a reciprocating jurisdiction for the purposes of child support.