Joynson and Lamble (Child support)

[2022] AATA 3676

Joynson and Lamble (Child support) [2022] AATA 3676 (21 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024231

APPLICANT:  Ms Joynson

OTHER PARTIES:  Child Support Registrar

Mr Lamble

TRIBUNAL:Member S Hoffman

DECISION DATE:  21 September 2022

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• The application for the registration of a child support case for the children, [Child 1] and [Child 2], made on 29 May 2018 is accepted and not cancelled.

• [Child 1] and [Child 2] continued to be ordinarily resident in Australia after 26 May 2019.

• There was not a terminating event on or around that date and therefore the child support assessment continues beyond that date.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – 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. Ms Joynson and Mr Lamble are the parents of [Child 1] and [Child 2]. On 29 May 2018, Ms Joynson applied to the Child Support Agency (the CSA) for the registration of a child support case which was granted.

2. On 21 March 2022 the CSA was advised that Ms Joynson and the children had left Australia on 25 May 2019. On that basis, a CSA officer decided on 6 April 2022 to cancel the child support assessment with effect from 26 May 2019 (the original decision).

3. On 19 April 2022, Ms Joynson lodged an objection to the original decision.

4. On 17 June 2022, an objections officer decided to disallow the objection (the objection decision). The objection decision stated as follows:

   …when your child support application was accepted, we did not know that for [Child 2] and [Child 1] you were not a resident of Australia and we have now cancelled your child support.

   The effect of the objection decision is: there is no change to the assessment.

5. Towards the end of the reasons for the decision, the objections officer wrote:

   As [Ms Joynson] was not a resident of a reciprocating jurisdiction on the date the case was registered, we have made the decision to cancel the child suppprt assessment for [Child 1] and [Child 2] from 29 March 2018.[1]

   [1] As the child support assessment started on 29 May 2018 and not 29 March 2018, the tribunal considers that this is a typographical error and should read 29 May 2018.

6. The tribunal notes that the original decision was to cancel the child support case from 26 May 2019 and the objection decision was that the case should never have been registered.

7. On 7 July 2022 Ms Joynson lodged an application for review of the objection decision with this tribunal. The matter was heard on 21 September 2022. Ms Joynson attended the hearing in person. Mr Lamble did not attend.

8. According to the AAT’s records, on 1 September 2022 Mr Lamble was advised by letter of the date and time of the hearing. A reminder SMS was sent to him on 20 September 2022.

9. The AAT made a number of attempts to contact Mr Lamble by phone at the start of the hearing, to no avail.

10. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 318), copies of which were provided to the parties before the hearing.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the R & C Act).

2. The main issues in this review are whether the child support case should have been registered, and if it was, did the children continue to be Australian residents after departing Australia on 25 May 2019 for [Country].

CONSIDERATION

Should a child support case have been registered from 29 May 2018?

1. Division 2 of the R & C Act includes provisions about registering a child support case. It provides for a child support assessment to be registered in cases where the payee is a resident of a reciprocating jurisdiction (section 25 of the R & C Act). The reference to a reciprocating jurisdiction means there is an arrangement between Australia and another country in respect of child support.

2. At the time their case was registered, Ms Joynson, Mr Lamble and the children were living in Australia. Ms Joynson said they arrived in Australia on permanent visas during 2012.

3. The objections officer referred to Ms Joynson and the children not being residents of Australia at the time the child support case was registered, which was on 29 May 2018. The objections officer did not include any corroborating evidence on this point in their reasons for the decision.

4. Aside from the objection decision, there was no evidence before the tribunal that suggested Ms Joynson and the children were not in Australia when the child support case was registered.  

5. The tribunal concludes that Ms Joynson and the children were resident in Australia on 29 May 2018 and there was no impediment based on country of residence to a child support case being registered from that date. The provisions to do with reciprocating jurisdictions do not need to be considered further in relation to the registration of the child support case that is the subject of this review.

6. The tribunal is satisfied that the decision to grant the application for the registration of a child support case for the children, [Child 1] and [Child 2], from 29 May 2018 was correct and the registration of that case should not be cancelled from that date.

Should the child support case end on or about 26 May 2019?

Legislation and policy

1. A child support assessment can be ended if there is a terminating event.

2. Section 12 of the Assessment Act sets out the events that result in a child support case being terminated or not.

3. Subsection 12(3) of the Assessment Act sets out that there is a terminating event if the parent liable to pay child support ceases to be a resident of Australia. There is no equivalent provision if the parent who receives child support ceases to be a resident of Australia.

4. In relation to the children’s place of residence, paragraph 12(1)(f) of the Assessment Act sets out there is no terminating event if the child is present in Australia, is an Australian citizen or is ordinarily resident in Australia

5. Section 10 of the Assessment Act provides that a person is a resident of Australia for child support purposes if the person was a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

6. The Income Tax Assessment Act 1936 at section 6 sets out that a resident or resident of Australia means:[2]

   (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                   

   [2] The tribunal has quoted only the relevant subsection of section 6.

7. For policy direction, CSA officers refer to the Child Support Guide (the Guide). This assists them in administering the child support legislation. The tribunal will generally follow the Guide unless there is good reason not to do so.

8. At 1.6.1, the Guide sets out what is taken into account when determining whether or not a parent is a resident for child support purposes.[3] The tribunal considers that in broad terms, the same principles apply for children. Section 1.6.1 relevantly states:

   [3] Child Support Guide (2022) 1.6.1 Australian residence - parent or non-parent carer, accessed 23 September 2022 at

   The Registrar [the CSA] will apply the same tests as the ATO when it decides whether a person is a resident of Australia for child support purposes. These tests are summarised below. More information in relation to these tests is available on the ATO website…

   Australian resident leaving Australia

   Where a person who was an Australian resident leaves Australia, the Registrar will consider whether the person continues to be a resident of Australia according to:

   ·the ordinary meaning of 'resident', or

   ·the statutory domicile test, or

   ·the statutory superannuation test…

   Ordinary meaning of 'resident'

   The word 'resides' has its ordinary meaning for this test. The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'…

   Australian resident leaving Australia

   When considering whether a person has ceased to be a resident of Australia according to the ordinary meaning of the word 'resides', the Registrar will take into account the person's intention in going overseas and the length of their intended stay overseas.

   A person who usually resides in Australia but is overseas on holidays continues to reside in Australia during their absence.

   Where it is not clear that the person who has left Australia continues to be a resident of Australia according to ordinary concepts of residency, the statutory tests will be considered.

   Domicile test

   This test generally applies to Australian residents who leave Australia.

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

   Domicile

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

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

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

   ·they are legally present in a country, and

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

   A person will generally not have acquired a new 'domicile of choice' in a country if:

   ·they intend to leave the country in the foreseeable future, for example on the completion of a contract of employment or other project, or

   ·they intend to return to their country of origin on the occurrence of some definite future event, such as retirement (even if the timing for their retirement is distant and uncertain).

   However, a willingness to move to another country if better opportunities present themselves, or a hope of returning to one's homeland at some unspecified time in the future, will not defeat an intention to acquire a new domicile of choice.

   Generally, for the Registrar to be satisfied that a person has acquired a new domicile of choice, the person needs to have demonstrated by their actions that they genuinely do have an intention to reside in the new country indefinitely, for example, obtaining a migration visa or citizenship in the new country.

   If a person's domicile is outside Australia they will not be considered to be a resident of Australia under this test, and there is no need to consider their 'permanent place of abode', which is the second part of the test. If the person's domicile is Australia, their permanent place of abode needs to be considered.

   Permanent place of abode

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

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

   As a broad rule of thumb a period of 2 years or more may be regarded by the ATO as a substantial period for the purposes of a person's stay in another country. However, the duration of a person's actual or intended stay overseas is not of itself conclusive, and must be considered in conjunction with the other factors listed.

   ·the person's intention to return to Australia at some definite point in time or to travel to another country:

   Generally if a person has an intention of returning to Australia at the end of a 'transitory' stay overseas, they will not be considered to have established a permanent place of abode outside Australia. Whether a stay overseas is 'transitory' depends on the circumstances of the case, but as a general rule of thumb a stay of less than 2 years may be considered 'transitory'.

   ·whether the person has established a home outside Australia:

   If a person has established his or her home in an overseas country (e.g. purchased a house or apartment to live in or entered into a long-term lease on a home), this would tend to show the place of abode in the overseas country is permanent.

   ·whether the person has abandoned their residence or place of abode in Australia:

   If a person maintains a home in Australia that is available for them to live in while they are outside Australia, it may tend to suggest (in conjunction with other factors) that the person remains resident in Australia. If a person has sold or rented out their home in Australia it may tend to suggest that the person has established a permanent place of abode overseas.

   ·the duration and continuity of the person's presence in the overseas country:

   If a person has no fixed or habitual place of abode overseas but moves, for example, from one country to another, this may tend to suggest that the person has not established a permanent place of abode outside Australia.

   ·the durability of the person's association with a particular place in Australia:

   It is not necessary for a person to close all Australian bank accounts in order to establish a permanent place of abode overseas. For example, if a person closes their 'everyday use' accounts in Australia but maintains a long term investment account in Australia, it is still possible to establish, on the basis of other factors, that the person has a permanent place of abode outside Australia.

   If a person's children are enrolled at and attend school in the overseas country, this may tend to suggest that the person has established a permanent place of abode overseas. However, if a person's children continue their schooling in Australia despite the presence of adequate educational facilities in the overseas country this would tend to show that the person has not established a permanent place of abode outside Australia.

   The weight to be given to each factor will vary with individual circumstances of each case and no single factor will be decisive. [Emphasis added]

Evidence and application of legislation and policy to the evidence

1. The tribunal observes that whereas most of the focus of the child support case has been on whether Ms Joynson continued to be a resident in Australia after she left Australia on 25 May 2019, the test according to the legislation is whether the children continued to be Australian residents after that date.

2. Ms Joynson is a national of [Country]. The children, who are twins, turned 18 years old [in] September 2022. According to CSA records, the children became Australian citizens on 26 October 2020. Ms Joynson confirmed the children had obtained Australian citizenship but was unsure of when that occurred.

3. The fact that the children were granted Australian citizenship while overseas indicates that they were regarded as being residents of Australia by the Department of Home Affairs. It also strongly suggests an intention on their part to return to Australia. As Australian citizens, they have the right to enter and reside in Australia, subject to border restrictions such as those related to the pandemic.

4. The tribunal understands that the family arrived in Australia in 2012 and has lived here on visas granting them permanent residency until Ms Joynson and the children left Australia on 25 May 2019. Ms Joynson said she had acquired a Resident Return Visa subclass 155 which gave her the right to return to Australia. The tribunal is satisfied that Ms Joynson and the children acquired a new ‘domicile of choice’ in Australia when they arrived here in 2012.

5. As to why Ms Joynson and the children left Australia for [Country], Ms Joynson said that she did so with Mr Lamble’s permission. She said the reason they went was because of [Child 2]’s mental health. He was very anxious and would not leave his room, apart from going to school. He started cutting himself. She said [Child 2] was expelled from two schools, for things like attention-seeking behaviour and playing up in class. Ms Joynson said that [Child 2] had cousins in [Country] who were a bit older than him and she thought their influence would be good for him which was the case.

6. Ms Joynson provided documents that demonstrated her intention to return to Australia with the children in early 2020, approximately 10 months after leaving Australia for [Country]. These plans were thwarted mainly because of COVID-19 border restrictions. Ms Joynson and the children were unable to return to Australia. She wrote that even after being vaccinated they could not enter Australia as the vaccinations initially used in [Country] were not acceptable to Australian authorities.

7. Ms Joynson provided copies of emails between her and [Ms A], [Job title] at the [Distance] Education in [WA]. In the first email dated 6 May 2020, Ms Joynson wrote that she and the children were supposed to travel back to Australia at the beginning of the year [2020] but because of the bushfires they stayed in [Country] and then were stuck because of COVID-19.

8. The tribunal notes that prior to leaving Australia, Ms Joynson and the children had lived [in an region of Australia] which did experience significant bushfires in December 2019.

9. In her email to [Ms A], Ms Joynson wrote that they were planning to live in Perth on return to Australia once the lockdown ended and for the children to attend Perth schools. That was why she had contacted a distance education organisation based in Perth. [Ms A] requested proof of WA residence. Ms Joynson wrote that her partner had job opportunities in Perth and would be moving there. Ms Joynson told the tribunal that upon her return to Australia, she lived with her partner in Perth.

10. Based on these emails, the tribunal is satisfied that it was Ms Joynson’s intention for her and the children to return to Australia in early 2020 but that was not possible. And that when Ms Joynson realised the children could not return to Australia in early 2020, she put in place plans for them to continue with their education that was aligned to WA semesters and curriculums. However, as the border restrictions in Australia continued, plans changed.

11. Ms Joynson lodged her objection to the original decision on 19 April 2022. In a letter to the CSA that gave her reasons for her objection, Ms Joynson wrote that because of the delay in returning to Australia, both children were missing out on attending school. They transferred to an international private school in [Country], [International High School], to finish high school.

12. [Child 1] and [Child 2] were then enrolled in the International Baccalaureate (IB) program for children in their age group (16 to 19 years old). It is a two-year course intended to prepare children for universities and is recognised internationally.[4]   

    [4] The Good Schools Guide (2022) International Baccalaureate, accessed 26 September 2022 at

13. Ms Joynson said that there were far more opportunities for the children here in Australia because of the standard of the universities here, compared to the educational opportunities in [Country].

1. [Child 2] did one year of the IB and decided he wanted to return to Australia and attend TAFE to learn to be [an Occupation]. Ms Joynson wrote that he stayed at home for a year without going to school, until he was able to return to Australia. He returned to Australia in February 2022 after being double vaccinated with Pfizer which was acceptable to Australian authorities. [Child 1], by now 18 years old, decided to stay in [Country] to complete the last year of the IB.  Ms Joynson wrote that [Child 1] will return to Australia in 2023.

2. Ms Joynson and [Child 2] returned to Australia on 9 February 2022. Mr Lamble wrote to the CSA on 17 February 2022. In his email, consistent with Ms Joynson’s evidence, he wrote that [Child 1] would return to Australia after ending her studies and that was due to happen in September next year.

3. The tribunal is satisfied that the children have not abandoned Australia as their home. Their parents live here. They were granted Australian citizenship while they were overseas. The original intention was for them to return to Australia about eight to 10 months after they left but their plans were delayed by the bushfires. They were then prevented from returning to Australia because of border restrictions, which were beyond their control.

4. The tribunal notes the following section from the policy set out above, in particular the reference to two years:

   •the person's intention to return to Australia at some definite point in time or to travel to another country:

   Generally if a person has an intention of returning to Australia at the end of a 'transitory' stay overseas, they will not be considered to have established a permanent place of abode outside Australia. Whether a stay overseas is 'transitory' depends on the circumstances of the case, but as a general rule of thumb a stay of less than 2 years may be considered 'transitory'.

5. The general rule of thumb such that a stay in another country of less than two years may be considered transitory is quite reasonable. However, given what has transpired in the last two and a half years, not least the border closures and restrictions on entering Australia, the tribunal considers it is reasonable to conclude that a period much longer than two years may be considered transitory. The tribunal is satisfied that is the case here.

6. The tribunal places particular weight on the following factors:

   ·When the children left Australia in May 2019, it was intended they would return in early 2020

   ·The plans to return were delayed, then thwarted, by events beyond their control: bushfires and border restrictions

   ·Arrangements were made for them in 2020 to study online with a Perth-based online educational organisation to best prepare them for their return to Australia 

   ·The vaccinations initially available to people in [Country] did not satisfy the criteria for entry into Australia

   ·The children had applied for Australian citizenship which was granted to them while they were overseas

   ·[Child 2] has since returned to Australia and both parents agree that [Child 1] will return in 2023 after she finishes her schooling.

7. The tribunal is satisfied that despite the length of time the children have been out of Australia, it is reasonable for them to be considered to be “ordinarily resident” in Australia during the period they were and are out of Australia. The tribunal finds therefore that they have been, and are, ordinarily resident in Australia since arriving in Australia in 2012 (paragraph 12(1)(f) of the Assessment Act).

8. The tribunal concludes that a terminating event did not occur on or around 25 May 2019 when the children left Australia for [Country]. There is, then, no reason to end the child support case from 26 May 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides as follows:

• The application for the registration of a child support case for the children, [Child 1] and [Child 2], made on 29 May 2018 is accepted and not cancelled.

• [Child 1] and [Child 2] continued to be ordinarily resident in Australia after 26 May 2019.

• There was not a terminating event on or around that date and therefore the child support assessment continues beyond that date.