Kingsley and Child Support Registrar (Child support)

Kingsley and Child Support Registrar (Child support) [2018] AATA 3057 (18 June 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/HC013610
APPLICANT:  Mr Kingsley
OTHER PARTIES:  Child Support Registrar
Inland Revenue – Child Support; New Zealand

TRIBUNAL:Member M Baulch
DECISION DATE: 18 June 2018
DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Registrable overseas maintenance liability - Reimbursement liability under Australia - New Zealand Agreement - Whether the liability was registered correctly - Residency of the liable parent - Liability registered correctly - Decision under review affirmed

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

The Child Support (Registration and Collection) Act 1988 (the Act) provides a legislative scheme under which child support liabilities may be recorded (or registered) on the Child Support Register and enforced (or in other words collected) by the Department of Human Services – Child Support (the Department).
On 2 December 2016 the New Zealand Inland Revenue Department (Inland Revenue) applied to the Department seeking to have a liability owed to Inland Revenue by Mr Kingsley entered onto the Child Support Register and enforced against Mr Kingsley.
On or around 2 February 2017 the Department recorded the liability on the Child Support Register (the decision under review) and commenced taking action to enforce the liability against Mr Kingsley.
Mr Kingsley objected to that decision and, on 13 February 2018, that objection was disallowed. Mr Kingsley has now applied to this tribunal for an independent review of the Department’s decision.
A hearing into the application for review was held by the tribunal on 24 April 2018. Mr Kingsley discussed the application for review with the tribunal by telephone and gave evidence under affirmation during the hearing. The tribunal was assisted during the hearing by the services of a [Country 1] interpreter.
The tribunal had before it a bundle of documents prepared by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (152 pages), a copy of which had been sent to Mr Kingsley, however Mr Kingsley advised the tribunal that he had not received them. The tribunal also had before it additional documents lodged by Mr Kingsley prior to the tribunal hearing (labelled A1 to A55).
On 24 April 2018 the tribunal deferred determining the application for review to allow time for Mr Kingsley to obtain a copy of the documents and for the tribunal to seek additional submissions, documents and information from the Department. On 14 June 2018 the additional submissions, documents and information obtained by the tribunal (labelled C1 to C6 and B1 to B5) were sent to Mr Kingsley for his comment, which were received by the tribunal from Mr Kingsley on 14 June 2018.
On 18 June 2018 the tribunal considered the all the material before it and determined the application for review.

PRELIMINARY MATTERS

Objection decision

Only certain decisions made by the Department can be subject to a review by this tribunal in response to an application for review by an individual. Those decisions, and the person who can seek a review, are set out in section 89 of the Act and include “a decision under subsection 87(1) on an objection to a decision (the original decision) of the Registrar”. In essence, a decision on an objection can be the subject of an application for review to this tribunal.
In their reasons for decision dated 13 February 2018 the objections officer stated that they had disallowed Mr Kingsley’s objection to a decision “to determine Mr Kingsley is habitually resident in Australia”. It was my view that the objections officer has miss-described the decision to which Mr Kingsley objected.
Decisions that can be the subject of an objection request are set out in section 80 of the Act and include a decision “to register a registrable maintenance liability.” A decision to determine a person as a “habitual Australian Resident” is not a decision against which a right to object is set out in section 80 of the Act.
When Mr Kingsley lodged his objection with the Department on 14 September 2017 he indicated that he wished to object to a decision to “register maintenance liability”. While the objections officer stated that the decision under review was “the decision made on 1 February 2017 to determine that Mr Kingsley is a habitual Australian Resident”, it is clear that Mr Kingsley was seeking a review of the registration decision, not the decision about his residence status. However, Mr Kingsley’s ground for his objection was his status as an Australia resident and his assertion that he was not one.
I was satisfied that the decision against which Mr Kingsley lodged his objection, regardless of how that decision is described by the objections officer, is a decision in respect of which objection rights attached under section 80 of the Act. Mr Kingsley’s objection was disallowed. In his application to this tribunal he indicated that he wished to seek a review of “the decision of CSR to accept overseas child support maintenance order”.
I was satisfied that there is a valid objection decision – albeit miss-described by the objections officer – in respect of which Mr Kingsley has the right to seek a review by this tribunal.

Receipt of section 37 documents by Mr Kingsley

At the commencement of the hearing into his application for review on 24 April 2018 Mr Kingsley indicated that he has not received a copy of the documents prepared by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Subsection 37(1AE) of the AAT Act provides that the Department must also give a copy of the documents to the parties to the review – in this case that includes Mr Kingsley.
The documents were sent to Mr Kingsley by the Department via registered post and the tracking information indicates that they were ultimately returned to the Department. It appeared that they were sent to an address that Mr Kingsley indicated that he was no longer at. Mr Kingsley has stated at the hearing that he did not now have a mailing address.
On 24 April 2018 I deferred determining Mr Kingsley’s application for review, in part, to allow time for Mr Kingsley to obtain, view and make comment on the documents prepared by the Department. Ultimately, the tribunal was unable to assist Mr Kingsley in obtaining a copy of those documents and, on 30 April 2018, the tribunal registry wrote to Mr Kingsley to advise:
As you were advised during the hearing which occurred on 24 April 2018, the AAT Member has deferred determining your application for review to:
·Request additional material from the Department of Human Service – Child Support (the Department); and
·Allow you time to obtain and provide comment on the section 37(1) Statement and Documents (the documents) that were prepared by the Department in respect of your application for review.
Please note: The Administrative Appeals Tribunal is unable to assist you in obtaining a copy of the documents that were prepared by the Department. You will need to arrange with the Department for them to be re-sent to you by the Department. It is likely that the Department will require you to provide an address to facilitate this. Please note, that if you decline to provide the Department with your address you will, for practical purposes, be forgoing your opportunity to view and comment on the documents.
Please provide any comments you wish to make on the documents in writing by close of business 22 May 2018.
Communications received from Mr Kingsley indicated that he had been unable to obtain a copy of the documents because he asserted that he did not have an address and the Department had refused to send them to him via email.
The AAT Act states that the department must “give” a copy of the documents to a party but does not describe how the giving must be effected. Section 28A of the Acts Interpretation Act 1901 provides that when a document is to be served upon a person, whether the expression “serve”, “give” or “send” or any other expression is used, service may be effected by delivering a document personally or by leaving it at, or by sending it by pre-paid post to, the address of the place of residence last known to the person serving the document.
I was satisfied that the Department has complied with its obligation under section 37 of the AAT Act to “give” a copy of the documents to Mr Kingsley.
Notwithstanding this, Mr Kingsley did not have an opportunity to view the documents before I made my decision on his application for review. Regardless, I was satisfied that Mr Kingsley has been afforded procedural fairness in these proceedings. At the centre of the concept of procedural fairness is that a person has an opportunity to comment on any material upon which a decision-maker may rely when they make their decision. The opportunity to comment does not necessarily mean that a person must view the material. After all, section 35 of the AAT Act contemplates orders being made restricting the disclosure of evidence to some or all of the parties. A person is afforded procedural fairness when the content or substance of a piece of evidence is raised with them, and they are provided an opportunity to comment.
Relevant material contained within the documents was raised with Mr Kingsley during the hearing on 24 April 2018 and he was provided with the opportunity, during that hearing, to comment on that material. I was satisfied that Mr Kingsley was afforded procedural fairness during these proceedings, notwithstanding him not viewing the section 37 documents.

ISSUES

The statutory provisions relevant to this review are found within the Act.
I have identified the issues which arise in this case as:
· Is there is a registrable overseas maintenance liability; and if there is
· Should that liability be entered on the Child Support Register?

CONSIDERATION

The child support system in New Zealand operates slightly differently to that in Australia. In New Zealand, any work and income entitlement that would otherwise be reduced by a child support payment is paid to the beneficiary by the relevant New Zealand agency, even if no child support is collected from the liable parent. The person required to pay child support then becomes liable to reimburse Inland Revenue for the amount of the child support liability.
Under the Act, this type of liability is described as an agency reimbursement liability. An agency reimbursement liability is defined, pursuant to subsection 4(1) of the Act, to be a liability where:
(a) a parent or step-parent of a child is liable to pay a periodic amount for the maintenance of the child; and
(b) an amount has been paid by an overseas authority for the maintenance of the child to the person who has the care of the child; and

(c) the overseas authority seeks reimbursement of the amount mentioned in paragraph (b) from the parent or step-parent.

In this instance, on 2 December 2016 Inland Revenue sent an email, with an attachment, to the Department seeking to have the following amounts enforced against Mr Kingsley:[1]
[1] See folio C5.

Arrears amount	NZD78,355.40	AUD75,949.89
10% late payment penalty	NZD7,916.00	AUD7,672.98
2% late payment penalty	NZD77,897.00	AUD74,488.11

The child maintenance arrears of AUD75,949.89 were noted in the attachment to the email to represent the amount owed as at 31 October 2016. Having regard to information about the ongoing liability (AUD1,037.34 per month), the Department calculated the arrears owed as at 2 December 2016 to be AUD77,006.39.[2]

Is there a registrable overseas maintenance liability?

[2] See folios C6.

Subsection 4(1) of the Act defines a registrable overseas maintenance liability to mean a registrable maintenance liability mentioned in section 18A of the Act.
Section 18A of the Act says that a liability is a registrable overseas maintenance liability if it is, amongst other things:
· A liability of a parent of a child to pay a periodic amount for the maintenance of the child AND an overseas maintenance liability (subsection 18A(1) of the Act); or
· One of the following (subsection 18A(2) of the Act):
· Arrears of a periodic amount for the maintenance of the child that is an overseas maintenance liability (subsection 18A(4) of the Act).
I was satisfied that the amount of AUD77,006.39 determined by the Department having regard to the attachment to the email dated 2 December 2016 is an agency reimbursement liability. Therefore, the amount of AUD77,006.39 is a registrable overseas maintenance liability pursuant to paragraph 18A(2)(a) of the Act.
The attachment to the email referred to two penalty amounts. Pursuant to paragraph 18A(2)(b) of the Act, a penalty is only an overseas maintenance liability if it is prescribed for the purposes of section 18A of the Act. In this regard, regulation 4A of the Child Support (Registration and Collection) Regulations 1988 (the Regulations) state that:
For paragraph 18A(3)(b) of the Act, Article 15 of the Australia-New Zealand Agreement is prescribed.
The Australian and New Zealand Agreement on child support (the Agreement) is found in Schedule 1 to the Regulations. Article 15 of the Agreement says that penalty includes a penalty payable to an administrative authority by a payer under the law of New Zealand in respect of the late payment to the administrative authority by the payer of moneys payable under a decision of the kind referred to in Article 1.2(a) to (h) of the Agreement.
I was satisfied that the penalty amount of AUD7,672.98 is a penalty prescribed by the Regulations and is thus a registrable overseas maintenance liability pursuant to paragraph 18A(2)(b) of the Act.
I therefore found that the registrable overseas maintenance liability in this matter is, as at 2 December 2016, AUD$84,678.39.[3] I noted that the amount of the liability recorded in the Child Support Register was later amended by the Department, but that is not material to my consideration here.

Should that liability be entered on the Child Support Register?

[3] $77,006.39 + $7,672.98 = $84,679.37

Section 25 of the Act deals with applications for registration of registrable maintenance liabilities. Once registered, a liability can be enforced (or collected) from the liable parent in accordance with the provisions of the Act.
When the payee of a registrable maintenance liability is a resident of a reciprocating jurisdiction, and the liability is a registrable overseas maintenance liability, either the payee or the overseas authority of the reciprocating jurisdiction, on behalf of the payee, may apply to the Registrar to have the registrable overseas maintenance liability registered under the Act (subsections 25(1A) and (1B) of the Act).
Subsection 4(1) of the Act defines a reciprocating jurisdiction to be a foreign country, or part thereof, that is prescribed by the regulations to be a reciprocating jurisdiction. Regulation 3A of the Regulations provides that the foreign countries, or part thereof, mentioned in Schedule 2 to the Regulation are prescribed. Having regard to Schedule 2 to the Regulations, I was satisfied that New Zealand is so prescribed and is thus a reciprocating jurisdiction for the purposes of the Act.
When the liability in question is an agency reimbursement liability, subsection 4(1) of the Act defines the payee, in respect of the liability, to be the overseas authority seeking reimbursement under that liability. Subsection 4(1) defines the overseas authority to mean the judicial or administrative authority of a reciprocating jurisdiction that is responsible for giving effect to an international maintenance agreement, such as that between Australia and New Zealand. Therefore, in this case the payee of the registrable overseas maintenance liability, the registration of which is now being considered, is Inland Revenue.
Having regard to the email from Inland Revenue to the Department and its attachment I was satisfied that on 2 December 2016 Inland Revenue applied to have the registrable overseas maintenance liability that applied to Mr Kingsley registered under the Act.
Subsections 25(2) and (2A) of the Act provides that when a payee is resident in a reciprocating jurisdiction, and the Registrar receives an application under section 25 of the Act, the Registrar must, within 90 days, register the liability under the Act by entering the particular of that liability into the Child Support Register. Therefore, details of Mr Kingsley’s liability under the registrable overseas maintenance liability must be entered into the Child Support Register.
Subsection 25(2B) of the Act provides that the Registrar may refuse to register a registrable overseas maintenance liability if the Registrar is satisfied that the liability arises in a matter that is inconsistent with an international maintenance arrangement upon which the payee relies. Having regard to the Agreement, I was satisfied that subsection 25(2B) of the Act has no application here.
Also relevant is section 25C of the Act. This provides that the Registrar must not register a liability if neither the payee nor payer is a resident of Australia. Inland Review is not a resident of Australia. It is Mr Kingsley’s submission that he also is not a resident of Australia and therefore it was not open to the Registrar to enter the details of the registrable overseas maintenance liability into the Child Support Register.
Before determining whether or not Mr Kingsley is a resident of Australia, it is important to identify from what point in time the matter of Mr Kingsley’s residence is to be considered.
Mr Kingsley submitted that the relevant date for determining whether or not he is a resident of Australia is 2 February 2017 – as this is the date upon which the decision under review was made. The Department submitted in writing that the relevant date is 2 December 2016, as this is the date upon which Inland Revenue applied to register the registrable overseas maintenance liability and, pursuant to subsections 28(d) and 28(e) of the Act, this is the date from which the liability becomes enforceable under the Act.
The particulars of a liability that are included in the Child Support Register must include the date on which the liability first became enforceable under the Act (see subsection 26(2) of the Act). When the liability is of a kind mentioned in subsection 18A(2) of the Act, the liability first becomes enforceable on the date the Registrar receives the application for the liability to be registered (subsection 28(d) of the Act). In this case, therefore, the liability first became enforceable on the date that Inland Revenue applied for the registration of the liability in the Child Support Register, that is, 2 December 2016.
A liability to pay child support is not enforceable under the Act unless that liability is registered, that is, recorded in the Child Support Register. If, as in this case, enforceability commenced on 2 December 2016, there is some logic in the view that the liability was registered from 2 December 2016. If the liability is registered from 2 December 2016, even if that registration occurs later, the date from which the liability is registered is the date on which the residential status of the payer and payee must be considered.

I therefore concluded that the relevant date in respect of which Mr Kingsley’s status as a resident of Australia must be considered is 2 December 2016.

Was Mr Kingsley a resident of Australia as at 2 December 2016?

Subsection 4(1) of the Act provides that for the purposes of the 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, but this does not include a resident of a reciprocating jurisdiction. I received no submissions, nor identified any evidence, to the effect that Mr Kingsley was a resident of a reciprocating jurisdiction as at 2 December 2016.
Section 6 of the Income Tax Assessment Act 1936 sets out the definition of resident of Australia. The Income Tax Assessment Act 1936 establishes four tests to determine whether an individual is a resident. The relevant tests are:
·       residence according to ordinary concepts;
·       the 183 day test;
·       the Commonwealth superannuation fund test; and
·       the domicile and permanent place of abode test.
I considered Mr Kingsley’s circumstances against the residence tests.

“Residence” according to ordinary concepts

In relation to the concept of residence according to ordinary concepts, the Preamble to Taxation Ruling IT 2650 indicates that the dictionary meaning of the word to reside is relevant, stating:
The ordinary meaning of the word "reside", according to the Shorter Oxford English Dictionary, is to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.
Passenger movements obtained by the Department from the Department of Home Affairs show that Mr Kingsley arrived in Australia on 20 July 2015, stayed four days, and then departed Australia on 24 July 2015. Mr Kingsley spent no further time in Australia during the 2015 calendar year. I was satisfied that Mr Kingsley was not a resident in Australia during 2015.
The records show that Mr Kingsley arrived in Australia again on 18 January 2016 and stayed until he departed on 14 June 2016. I calculated that the duration of Mr Kingsley’s stay in Australia was 148 days (or just over 21 weeks). There is no incoming passenger card in respect of Mr Kingsley’s arrival in Australia on 18 January 2016 within the bundle of documents before me.
Mr Kingsley returned to Australia on 28 July 2016. The duration of his absence from Australia since he left on 14 June 2016 had been 44 days (just over six weeks). On an incoming passenger card signed by Mr Kingsley on 28 July 2016 he records Italy as the place where he spent most time abroad and declared himself to be an Australian resident returning to Australia and indicated that he intended to stay in Australia for the next 12 months.
Mr Kingsley departed Australia on 27 November 2016, by which time he had been in Australia for 122 days (over 17 weeks) since arriving in July. Mr Kingsley was absent from Australia on 2 December 2016.
The evidence shows that Mr Kingsley arrived in Australia again on 4 December 2016. The duration of his absence from Australia had been only seven days. On an incoming passenger card signed by Mr Kingsley on 4 December 2016, he records Singapore as the place where he spent most time abroad and declared himself to be an Australian resident returning to Australia and indicated that he did not intend to stay in Australia for the next 12 months.
Mr Kingsley’s evidence was that his permanent residence is a boat located in Europe, but that it is uncomfortable for him to stay there in winter. I noted that Mr Kingsley’s presence in Australia during 2016 was not confined to that part of the year during which it is winter in Europe. Mr Kingsley stated another reason for travelling to Australia was due to him having acquaintances that live in Australia. Mr Kingsley stated that during his arrivals in Australia during 2016 he had no intention of working or remaining in Australia or settling in Australia.
Mr Kingsley’s evidence at hearing was that when he arrived in Australia on 28 July 2016 he was considering the possibility of making Australia his country of residence until about December 2016. He stated at hearing that he did not intend to reside here permanently, but was just planning on spending several months in Australia. He could not recall why he indicated that he intended to remain in Australia for the next 12 months on his passenger arrival card signed on 28 July 2016.
Mr Kingsley stated that he declared himself as an Australian resident retuning to Australia on his passenger arrival cards as there was no option to record his boat in Europe as his place of residence or to record himself as only visiting for several months. Mr Kingsley is a New Zealand citizen who holds a New Zealand passport, which entitles him to enter Australia at any time for any reason. It was my view that if Mr Kingsley was entering Australia for a visit of only several months, he could have ticked the response “Visitor or temporary entrant”, as I noted he did on other arrival cards dated 27 January 2017, 4 March 2017 and 1 April 2017.
Mr Kingsley was unable to clearly recall his thinking in recording himself as an Australian resident returning to Australia on 28 July 2016, intending to remain for the next 12 months. In my view, the arrivals card represents a persuasive contemporary record of Mr Kingsley’s intentions on entering Australia on 28 July 2016, that is, he saw himself as residing in Australia at that point in time and intended to remain residing in Australia for the next 12 months.
Mr Kingsley’s evidence was that while in Australia he stayed at a serviced apartment. He took the apartment under a series of leases, each of several months’ duration, but he could not be more specific. He bought with him only what was in a suitcase or backpack, with most of his other possessions being located on his boat in Europe. Mr Kingsley had an Australian bank account operating at that time and also has accounts in New Zealand and [Country 1]. Information obtained by the Department from the Australian Securities and Investment Commission discloses that Mr Kingsley registered a company in Australia [in] March 2016. Mr Kingsley explained that at one point in time he was considering pursuing business in Australia and this did not eventuate and the company did not ever trade.
As previously stated, I was satisfied that Mr Kingsley was not an Australian resident in 2015. When considering the residency status of individuals who were not residents before they entered Australia, such as when Mr Kingsley entered Australia in 2016, Tax Ruling 98/17 provides clarification on the interpretation of the ordinary meaning of the word “reside”. The ruling states:
Ordinary meaning
13. As there is no definition of the word 'reside' in Australian income tax law, the ordinary meaning of the word needs to be ascertained from a dictionary.
14. For example, The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time' and the Shorter Oxford English Dictionary defines it as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place'.
15. The ordinary meaning of the word 'reside' is wide enough to encompass an individual who comes to Australia permanently (e.g., a migrant) and an individual who is dwelling here for a considerable time.
16. A migrant who comes to Australia intending to reside here permanently is a resident from arrival.
17. When an individual arrives in Australia not intending to reside here permanently, all the facts about his or her presence must be considered in determining residency status.
18. The period of physical presence or length of time in Australia is not, by itself, decisive when determining whether an individual resides here. However, an individual's behaviour over the time spent in Australia may reflect a degree of continuity, routine or habit that is consistent with residing here.
Behaviour while in Australia
19. The quality and character of an individual's behaviour while in Australia assist in determining whether the individual resides here.
20. All the facts and circumstances that describe an individual's behaviour in Australia are relevant. In particular, the following factors are useful in describing the quality and character of an individual's behaviour:
·      intention or purpose of presence;
·      family and business/employment ties;
·      maintenance and location of assets; and
·      social and living arrangements.
21. No single factor is necessarily decisive and many are interrelated. The weight given to each factor varies depending on individual circumstances.
Period of physical presence in Australia
22. Whether a considerable time has elapsed to demonstrate that the individual's behaviour has the required continuity, routine or habit is a question of fact; that is, it depends on the circumstances of each case. The Commissioner's view of the law is that six months is a considerable time when deciding whether the individual's behaviour is consistent with residing here.
23. When behaviour consistent with residing here is demonstrated over a considerable time, an individual is regarded as a resident from the time the behaviour commences.
24. As residency is a question of fact, individuals who are in Australia for less than six months may establish they reside here. (See Example 1 at paragraphs 68 to 72.) Conversely, individuals may establish that they do not reside here, even if they have been in Australia for a longer time. (See Example 2 at paragraphs 73 to 75.)
25. If individuals enter Australia intending to remain for less than six months but later events extend their stay beyond six months, they are regarded as residents from their arrival, as long as their presence has an habitual and routine character during the entire period.
26. This may apply when an individual comes to Australia on a short-term employment contract for less than six months. This would not normally be sufficient time to demonstrate behaviour that is consistent with residing here. If the employment is extended past six months, the facts surrounding the entire stay in Australia must be considered, not merely the original intended length of stay. (See Examples 3 and 4 at paragraphs 76 to 83.)
27. On entering this country, individuals may demonstrate they do not intend to reside in Australia, e.g., they may be visitors on holiday. When a change in their behaviour indicates an intention to reside here, e.g., they decide to migrate here, they are regarded as residents from the time their behaviour that is consistent with residing here commences. Intention is to be determined objectively, having regard to all relevant facts and circumstances. (See Example 5 at paragraphs 84 to 89.)
28. On the other hand, an intention to leave Australia after a brief stay is of little significance if the individual does not, or is unable to, depart: Case 104 10 TBRD 299.
The evidence shows that Mr Kingsley entered Australia on 28 July 2016, indicating he intended to stay for about 12 months and declaring himself an Australian resident who was returning to Australia. After arriving in July and December 2016 Mr Kingsley stayed at the same serviced apartment as he had been staying at prior to each departure overseas. Mr Kingsley had operated an Australian bank account and had contemplated operating a business in Australia.
I was satisfied that Mr Kingsley’s intentions, behaviours and the duration of his presence in Australia show that he became a resident of Australia, under the ordinary concept of residence, at some time between his first arrival that year in January 2016 and his departure on 14 June 2016.
Although Mr Kingsley was outside Australia between 14 June 2016 and 28 July 2016, the declaration he made on his passenger arrivals card shows that he was intending to continue with his residence in Australia, for at least the next 12 months notwithstanding that period of absence.
I took the view that when Mr Kingsley departed Australia on 27 November 2016 his period of residence in Australia did not cease. By this time, Mr Kingsley had been in Australia for most of the 2016 calendar year. Mr Kingsley was outside Australia for a very short period (only seven days) and indicated on his return on 4 December 2016 that he was an Australian resident returning to Australia. Mr Kingsley continued to live in the same serviced apartment he had been using prior to leaving Australia on 27 November 2016.
I therefore found that Mr Kingsley was a resident of Australia as at 2 December 2016.
Mr Kingsley’s submissions at hearing suggested that he did not view the definitions of resident of Australia that are set out in the taxation legislation as being applicable to him, because he did not earn an income or work in Australia. I inferred that he was suggesting that the definitions do not apply to him as the taxation legislation has no application in his case. Subsection 4(1) of the Act defines resident of Australia and I did not interpret that definition as only applying to those who work or earn an income and was satisfied that the relevant definitions set out in the Income Tax Assessment Act 1936 do apply in Mr Kingsley’s case.
I note that Mr Kingsley’s attitude to his presence in Australia changed after 2 December 2016, particularly after the Department made contact with him in January 2017. However, I was of the view that this change in attitude, which occurred after 2 December 2016, does not inform the consideration of whether or not Mr Kingsley was a resident of Australia as at 2 December 2016.
As I have found that Mr Kingsley was a resident of Australia for child support purposes according to the ordinary concepts of “residency”, I have not considered the secondary tests which determine residency under the taxation legislation.
As Mr Kingsley was a resident of Australia on 2 December 2016 I was satisfied that section 25C of the Act had no application in this case. It was therefore open to the Registrar to record the registrable overseas maintenance liability in the Child Support Register with effect from 2 December 2016.
For these reasons, I therefore affirmed the decision under review.

DECISION

The decision under review is affirmed.

[2018] AATA 3057

18 June 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review

Standing