Neville and Coach (Child support)

Neville and Coach (Child support) [2018] AATA 3292 (16 July 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS: 2016/SC010768
2017/SC011647

APPLICANT: Mr Neville
OTHER PARTIES: Child Support Registrar
Ms Coach

TRIBUNAL:Member K Timbs
DECISION DATE: 16 July 2018
DECISIONS:

The Tribunal dismisses the review number SC010768 because the decision is not reviewable by the Tribunal.

The Tribunal sets aside the decision in review number SC011647 and sends the matter back to the Department with the direction that a terminating event happened for the child support assessment on 14 April 2003.

CATCHWORDS

Child support – Dismissal of application for review as there was no reviewable decision

Child support – Liable parent ceased to be a resident of a reciprocating jurisdiction – Child support terminating event – Decision under review set aside and remitted with direction

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

Mr Neville and Ms Coach are the parents of [Child 1] born 2000. The Department of Human Services made child support assessments for [Child 1] on behalf of the Child Support Registrar starting 21 February 2002. Mr Neville is the parent liable to pay child support.
On 12 May 2016, the Department decided the child support assessment had not ended when Mr Neville went to live and work in [Country 2] in 2003. On 19 September 2016, an Objections Officer of the Department disallowed Mr Neville’s objection to that decision. On 8 December 2012, Mr Neville applied for review of that decision (SC011647).
The Department found the Objections Officer had not provided procedural fairness to Mr Neville and decided the decision had no effect. On 10 April 2017, another Objections Officer reconsidered Mr Neville’s objection and disallowed it. On 8 May 2017, Mr Neville applied for review of that decision (SC010768).
The Tribunal heard the applications for review on 17 May 2018.

JURISDICTIONAL ISSUE (SC010768)

The Registrar determined the decision in review number SC010768 was void as a result of a jurisdictional error. It did not give effect to it and, in that case, there is no decision for the Tribunal to review. It will dismiss the application for review under section 42A(4).

ISSUES FOR THE TRIBUNAL TO DETERMINE (SC011647)

The Registrar makes child support assessments for child support periods under the Child Support (Assessment) Act 1989. The amount determined under assessments is payable by the liable parent from the day of application for an assessment until a terminating event happens (section 31).
Relevantly, section 12(3A) provides that a terminating event happens in relation to a liable parent if:
·         an international maintenance arrangement applies in respect of the person and the child;
·         the person is a resident of a reciprocating jurisdiction;
·         the person ceases to be a resident of the reciprocating jurisdiction; and

· the person does not, immediately after so ceasing, become a resident of another reciprocating jurisdiction or of Australia.

Mr Neville contends the provision applies in relation to him from 2003. To deal with his application for review, the Tribunal considered whether that was the case.

CONSIDERATION

Evidence considered

The Tribunal considered documents relevant to the decision under review provided by the Department and documents and submissions from both the parties provided by their solicitors, [Ms A] for Mr Neville and [Mr B] for Ms Coach. It heard evidence at hearing from Mr Neville and Ms Coach and submissions from [Mr B] and [Mr C], barrister for Mr Neville.

Did Mr Neville cease to be a resident of a reciprocating jurisdiction?

Residence in [Country 1]

Mr Neville lived and worked in [Country 1] in 2002 when the Department made the first child support assessment. There is no dispute he was a resident of [Country 1] at that time or that it is a reciprocating jurisdiction for child support purposes and that an international maintenance agreement applied in relation to him.
There is also no dispute that Mr Neville started working in [Country 2] on 14 April 2003 and lived there for most of the time until he returned to live and reside in [Country 1] in 2012. The question for the Tribunal to determine is whether Mr Neville ceased to be a resident of [Country 1] when he went to live and work in [Country 2].
The word “resident” has its ordinary meaning because it is not defined in the Act.[1] The ordinary meaning has been considered by courts in many contexts and the judgement of Wilcox J in Hafza v Director-General of Social Security (1985) 60 ALR 674 canvasses a number of the earlier judicial authorities:
13. There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation(1941) 64 C.L.R. 241 at p.249, by Williams J.:
"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode."
14. Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily : see Commissioners of Inland Revenue v. Lysaght(1928) AC 234 a p 248 and Keil v Keil(1947) VR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v. Inland Revenue Commissioners (1928) AC 217 at p 225 and Judd v. Judd(1957) 75 WN (N.S.W.) 147 at p 149 - together with an intention to return to that place and an attitude that that place remains "home" - see Norman v Norman(1969) 16 F.L.R. 231 at p.236. It is important to observe firstly, that a person may simultaneously be a resident in more than one place - see the facts of Lysaght and the reference by Williams J. to "a home or homes" - and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
[1] The definition in section 10 applies to a resident of Australia but not a resident of a reciprocal jurisdiction.
The following evidence of Mr Neville’s physical presence and employment is not disputed:
·         Mr Neville was born in [Country 3] and lived there until he was 18 years old with his parents.
·         From 1988 to 1992, he lived and studied in Australia.
·         In 1992, he lived and worked in [Country 3].
·         From 1998, he lived and worked in [Country 1].
·         From 14 April 2003, he lived and worked in [Country 2].
·         Since 2012, he has lived and worked in [Country 1].

Physical presence

Mr Neville travelled often while he lived and worked in [Country 2]. However, he was physically present there, rather than [Country 1], for most of the time. To determine whether he nevertheless remained a resident of [Country 1], the Tribunal considered whether he intended to return to live there and continued to treat it as home from the time he lived there in April 2003 to 2012.
Business ties and employment in [Country 1]
Mr Neville said he had started a relationship with Ms Coach when they were studying together in Australia. He said the relationship continued when he returned to [Country 3] and Ms Coach stayed in Australia. He said it ended 1998 but they reconciled in 1999 when he was living in [Country 1] and Ms Coach said that they spent time together in [Country 1], [Country 3] and [Country 2].
They both told the Tribunal Ms Coach wanted him to come to live in Australia with her and made it a condition of them marrying. Both said he agreed to come to live in Australia but that it did not happen. On their evidence the relationship ended soon after [Child 1] was born or in February 2002 when Mr Neville came to Australia to visit Ms Coach and [Child 1] and decided to return to [Country 1] permanently.
Mr Neville told the Tribunal the main reason he lived in [Country 1] from 1998 to 2003 was for work and Ms Coach said that he “loved [Country 1] because of the opportunity to earn money”. He said he did not want to leave his work in [Country 1] and did not want to live in Australia because he believes “it is not for me”.
Mr Neville said going to [Country 2] for work in 2003 was a risk. It was a permanent position and he said he did not know whether he would want to stay there. He said he found he liked living there and refused an offer in 2007 by the company’s general manager to work in “any other country”. He said he “tried [his] best to stay” in [Country 2] and later returned to [Country 1] only because he obtained a much better paid job with the same group of companies.
On the evidence of both parties, the Tribunal finds Mr Neville was ambitious and that he considered [Country 1] as a place in which he could advance his career. However, he also demonstrated a willingness to take up career opportunities when offered in another country. He did not take up an opportunity to live in Australia with Ms Coach that was unrelated to his career. This indicates he gave priority to his career over his personal relationships when determining where he would live.
Mr Neville worked for the [name deleted] group of companies in both [Country 1] and [Country 2] and he returned to a position with the [Country 1] subsidiary in 2012 at a much higher salary. [Mr B] submitted his continuing employment by that group of companies demonstrates continuing business ties to [Country 1].
The Tribunal finds his continued employment demonstrates a continuing relationship with the ultimate employer. However, it is incorporated in [Country 4], has headquarters in [Country 4] and operates in approximately 80 countries. There is no evidence his work for the [Country 2] subsidiary had anything to do with the operations of the [Country 1] subsidiary. His contacts in [Country 1] might have helped him to transfer in 2012 but, in the Tribunal’s view, that does not indicate he intended to return there when he went to live and work in [Country 2] in 2003 unless a better work opportunity came up.
Family ties in [Country 1] and [Country 2]
Mr Neville said he could leave [Country 1] without difficulty because his only family ties at that time were his parents and siblings in [Country 3]. (He has not maintained contact with [Child 1].) He firstly told the Tribunal no family members live in [Country 1] except for a “so-called auntie”. He said he is not close to her and lived with her for only a couple of weeks when he first arrived.
Ms Coach told the Tribunal his aunt is the sister of one of his parents (rather than “a so-called auntie”) and that he lived with her for most of the time from 1998 to 2003. She said he also has cousins in [Country 1] and an uncle who is also the sibling of one of his parents. Mr Neville then confirmed Ms Coach’s evidence about his uncle and cousins and said he also spent some weeks living with his uncle. When asked, he did not explain why he provided misleading evidence. Rather, he denied living with his aunt for more than a few weeks and said again they were not close and that he visits her only at New Year.
In the absence of an explanation, the Tribunal finds the inconsistency in his evidence affects the credibility of his evidence on the issue of his family ties in [Country 1]. It is satisfied his immediate family did not live in [Country 1] at any relevant times but infers he has had meaningful ties to his extended family members in [Country 1].
The Tribunal also found his evidence that he did not develop a friendship group to be unconvincing. He said he had colleagues at work but did not spend time with them. However, he did not dispute Ms Coach’s evidence that he spent time playing [sport] with friends and spent time with a particular colleague outside of work. Instead, he qualified his evidence and said he did not have contact with his friends from [Country 1] after he went to [Country 2] in 2003. In the Tribunal’s view, while he might have lost contact with friends over time, it does not accept that he lost contact with his friendship group as soon as he went to [Country 2]. It finds he had friends and acquaintances in [Country 1] when he went to [Country 2] in 2003.
Mr Neville’s evidence is that he had no personal or family ties in [Country 2] when he went there in 2003. There is no evidence of a strong friendship group in the following years and he said he did not have a serious relationship until he met his wife in 2010.
He said he has not lived together with his wife except for a short time in 2012 before he moved to [Country 1]. They have a daughter, born in September 2013, and they registered their marriage in 2016. He said he visits them regularly and that they sometimes visit him in [Country 1]. The Tribunal asked why they do not live with him in [Country 1] and he said his daughter is going to school and that he said he plans to return to [Country 2] to live with them because the cost of living is cheaper. He said he has recently had some job interviews.
Mr Neville provided the usual documentary evidence to demonstrate the registration of his marriage and the parentage of his daughter. However, the Tribunal notes he and his wife have not had a traditional marriage ceremony and that his daughter’s school attendance is not a reason for them to live apart (because there are schools in [Country 1]). The circumstances are curious and, given they have lived apart for approximately six years, the Tribunal is not satisfied Mr Neville has strong relationships with his wife and daughter. It also takes into account that he became a [Country 1] citizen in 2015, that he purchased a home the following year and that he told an officer of the Department in 2016 that he intends to remain there (page 14 for review number SC011647).
In the above circumstances, the Tribunal finds that Mr Neville did not have family or friends in [Country 2] when he went to live there in 2003 and is not satisfied that he now thinks of it as home because of his family ties. It finds he returned to [Country 1] after leaving [Country 2] and made it his home.

Accommodation

Mr Neville said he did not own any property in [Country 1] when he lived there from 1998 to 2003 and that he rented an apartment so Ms Coach could stay with him when she came to visit in 1999. Otherwise, he said he lived for a short period with his aunt and shared rented rooms with various people. Ms Coach claimed he lived with his aunt when he did not live in the rented apartments. In either case, the Tribunal finds he did not own or rent a home of his own in [Country 1] when he left in 2003.
Mr Neville said he lived in an apartment on his own in [Country 2] from 2003 to 2012, except for the short period in 2012 when his wife lived with him.
Mr Neville said he did not own any real property in any country when he lived in [Country 2]. As noted, he has since purchased his home in [Country 1]. He claims it is a long-term investment, rather than his long-term residence but for the reasons discussed above the Tribunal does not accept that evidence.
Assets
Mr Neville said he had no assets in [Country 1] when he left to live in [Country 2] in 2003, except for money in a bank account that he said he maintained to transfer money to Ms Coach. Ms Coach did not dispute that evidence and said that he “was always sending money back to [Country 3]”.
The Tribunal accepts Mr Neville’s evidence that he did not hold assets in his name in [Country 2] when he lived there, apart from money in a [Country 2] bank account. He firstly told the Tribunal he owned a car in [Country 2]. However, when pressed he said he had personal use of a company car.
He said he paid for the purchase of a home for his wife and daughter in 2013. However, that was after he returned to live in [Country 1] and it is in her name.
The Tribunal finds that, from 2003 to 2012, Mr Neville did not have assets in [Country 1] that might indicate an intention to return and did not have assets in [Country 2] that indicated an intention to remain there.
Travel outside of [Country 2]
Mr Neville regularly travelled outside of [Country 2] when he lived there. He told the Tribunal that this travel was for business except for travel to [Country 3] for New Year or the occasional weekend. This is uncorroborated and it is not unlikely Mr Neville also travelled to [Country 1] to visit friends and family.

Contact with the Department

The Department could not contact Mr Neville before accepting the application for assessment in 2002 and it sent notices of decisions and assessments to his parent’s address. The service of those documents was not consistent with relevant requirements (in regulations 11A, 11B and 11C of the Child Support (Assessment) Regulations 1989). However, despite his evidence to the contrary, the Tribunal is satisfied he received those notices because it is unlikely his parents did not pass them on to him and because he contacted the Department in 2004 and spoke to an officer in response to correspondence (see page 16 for review number SC011550).
The record of that conversation indicates Mr Neville and the officer did not discuss his country of residence at that time. There is no record of other contact until May 2016 when he visited Australia and officers of the Department contacted him and asked him about his country of residence. He gave information consistent with residence in [Country 1] at that time. However, the Department record (page 113 for review number SC010768) also states “[Mr Neville] advises he has been living and working in [Country 1] since about 1998 and intends to remain there”.
[Mr B] submitted Mr Neville’s statement indicates he continued to think of [Country 1] as home while he lived and worked in [Country 2]. Mr Neville said he did not give details of his time in [Country 2] because he did not understand the officer because of their accent. He said he meant to say that he was living and working in [Country 1] when the assessment started and at the time of his contact with the Department.
The Tribunal finds Mr Neville’s explanation is unlikely because he demonstrated high level English language skills at hearing, works in a senior position in a multinational company and lives in a country where English is one of four official languages. It infers he conducts much of his business in English. However, this does not support [Mr B]’s submission because there is also no doubt that Mr Neville did not live and work in [Country 1] for many years. The Tribunal does not accept [Mr C]’s submissions that his physical presence and employment in [Country 2] for approximately nine years supports Mr Neville’s contention of miscommunication. Rather, it notes the findings about Mr Neville’s credibility above and that he did not wish to provide information to an officer of the Department on a previous occasion (see page 111 for review number SC010768). He made a statement against his interests. However, it was clearly untrue and is of no probative value when considering his state of mind in 2003.

Mr Neville’s visa status

[Mr B] submitted there was no evidence that Mr Neville had taken steps to regularise his migration status in [Country 2] so that he could remain there indefinitely. Mr Neville provided evidence that when he lived and worked in [Country 2] he held [visas] for foreign nationals working in [Country 2]. He said he now has a [visa] for a person with a dependent child in [Country 2]. The Tribunal has no information or expert evidence about migration laws in [Country 2] demonstrating he might have taken additional steps to ensure he had a right to continued residence in [Country 2]. However, it notes he had visas that allowed him to live and work in [Country 2] for approximately nine years.

Other matters

Mr Neville told the Tribunal he obtained a drivers licence and paid tax in [Country 2]. This is not surprising because he was living and working in [Country 2] for a lengthy period. Those matters do not assist the Tribunal to determine whether Mr Neville intended to return to [Country 1] and to continue to think of it as home.

Conclusion

Mr Neville had lived in [Country 1] for approximately five years and had extended family and friends when he left in 2003. The Tribunal infers his family and social connections were important to him. However, he had not set up a home and he did not own assets. Ms Coach said that he loves [Country 1]. However, she said that was because he could earn money there rather than because of any personal ties. The Tribunal is satisfied he gave his career priority over his personal relationships and made [Country 1] his home in 1998 because it was the place he could best pursue his career.
Mr Neville went on to live in [Country 2] for much longer than he had lived in [Country 1]. He described his initial move as a risk but nothing suggests he was reluctant to take it. He took up a senior, permanent position and, while he could leave if he was unhappy for any reason, the Tribunal infers he and his employer expected him to remain there for a lengthy period until an opportunity for promotion arose. He might have looked for other work at a similar level or higher position but his ambition suggests he would not have limited any short or long-term job search to positions in [Country 1].
From 2003 to 2012, he did not purchase a home or have assets in [Country 2] and the Tribunal is not satisfied of his evidence about his family relationships there. Nevertheless, the length of time he lived there supports his contention he liked living there and it accepts he did not take up opportunities to move to another country. As for [Country 1] in 1998, the Tribunal infers he made [Country 2] his home in 2003 because it was the place he could best pursue his career.
It does not follow that Mr Neville did not also continue to consider [Country 1] his home. His only significant ties were his personal relationships (which did not include immediate family) and it might be he visited regularly. However, he did not return to live in [Country 1] for a very long time and, given his priorities, the Tribunal accepts he did so to take up a better paying position, rather than because of ties to family or friends. It infers Mr Neville would have made his home in another country if offered a better employment opportunity. In that case, while he is not a credible witness, the Tribunal accepts he did not continue to think of [Country 1] his home during his stay in [Country 2] or have any firm intention to return there.
In plain terms, the priority Mr Neville gave to his career means he moved his place of residence with his employment and that he ceased to be a resident of [Country 1] when he took up permanent employment in [Country 2] on 14 April 2003. The Tribunal will set aside the decision under review and send the matter back to the Department with a direction that a terminating event happened on that day.

DECISION

The Tribunal dismisses the review number SC010768 because the decision is not reviewable by the Tribunal.

[2018] AATA 3292

16 July 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies