Ranford and Moreton (Child support)

[2018] AATA 1234

Ranford and Moreton (Child support) [2018] AATA 1234 (4 April 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013183

APPLICANT:  Mr Ranford

OTHER PARTIES:  Child Support Registrar

Ms Moreton

TRIBUNAL:  Ms J Cuthbert, Member

DECISION DATE:  4 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Application for an administrative assessment - Whether application should be accepted - Whether the liable parent was a resident of Australia - 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

1. Mr Ranford and Ms Moreton are the parents of [Child 1] (born 2008) and [Child 2] (born 2011). This review concerns whether an application made by Ms Moreton for a child support assessment for the children should have been accepted.

2. On 22 March 2017 Ms Moreton applied for an assessment for [Child 1] and [Child 2]. Her application was refused on 5 May 2017.

3. Ms Moreton’s objection to the decision to refuse her application for assessment was allowed on 21 December 2017. Mr Ranford was the parent liable to pay child support under the assessment that was made from 22 March 2017.

4. On 22 December 2017 Mr Ranford applied to this tribunal for a review of the objection decision.

5. The matter was heard on 4 April 2018. Mr Ranford and Ms Moreton both attended the hearing by telephone. In addition to the oral evidence of Mr Ranford and Ms Moreton the tribunal had regard to documents provided by the Department (folios 1 to 166) and documents provided by Mr Ranford (folios A1 to A20).

CONSIDERATION

1. The relevant legislation is contained in the Child Support (Assessment) Act 1989 (the Act). A person can apply for a child support assessment for a child under section 25 of the Act if the child meets the requirements set out in section 24 of the Act. That section requires that the child is under 18 and is not a member of a couple. The child must also be present in Australia on the day the application for child support was made or be an Australian citizen, or ordinarily resident in Australia on the day the application was made.

2. There is no dispute that [Child 1] and [Child 2] are both aged under 18 and are not members of a couple. Although the children were residing in [Country 1] on 22 March 2017 when Ms Moreton made the application for a child support assessment, the tribunal is satisfied that they were both born in Australia and were Australian citizens on that date.

3. Section 25 of the Act also states that if a person who applies for a child support assessment is not a resident of Australia on the day the application is made, sections 29A and 29B must also be met. The tribunal is satisfied that at the time Ms Moreton made her application she had been a resident of [Country 1] for some years.

4. Section 29A provides that the person against whom child support is sought must be an Australian resident or resident in a reciprocating jurisdiction on the date the application is made. Mr Ranford contends that he was a resident of [Country 1] on 22 March 2017. Ms Moreton asserts that he was an Australian resident.

10. Section 10 of the Act defines the term “resident of Australia” by reference to the definition in the Income Tax Assessment Act 1936 but does not define the term “resident”. Section 6 of the Act adopts definitions in the Child Support (Registration and Collection) Act 1987. Section 4 of that Act provides that a person is “resident of a reciprocating jurisdiction” if they are habitually resident in the reciprocating jurisdiction. It defines “resident of Australia” as a person who is a resident of Australia for tax purposes and is not a resident of a reciprocating jurisdiction. A statement of Child Support policy (1.6.3 of the Child Support Guide, Child Support’s online policy document) states that the ordinary concepts in relation to residency apply.

11.  Mr Ranford was born in Australia. He continues to be an Australian citizen although he also became a citizen of [Country 1] in October 2017 (after Ms Moreton made her application for the child support assessment). He told the tribunal that he had applied for citizenship in January 2017. Mr Ranford and Ms Moreton went to live in [Country 1] in 2007. Since prior to his separation from Ms Moreton in August 2016 Mr Ranford has worked as a fly-in/fly-out worker. For more than three years he has worked in a cycle of four weeks in [State 1] and then a four week break.

12.  After the separation the children continued to live with Ms Moreton in the family home in[Country 1]. Records of the Department of Immigration and Border Protection show that from 1 January to 21 December 2017 Mr Ranford spent a total of 44 days in [Country 1].

13.  Mr Ranford told the tribunal that for about a year after the separation he did not stay in [Country 1] very much as he found it emotionally difficult. He said that he would fly to collect the children and then take them on holiday to visit friends in [County 2]or to see friends and family in Australia. His parents and siblings live in Australia. Mr Ranford told the tribunal that he did not have a permanent residence in Australia but would stay with friends and family if he was not working. He acknowledged that he had used a girlfriend’s address in [State 2] when an application was made for a passport for [Child 1] in mid-2017. However, he stated that he did not spend more than 10 days at a time at her home.

14.  On 24 February 2017 Mr Ranford completed a passenger card for entry into Australia. He acknowledged that he described himself as a “resident returning to Australia” but said that he would do the reverse on entry into [Country 1]. He said that he was a “resident of both in many respects”.

15.  In March 2017 Mr Ranford and Ms Moreton jointly owned two investment properties in Australia and a house in [Country 1]. The tribunal accepts that Mr Ranford held bank accounts in Australia and [Country 1]. His wages were paid via a company he owns, [Company 1], which is registered in Australia. Mr Ranford acknowledges that has always held himself to be a resident of Australia for income tax purposes and does not pay tax as a non-resident.

16.  On the evidence provided the tribunal finds that, even if Mr Ranford had been resident in [Country 1], he ceased to be a resident of [Country 1] after the separation. At the time of Ms Moreton’s application Mr Ranford was mainly living in Australia and his employment was in Australia. Apart from his children, his family were in Australia. The tribunal finds that at the time of Ms Moreton’s application Mr Ranford was an Australian resident.

17.  Section 29B states that an application made by a person who is resident in a reciprocating jurisdiction must be made by the overseas authority of the reciprocating jurisdiction on behalf of that person. The tribunal finds that Ms Moreton was a resident of [Country 1] on 22 March 2017 and that [Country 1] is not a reciprocating jurisdiction for the purposes of the child support legislation. As a consequence of the operation of sections 25 and 29B a person who is a resident of a non-reciprocating jurisdiction can make an application directly to the Department, in the same way as a person who is a resident of Australia.

18.  The tribunal finds that Ms Moreton’s application of 22 March 2017 was properly made and should be accepted.

DECISION

The decision under review is affirmed.