Rencher and Wathey (Child support)

[2021] AATA 3689

Rencher and Wathey (Child support) [2021] AATA 3689 (25 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021684

APPLICANT:  Mr Rencher

OTHER PARTIES:  Child Support Registrar

Ms Wathey

TRIBUNAL:Member K Dordevic

DECISION DATE:  25 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – whether child is ordinarily resident in Australia – whether child is citizen of Australia – decision affirmed

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. Mr Rencher (the father) and Ms Wathey (the mother) are the parents of one child. A child support case was registered on 17 October 2019 with Services Australia – Child Support (the Agency) and was collectable since that date, with the father being the parent liable to pay child support.

2. On 5 February 2021 the Agency wrote to the mother seeking clarification about whether she was living overseas. No response was received. On 23 February 2021 Child Support determined that the child support assessment must remain in place as the child was ordinarily resident in Australia. The father objected to that decision on 22 March 2021. His objection was disallowed on 3 May 2021.

3. The father requested a review of the objections officer’s decision by application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 7 June 2021. The tribunal made the following attempts to advise the mother of the application:

   ·Writing to the last held address in [Suburb] (no returned mail received and confirmation that it was delivered and left in a safe place);

   ·Contacting her on three numbers held by the tribunal (ending in 533, 0864 and 513). The first number is disconnected, the second number had an automated message stating that the number cannot be reached because of a fault, and the third had an automated message stating the number is no longer connected; and

   ·Writing to the email address held by Child Support, where no response has been received.

   The tribunal is satisfied that it has made all reasonable attempts to advise the mother of the father’s application.

4. The father attended the hearing convened on 25 August 2021 by MS Teams audio. In reaching its decision the tribunal considered the father’s sworn evidence as well as the documents provided by Child Support (folios 1–64).  The tribunal notes that Child Support advised that the hearing papers sent to the mother were returned to sender on 30 July 2021.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1988 (the Act).

2. The issue for the tribunal to determine is whether a child support terminating event has occurred in relation to the child.

CONSIDERATION

1. This application originated as the father asserts that a terminating event has occurred, namely that the mother (and child) reside in [Country], a non-reciprocating jurisdiction for the purposes of child support legislation.

2. The father’s evidence at hearing can be summarised as follows. He is certain that the mother is no longer a resident of Australia. The mother and child left Australia on 1 December 2019. The Family Court had granted permission for the mother to take the child to visit her ailing father in [Country]. They were meant to return to Australia on 28 February 2020, but did not do so. He has received no contact from her or the child since they left Australia. He understands that the mother lives with her own mother in [City] and he does not know if she is working. He does not believe that the COVID-19 travel restrictions have impacted on her return. He is sure that the mother and child’s relocation to [Country] is permanent, the child’s class teacher told him that the child told classmates that he was moving to [Country] permanently. He has since been advised that the mother’s Family Court lawyer no longer represents her, as they had not received any instructions from her since she left Australia. He has been advised that the mother has not meet the strata levies due on her property in Australia and that legal action has commenced. He could not provide any documentary evidence to support his submissions on these three points. 

3. Section 12 of the Act sets out the circumstances in which a terminating event occurs. Relevant to this application, paragraph 12(1)(f) states:

   Interpretation--happening of child support terminating events

   (1)  A child support terminating event happens in relation to a child if:

   …

   (f)  none of the following subparagraphs applies any longer in relation to the child:

   (i)  the child is present in Australia;

   (ii)  the child is an Australian citizen;

   (iii)  the child is ordinarily resident in Australia; or

4. The tribunal must have regard to the relevant policy contained in the Child Support Guide (the Guide), although the tribunal is not bound to follow the policy if there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. The Guide relevantly states at Chapter 2.10.3:

   Note: a child support assessment will not end when the carer ceases to be a resident of Australia or a reciprocating jurisdiction if the child is an Australian citizen, present in Australia or ordinarily resident in Australia. In that situation, no international maintenance arrangement applies in relation to the case and therefore section 12(2A) does not apply.

5. Thus, the issue is not whether the mother has ceased to be a resident of Australia. Instead, the question is whether the child is an Australian citizen, present in Australia or ordinarily resident in Australia.

6. There is no dispute, and the tribunal so finds, that the child left Australia on flight [Number] on 1 December 2019 and, as at 3 May 2021, has not returned to Australia. The tribunal concludes that the child has not been present in Australia since 1 December 2019. Therefore, subparagraph 12(1)(f)(i) of the Act is not satisfied.

7. The tribunal next considered whether the child is ordinarily resident in Australia. The Guide relevantly (at Chapter 1.6.2) states this term applies when a child is not physically present in Australia, but who usually lives here. The Registrar, and the tribunal in its place, must consider the same factors as relevant when deciding whether a parent resides in Australia. 

8. The obvious difficulty for the tribunal in this application is that it has not had the benefit of receiving any evidence from the mother. The father understands that mother and child are residing with the child’s maternal grandmother, but this is mere speculation. The Agency has not received any correspondence or contact from the mother since her departure. The tribunal accepts that, given the current COVID-19 travel restrictions in place, the mother may have faced some barriers in returning to Australia on 28 February 2020. However, there is no evidence that the mother has contacted the Agency or the Department of Foreign Affairs and Trade to advise of any impediments to her returning to Australia in the nearly 18 months that have elapsed since her expected return. The tribunal is not sufficiently satisfied in such circumstances that the COVID-19 pandemic has prevented the mother and child from returning to Australia to date. There is nothing to suggest that the mother intends to return to Australia with the child in the foreseeable future. In the circumstances where the mother and child’s absence was for a defined period and for a defined purpose, the passage of time that has elapsed since they were due to return, and where there has been no correspondence from the mother with either the father and the Agency, very strongly point to the mother and child ceasing to be ordinarily resident in Australia. The tribunal finds accordingly. Therefore, subparagraph 12(1)(f)(iii) of the Act is not satisfied.

9. The tribunal finds, consistent with the father’s evidence to the Agency (at folio 21), that the child was born in Australia and is an Australian citizen. There is no evidence before the tribunal to indicate that the mother has renounced the child’s Australian citizenship. Thus, as the child remains an Australian citizen, a terminating event did not occur in relation to the child as outlined in subparagraph 12(1)(f)(ii) of the Act. Thus, the decision under review is affirmed.

10. For completeness, the tribunal is satisfied that the evidence suggests that the mother is no longer a resident of Australia and she does not reside in a reciprocating jurisdiction. However, there is no provision outlined in section 12 of the Act that dictates that a child support terminating event has occurred as such. This means that the father’s application must fail.

DECISION

The decision under review is affirmed.