Wilanski and Horacek (Child support) - [2025] ARTA 933

Wilanski and Horacek (Child support) [2025] ARTA 933 (22 May 2025)

Applicant/s: Mr Wilanski

Respondent: Child Support Registrar

Other Parties: Ms Horacek

Tribunal Number: 2024/HC028911
Tribunal: Senior Member A Suthers
Place:Perth
Date:22 May 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that a terminating event occurred on 25 October 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – terminating event – father moved to work in another country, with current partner and their child – residence status – other country not a reciprocating country – long-term contract and intention to stay permanently – visa type allows long-term residence, change of employer and other benefits – financial and domestic arrangements – no real property, income or tax paid in Australia – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (Child Support) to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (the Guide) published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
Mr Wilanski and Ms Horacek (the parties) are the parents of [the child], aged 7.
A child support case was registered between the parties on 6 August 2018. Mr Wilanski is the parent liable to pay child support.
Mr Wilanski subsequently left Australia to work in [Country 1] [in] October 2023. His current partner and child of that relationship subsequently moved to [Country 1] to live with him.
The Act provides that the child support assessment can remain in effect in those circumstances, so long as the party who moves overseas remains a resident of Australia, in a defined sense, or is resident in a reciprocating jurisdiction. That is, one which has agreed to assist in the administration of Australia’s child support legislation in respect of its residents. A list of the prescribed reciprocating jurisdictions is contained in the Child Support (Registration and Collection) Regulations 2018, at Schedule 2. [Country 1] is not a reciprocating country.
On 6 June 2024, Mr Wilanski advised Child Support that he was no longer resident in Australia but was a resident of [Country 1].
By a decision dated 3 July 2024, Child Support rejected that assertion.
Mr Wilanski objected to that decision, but it was disallowed by an objections officer of Child Support on 23 August 2024. Child Support recorded that:
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.
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.
A person acquires a domicile of origin at birth. This is the domicile of their parents.
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.
Mr Wilanski was born in [Country 2]. Mr Wilanski arrived in Australia as a child and Mr Wilanski’s first recorded departure on an Australian passport was in 1998 (Mr Wilanski was [Age]). Mr Wilanski remained living in Australia where they have maintained a family, relationships, and a day-to-day social life. We are satisfied that Mr Wilanski has established a new domicile of Australia. Mr Wilanski only holds an Australian passport.
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.
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 all the circumstances, as a rule of thumb a stay of less than two years may be considered ‘transitory’.
We are satisfied Mr Wilanski has obtained a furnished rental property in [Country 1] for their employment. Based on the evidence provided the rental property lease agreement duration is for 12 months from [October] 2023 to [October] 2024. Mr Wilanski’s partner and child travelled for possible visits but return to a different address when in Australia.
Mr Wilanski has said the move is permanent, however, if Mr Wilanski lost their job, they would be required to depart [Country 1] as the work visa would no longer be valid.
Mr Wilanski remains a resident of Australia under the Domicile/Permanent Place of Abode. Mr Wilanski will remain a resident of Australia due to being unable to obtain a citizenship in [Country 1]. Mr Wilanski is on a work visa if ceased employment they would have to return to Australia.
Mr Wilanski then sought review of the objection decision in the Tribunal, which is the application before me.

The hearing and the evidence

I heard the matter on 14 April 2025 by telephone. Mr Wilanski and Ms Horacek gave evidence and made submissions. Child Support elected not to participate. In addition, I had regard to 443 numbered pages of documents lodged by Child Support in the application.
Mr Wilanski’s oral evidence, supported by documentary evidence as appropriate, was that:
(1) When leaving Australia in October 2023, he declared on his departure documents that he intended to do so permanently;
(2) He has been employed on a long-term contract in [Country 1] since October 2023;
(3) He no longer holds any property in Australia;
(4) His current wife ceased employment in Australia and moved to [Country 1] in November 2023;
(5) He took a 12-month rental lease agreement for his residence in [Country 1], which commenced in October 2023, and which has subsequently been renewed;
(6) He took a five year bank loan to buy a car in [Country 1], which will end in May 2029.
(7) His employment contract in [Country 1] is part of a long-term career plan;
(8) He is not working in [Country 1] under a work visa, but rather a residential visa, known as [Country 1 visa]. The differences between the two are that a work visa is valid for only 90 days and does not permit long-term residence or work. On the other hand, [a Country 1 visa]:
·    Is renewable;
·    Grants legal residency and working rights;
·    Allows the holder to open a bank account;
·    Allows the holder to rent accommodation;
·    Allows the holder obtain a driver’s licence;
·    Allows the holder to access health care services;
·    Allows the holder to sponsor family members for dependent visas; and
·    Allows the holder to transfer to other employers if the holder obtains a new job, without the need to exit [Country 1].
Mr Wilanski submitted that his [Country 1] residence visa and partner visa further demonstrate his intention to remain in [Country 1] for an extended period with his wife and child, and that his relocation to [Country 1] is a permanent decision, made with the intention of remaining there indefinitely with his family. If he lost his current employment, he would seek alternative employment in [Country 1] (which is permitted under his [Country 1 visa]), elsewhere in the region or further abroad, rather than returning to Australia. He acknowledged continuing to pay pet insurance for a family pet he left in Australia with extended family but says that is simply the arrangement he made to ensure the pet was cared for.
Mr Wilanski submitted that he has taken active steps to sever ties with Australia, including:
·Removing himself from the Australian electoral roll;
·Shifting all financial and personal commitments to [Country 1], where his banking, housing, and daily life are based; and
·Not maintaining any significant financial or physical presence in Australia other than to meet his child support obligations.
He submitted that maintaining bank accounts in Australia is a logistical tool for managing his child support payments.
Travel records lodged by Child Support, dated 10 September 2024, indicate that Mr Wilanski left Australia [in] October 2023 and has only returned for approximately 14 days, in August 2024.
Ms Horacek is concerned that Mr Wilanski is simply trying to avoid his child support obligations. However, she was unable to meaningfully challenge the evidence given by Mr Wilanski as to the substantive facts surrounding the nature of Mr Wilanski’s move overseas, or its permanence. I accept Mr Wilanski’s evidence in that regard.
For the following reasons, I am satisfied that Mr Wilanski became a resident in [Country 1], as notified to Child Support. I will set aside Child Support’s decision and substitute a decision to end the child support assessment.

OVERVIEW OF LEGISLATIVE AND POLICY FRAMEWORK

It is necessary to set out, to an extent, the law to be considered.
Subsection 12(3) of the Act provides that a ‘terminating event’ in respect of an assessment happens where, relevantly, the person liable to pay child support ‘ceases to be a resident of Australia’.
However, paragraphs 12(4A)(b) and 12(4B)(a) of the Act operate to negate the effect of subsection 12(3) where the liable parent takes up residence in a reciprocating jurisdiction and the other parent remains resident in Australia.
Section 10 of the Act defines the term ‘resident of Australia’ by reference to the definition in the Income Tax Assessment Act 1936 (ITAA) but does not define the term ‘resident’. Section 6 of the Act adopts definitions in the Child Support (Registration and Collection) Act 1988 (the R&C Act).
Section 4 of the R&C Act provides that a person is ‘resident of a reciprocating jurisdiction’ if they are habitually resident in the reciprocating jurisdiction.
The term ‘resident of Australia’ is defined in subsection 6(1) of the ITAA. Relevantly, it is:
(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
(iii)who is:
(A)a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(B)an eligible employee for the purposes of the Superannuation Act 1976; or
(C)the spouse, or a child under 16, of a person covered by
sub-subparagraph (A) or (B); and
...
The adjective ‘permanent’ used in subsection 6(1)(a) of the ITAA does not mean ‘everlasting or forever’. It is used ‘in contrast with a person whose abode outside of Australia was “temporary or transitory”’. A person’s permanent place of abode cannot be ascertained by the application of any ‘hard and fast rules’. It is a question of fact to be determined in the light of all the circumstances of each case: Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 (Carrington).
The Court in Carrington also endorsed a non-exhaustive range of factors as appropriate considerations when considering the question of residence in Australia which were:
·The intended and actual length of the tax payer’s stay in the overseas country;
·Whether the tax payer intended to stay overseas only temporarily and then move to another country or return to Australia at some definite point in time;
·Whether the tax payer has established a home, in the sense of a dwelling place, outside of Australia;
·Whether the tax payer had abandoned a residence in Australia as a consequence of moving overseas;
·The duration and continuity of the tax payer’s presence in the overseas country; and
·The ‘durability of association’ that the tax payer has with a particular place in Australia in terms of such things as: maintaining a bank account in Australia; informing government departments, such as social security, of the fact of the person concerned is leaving Australia permanently; the place of education of the tax payer’s children; family ties; and so on.
The Guide provides, relevantly:
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’
·          the statutory domicile test, or
·          the statutory superannuation test.
Ordinary meaning of ‘resident’ – resident leaving Australia
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’. 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.
Section 74 of the Act requires Child Support to give effect to a terminating event.
I ‘stand in the shoes’ of the original decision-maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision-maker for the purpose of making the original decision. However, as section 9 of the Administrative Review Tribunal Act 2024 makes clear, the Tribunal makes its decision on review independently of the parties, including Child Support. The Tribunal is also subject to the same constraints as the original decision-maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the (now repealed) Administrative Appeals Tribunal Act 1975.
In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]–[62]. I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.

ISSUES

The issues that fall for determination are:
(1) Has Mr Wilanski ceased to be a resident of Australia;
(2) if so, did this constitute a terminating event, for child support purposes; and
(3) if there had been such a terminating event, what was its operative date?

CONSIDERATION

I am satisfied that Mr Wilanski left Australia [in] October 2023, to live and work in [Country 1] on an ongoing basis. Whilst he cannot obtain citizenship in [Country 1], he has produced a residency and work permit for that country. He has remained there, treating it as his permanent home with his wife and child.
I am satisfied that Mr Wilanski ceased to be a resident of Australia when he began to live and work in [Country 1]. In the ordinary meaning of the phrase, he was a resident of [Country 1] from the time he took up his employment and residence in that country.
Mr Wilanski no longer holds any form of real property or chattels in Australia and does not conduct business or pay tax here. Whilst Mr Wilanski may have ties to extended family in Australia, his immediate family, who might be expected to live with him at this time, have also moved to [Country 1]. There is no immediate or apparent impediment to Mr Wilanski remaining in [Country 1] on an ongoing basis, in accordance with his stated intent.
Based on that evidence, I am satisfied that Mr Wilanski’s permanent place of abode is now [Country 1] and not Australia.
Mr Wilanski has not been in Australia for 183 days, during any financial year, since 2023.
Accordingly, he does not meet the definition set out in subparagraph 6(a)(ii) of the ITAA.
Mr Wilanski is also not an employee of the Australian Government who would meet the superannuation test provided by subparagraph 6(a)(iii) of the ITAA.
As Mr Wilanski does not meet any of the applicable tests for Australian residency, and has taken up residence in a non-reciprocating jurisdiction, a terminating event has occurred pursuant to subsection 12(3) of the Act from the date he arrived in [Country 1] to take up his employment there. I infer that date was 25 October 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that a terminating event occurred on 25 October 2023.

Date(s) of hearing:	Monday, 14 April 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented