Ahiyar and Child Support Registrar (Child support)

[2023] AATA 4241

Ahiyar and Child Support Registrar (Child support) [2023] AATA 4241 (21 December 2023)

Division:GENERAL DIVISION

File Number:          2023/1763

Re:Ahiyar

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:21 December 2023

Place:Melbourne

Each decision the subject of review in these proceedings is affirmed.

..................[SGD].................
Senior Member C. J. Furnell

Catchwords

CHILD SUPPORT – Departure Prohibition Order (DPO) issued – application for Departure Authorisation Certificate (DAC) refused – application to revoke DPO refused - whether obligation to issue DAC – whether DAC should be issued on humanitarian grounds – whether obligation to revoke DPO – decisions under review affirmed

Legislation

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

Social Services Legislation Amendment (Child Support Measures) Act 2023 (Cth)

Cases

Bettison and Child Support Registrar [2016] AATA 592
Botel and Child Support Registrar [2016] AATA 53
Crockett v Commissioner of Taxation [1998] AATA 1033
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Kado and Child Support Registry (Child Support) [2022] AATA 4801
Kay and Child Support Registrar [2015] AATA 429
Lui and Commissioner of Taxation [2009] AATA 626
Naboush and Child Support Registrar [2014] AATA 930
Peters and Child Support Registrar (Child Support Second Review) [2019] AATA 1719
Rai and Child Support Registrar (Child Support) [2018] AATA 3965
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Valve and Child Support Agency [2003] AATA 101

Whittaker v Child Support Registrar [2010] FCA 43

REASONS FOR DECISION

Senior Member C. J. Furnell

21 December 2023

1. On 6 December 2022, a delegate of the respondent issued a departure prohibition order (a “DPO”) under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (the Act).[1] Its effect was to prevent the applicant from leaving Australia without a departure authorisation certificate (a “DAC”).

   [1] T11, 81-83.

2. On 16 February 2023, the applicant applied for revocation of the DPO, and for a DAC.[2]

   [2] T12, 84-87.

3. On 28 February 2023, the respondent decided to refuse to issue a DAC to the applicant (the “DAC refusal decision”).[3]

   [3] T2, 7-8.

4. On 8 June 2023, the respondent decided to refuse to revoke the DPO (the “DPO refusal decision”).[4]

   [4] ST2, 7-8.

5. The applicant applied to the Tribunal for review of those decisions.

6. I have decided to affirm each of them. I will get to my reasons for doing so shortly. First, however, something should be said about the material before me, the factual context and the nature of DPOs.

   Material before Tribunal

7. The Tribunal is obliged to make “the correct or preferable decision” on the material before it.[5]

   [5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).

8. The material before the Tribunal included evidence adduced at the hearing of this proceeding and certain documentary material lodged with the Tribunal prior to the hearing.

9. As for evidence adduced at the hearing, the Tribunal heard from the applicant.

10. As for documentary material lodged with the Tribunal, it comprised:

    (a)T documents of 146 pages in relation to the DAC refusal decision proceeding.

    (b)Supplementary T documents and further supplementary T documents of 54 pages in relation to the DAC refusal decision proceeding and the DPO refusal decision proceeding.

    (c)An undated, signed two-page statement of the applicant.

11. Each party lodged submissions about the documentary material that had been lodged with the Tribunal.[6]

    [6] Respondent’s statement of issues facts and contentions of 25 October 2023 in relation to the DAC refusal decision (DAC SFIC), respondent’s statement of issues facts and contentions of 25 October 2023 in relation to DPO refusal decision (DPO SFIC), applicant’s undated statement of facts and contentions (A SFIC).

12. The A SFIC contains almost no statements as to matters of fact. In this context, at the hearing of these proceedings, the applicant’s representative was asked to identify those of the factual matters specified in the DAC SFIC and the DPO SFIC with which the applicant disagreed.

    Factual context

13. The applicant is the father of a child born in March 2016 (Ms Minor). The mother (Ms Mother) and the applicant formerly lived together but are now separated.[7]

    [7] T12, 84.

14. The applicant has a significant liability in respect of child support for Ms Minor. In a certificate issued under s116(2) of the Act on 23 October 2023, $19,089.76 was said to be due and payable by the applicant, comprising $14,701.46 by way of child support debt and $4,388.30 by way of penalties.[8]

    [8] ST8, 43.

15. The respondent has recovered $5,117.07 from the applicant in respect of his child support liability since registration of a child support case in relation to Ms Minor in October 2017.[9]

    [9] A child support case in relation to a child is the administrative assessments for child support for all children who are children of both parents of the child. See Child Support (Assessment) Act 1989 (Cth), s5.

16. Payments made in respect of a child support liability may be made voluntarily or consequent on enforcement action. In the case of the applicant, up until 3 September 2023, all such payments were made consequent on enforcement action, the respondent utilising garnishee notices, deductions from Centrelink payments and tax refund intercepts.[10]

    [10] ST3, 10.

17. Since 4 September 2023, the applicant has made two voluntary payments towards his child support liability, one of $126.75 on 4 September 2023 and the other of $260.99 on 4 October 2023.

18. On 18 October 2023, the applicant became entitled (again[11]) to jobseeker payments at the rate of $379 per fortnight.[12]

    [11] On 2 August 2023, the applicant’s then entitlement to jobseeker payments was cancelled.

    [12] ST11, 52.

19. The applicant suggested that the respondent’s calculation of his child support liability was incorrect. His “incomes was (sic) inflated and …[his] real circumstances exaggerated”, so that he was “incorrectly assessed”.[13]

    [13] Applicant signed statement. See also T12, 86.

20. The relevance of that suggestion in these proceedings was unclear. Insofar, however, as the applicant was submitting that the DAC refusal decision and the DPO refusal decision should each be set aside because the assessment of his child support liability was excessive, I reject that submission.

21. First, I note that the applicant does not contend that he has no child support liability.

22. Second, these proceedings are not an avenue for the challenge by the applicant of assessments of his child support liability.[14] In this regard, in O’Neill[15] it was said that:

    “matters of assessment are intended to be dealt with under the Assessment Act and any challenges to assessments made are to be pursued through the avenues provided in that Act. The intention of s 72E is to “deem” a registrable maintenance liability which is a child support debt to be a “child support liability”, for the purposes of s 72D and s 72I. This in turn has the further effect that it is not open to a decision-maker, including this Tribunal, to “look behind” such an assessment in order to determine whether a person has a “child support liability” for the purposes of those provisions.”

    [14] Rai and Child Support Registrar (Child Support) [2018] AATA 3965 at [21].

    [15] O’Neill and Child Support Registrar [2010] AATA 545 at [16], applied in Peters and Child Support Registrar (Child Support Second Review) [2019] AATA 1719 at [20].

23. Third, even if it were appropriate in these proceedings to challenge the amount of the applicant’s assessed child support liability, the material before me is not such as to warrant a finding as to that amount inconsistent with the amount specified in the s116(2) certificate referred to earlier. In this regard, such a certificate is prima facie evidence of the matters stated in it.

    DPOs

24. A DPO is made under s72D of the Act. The principal objects of the Act include to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.[16]

    [16] Act, s3.

25. A DPO is made in relation to a person if, amongst other things, the person has persistently and without reasonable grounds failed to pay child support debts.

26. A “’DPO’ is intended to ‘ensure’ that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.”[17]

    [17] Whittaker v Child Support Registrar [2010] FCA 43 (‘Whittaker’) at [291].

    DAC issue?

27. A DAC constitutes authority for a person to whom a DPO applies to depart Australia for a foreign country.[18]

    [18] Act, s72K.

28. The Act does not confer a discretion to issue a DAC. It does, however, impose an obligation to issue a DAC in certain circumstances. That obligation arises under s72L of the Act. The version of that section of relevance in these proceedings is that reflected in compilation 70 of the Act. That version applies as the applicant’s DAC application was made in February 2023.[19]

    [19] Compilation 70 continues to apply to DAC applications made before 1 July 2023, see Social Services Legislation Amendment (Child Support Measures) Act 2023 (Cth), Schedule 1, Part 1, cl 4.

29. Where, as here, no security for the applicant’s return to Australia has been given,[20] that version of s72L operates to impose an obligation to issue a DAC in two sets of circumstances.

    [20] See s72M of the Act. As to the form of security required see Kay and Child Support Registrar [2015] AATA 429 at [56]-[57]. As to the quantum of security required see Botel and Child Support Registrar [2016] AATA 53 at [6]-[7].

30. As I see it, neither set of circumstances applies in the context of this proceeding.

31. Under one set of circumstances an obligation to issue a DAC would arise if the respondent (and, in the respondent’s shoes, the Tribunal) were to be satisfied that, amongst other things,[21] it is likely that, within a period considered appropriate, revocation of the applicant’s DPO will be required under s72I(1) of the Act.

    [21] The circumstances requiring the issue of a DAC are cumulative. The focus on one such circumstance in these reasons is not intended to suggest that other relevant circumstances are met.  

32. For reasons which are outlined later, revocation of the DPO in respect of the applicant is not currently required under s72I(1). As for the future, I am not satisfied that it is likely that revocation of the DPO will be required within an appropriate period.

33. Section 72I(1) of the Act requires revocation of a DPO if the person concerned no longer has a child support liability, satisfactory arrangements are made for the child support liability of the person concerned to be wholly discharged, or the child support liability of the person concerned is completely irrecoverable.

34. On the material before me, it is not likely, in the short or medium term, or in any particular period, that:

    (d)The applicant will no longer have a child support liability. His child support liability is currently significant. Compared to that liability, only a relatively insignificant amount has been paid by the applicant towards meeting that liability in a period of around six years. The applicant does not appear to be motivated or have the capacity to make significant child support payments. Almost all child support payments to date have been by way of enforcement action. He is currently unemployed, receiving jobseeker benefits. The applicant does not submit and, on the material before me, I am not satisfied, that it is likely that there will be a significant improvement in his financial position.

    (e)Satisfactory arrangements will be made for the applicant’s child support liability to be wholly discharged. There is nothing in the material before me suggestive of any proposal for such arrangements.

    (f)The applicant’s child support liability will become “completely irrecoverable” (with the meaning of that concept being elaborated upon later).

35. Under a second set of circumstances, an obligation to issue a DAC under s72L in respect of the applicant would arise if the applicant were to be unable to give security under s72M of the Act for his return to Australia and the respondent (and, in the respondent’s shoes, the Tribunal) was satisfied that either the DAC should be issued on humanitarian grounds or refusing to issue the DAC will be detrimental to Australia’s interests.

36. It is not submitted, and the material before me does not suggest, that refusing to issue a DAC to the applicant will be detrimental to Australia’s interests.

37. Moreover, in the circumstances, I am not satisfied that a DAC should be issued on humanitarian grounds.

38. In Kado[22] the expression “humanitarian grounds” was construed by the Tribunal so as not to be “…limited to the doing of good works but included also compassionate grounds based on an applicant’s circumstances.” In this regard, it has been said that “the test is really whether the applicant’s circumstances are such that the DAC should be issued on compassionate grounds.”[23]

    [22] Kado and Child Support Registry (Child Support) [2022] AATA 4801 at [36].

    [23] Bettison and Child Support Registrar [2016] AATA 592 (‘Bettison’)at [12] citing Crockett v Commissioner of Taxation [1998] AATA 1033 at [12].

39. In his case, the applicant has given several reasons for his intended travel outside Australia.

40. He said he wishes to travel to Sr Lanka to visit his mother and provide comfort to her after the death of her husband (being the applicant’s father).[24] When initially discussing his request for a DAC the applicant stated that “the reason for the travel is because the family all gather together to grieve and support one another.”[25] In response to a question as to why he needed to travel if his mother had the support of other family members, the applicant stated that he wanted to grieve with his mother and that the other family members were only extended family. At the hearing, the applicant suggested that his mother’s health was a concern, stating that her health was deteriorating and that she was losing her memory.

    [24] In his unsigned statement the applicant said he need to travel to “fulfill my duties as a son to…my beloved mother”.

    [25] T19, 133.

41. The applicant also stated that he needed “to travel for his mental health as well.”[26] It was submitted that the applicant’s inability to travel has “serious consequences on his mental wellbeing”.[27]

    [26] Ibid.

    [27] T12, 87.

42. Lastly, at the hearing, the applicant gave evidence to the effect that he also wanted to travel to Sri Lanka to help settle his father’s estate, especially as neighbours might encroach on land that had been owned by his father.[28] 

    [28] Applicant signed statement. See also T12, 86, 87.

43. I am not satisfied that the applicant’s desire to help settle his father’s estate is one which, in the circumstances, may properly be characterised as being compassionate or humanitarian. Rather it appears to be reflective of pragmatic or utilitarian concerns.

44. I am not satisfied that a DAC should be issued because of the applicant’s mental health. The material before me is not probative of there being mental health reasons for the issue of a DAC. In support of his assertions with respect to those reasons, the applicant lodged with the Tribunal two letters from a counsellor. In them it is suggested that the applicant presents with “low/depressed mood” and with symptoms of stress and anxiety.[29] It is not clear to me that the counsellor concerned has either the training or experience that would warrant the Tribunal attributing weight to the counsellor’s opinion concerning the applicant’s mental health. More significantly, neither letter from the counsellor suggests that allowing the applicant to travel will ameliorate any particular mental health condition.

    [29] T12, 88, 89.

45. I am not satisfied that a DAC should be issued to enable the applicant to provide comfort to his mother. While that motive for travel might be capable of being characterised as a humanitarian (or, at least, a compassionate) one, the existence of such a motive does not necessarily mean that a DAC should be issued. The test for whether a DAC should be issued is not conducted in a vacuum. The need for effective enforcement of child support and the danger of a person not returning to Australia are to be taken into account.[30]

    [30] Bettison at [13] citing Valve and Child Support Agency [2009] AATA 927.

46. In this case, effective enforcement of child support payments would be put at risk were the applicant to be allowed to travel outside Australia. The applicant’s ongoing receipt of an income stream from which child support payments can be effected would be less assured were the applicant to be outside Australia. The current source of his child support payments is his jobseeker entitlement and there is nothing in the material before me suggestive of that entitlement being portable.[31]

    [31] Jobseeker payments normally cease on departure from Australia. In certain circumstances, however, they can continue while overseas for up to six weeks.

47. Moreover, and as submitted by the respondent, in the circumstances, there would appear to be a danger of the applicant not returning to Australia were he to be allowed to travel overseas. The applicant has not provided security for his return to Australia and there appears to be little that ties the applicant to Australia.

48. The applicant says he does not have a business in Australia. He does not own his own home in Australia. In his October 2023 jobseeker claim, he said he had not had paid work for 12 months, and that he lives in emergency accommodation or is homeless. He said that he does not share accommodation with anyone[32] (albeit at the hearing he said that he is homeless, but then went on to say that he lives with a friend in accommodation rented by his friend).

    [32] ST7, 37.

49. The applicant states, however, that he has a partner in Australia to whom he would need to return as she is due to give birth to his child. He currently has “a partner, who is also pregnant and will be needing my support…”.[33] I am not satisfied that this is the case.

    [33] Applicant’s undated statement.

50. At the hearing, the applicant’s evidence about this partner and his desire to be with her was unconvincing. He said he had been with his partner since September or November 2022 but did not live with her because her apartment was small, having only one bedroom. No evidence corroborating his relationship with a pregnant partner was before me. In fact, material before me suggested that the applicant considered himself to be a single man. In this regard, his jobseeker payments are based on him having no partner, a basis reflective of his October 2023 jobseeker claim in which he described his relationship status simply as divorced.[34]

    [34] ST7, 35.

51. As an aside, I note that the respondent submitted that the applicant could not be considered to be unable to provide the requisite security. It was contended by the respondent that “‘unable to give such security’ is a reference to whether the person is unable, in the sense of lacking capacity, to give such security and not merely unwilling or unable to provide security.”[35] I reject that contention. Inability simply requires a financial inability, not a circumstantial one.[36] Hence, for example and as stated in Lui,[37] the respondent’s refusal to agree to a security does not render the person proposing to provide security “unable” to do so.

    [35] DAC SFIC [49].

    [36] Bettison and Child Support Registrar [2016] AATA 592 at [10].

    [37] Lui and Commissioner of Taxation [2009] AATA 626 at [21].

    Revoke DPO?

1. Section 72I of the Act imposes an obligation to revoke a DPO in certain circumstances. It also confers a discretion to do so if the respondent (and, in the respondent’s shoes, the Tribunal) considers it desirable to do so.

2. As suggested earlier, sub-section (1) of s72I would require that the DPO in respect of the applicant be revoked if he no longer had a child support liability, satisfactory arrangements had been made for his child support liability to be wholly discharged or his child support liability was completely irrecoverable.

3. It is not submitted, and the material before me does not suggest, that the applicant no longer has a child support liability or that any arrangements (let alone satisfactory arrangements) have been made for the applicant’s child support liability to be wholly discharged. Moreover, I am not satisfied that the applicant’s child support liability is completely irrecoverable.

4. As to that last point, a debt will “…not be regarded as completely irrecoverable if it is possible that the debtor could obtain work or financial assistance at some time in the future to meet at least part of the debt.”[38] In the circumstances, given his entitlement to jobseeker, it is clearly possible that the applicant will receive financial assistance that can be used to meet part of his child support liability.

   [38] Peters and Child Support Registrar (Child Support Second Review) [2019] AATA 1719 at [27], citing Naboush and Child Support Registrar [2014] AATA 930.

5. As for the discretion conferred by s72I, in its terms it is unconfined. It is expressed to be exercisable simply if considered desirable to do so. Nevertheless, in considering whether to exercise the discretion, “… it is important to examine the principal objects of the Act; that is, to ensure that children receive financial support that parents are liable to provide and that periodic payments are made by parents towards the maintenance of their children on a regular and timely basis.”[39]

   [39] Naboush and Child Support Registrar [2014] AATA 930 at [18].

6. A consideration of these objects of the Act, while not determinative, does weigh against an exercise of the discretion in the applicant’s favour. In this regard, once an “…Applicant is outside of the jurisdiction of Australia it may become difficult if not impossible to recover the debt.”[40] As noted in Whittaker, “enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia.”[41]

   [40] Ibid.

   [41] Whittaker at [250].

7. On balance, the circumstances in these proceedings also weigh against an exercise of the discretion in the applicant’s favour. The applicant’s desire to provide comfort to his widowed mother is supportive of an exercise of the discretion. Set against this, however, are circumstances which exacerbate the risk to recovery of payments towards satisfaction of a child support liability inherent in the person concerned being overseas. Here, the applicant’s child support liability is substantial. The applicant has made few, relatively insignificant, payments in respect of his liability voluntarily. He only made these voluntary payments because he thought that doing so would assist him in these proceedings.[42] His evidence before the Tribunal was to the effect that he ought not be required to make child support payments in a context where he has not seen Ms Minor in years and he does not know where the money goes. Moreover, and for the reasons mentioned earlier, there would appear to be a danger of the applicant not returning to Australia were he to be allowed to travel overseas.

   [42] In evidence before the Tribunal the applicant stated that he made the payments because he thought it would help him in getting a fair go and assist in allowing him to travel overseas.

   Conclusion

8. The applicant’s application for a DAC is refused.
   
   

9. The applicant’s application for revocation of the DPO that relates to him is refused.
   
   

10. Accordingly, each decision the subject of review in these proceedings is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

................[SGD]...............

Associate

Dated: 21 December 2023

Date of hearing:	8 November 2023
Date final submissions received:	25 October 2023
Solicitors for the Applicant:	Amani Lawyers
Solicitors for the Respondent:	Services Australia