Albaugh & Child Support Registrar
[2007] FMCAfam 1106
•13 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALBAUGH & CHILD SUPPORT REGISTRAR | [2007] FMCAfam 1106 |
| CHILD SUPPORT – Appeal from a Departure Prohibition Order – dismissed. |
| Child Support (Registration and Collection) Act 1988 Taxation Administration Act 1953 |
| Jones v Child Support Registrar [2007] FCA 1732 Poletti v Deputy Commissioner of Taxation (1994) 124 ALR 373 |
| Applicant: | MR ALBAUGH |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File number: | SYM 5105 of 2006 |
| Judgment of: | Sexton FM |
| Hearing date: | 11 December 2007 |
| Date of last submission: | 11 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2007 |
REPRESENTATION
| Applicant: | Self represented |
| Solicitor for the Respondent: | Australian Government Solicitors |
ORDERS
The father’s appeal in relation to the Departure Prohibition Order be dismissed.
The Respondent’s costs application in relation to the appeal be adjourned to 20 March 2008 at 9.30a.m.
IT IS NOTED that publication of this judgment under the pseudonym Albaugh & Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 5105 of 2006
| MR ALBAUGH |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
This matter is an appeal by the applicant father of a child [X], aged almost 5 years, from a decision of the Child Support Registrar to issue a Departure Prohibition Order. The Registrar issued the order on
15 August 2007(though the father says 29 August 2007 in his notice of appeal). The father filed the notice of appeal from the Registrar's decision on 25 September 2007. In his notice of appeal the father sought an order that the Departure Prohibition Order be permanently stayed. At hearing the father sought an order that the Departure Prohibition Order be set aside pending determination of his application for departure from his child support assessments during periods dating from 1 August 2006. The father wants to travel to Nigeria next week and annexes his itinerary to his affidavit which includes a departure date of Monday, 17 December 2007, and a return date of Wednesday, 23 January 2008. He says he has travelled to Nigeria annually since his child support liability first arose. He says his father has a terminal illness. He says the Departure Prohibition Order amounts to a false imprisonment.
The father represented himself. The Child Support Registrar was represented by Ms Hawkins, Solicitor. The father relies on his own affidavit filed 2 November 2007, sworn on the same date, and on his financial statement sworn 2 October 2007 in support of the appeal.
As already noted, there was some confusion at the outset of the hearing as to precisely what the applicant was seeking. In his notice of appeal he asked that the Departure Prohibition Order be permanently stayed and for an Order (at No 8 of the orders sought) “that the operation of the aforesaid assessment of child support, be stayed until further notice.” I clarified with the applicant at the commencement of the hearing precisely what he was asking the Court to do. The father said he was proceeding with the matter on the basis of an appeal from the Departure Prohibition Order and that he sought that that order be set aside. I proceeded on that basis.
The Child Support Registrar as the respondent relies on an affidavit filed in Court on 11 December 2007, sworn on 4 December 2007 by Ms P, a senior employee of the Child Support Agency and a delegate of the Child Support Registrar.
The applicant in summary contends that the Registrar was wrong to issue a Departure Prohibition Order on the basis of his child support liability because the debt has accrued as a result of the Agency's incorrect assessment of his income. The father's current rate of child support was decided by a senior case officer of the Agency following a Registrar Initiated Change of Assessment on 11 August 2006. As far as I can ascertain, the father lodged an objection to that decision which was disallowed towards the end of 2006, although that objection and the decision to disallow the objection have not yet been filed with the Court.
On 23 August 2007, eight days after the Child Support Registrar made the Departure Prohibition Order, the applicant filed an application for departure from child support assessment periods dating from 1 August 2006. As already noted, the applicant seeks an order now that the Departure Prohibition Order be set aside. The departure application was adjourned, with the consent of the father and the respondent mother to March 2008.
The Child Support Registrar asks that the appeal be dismissed.
Relevant law
The law relating to Departure Prohibition Orders is set out in the Child Support (Registration and Collection) Act 1988, which I will refer to in these reasons as the Registration Act or the Act. The Registrar has the power to make a Departure Prohibition Order against a person liable for child support under s.72D of the Registration Act.
Section 15(1) of that Act provides that:
The Registrar may, in writing, delegate all or any of the Registrar’s powers or functions under this Act to an officer or employee of the Department.
In this case the Registrar delegated his power to make a Departure Prohibition Order to Ms P.
Section 72D(1) provides:
The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i)child support debts arising from a registrable maintenance liability under section 17; or
(ii)a child support debt arising from a registrable maintenance liability under section 17A; and
(d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii)making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
Section 72D(2) provides:
For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:
(a)the capacity of the person concerned to pay the debt or debts;
(b)the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c)if subparagraph (1)(c)(i) applies—the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(d)if subparagraph (1)(c)(ii) applies—the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;
(e)such other matters as the Registrar considers appropriate.
Once a Departure Prohibition Order has been made and not set aside on appeal, the Registrar of the Child Support Agency has the power to revoke or vary a Departure Prohibition Order pursuant to s.72I or issue a departure authorisation certificate if the person has applied for a departure authorisation certificate, under s.72L, or accept a person giving security for their return to Australia, s.72M. Section 72T(1) of the Registration Act gives a person who is subject to a Departure Prohibition Order right of appeal to the AAT, the Administrative Appeals Tribunal, but only in relation to decisions made by the Registrar under s.72I, which is the revocation and variation provision, s.72L, the departure authorisation certificate provision, and s.72M, the lodgement of security provision.
Section 72Q(1) provides that:
A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Magistrates Court against the making of the order.
The Federal Magistrates Court has discretion to either set aside the Departure Prohibition Order or dismiss the appeal pursuant to s.72S of the Registration Act.
Emmett J in the very recent decision of Jones v Child Support Registrar [2007] FCA 1732 said this[1] when dealing with an interlocutory application concerning an appeal from a Departure Prohibition Order:
In an appeal under s 72Q of the Act, the person aggrieved must establish that the order was wrongly made. That may be done by satisfying the Court that any one of the essential elements of s 72D is absent. However, the Registrar bears no onus of establishing the validity of the order.
[1] At paragraph 5.
The onus is on the applicant.
The Federal Magistrates Court can only consider whether a Departure Prohibition Order has been properly made. The questions that need to be determined were outlined by the Federal Court in Poletti v Deputy Commissioner of Taxation (1994) 124 ALR 373. This decision considered s.14V of the Taxation Administration Act1953 which is in similar terms to s.72Q(1) of the Registration Act. The principles adopted by the Court in Poletti were applied by Emmett J in Jones where his Honour stated [2] that:
An appeal may involve questions of fact or law or both…[and] would ordinarily involve the determination by the Court of at least three principal questions. The first is whether the affected person has a child support liability. The second is whether the Registrar was satisfied as to the matters, and had the belief, referred to in s 72D. The third is whether reasonable grounds existed for the Registrar to be satisfied as to those matters and for the formation by the Registrar of the requisite belief.
[2] At paragraph 6.
Findings and Determination
Dealing with these three questions in the present case:
Firstly, whether the affected person has a child support liability.
There is no dispute that the applicant has been assessed to pay child support for his son [X] to [X]’s mother, Ms N. The first assessment was dated 6 May 2003 and registered for collection by the Agency from 15 September 2005. As at 15 September 2005 the applicant's liability was assessed at $22.42 a month. It is common ground the father made no payments to the Agency pursuant to that assessment or pursuant to any subsequent assessment, except two amounts, both tax refunds which the Child Support Agency intercepted. Those amounts were $167.99 and $22.42 received on 15 June 2006 and 17 July 2006. On 1 August 2006 the applicant's liability increased to $773.08 per month. As already noted, the applicant made no payments to the Agency pursuant to that assessment and penalties started to accrue from 14 October 2006. On 1 July 2007 the applicant's liability increased to $804.25 a month, and on the evidence before me that remains the applicant's monthly liability.
Ms P annexed to her affidavit a child support transaction statement for the period 6 May 2003 to 3 December 2007. This shows the applicant was in arrears of child support of $11,326.60 as at 13 August 2007, two days before the Departure Prohibition Order issued. Despite agreeing with these facts about his assessments and his failure to pay child support in accordance with those assessments, the applicant submits that he may or may not have a child support liability because this will depend on the outcome of his application for departure to be heard in March 2008. The applicant contends that his child support liability at the relevant date, being 15 August 2007, the date of issue of the Departure Prohibition Order, will not be determined until his departure application has been heard and determined.
The meaning of child support liability as referred to in s.72D is set out in s.72E of the Registration Act. Section 72E provides:
For the purposes of this Part, a person has a child support liability if:
(a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A; and
(b)an amount payable under the registrable maintenance liability is a child support debt; and
(c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.
Section 17(2) provides that:
Subject to section 19, a liability is a registrable maintenance liability if it arises under a child support assessment.
Section 19 does not apply to the facts of this case. In the present case the liability is a registrable maintenance liability because it arises under a child support assessment in accordance with s.17(2).
Sections 72E(b) and (c) apply because the amount payable is a child support debt and the day on which the debt became payable has passed and the debt remains wholly unpaid.
I find the applicant's submissions on this question misconceived. The child support liability referred to in s.72D(1) is the liability arising from the applicant's child support assessments from September 2005 when the Agency commenced collection. That liability amounts to $11,326.60 as at 13 August 2007. The applicant has since then filed an application to depart from the child support assessment for the period commencing 1 August 2006 which may lead to a change in that liability depending on the outcome of those proceedings. However, the child support liability which existed at the time the Registrar made the Departure Prohibition Order is the child support liability which must be taken into account by the Registrar under s.72D(1).
I find therefore that the applicant had a child support liability at the relevant date.
The second question for determination is whether the Registrar was satisfied as to the matters and had the belief referred to in s.72D(1)(a) to (d) inclusive.
As already noted, I find Ms P was satisfied as to the applicant having a child support liability in accordance with s.72D(1)(a).
The Registrar must next be satisfied under s.72D(1)(b) that the applicant:
…has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged...
The applicant does not challenge Ms P's assertion that he has made no attempt to make any arrangements with the Agency to pay his child support liability. The applicant takes no issue with the bundle of file notes Ms P annexed to her affidavit concerning conversations with the applicant and efforts made by the Agency to contact the applicant during the period 5 December 2006 to 9 August 2007 to make arrangements for the repayment of the arrears. Ms P says these file notes are evidence of the efforts made by the Agency to recover the child support debt or part of that debt from the applicant.
The applicant acknowledges that he has not made any arrangements with the Registrar to discharge his child support liability either in whole or in part because he does not accept the liability.
I find the Registrar was satisfied that the applicant has not made satisfactory arrangements to wholly discharge his liability.
The next question about which the Registrar had to be satisfied was that the applicant has persistently and without reasonable grounds failed to pay a child support debt arising from a registrable maintenance liability under s.17 of the Registration Act, under s.72D(1)(c) of the Act. I have already referred to s.17. The applicant's child support debt arises from a registrable maintenance liability under s.17(2).
Section 72D(2) provides that for the purposes of section 72D(1)(c), the Registrar must have regard to the capacity of the applicant to pay the debt; the number of occasions action has been taken to recover the debt, and the outcome of the recovery action; the number of occasions the debt has not been paid on or before they became due and payable; and such other matters as the Registrar considers appropriate.
In relation to the capacity to pay debt the applicant submits that the Registrar made an error in concluding he had capacity to pay his outstanding child support liability. The applicant cross-examined Ms P as to the basis upon which she came to the view that he had the capacity to pay. Ms P summarised her reasons for deciding the applicant had capacity to meet his child support liability in paragraphs 7.1 to 7.6 of her affidavit and gave additional evidence in cross‑examination. She says she had regard to all matters submitted to her by her litigation team in relation to the matter which included details of searches relating to the applicant's assets, the current assessment of his child support income, all information available on the computer in relation to the matter including the applicant's payment history, and she then assessed the applicant's capacity to settle the debt.
Specifically in relation to the applicant's capacity, she had regard to the following:
a)The Registrar Initiated Change of Assessment decision of 11 August 2006 which resulted in an increase in the applicant's child support income amount for the period 1 August 2006 to 30 June 2009 with a corresponding increase in the rate of child support. She annexed the decision that the applicant's child support income increase to $65,000 per annum, increasing to $70,300 per annum in 2008-2009.
b)Next, the fact the applicant had travelled to Nigeria on two occasions in 2003 and again in 2004, 2005 and 2006. She annexed the applicant's DIMIA records.
c)Next, the fact the applicant is the registered proprietor of real property at Property W. She annexed the Land Title and street address search showing the applicant as the registered proprietor of that property subject to a mortgage to the Commonwealth Bank of Australia.
d)Next, the fact the applicant is the registered owner of 7 motor vehicles. She annexed a printout of the records of the RTA New South Wales for the applicant.
e)Next, the fact the applicant has transferred moneys to persons in Nigeria in the period August 2006 to August 2007, including some payments to the applicant's family. She annexed the AUSTRAC records which showed a series of transfers totalling $2656 over that year.
f)Next, information from Ms M, an officer of the Agency, that the applicant has Australian qualifications in law, is admitted to practice as a barrister, is registered as a migration agent and has an office in [omitted] Street, Sydney.
In oral evidence Ms P said she read documents relating to the applicant's taxable income but because the senior case officer had assessed the applicant's income at the change of assessment hearing and the decision was documented, as annexed to her affidavit at annexure D, she did not look behind that assessment in relation to the applicant's income.
In oral evidence Ms P said she also considered the applicant's assets as disclosed in the search referred to, taking into account that the motor vehicles were likely to belong to his business and likely to be subject to finance. Ms P acknowledged, on questioning from the applicant, that she was aware he carried debt, including a mortgage on the home, but was unable to recall precisely what information she had seen relating to his debt position. Ms P said sometimes she investigates the information she is given by her litigation team but in this case, as she was "very satisfied" as to the father's capacity, she did not undertake additional investigations as she has done in some other cases in which she has been involved.
Ms P said that when considering the applicant's overall capacity to meet his child support debt, either by way of instalments or otherwise, she took into account all of these matters relating to the applicant's financial position. She formed the view that the applicant had capacity to either borrow money to contribute to the debt or sell an asset or make payments from his income.
In his affidavit the applicant deposes to being self-employed. He says he does not receive a weekly salary. He says his taxable income as disclosed in his tax returns is the only actual income he receives and is a much lower amount than the child support income on which the Agency has assessed his liability in the change of assessment decision of August 2006. He says his business expenses as claimed in his taxation return should all be allowed when the Agency calculates his child support income. He acknowledges having a number of businesses as asserted by the Agency, but says as a result of debts and the amount of his income he is struggling to meet these debts. The applicant says he travels to Nigeria once a year and has a responsibility to look after his parents and his younger siblings because he is the third child of 13 siblings and remains unmarried. The applicant refers to sums of money paid by him to his family in Nigeria to which I have already referred.
The father says the Registrar should only have had regard to his taxable income as disclosed in his notices of taxation assessment in relation to income. In relation to assets and liabilities, the applicant submits the Registrar should have had regard to not only his assets but also his precise liabilities. The applicant submits the Registrar did not assess his financial position accurately or she would otherwise have concluded that he has no capacity to meet the child support debt.
In relation to number of occasions the Agency has taken action to recover the debt and the outcome of that action.
In accordance with s.72D(2)(b) the Registrar must then have regard to:
…the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action…
Ms P says she reviewed the computer records in the case which include file notes of efforts made by the Agency staff to recover child support from the applicant from 6 November 2005. I have already referred to these file notes. The Agency made 11 calls or attempts to call the applicant about his debt and his need to make arrangements to pay the debt in a 9 month period. Ms P said she had regard to these records when making her decision and to the fact that the Agency's efforts had been wholly unsuccessful. The father had made no payments towards the debt. The applicant takes no issue with these records.
The number of occasions the debt had not been paid on or before the due date.
Next, s.72D(2)(c), which refers to the number of occasions the debt had not been paid on or before the due dates.
It is common ground between the parties that the applicant has never made a payment of child support in accordance with any relevant assessment since the Agency commenced collection in September 2005. The applicant has therefore not made payments on or before the due date on 24 occasions prior to the Departure Prohibition Order being issued. This excludes the applicant's non-payment of penalties which have accrued during that period.
Other matters the Registrar considers appropriate.
Next, under s.72D(2)(e), other matters that the Registrar considers appropriate.
Ms P says, in addition to the above matters, she took into account that the applicant made no child support payments even before the change of assessment decision, which he submits is the reason for his failure to pay; that is, he failed to pay even when the assessment was only $22 per month. Ms P said the father has also failed to make any payments even at a rate which he believes is reasonable.
There is no issue between the parties that the applicant has persistently failed to pay his child support debt arising from his registrable maintenance liability under s.17. The question is whether the Registrar was satisfied that the applicant's failure to pay was without reasonable grounds having regard to the matters set out in s.72D(2) canvassed above.
I find on the evidence of Ms P that Ms P carefully sifted the material available to her and was satisfied that the applicant's failure to pay was without reasonable grounds having regard to the matters in s.72D(2).
The final question under s.72D(1) of which the Registrar had to be satisfied was whether she believed on reasonable grounds that it was desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without wholly discharging the liability or making arrangements satisfactory to the Registrar for the liability to be wholly discharged. Ms P says in oral evidence that she was “very satisfied” that because of her assessment of the applicant's capacity, his failure over a long period to negotiate a satisfactory arrangement with the Agency and his failure to pay any child support since the Agency started collection, that a Departure Prohibition Order was therefore appropriate. In the order dated
15 August 2007Ms P makes this statement:
Pursuant to sub-s 72D(1) of the Child Support (Registration and Collection) Act 1988 I, Ms P, delegate of the Registrar of the Child Support Agency, believing on reasonable grounds that it is desirable to do so for the purpose of ensuring that the person subject to the child support liability referred to in the schedule does not depart from Australia for a foreign country without wholly discharging the child support liability or making arrangements satisfactory to the Registrar of the Child Support Agency for the child support liability to be wholly discharged, hereby prohibit the departure of Mr Albaugh from Australia for a foreign country.
I find that Ms P believed on reasonable grounds that it was desirable to make the order for the purpose of ensuring that the applicant does not depart from Australia for a foreign country without wholly discharging the liability or making arrangements satisfactory to the Registrar for the liability to be wholly discharged.
The third question for determination on this appeal is whether reasonable grounds existed for the Registrar to be satisfied as to the relevant matters and for the holding of the requisite belief.
The applicant addressed me on one component of one of the relevant matters to which the Registrar was required to have regard; that is, the applicant's capacity to pay the child support debt. This is one of the matters to which the Registrar was required to have regard under s.72D(2) when the Registrar considered whether the applicant had persistently and without reasonable grounds failed to pay under s.72D(1)(c). The applicant did not adduce evidence in relation to, nor address the Court in relation to any of the other relevant matters about which the Registrar had to be satisfied.
As earlier noted in these reasons, the applicant needed to demonstrate that one of the prerequisites to the making of the Departure Prohibition Order was not satisfied.
The applicant's submissions were focused on his evidence about his capacity to meet his current child support assessment which resulted from the August 2006 change of assessment decision, including in particular his debt position. This is material which is likely to be relevant at the hearing of his departure application. The applicant sought to persuade me that the Registrar should not have accepted the decision of the senior case officer that his deemed income for child support purposes would be $65,000 per annum, because it was wrong. He argued that had the Registrar assessed his income on the basis of his taxable income, his liability for child support would be much lower. The applicant deposes to being willing to pay child support. He says at paragraph 19 of his affidavit:
I can afford to pay proper child support assessment based on proper child support percentage base which I believe to be currently 18 per cent.
The applicant submits that the decision of the senior case officer to increase the child support income on which his assessment was based to $65,000 without deductions was "unjust and an abuse of power". He says the Agency "increased my income to punish me" for not paying the $22 a month. He said the Registrar had been unable to point to a source of funds from which he could pay his child support liability. He said the Registrar was prejudiced because he is a qualified barrister. He said he did not travel overseas “for fun” and did not send large amounts of money to his family. He submits the Agency "is holding him to ransom".
The applicant did not address the question as to why he persistently failed to pay any part of his child support obligations from September 2005, whether at the assessed rate or at any other rate, nor in particular as to why he had not met his child support obligations for the many months when he was assessed to pay child support at $22 a month. As earlier noted, I find the applicant misunderstood the meaning of “child support liability” as referred to in s.72D and defined in s.72E.
Ms Hawkins relied on the two cases of Poletti and Jones, to which I have already referred. Ms Hawkins submits that the onus is on the applicant to establish that the Departure Prohibition Order was wrongly made, which may be done by satisfying the Court that any one of the essential elements is absent. Ms Hawkins submits the applicant has not discharged this onus. Ms Hawkins submits that Ms P clearly articulated the matters she had regard to in making her decision and that the Court should be satisfied she had reasonable grounds to be satisfied about all the matters in s.72D she was required to consider.
In relation to the applicant's capacity to pay the debt, Ms Hawkins submits that Ms P made it clear that though she accepted the child support income as assessed by the Registrar after the change of assessment hearing, she did not ignore the applicant's liabilities and considered 100 per cent of the information submitted to her, all of which had been entered on to the Agency database. Ms Hawkins said it was not Ms P's task to revisit the Registrar Initiated Change of Assessment decision when a senior case officer had considered all the evidence before him, made a decision based on that evidence, and set a new assessment. Ms Hawkins submitted it was reasonable for Ms P to take into account the fact that the applicant can afford to travel overseas, that he can afford to send some funds to his family overseas and owns real estate as well as several cars, yet chooses to make no contribution whatsoever towards his child support debt.
Ms Hawkins noted that the applicant did not file his application for departure until after the Departure Prohibition Order was issued and Ms P could not have been aware the applicant intended to file that application.
Ms Hawkins contended that while Ms P took into account her assessment as to the applicant's capacity to pay the child support debt, this was only one component of her decision. Ms P also had regard to the unsuccessful efforts made by the Agency to extract any money at all from the applicant and the applicant's persistent failure to pay any amount of child support even when his assessment was only $22 a month, which was the case for several months before the change of assessment decision was made. Ms P took into account that even the amount the applicant was assessed to pay before the August 2006 decision remained unpaid and that the applicant had not offered to pay anything at all, even an amount he himself conceded he could afford. Ms Hawkins highlighted that Ms P's overall assessment was that Ms P was "very satisfied" as to the appropriateness of a Departure Prohibition Order being made having considered “the entire package” of information available to her.
Decision
As already noted, there is no dispute that at the time the Departure Prohibition Order was issued the applicant had a child support liability and had made no payments in relation to that liability since the Agency commenced collection in September 2005 with the exception of the two minimal tax refunds intercepted by the Agency. Nor is there any dispute that the applicant made no arrangements with the Agency to discharge his liability or any part of his liability. This is despite the facts acknowledged by the applicant that he was self-employed in a number of businesses, had travelled overseas once a year, had sent funds to his family in Nigeria and had a proven capacity to borrow money. Although the applicant tells the Court that the change of assessment decision should not stand, the applicant does not explain why he has failed to make any payment at all by way of child support even at a rate assessed on his taxation assessments and even for the months before that change of assessment position was made when his assessment was minimal.
I agree with Ms Hawkins that it was not the task of Ms P to revisit the Registrar Initiated Change of Assessment decision. It was her task to have regard to the applicant's capacity in the context of considering whether the applicant had persistently and without reasonable grounds failed to pay his child support liability. It was open to the applicant to make his application for departure immediately following receipt of the objection officer's decision to disallow his objection in relation to the change of assessment decision. It was also open to the applicant to seek a stay of the operation of the assessments at that time. He did not take these steps until after the Departure Prohibition Order had issued.
Taking into account the matters considered by Ms P, which includes, among a number of matters, the applicant's attitude to his child support obligations, I am satisfied the Registrar had reasonable grounds to be satisfied in relation to the relevant matters in s.72D and reasonable grounds for holding the requisite belief that it was desirable to make the Departure Prohibition Order to prevent the applicant leaving Australia without discharging his child support liability or making satisfactory arrangements with the Registrar to do so.
The appeal will therefore be dismissed. As I take it that the further stay order sought by the applicant relates to this appeal, that matter has now been disposed of. The applicant retains his options under Part VA of the Registration Act.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 19 December 2007
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