Askew v Child Support Registrar - [2014] AATA 354

[2014] AATA 354

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/2440

Re

Glenn-Michael Askew

APPLICANT

And

Child Support Registrar

RESPONDENT

DECISION

Tribunal
Dr P McDermott RFD, Senior Member

Date 5 June 2014

Place Brisbane
The Tribunal affirms the decision under review.

.............................Sgd.......................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
CHILD SUPPORT – Departure prohibition order (“DPO”) – Child support debt – Objects of the Child Support (Registration & Collection) Act 1988 (Cth) – No basis for revocation of DPO – Security offered by applicant insufficient – Applicant has failed to discharge liability when able – Decision under review affirmed
LEGISLATION
Child Support (Registration & Collection) Act 1988 (Cth) ss 3, 72I, 72L, 72M, 72T
CASES
O'Neill and Child Support Registrar [2010] AATA 545
Valve and Child Support Agency [2009] AATA 927
Wetzell and Child Support Registrar [2005] AATA 607
SECONDARY MATERIALS
Child Support Guide, Australian Government
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
5 June 2014
INTRODUCTION

A Departure Prohibition Order (“DPO”) prevents Mr Askew (“the applicant”)

from travelling outside Australia. The applicant has made an application to this Tribunal to review a decision of the Child Support Registrar (“the Registrar”), made on

30 April 2014, to refuse an application for a Departure Authorisation Certificate (“DAC”).
BACKGROUND
Since 2008 the applicant has been assessed as a parent liable for payment of child support in respect of his children.
On 16 June 2011, the Child Support Agency made a departure determination to which the applicant lodged an objection which was disallowed on 16 September 2011. On

9 January 2012 the Social Security Appeals Tribunal set aside the departure determination and made a decision setting the rate of child support payable at $9,500 per annum for the period 1 October 2010 to 31 December 2013. From 1 January 2014 the applicant became subject to an administrative assessment and his rate of child support is $399 per annum.
On 15 November 2013 a delegate of the Registrar issued a DPO which prevents the applicant from travelling outside of Australia; the DPO is currently in force.
In December 2013 the applicant was granted a DAC to depart Australia on

5 December 2013 in order to fulfil an existing work contract. A delegate granted the DAC. On 9 January 2014 the applicant returned to Australia. On 20 January 2014 and on 17 February 2012 the applicant made unsuccessful applications for a DAC.
On 8 April 2014 the applicant made an application for a DAC for an absence from Australia from 19 June 2014 to 13 August 2014 and from 9 September 2014 to

16 December 2014 to undertake employment as a piano player entertainer on a cruise ship. The applicant later requested the DAC to be issued from 28 May 2014 to enable him to visit his wife overseas before he commenced employment.
On 23 April 2014 the applicant offered to enter into a payment arrangement whereby he would make an additional payment matching the current collection rate via deduction from his Centrelink payments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] AATA 354
Decision Date

CaseChat Overview and Summary

The case of Askew v Child Support Registrar involves Mr Askew, the applicant, who sought a review of the Registrar's decision to refuse his application for a Departure Authorisation Certificate (DAC). The applicant, who is subject to a Departure Prohibition Order (DPO) that prevents him from leaving Australia, applied for a DAC to enable him to travel overseas for employment and to visit his wife. The Registrar's decision to refuse the application was the subject of a review by the Tribunal. The primary legal issue before the court was whether the Registrar's decision to refuse the applicant's DAC application was lawful and appropriate under the relevant statutory provisions. Specifically, the court needed to determine if the Registrar was justified in refusing to issue the DAC under the conditions specified in the Child Support (Registration & Collection) Act 1988.

The court considered the statutory framework and the conditions under which the Registrar must issue a DAC. It was noted that the Registrar has discretion to issue a DAC if certain conditions are met, including the likelihood that the applicant will return to Australia within a specified period and the appropriateness of revoking the DPO. The court found that the Registrar's decision to refuse the DAC application was within the statutory authority provided. The Registrar had considered the applicant's history of non-compliance with child support obligations and the risk that the applicant would not return to Australia, which justified the refusal of the DAC application. The court held that the Registrar's decision was lawful and appropriate given the circumstances.

The court affirmed the Registrar's decision, concluding that the Registrar had exercised the discretion provided by the statute correctly. The applicant's offer to enter into a payment arrangement and provide security did not alter the Registrar's assessment of the risk posed by the applicant's potential absence from Australia. The court found that the Registrar was not required to undertake an assessment of the correctness of the child support assessment in the context of this application. Therefore, the decision of the Registrar was upheld, and the application for review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

A Departure Prohibition Order (“DPO”) prevents Mr Askew (“the applicant”) from travelling outside Australia. The applicant has made an application to this Tribunal to review a decision of the Child Support Registrar (“the Registrar”), made on 30 April 2014, to refuse an application for a Departure Authorisation Certificate (“DAC”).BACKGROUND Since 2008 the applicant has been assessed as a parent liable for payment of child support in respect of his children. On 16 June 2011, the Child Support Agency made a departure determination to which the applicant lodged an objection which was disallowed on 16 September 2011. On 9 January 2012 the Social Security Appeals Tribunal set aside the departure determination and made a decision setting the rate of child support payable at $9,500 per annum for the period 1 October 2010 to 31 December 2013. From 1 January 2014 the applicant became subject to an administrative assessment and his rate of child support is $399 per annum. On 15 November 2013 a delegate of the Registrar issued a DPO which prevents the applicant from travelling outside of Australia; the DPO is currently in force. In December 2013 the applicant was granted a DAC to depart Australia on 5 December 2013 in order to fulfil an existing work contract. A delegate granted the DAC. On 9 January 2014 the applicant returned to Australia. On 20 January 2014 and on 17 February 2012 the applicant made unsuccessful applications for a DAC. On 8 April 2014 the applicant made an application for a DAC for an absence from Australia from 19 June 2014 to 13 August 2014 and from 9 September 2014 to 16 December 2014 to undertake employment as a piano player entertainer on a cruise ship. The applicant later requested the DAC to be issued from 28 May 2014 to enable him to visit his wife overseas before he commenced employment. On 23 April 2014 the applicant offered to enter into a payment arrangement whereby he would make an additional payment matching the current collection rate via deduction from his Centrelink payments until June 2014, and thereafter pay $300 per week between 21 June and 16 December 2014. On 24 April 2014 the applicant offered security of $4,200 for his return to Australia. On 30 April 2014 the applicant was advised that his application for a DAC was refused. On 13 May 2014 the applicant made an application with this Tribunal for review of the decision. LEGISLATION The legislation which I must administer is the Child Support (Registration & Collection) Act 1988 (Cth) (“the Act”). Section 72L of the Act provides:72L When Registrar must issue departure authorisation certificate(1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.(2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:(a) that, if the certificate is issued:(i) it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and(ii) it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and(b) that it is not necessary for the person to give security under section 72M for the person's return to Australia.(3) If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:(a) the person has given security under section 72M for the person's return to Australia; or(b) if the person is unable to give such security, the Registrar is satisfied:(i) that the certificate should be issued on humanitarian grounds; or(ii) that refusing to issue the certificate will be detrimental to Australia's interests.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is fair to say that the applicant has taken issue with the correctness of the assessment of the Social Security Appeals Tribunal. However, it is settled that in this application to effectively revoke the operation of a DPO, I am not required to undertake an assessment of the correctness of a child support assessment which has been made.[6][6] O'Neill and Child Support Registrar [2010] AATA 545.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/2440
Re	Glenn-Michael Askew
APPLICANT
And	Child Support Registrar
RESPONDENT

Tribunal	Dr P McDermott RFD, Senior Member
Date	5 June 2014
Place	Brisbane