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 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.
Section 72M of the Act enables a person to give such security as the Registrar considers appropriate for the person's return to Australia.
Section 72I(1) provides that the Registrar is required to revoke a DPO in the following circumstances:
(a) the person no longer has a child support liability; or
(b) the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or
(c) the person has a child support liability, but the Registrar is satisfied that the liability is completely irrecoverable.
Section 3(2) of the Act provides that it is the intention of the Parliament that the Act shall be construed and administered to the greatest extent consistent with the attainment of its objects.
Section 3(1) of the Act provides that:
3 Objects of Act
(1) The principal objects of this Act are to ensure:
(a) that children receive from their parents the financial support that the parents are liable to provide; and
(b) that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and
(c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
This Tribunal has jurisdiction to determine this application pursuant to s 72T of the Act.
POLICY
Chapter 5.2.11 of the Child Support Guide provides the following guidance in relation to security:
DAC issued where security provided
... a DAC must still be issued when the child support debtor has given appropriate security, under section 72M, for their return to Australia (section 72L(3)(a)). Security can be given by a bond or a deposit or by other means. If the debtor does not return by the agreed date, the security will be forfeited to the Commonwealth of Australia. It cannot be applied against the outstanding child support debt.
The Registrar will only accept a security that:
·is in a form that is readily convertible to cash e.g. bank cheque;
·is offered by the debtor rather than third parties on the debtor's behalf;
·is generally not significantly less in value than the amount of the debt owing.
Note: security arising from a loan obtained by a child support debtor from a financial institution or a third party is not considered to be a payment from a third party.
If a child support debtor is able to give appropriate security, the use of those funds to reduce the child support debt is preferred to their use as a security. Wholly discharging the debt or making a satisfactory arrangement to discharge the debt and meet any ongoing child support liability will generally result in a DPO being revoked (section 72I). Where the debt is in dispute and a person is taking steps to resolve this dispute, offering security could be an appropriate alternative.
CONSIDERATION
The Registrar is required by s 72L(2) of the Act to issue a DAC if the Registrar is satisfied that, if the certificate is issued:
(i) that it is likely that the applicant will depart from and return to Australia within a period that the Registrar considers appropriate; and
(ii) it is likely that the Registrar will be required to revoke the DPO.
Another requirement of s 72L(2) that must be met before the Registrar can issue a DAC is that the Registrar has to be satisfied that it is not necessary for the applicant to give security under s 72M for the applicant’s return to Australia.
The conditions mentioned in s 72L(2) have not been satisfied. I do not consider that the Registrar will be required under s 72I(1) to revoke the DPO because the applicant no longer has a child support liability (s 72I(1)(a)). The applicant has a substantial child support liability of $31,279.40 as evidenced by the certificate that has been issued under s 116(2) of the Act.[1] The applicant has not made an arrangement satisfactory to the Registrar that will wholly discharge the child support liability (s 72I(1)(b)). The Registrar also could not be satisfied that the child support liability is completely irrecoverable
(s 72I(1)(c)); this is because the liability is being partly discharged albeit by small deductions from social security benefits. There is no basis to conclude that the Registrar will be required to revoke the DPO under s 72I(1) of the Act.
[1] Exhibit A, T25, p 163.
The applicant has offered to pay $4,200 cash as security; this offer was not accepted. Section 72M of the Act enables a person to give such security as the Registrar considers appropriate by bond, deposit or other means. I must consider whether the security offered by the applicant is appropriate.
In considering whether the security offered by the applicant is appropriate, it is appropriate for me to consider the surrounding circumstances of the applicant.[2] There is a Presidential decision of this Tribunal in which it has been ruled that, where an applicant had not complied with child support obligations (which is also the case here), the security should not be substantially less than the amount of the child support liability.[3] The
Child Support Guide provides guidance that the amount of the security must be “generally not significantly less in value than the amount of the debt owing”.[4] I do not consider that it is appropriate to depart from this policy.
[2] Wetzell and Child Support Registrar [2005] AATA 607 at [17].
[3] Valve and Child Support Agency [2009] AATA 927 as per Deputy President Tamberlin.
[4] Child Support Guide, Australian Government at Ch 5.2.11.
There is a substantial debt of $31,279.40 being a child support debt of $25,197.66 and penalties of $6,081.74. I do not consider that there are any circumstances which would make it acceptable for the Registrar to accept security for an amount which is so significantly less in value than the child support debt of $25,197.66.
The applicant does not have any substantial assets in Australia or a fixed residence. It is fair to say that the applicant was unable to inform the Tribunal when he had moved to a number of residences on Hope Island. The applicant has significant management experience but has been unable to secure regular employment in Australia. His wife is unable to work in Australia and her relatives live overseas.
The applicant has recently received large sums of money. In March 2014 amounts of $17,437.69 and $171,617.47 were paid into his bank account, most of those funds were remitted to addresses in the Ukraine and Seychelles. The applicant asserts that he was entitled to more than $8,500 for dealing with the sum of $171,617.47 that had been paid into his account. The applicant has not explained the nature of these transactions other than to assert that he was acting for a New Zealand group of financial companies which are under investigation. The applicant denied knowledge of receiving the sum of $10,000 from an individual in March 2014 which was referred to in an AUSTRAC report.
Since 2012 the applicant has been a director of a company which he asserts does not trade. However, there is evidence to indicate that as at 2 May 2014 the company is still registered.[5]
[5] Exhibit A, T17 at p 81.
While I can understand that the applicant has a desire to visit his new wife and to gain some employment, I do not consider that this outweighs the need, as emphasised in
s 3 of the Act, for the enforcement of child support obligations of a parent.
The applicant has not made any recent substantial payment in discharge of his child support liability despite receiving large sums of money from his business activities. As a matter of fairness to the applicant, I raised with the applicant that he had not made any payment to reduce his child support liability from the sum of more than $8,500 that he had earned for receiving and remitting a payment which had been made to him in
March 2014. Whilst the applicant had indicated that he required the funds to pay debts, he had not indicated any priority to discharging his child support obligations.
There is no evidence before me which will indicate that a DAC should be issued on humanitarian grounds (s 72L(3)(b)(i)). There is also no suggestion that the refusal of the grant of a DAC would be detrimental to “Australia’s interests” (s 72L (3)(b)(ii)).
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.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member............................Sgd.........................................
Associate
Dated 5 June 2014
Date of hearing 29 May 2014 Applicant In person Solicitors for the Respondent Ms Karen Hamilton, Department of Human Services
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