Bamkin and Tate

[2013] FCCA 1089

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE [2013] FCCA 1089

Catchwords:
CHILD SUPPORT – Departure Prohibition Order – Departure Prohibition Order by Child Support Registrar restraining applicant from leaving Australia – applicant applying to Court to have order revoked – Court has no jurisdiction to review a departure prohibition order.

Legislation:  
Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 72I, 72L, 72M, 72Q, 72R, 72S, 72T

Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth)

Jurisdiction of the Federal Magistrates Court Legislation Act 2006 (Cth)

T & G & Child Support Registrar [2003] FMCAfam 197

Applicant: MR BAMKIN

Respondent: MS TATE

File Number: SYC 1276 of 2008

Judgment of: Judge Scarlett

Hearing date: 13 August 2013

Date of Last Submission: 13 August 2013

Delivered at: Sydney

Delivered on: 13 August 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The Application that the Departure Prohibition Order dated 31 October 2012 be revoked is dismissed.

2. The Application for Orders 2 and 3 filed on 1 July 2013 is listed for final hearing on 15 October 2013 at 2:15 pm.

IT IS NOTED that publication of this judgment under the pseudonym Bamkin & Tate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for revocation of a Departure Prohibition Order made by the Child Support Registrar on 31 October 2012, discharge of a Child Support Departure Order made by consent on 18 December 2009 and an order discharging all arrears of child support payments and late payment penalties.

2. In his Application filed on 1 July 2013 the Applicant seeks as both an interim and a final order:

   That the Departure Prohibition Order of the Applicant dated 31 October 2012 be revoked.

3. The Application for final orders in respect the Child Support Departure Order and the arrears of child support payments can be left until the final hearing, which will take place on 15 October 2015. However, the Application for revocation of the Departure Prohibition Order should be dealt with immediately, as the Court has no jurisdiction to make the Order.

Evidence

1. The Applicant relies on his affidavit sworn on 28 June 2013, where he deposes that on 31 October 2012 the Child Support Registrar issued a Departure Prohibition Order under the provisions of s.72D of the Child Support (Registration and Collection) Act 1988 (Cth). A copy of the Order forms Annexure “I” to his affidavit.

2. The Applicant deposes that:

   22.    Upon receiving the Departure Prohibition Order from the Child Support Agency I have contacted the Agency on numerous occasions in an attempt to explain my current financial circumstances and requesting to have that Order revoked.

   23.    On 14 May 2013 I received a telephone call from my Case manager from the Child Support Agency, which indicated that my request for the Departure Prohibition Order to be revoked and that I should make an Application to the Court.

   24.    On 5 June 2013 I received a letter from the Child Support Agency confirming that my application to revoke the Departure Prohibition has been refused. Annexed hereto and marked “K” is a true copy (of) the letter I received from the Child Support Agency dated 5 June 2013.[1]

   [1] Affidavit of Mr Bamkin 28.6.2013 at paragraphs [22]-[24]

3. The letter dated 5 June 2013 is annexed to the Applicant’s affidavit. It clearly states that the application to revoke the Departure prohibition Order has been refused and gives reasons for the refusal.

4. The letter sets out the options available to the Applicant:

   You may apply for Departure Authorisation Certificate. If this certificate is granted, you will be allowed to leave Australia under agreed conditions. You can apply to us via our Online Services, over the phone or in writing.

   If you think the delegate’s decision is incorrect you have 28 days from the date you receive this letter to ask the Administrative Appeals Tribunal to review the decision. You can call the Tribunal on 1300 366 700 or go to their website aat.gov.au.[2]

   [2] Affidavit of Mr Bamkin 28.6.2013 Annexure “K”

5. It appears that the Applicant did not apply to the Tribunal, but chose to bring an Application to this Court instead. 

The Relevant Law

1. The Child Support Registrar is given the power to make a departure prohibition order by s.72D of the Child Support (Registration and Collection) Act 1988.   

2. The power of the Court and of the Federal Court is limited to hearing appeals against the making of departure prohibition orders.

3. Section 72Q of the Act provides at (1):

   A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order.

4. There does not appear to be a time limit prescribed by the Rules for filing an appeal against the making of a departure prohibition order.

5. Section 72R of the Act provides that:

   The jurisdiction of a court under section 72Q must be exercised by a single Judge or Justice.

6. Section 72S provides that:

   A court hearing an appeal under section 72Q against the making of a departure prohibition order may, in its discretion:

   (a)     make an order setting aside the order; or

   (b)     dismiss the appeal.

7. Neither Court has the power to review departure prohibition orders (T & G & Child Support Registrar[3] at [10][4]. That power is reserved to the Administrative Appeals Tribunal under s.72T(1) of the Act:

   Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M. 

   [3] [2003] FMCAfam 197

   [4] It should be noted that at the time the decision in T & G & Child Support Registrar was delivered, the Federal Magistrates Court, as it then was, did not have the power to hear appeals against the making of departure prohibition orders under s.72Q. That power was reserved to the Federal Court. Section 72Q was amended by Sch.4 of the Federal Magistrates Court Legislation Amendment Act 2006 (Cth), which commenced on 4 May 2006, and again by the Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) which commenced on 12 April 2013.

8. Revocation of a departure prohibition order is covered by s.72I of the Act.

Conclusions

1. The Application is seeking that the departure prohibition order should be revoked, which is a power given to the Registrar by s.72I. Under s.72T(1), the power to review a revocation decision is given to the Administrative Appeals Tribunal, not the Court.

2. Thus, the Application is incompetent insofar as it seeks an order of the Court revoking the departure prohibition order. The Court has no jurisdiction to make the order.

3. The Application will therefore be dismissed in that regard. The Application for the other two orders sought by the Applicant will be listed for final hearing on 15 October 2013.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  14 August 2013