Bentley v Child Support Registrar
[2017] FCCA 1295
•2 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENTLEY v CHILD SUPPORT REGISTRAR | [2017] FCCA 1295 |
| Catchwords: CHILD SUPPORT – Application to set aside departure prohibition order – child support liability – registration of overseas maintenance liability – whether the Applicant is a resident of Australia – s.72D of the Child Support(Registration and Collection) Act 1988 – capacity to pay – reasonable satisfaction of Respondent – frequent travel of Applicant – appeal dismissed. |
| Legislation: Child Support (Registration and Collection) Act 1988, ss.4, 15, 18A, 25, 30, 72A, 72D, 72E, 72G, 72H, 72I, 72S,72Q, 116(2) |
| Cases cited: Bamkin v Tate [2013] FCCA 1089 Jones v Child Support Registrar [2007] FCA 1732 |
| Applicant: | MR BENTLEY |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLG 881 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 June 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the Respondent: | Ms Rayment |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS MADE 2 JUNE 2017
The application dated 23 May 2017 for the Judge to recuse herself is dismissed.
The appeal filed 1 May 2017 pursuant to s.72Q(1) of the Child Support Registration and Collection Act 1988 (Cth) is dismissed pursuant to s.72S(b) of the Child Support Registration and Collection Act 1988 (Cth).
The Applicant pay the costs of the Respondent fixed in the sum of $6,948.00.
IT IS NOTED that publication of this judgment under the pseudonym Bentley v Child Support Registrar is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 881 of 2017
| MR BENTLEY |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is a notice of appeal which was filed by the Applicant, a litigant in person, on 1 May 2017. The Applicant, is a person aggrieved pursuant to s.72Q(1) of the Child Support (Registration and Collection) Act 1988 (‘the Act’), by the making of a departure prohibition order (‘DPO’).
Pursuant to s.72S of the Act, the Applicant seeks that the Court, in its discretion, now make an order setting aside the DPO issued 14 March 2017. Additionally, the Applicant seeks an interlocutory order to set aside the DPO on the basis that he did not live in Australia, did not work, never worked and never planned to work in Australia and thus the making of the order was completely “senseless”.
The Applicant also sought leave to file an application for damages. He can be granted no such leave. A court hearing an appeal, under s.72Q, against the making of a DPO has no power to award damages under s.72S of the Act.
In support of the applications, the Applicant affirmed an affidavit on 1 May 2017. At trial, paragraph 9 and a substantial part of paragraph 10 of that affidavit was struck out.
The Applicant’s appeal and interlocutory application were not served upon the Respondent prior to the first occasion the matter was before the Court. Time had been abridged to allow for the urgent hearing of the matter on 4 May 2017. On that day, the Applicant did not have a copy of the DPO, nor any reasons, for the issuing of such order. He claimed to have had an inability to reach any relevant person at the office of the Respondent.
The affidavit evidence the Applicant placed before the Court on 4 May 2017 (affirmed on 1 May 2017) was that he resided in (country omitted) and had come to Australia to travel and visit friends on 1 April 2017. His evidence at trial contradicted that. His immediate travel before 1 April 2017 was in fact from Australia to (country omitted), before a return to Australia.
On 20 April 2017, as the Applicant was leaving the Commonwealth of Australia, he was stopped by the Australian Federal Police and prevented from boarding a plane. This action he claimed “breached his travel plans” and “resulted in emotional and finance (sic) damage”.
In a subsequent affidavit affirmed by the Applicant on 11 May 2017, at paragraph 5, the Applicant said:-
“I note that DHS did not notify me of DPO, as required per 72G(2) of CSARC.”
The Applicant went on further to depose that on 28 April 2017, a person:-
“Represented himself (sic) as Ms M denied to revoke DPO over the phone per 72I(4)(c), despite providing clear information that I do not live in Australia and have (country omitted) citizenship.”
The Applicant further deposed to not having permanent residence in Australia and that he did:-
“Not, do not and never will work in Australia.”
The making of the DPO by the Respondent accorded with usual practice and is not objectionable. In Whittaker v Child Support Registrar [2010] FCA 43, Lindgren J held that the Registrar was not subject to a duty to comply with procedural fairness before making a DPO. Lindgren J said further at [250]:-
“The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person is outside of Australia, yet notification to the person of a proposal to make a DPO in sufficient time to allow him or her to be heard in opposition to the proposal will allow the person to defeat the object of the proposed DPO by departing from Australia immediately. That is to say it would be antithetical to the object and purpose of a DPO to offer a person an opportunity to be heard in opposition.”
As to the Applicant’s complaint about notification, s.72G(2) of the Act requires the Registrar to notify a person that a DPO has been made against them as soon as practical after making the order. On 16 May 2017, the Respondent served a copy of the DPO on the Applicant at the address listed for service in the notice of appeal in accordance with s.72G(3) of the Act. Had the Respondent failed to do so, the validity of the DPO would have been affected.
On 4 May 2017, the Applicant appeared before the Court at 10.00am and the matter was stood down. The Applicant was advised by the Court that it would attend to informing the Respondent of the proceedings so that the DPO and any background information pertaining to the making of the DPO, including any reasons that might exist, could be before the Court on the hearing of the application. As the morning and then afternoon progressed, the Applicant failed to reappear on a number of occasions the matter was called. Ms Gorman’s attendance was secured and she appeared as Counsel on behalf of the Respondent in the afternoon.
The Court did not dismiss the appeal and interlocutory application despite the non appearance of the Applicant for the balance of the day and made orders , on 4 May 2017, as follows:-
“(1) The application is adjourned for final hearing on 2 June 2017 at 10.00am.
(2) The Respondent file and serve a response and affidavit within 14 days hereof.
(3) There is liberty to the Applicant to apply on short notice.
(4) The Respondent file and serve a notice of address for service forthwith.
(5) Costs are reserved.”
The Respondent filed a response dated 18 May 2017. That response is as follows:-
“(1) The grounds pleaded by the Applicant cannot succeed in the absence of any particulars to make them meaningful.
(2) The application for judicial review fails to establish any error of law in the decision of the Respondent to issue the DPO on 14 March 2017.
(3) The Respondent seeks an order that the Applicant pay the Respondent’s costs in a fixed amount.”
The Applicant filed a further affidavit on which he relies, that being affirmed by him on 24 May 2017. He also filed written submissions on 31 May 2017 on which he relies.
The Respondent filed and relies upon an affidavit of evidence affirmed 17 May 2017, deposed to by Ms K, Acting General Manager, Child Support Smart Centres within the Department of Human Services (‘the Department’). As at 14 March 2017, being the date on which the DPO was made, Ms K was a delegate of the Respondent authorised under s.15 of the Act to make the DPO. The DPO was made pursuant to s.72D of the Act and prohibited the departure of the Applicant, from Australia to a foreign country. A copy of the DPO is annexed to these reasons.
The Respondent also relies on submissions filed on 25 May 2017.
The Applicant sought to appear at the final hearing by telephone on the basis that he was presently in Queensland. The Court granted leave to the Applicant to appear by telephone at the hearing. Such leave was not opposed by the Respondent.
Prior to the matter proceeding, the Applicant sought that I recuse myself from hearing his proceeding on the basis of material as set out by him in an affidavit affirmed by him and filed 23 May 2017. That affidavit evidence was nonsensical, in part inadmissible, and could be given little or no weight. The application was dismissed.
Background
The Applicant is the parent of the female child, X, born on (omitted) 2007 and is liable to pay child support to the receiving parent, Ms E, under a New Zealand Inland Revenue Child Support Assessment.
The New Zealand Assessment is a maintenance assessment issued by an administrative authority of a reciprocating jurisdiction. It is an overseas maintenance liability pursuant to s.4 of the Act. Accordingly, the New Zealand Assessment is a registrable overseas maintenance liability pursuant to s.18A(3) of the Act which can be registered in Australia for collection and enforcement as provided for in s. 25(1B) of the Act. Upon registration, the assessment is a debt due to the Commonwealth of Australia pursuant to s.30 of the Act.
On 2 December 2016, the New Zealand Inland Revenue applied, on behalf of Ms E, for registration of the overseas maintenance liability under the New Zealand Assessment for collection in Australia. On 1 February 2017, the Respondent accepted that the Applicant was a resident of Australia. The amount registered, as payable by the Applicant to the Respondent was registered effective from 2 December 2016 and was:-
a)$75,949.89 for arrears of registered maintenance liabilities;
b)$7672.98 for New Zealand late payment penalties; and
c)ongoing monthly liabilities of $1037.34.
At the date the DPO was issued, the Applicant had an outstanding child support liability within the meaning of s.72E of the Act of $80,103.47 (‘the child support liability’).
As at 17 May 2017, the Applicant owed the Commonwealth of Australia a total of $87,624.02 comprising child support arrears, late payment penalties and international additional amounts. A certificate produced under s.116(2) of the Act is before the Court in the affidavit evidence of Ms K and is contained at annexure “KH-4” of Ms K’s affidavit. No challenge was made by the Applicant to this prima facie evidence of the child support liability.
The Legislation
Section 72H is as follows:-
“Child Support (Registration and Collection) Act 1988
Operation of departure prohibition order
(1) A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court.
(2) However, a departure prohibition order in respect of a person is not in force during any period when a deportation order in respect of the person is in force under the Migration Act 1958.”
Section 72D(1) of the Act authorises the Respondent to make a DPO 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; or
(iii) one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); 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.”
In considering whether the person has persistently and without reasonable grounds failed to pay child support debts in accordance with s.72D(1)(c) of the Act, the Respondent must have regard to the factors outlined in s.72D(2) of the Act, relevantly:-
“ (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;
(da) if subparagraph (1)(c)(iii) applies:
(i) the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and
(ii) 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;
(e) such other matters as the Registrar considers appropriate.”
The Applicant bears the onus of demonstrating that the DPO was wrongly made by satisfying the Court that one of the essential elements of s.72D was absent. The Respondent bears no onus of establishing the validity of the order.[1] Further, any examination of the assessment underlying the debt is not to be undertaken in an appeal of this kind.[2]
[1] Jones v Child Support Registrar [2007] FCA 1732 at [5] per Emmett J.
[2] Russo v Child Support Registrar [2009] FMCA FAM 437, 20-27.
In Jones v Child Support Registrar [2007] FCA 1732 at [7] to [9] Emmett J said as to the prerequisites for the making of a DPO:-
“The issue of whether a person has a relevant liability would be readily ascertainable. That question is not in issue in the present proceeding. In some cases, an appeal could involve the examination of the Registrar’s state of mind if there were a suggestion that the Registrar were not bona fide satisfied or that a belief was not held bona fide. That may or may not be an issue in the present proceeding. The question that is most likely to be involved in an appeal under s 72Q is whether reasonable grounds existed for the Registrar to be satisfied as to the relevant matters or for the holding of the requisite belief.
Ordinarily, the material before the Registrar would not be known to an applicant. However, an applicant is entitled to have produced for his consideration the material on which the Registrar relied in making the order and any other material that was before the Registrar that bears on the reasonableness of the grounds for the Registrar’s belief or satisfaction. It may be that an applicant would be entitled to have such material produced to the Court by the Registrar by means of subpoena or discovery. Further, it may be that the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) could be called in aid to require the Registrar to give reasons for the decision to make the relevant order.
For the applicant to succeed in the present appeal, it would be sufficient for him to demonstrate that one of the four prerequisites for the making of a departure prohibition order was not satisfied. The first prerequisite is satisfied. As I have said, the applicant accepts that he has a child support liability and he did not suggest that the amount of the liability was so small as to be negligible. The difficulty with the other three prerequisites is that they depend upon the state of mind of the Registrar. At present, the applicant has no access to the material upon which the Registrar acted in making the order.”
There is no requirement under s.72D of the Act that the Applicant be a resident of Australia. The question of residence goes to the registration of the overseas maintenance liability. If the Applicant wishes to challenge registration of the child support liability then he must make an application to the Respondent.
The Court, in its discretion, can either dismiss the appeal of the Applicant or set aside the DPO. The Court cannot exercise the administrative decision-making powers granted to the Respondent.
Consideration
It is clear that the Applicant has a child support liability and, at the time the DPO was issued, Ms K was satisfied that the Applicant had an outstanding child support liability within the meaning of s.72E of the Act of $80,103.47. The child support payer transaction statement indicates that the Applicant did not pay any child support payments to the Respondent prior to the DPO being issued. The Applicant also owed international amounts of $7558.47, which were not considered by the delegate, Ms K, when making the DPO.
The Applicant has not sought to dispute that he had a child support liability at the time the DPO issued. Accordingly, s.72D(1)(a) of the Act is satisfied.
At the time the DPO was issued, the evidence of Ms K, unchallenged, is that she was satisfied the Applicant had not made any satisfactory arrangement for his child support liability to be wholly discharged. Since the case was registered for collection by the Respondent, no payments had been received from the Applicant and the Applicant had significant accrued arrears demonstrating he had consistently failed to meet his child support obligations.
An authorised officer of the Department telephoned the Applicant on 16 January 2017. On that occasion, the Applicant confirmed his identity, however, terminated the call when he was informed that the officer was calling from the Department. Authorised officers of the Department made further attempts to contact the Applicant, which proved unsuccessful save for an email forwarded by the Applicant to the Respondent on 23 January 2017, the Applicant having exited Australia the day prior, in relation to the phone call received by him on 16 January 2017. All of these attempts occurred prior to the issuing of the DPO. The attempts were aimed at having a discussion with the Applicant as to arrangements for the payment of his child support liability.
As no payment arrangement satisfactory to the Respondent was in place at the time the DPO was issued on 14 March 2017, s.72D(1)(b) of the Act was satisfied.
The evidence further establishes that Ms K had regard to the Applicant’s capacity to pay his child support liability in considering whether the Applicant had persistently and, without reasonable grounds, failed to pay his child support liability. No relevant information could be obtained from the Applicant and verified prior to the issue of the DPO, as all attempts made by the Department to contact the Applicant in order to discuss his child support liability were to no avail. Various searches were required to be undertaken by the Respondent in respect of the Applicant’s financial position as set out in paragraph 19 of Ms K’s affidavit, with the results of such searches being considered by Ms K.
In particular, Ms K considered:-
a)the Applicant’s travel history, which indicated that he had funds or access to funds to purchase airline tickets and to meet his living expenses whilst overseas. The Applicant’s Department of Immigration and Border Protection movement records showed that the Applicant had a history of frequent travel, having entered Australia on a special category visa 444, a temporary visa for eligible New Zealand citizens who hold a valid New Zealand passport,[3] on six occasions in the last two years. The Applicant had departed and returned to Australia on two occasions during early 2017;
b)Mascot search results, dated 10 March 2017, which revealed that the Applicant was the sole director, secretary and shareholder of the Australian company, ACN (omitted) Proprietary Limited, a business registered on 8 March 2016. The company’s registered address was listed as (omitted) in the State of Victoria;
c)various international transfers of funds, both from the Applicant and to the Applicant;
d)the Applicant’s Department of Immigration and Border Protection PAX arrival card, dated 4 December 2016, in which the Applicant stated he was an Australian resident returning to Australia and listed his occupation as ‘(omitted)’. In his evidence before the Court the Applicant stated he was a (occupation omitted) in the area of (employment omitted). Ms K referred to the (omitted), which provided that an (occupation omitted) earnt on average $1831 per week or $95,212 per annum.
[3] Migration Act 1958 (Cth) s.32.
Ms K also had regard to the fact that alternative recovery actions were not available to the Registrar in circumstances where no collection avenues had been located to enable the issuing of a s.72A notice under the Act.
Ms K was satisfied it was desirable to issue the DPO for the reasons as set out in paragraph 32 of her affidavit relevantly as follows:-
“a) The Applicant had a child support liability which was a substantial amount in arrears;
b) Based on recent travel movements, the Applicant had capacity to discharge his arrears through a lump sum or satisfactory payment arrangement; and
c) It was likely that the Applicant would seek to depart Australia and placement of the DPO would encourage payment of his child support liability.”
The Applicant disagrees with the satisfaction reached by Ms K as to each of the elements in s.72D of the Act and the subsequent exercise of her discretion to issue the DPO. The Applicant’s evidence on the hearing of his appeal was that he:-
a)has no current residential address in Australia and is not a resident of Australia despite him declaring himself as a resident on his incoming passenger cards dated 26 July 2016 and 4 December 2016;
b)he has no occupation “at the moment”. He last operated a (omitted business) in New Zealand several years ago, and has no such business in (countries omitted). He attempted to set up such a business in Australia but was thwarted, he said, by “criminals from one of the government departments” though it was not entirely clear whether he was referring to Australian or New Zealand government departments; and
c)funded his various travels, not with his own monies, nor that of his friends (his earlier affidavit evidence being they provided him with some financial assistance) but “someone, outside of your legislative powers”.
The Applicant was in Australia between 18 January 2016 and 14 June 2016. This is a period exceeding five months. During that time he resided in firstly, the (omitted) property, and then at (omitted), his evidence and the PAX arrival cards on his entry into the Commonwealth of Australia providing variously both addresses. He was again in Australia between 28 July 2016 and 27 November 2016, a period of four months residing at the (omitted) address, a property he claimed was leased by his company as a rental he could not recall. He was thereafter in Australia between 4 December 2016 and 22 January 2017, making his total time spent in Australia in 2016 a period of over ten months. Of his time in Australia, the Applicant’s evidence was that he spent about half the time travelling around the country. When asked in cross examination by Counsel for the Respondent “how did you afford this travel?” the Applicant replied “I was supported by the family trust”. When asked by Counsel for the Respondent further “…who runs the family trust?” the Applicant replied “the trustee of the family trust”. The following exchange then occurred:-
“The Respondent: and who is that…
The Applicant: me.
The Respondent: So you can pay yourself any funds that you wish out of that trust; is that correct?”
The Applicant: absolutely right.
The Respondent: You?
The Applicant: Yes.
The Respondent: So you can pay yourself any funds that you wish out of that trust; is that correct?
The Applicant: Absolutely right.
The Respondent: Thank you. So you were able to afford multiple flights?
The Applicant: No.
The Respondent: …holidays and travel all from the family trust? You supported yourself totally; is that right?‑‑‑
The Applicant: When I’m outside of Australia, yes.
The Respondent: And in Australia who supported you?
The Applicant: Whatever the money I come in with.
The Respondent: So your own money, the money that you allocate to yourself from the family trust; is that correct?
The Applicant: That’s correct.”
The Applicant was in Australia again between 27 January 2017 and 12 February 2017 and between 4 March 2017 and 12 March 2017. The Applicant then travelled to (country omitted) and when asked by Counsel for the Respondent “and what did you go to (country omitted) for?” he replied “none of your business”. The Applicant’s passenger cards, completed by him for the purposes of departing and returning to the Commonwealth of Australia variously describe the Applicant as a resident of Australia; a resident of the (country omitted), although he last resided there in 1991; and/or as a citizen of New Zealand. The Applicant’s very relevant citizenship of New Zealand was not referred to by him in his affidavits of evidence. Rather he disclosed his citizenship of the (country omitted).
The Court is satisfied Ms K had before her material upon which she could reasonably be satisfied as to each of the elements in s.72D of the Act. There is no evidence to suggest that, in reaching that satisfaction, her discretion miscarried. It was open to Ms K to be satisfied the DPO would likely act as an incentive for the Applicant to pay his child support liability in circumstances where the Applicant has persistently, and without reasonable grounds, failed to pay his child support liability.
The Applicant’s assertion that the DPO is a “resulting and criminal harassment action” is unsubstantiated and fails to impugn the decision of Ms K as delegate of the Respondent.
What the Applicant was required to do in these proceedings was establish that the DPO was wrongly made. That could have been done only by satisfying the Court that one of the essential elements of s.72D of the Act was absent. The Applicant did not approach the case in that manner.
Section 72I(1) of the Act states that a DPO may be revoked or varied on application to the Respondent by the person (the Applicant) in the approved form. When the Applicant claims that he verbally requested that the DPO be revoked, it is not apparent he sought revocation in the approved form. Even if the Applicant were to seek revocation of the DPO through the proper forum, on the material available to the Court, none of the criteria set out in s.72I(1) of the Act apply to the Applicant.
The appeal is dismissed. The interlocutory application is dismissed. Costs have been sought by the Respondent and ordered against the Applicant.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 16 June 2017
ANNEXURE “A”
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