Bettison and Child Support Registrar (Child support second review)
[2016] AATA 592
•11 August 2016
Bettison and Child Support Registrar (Child support second review) [2016] AATA 592 (11 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/2038
Re
Keith Bettison
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal Senior Member Tavoularis
Date 11 August 2016 Place Brisbane The decision under review is affirmed.
......................[sgd].....................................
Senior Member Tavoularis
Catchwords
CHILD SUPPORT – departure prohibition order – departure authorisation certificate – child support debt – where applicant has outstanding child support debt – where child support debt is of great magnitude – where child support debt is longstanding – where no security has been offered – where applicant has aging parents – whether applicant is likely to return to Australia in reasonable period – whether liability would become completely irrecoverable – whether departure authorisation certificate should be granted on humanitarian grounds – decision under review affirmed
Legislation
Child Support
(Registration and Collection) Act 1988 (Cth) ss 72D, 72 I, 72K, 72L, 72M, 116
Child Support Assessment Act (Cth) 1989, ss 112, 118
Cases
Shahani and Child Support Registrar
[2014] AATA 312
Lui and Commissioner of Taxation [2009] AATA 626
Crockett and Commissioner of Taxation [1998] AATA 1033
Valve and Child Support Agency [2009] AATA 927
Koueider and Commissioner of Taxation [2003] AATA 101
REASONS FOR DECISION
Senior Member Tavoularis
11 August 2016
INTRODUCTION
Keith Bettison (the Applicant) wants to visit his aged and ailing parents in the United Kingdom. The Child Support Registrar is not favourably disposed to that idea. The Registrar says Mr Bettison owes a significant amount in respect of child support. As a consequence, the Registrar issued a Departure Prohibition Order (DPO) on 19 September 2006 pursuant to s 72D of the Child Support(Registration and Collection) Act 1988 (Cth) (the Act). Mr Bettison cannot leave the country unless (a) the order is varied or revoked, or (b) the Registrar issues a Departure Authorisation Certificate (DAC). The Registrar has not made a decision to vary or revoke the order, but Mr Bettison has applied for a DAC pursuant to s 72K of the Act. On 16 February 2016, the Registrar declined to issue a DAC. Mr Bettison has asked the Tribunal to reconsider that decision.
ACCEPTED CONTENTIONS
I accept the following of the Registrar’s contentions:-
(a)The ambit of this review is strictly limited to the Registrar’s decision made under s 72L of the Act to deny the issue of a DAC to the Applicant;
(b)The s 116(2) Certificate[1] is prima facie evidence of the child support liability due and payable by the Applicant; and
(c)Any present review as to the quantum of this Applicant’s liability is out of time due to subsections 112 (7) and 118 (2B) of the Child Support Assessment Act (Cth) 1989. The combined effect of those sections is to limit review of any assessment to a period of seven years immediately prior to the date on which the initial application is lodged. The child support case giving rise to the initial liability ended more than seven years ago.
[1] Ex R 1, T16 at 97; Ex R3.
THE LAW I MUST APPLY
Section 72L of the Act sets out two sets of circumstances in which the Registrar must issue a certificate to a person who makes an application under s 72K. The first set of circumstances appear at s 72L(2); the second at s 72L(3). The relevant parts of the section provide:
2The 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.
3If 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.
The set of circumstances in s 72L(2)
I will deal with the requirements in s 72L(2) first. Sub-section (2) (a) (i) refers to the likelihood of the applicant returning to Australia within a reasonable timeframe. The Registrar identified a number of matters in the Statement of Facts, Issues and Contentions which, if true, might indicate the Applicant was an unacceptable “flight risk” – that is, that he would not return to Australia from the United Kingdom. Those matters were put to Mr Bettison during the course of the hearing. Mr Bettison insists he is not a flight risk. He nevertheless concedes that a reasonably minded external observer could view him as such. He says he regards Australia as his home having spent the last three decades of his life here. While acknowledging he has an ex-spouse and an adult son by that union – whom he regards as “estranged” – he says the true basis of his domicile in Australia derives from (a) the ongoing friendships he has established here and (b) a preference for the warmer climate of Queensland over the harsher climate of northern Europe.
I am not satisfied that the Applicant will be either motivated or readily disposed to return to Australia if the DAC issues. Both parents are ailing but are not separately cared for in aged care facility. The Applicant states he is their only child and they have no-one else to assist them. However, the Applicant’s child support liability is substantial and fixed in the sense that all avenues of review appear closed to him. Any travel overseas will suspend his Centrelink benefits. Despite the events of November 2015, the Applicant is yet to make any notable reduction of his child support liability, instead suggesting the yet to be established possibility of continued small and incremental reductions from benefits he proposes to receive in the United Kingdom.
I must also be satisfied it is likely the Registrar will be required to revoke the DPO pursuant to s 72I within a reasonable timeframe – and I am not. The Applicant’s child support liability ($97,900.37) is significant. He was unable to explain how this liability would be discharged given his limited means. While his means are limited, it is unclear whether the whole amount of that liability would be “completely irrecoverable”. He continues to make periodic payments and even the smallest recovery would mean the liability was not “completely irrecoverable”.[2] In November 2015, he indicated a capacity to make a not insignificant lump sum payment (albeit not for the full amount of the debt) out of funds provided by his parents, but no such amount was ever paid.
[2] Shahani and Child Support Registrar [2014] AATA 312 at [12].
Section 72L(2) further requires the Applicant to demonstrate, to the Registrar’s satisfaction, that security need not be provided under s 72M to secure his return to Australia. The Applicant has failed to do so. Indeed, the Applicant offers no security in this matter.
It follows the Applicant is unable to meet the requirements of s 72L(2).
The set of circumstances in s 72L(3)
That leaves the possibility the Applicant might be able to satisfy the requirements in s 72L(3), specifically, s 72L(3)(b)(i) which facilitates provision of a DAC in circumstances where:
(b)the person is unable to provide security:
(i) the Regsitrar is satisfied that the DAC should be issued on humanitarian grounds.
Has the Applicant demonstrated an inability to provide security? The evidential onus is on the Applicant to establish a lack of financial capacity to provide security. The requisite inability to be demonstrated must be financial and not circumstantial.[3] The Applicant contends that issues of distrust and caution arising from the aborted provision of security in the sum of $10,000 in November 2015 prevented him then (and presumably now) from providing security. I cannot accept that contention for the following reasons:
·Inquiries made by the Registrar confirm that in the months leading up to November 2015, the Applicant received, in the form of tax-free gifts, sums totalling $36,421.38 into his account.[4] The entirety of those funds were received at an average amount of circa $4,500 per month in addition to his regular Centrelink benefits. Those funds were expended (or intended to be expended) on his lifestyle and living expenses. No portion of those funds was allocated towards his child support liability. This relatively healthy inflow alerted the Registrar to the Applicant’s likely greater capacity to discharge his child support liability. The Registrar accordingly withdrew provisional approval for the DAC.[5]
·An adverse inference must be drawn from the Applicant’s:
(i)apparent refusal to apply any portion of the $36,421 towards his significant child support liability;
(ii)withdrawal of $15,000 from the subject account on the day immediately preceding the Registrar’s notification of withdrawal of provisional approval of the DAC;[6] and
(iii)disinclination to now offer any sum by way of security and to purportedly seek a DAC via only humanitarian grounds.
·The Applicant’s financial position is opaque both to me and, it would seem, the Registrar. This could readily addressed by the Applicant via a relatively basic and independent report (or equivalent) detailing his current and historically accurate financial position including disclosure of all bank accounts in his name or in the name of entities he controls. As I understood the evidence, no such report or open and frank discussion has ever transpired between the Applicant and the Registrar.
[3] Lui and Commissioner of Taxation [2009] AATA 626.
[4] Ex R2 at [13]-[14]; Ex R1, T17 at 110-111.
[5] Ex R2 at [15]; Ex R1, T17 at 110-111.
[6] Ex R6 at 1.
Should the DAC be issued on humanitarian grounds? The general theme of the authorities seems to condition the concept of “humanitarian grounds” with:
(i)The quality and compelling nature of the proffered medical evidence;
(ii)The certified quantum of child support liability;
(iii)The evidence of steps taken by an applicant to reduce that liability by way of contributions beyond the bare minimum compulsorily deducted by the Registrar; and
(iv)The danger an Applicant for a DAC may not return to Australia.
In Crockett and Commissioner of Taxation,[7] this Tribunal considered that “humanitarian grounds” did not apply “…only to those who do good works. Rather, it adopts the meaning of “humane” in the sense of compassion so that the test is really whether the applicant’s circumstances are such that the DAC should be issued on compassionate grounds.”
[7] [1998] AATA 1033 at [12].
In Valve and Child Support Agency,[8] the Tribunal’s discretion on humanitarian grounds was conditioned by considerations of:
(i)the need for effective enforcement of child support; and
(ii)the danger someone may not return to Australia.
[8] [2009] AATA 927.
In Koueider and Commissioner of Taxation,[9] the Tribunal considered the nature of necessary medical evidence to warrant the issue of a DAC on humanitarian grounds. Affirming the reviewable decision to refuse a DAC, the Tribunal noted “The [medical] certificate does not recite a serious risk referrable to [in that case] the father’s health at the time it was issued.”
[9] [2003] AATA 101.
Based on the totality of the material before me, I am not satisfied, on the balance of probabilities, that the Applicant has adequately demonstrated to any genuinely credible extent that either his own health issues or those of his parents are such that a DAC should be issued on humanitarian grounds. In an email to this Tribunal dated 13 June 2016, the Applicant broadly refers to his being affected by symptoms involving an “eroded oesophagus and depression”. Those symptoms are not further described or particularized in any independently prepared expert report.
The medical evidence proffered on behalf of his parents is likewise not compelling. It is comprised of (a) short form and generally stated correspondence of a generic nature addressed “TO WHOM IT MAY CONCERN” describing pre-existing or chronic symptoms, and (b) discharge summaries and correspondence between medical practitioners. None of this material has been drafted for the information or reliance of an external enquirer seeking to form a view about the parents’ health for a proceeding such as presently before the Tribunal.[10]
[10] See: Ex A2; Ex A3; Ex A4; Ex A5; Ex A6; Ex A7.
I therefore find that while the Applicant’s desire to visit his parents is commendable, this intention alone is not sufficient to outweigh the powerful need for effective enforcement of his quite considerable child support liability.
I further find there are additional factors mitigating against the issuing of a DAC on humanitarian grounds. They may be stated thus:
(a)There is a strong and convincing likelihood the Applicant will not return to Australia. His concessions in cross-examination as to (a) a likely capacity to claim benefits in the United Kingdom and (b) the fact that a reasonably minded outsider could form the view it is within the realms of possibility for him to secure permanent residency status in the United Kingdom (his place of origin) are, in my view, telling;
(b)The Applicant has been less than transparent with the Registrar as to his true financial position;
(c)The Applicant has not proactively sought to address the quantum of his child support debt, paying only the bare minimum compulsorily deducted by the Registrar from his Centrelink benefits; and
(d)Were a DAC to issue, an incentive is presented to the Applicant to relocate to the United Kingdom, remain there, and thus avoid liability for this child support debt for the benefit of his son from whom he is “estranged”.
It follows the Applicant is unable to meet the requirements of s 72L(3) and a DAC should not be issued on humanitarian grounds.
Is this refusal to issue a DAC detrimental to Australia’s interests? I do not consider there are any public interest reasons that would justify the issue of a DAC. No argument has been made on this ground. Indeed, to my mind, issuing a DAC would be contrary to the policy objectives of s 72L(3). There must surely be an imperative to compel a party responsible for a duly certified child support liability to assume primary responsibility for that debt. Presently, the Registrar receives a periodic sum, albeit a small one, from the Applicant. That small periodic amount does not render the debt “completely irrecoverable”.[11] Were the DAC to be issued and the Applicant to permanently relocate to the United Kingdom, there is a genuine possibility that the debt would become “completely irrecoverable”, forcing the Applicant’s sizeable liability upon the shoulders of the Australian taxpayers. As the entire purpose of s 72L is to provide scope for the balancing of the private interests of the Applicant against those of the Australian public, this possibility creates an additional policy incentive to refuse the issue of a DAC.
[11] Shahani and Child Support Registrar [2014] AATA 312.
CONCLUSION
It is not appropriate to issue the DAC. The decision under review is affirmed.
I certify that the preceding 21 (twenty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis.......................[sgd]................................
Associate
Dated 11 August 2016
Date of hearing 19 July 2016 Applicant Keith Bettison – In person by video Advocate for the Respondent Maleah Underhill and Chris Bishop Solicitors for the Respondent Department of Human Services - FOI and Litigation Team
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