Botel and Child Support Registrar (Child support second review)

[2016] AATA 53

Botel and Child Support Registrar (Child support second review) [2016] AATA 53 (3 February 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0407
Re	Frank Botel
APPLICANT
And	Child Support Registrar
RESPONDENT

DECISION

Tribunal	Senior Member Bernard McCabe
Date	3 February 2016
Place	Brisbane

The decision under review is affirmed.

.................................[Sgd].......................................

Senior Member McCabe

Catchwords

CHILD SUPPORT – departure prohibition order – applicant applied for departure authorisation certificate – circumstances in which the Registrar must issue certificate – whether applicant is an unacceptable “flight risk” – whether applicant likely to return in reasonable time frame – whether applicant able to discharge liability in reasonable time frame – small amount of money offered as security for large amount of liability – decision under review affirmed

Legislation

Child Support (Registration and Collection) Act 1988 (Cth) ss 72D, 72I, 72K, 72L, 72M

REASONS FOR DECISION

Senior Member McCabe

3 February 2016

1. Frank Botel wants to attend his brother’s wedding in India. The Child Support Registrar has other ideas. The Registrar says Mr Botel owes a significant amount in respect of child support. As a consequence, the Registrar issued a departure prohibition order (DPO) on 27 June 2012 pursuant to s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (the Act). Mr Botel cannot leave the country unless (a) the order is varied or revoked, or (b) the Registrar issues a departure authorisation certificate (a certificate). The Registrar has not made a decision to vary or revoke the order, but Mr Botel has applied for a certificate pursuant to s 72K of the Act. On 22 January 2016, the Registrar declined to issue a certificate. Mr Botel has asked the Tribunal to reconsider that decision.

   The law I must apply

2. Section 72L of the Act sets out the circumstances in which the Registrar must issue a certificate to a person who makes an application under s 72K. The relevant parts of the section provide:

   (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.

3. I will deal with the requirements in sub-section (2) first. Sub-section (2)(a)(i) refers to the likelihood of the applicant returning to Australia within a reasonable timeframe. The Registrar referred to a number of matters in the Statement of Facts, Issues and Contentions which, if true, might indicate the applicant was an unacceptable “flight-risk” – ie, that he would not return to Australia. Those matters were put to Mr Botel during the course of the hearing. Mr Botel insists he is not a flight risk. He says he regards Australia as his home. While acknowledging he has a French passport, he says most of his family reside in this country and he would not leave them behind.

4. I am not satisfied the applicant is unlikely to return to Australia within a reasonable time frame – especially if he were required to provide security. He appears to retain a strong connection with family members, most obviously his elderly mother, who almost all reside in Australia. I accept he does not have strong financial ties with this country (although he does appear to derive some support from his mother), but there must also be some doubt as to whether he would be able to live and prosper elsewhere given the state of his health. He pointed out he travelled overseas and returned without incident on a previous occasion when the Registrar agreed to issue a certificate.

5. That conclusion only takes the applicant so far. I must also be satisfied it is likely the Registrar will be required to revoke the DPO pursuant to s 72I within a reasonable time frame – and I am not. The applicant has a significant child support liability, and he was unable to explain how that 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 he has indicated he has the capacity to make a lump-sum payment (albeit not for the full amount of the debt) out of funds provided by family members.

6. It follows the applicant is unable to meet the requirements under s 72L(2). That leaves the possibility the applicant might be able to satisfy the requirements in s 72L(3). Mr Botel has offered to give security under s 72M. He pointed out his mother provided a $15,000 payment as security on the last occasion he travelled overseas; that payment was duly returned to her when he arrived back in Australia in accordance with the terms of the certificate. Mr Botel has offered a similar arrangement on this occasion. The Registrar says a payment in that amount is not appropriate security in all the circumstances.

7. I agree with the Registrar. Mr Botel’s child support liability currently exceeds $117,000. He says he is taking steps to challenge that assessment, although that process has taken longer than he hoped because of limited resources and mental health issues. Unless and until he successfully challenges the assessment, it must be accepted he continues to owe a significant amount, and that amount is growing. I am not satisfied it would be appropriate to accept a much smaller amount as security for the larger amount. While I acknowledge the applicant might be taken to assume an obligation to his mother, from whom he proposes borrowing the money, I am not persuaded the applicant has offered appropriate security.

8. The applicant accepts there are no humanitarian or public interest reasons that would justify the issue of a certificate in the absence of appropriate security. In those circumstances, he is unable to meet the requirements of s 72L(3).

   Conclusion

9. It is not appropriate to issue departure authorisation certificate. The Registrar’s decision to that effect is affirmed.

10.     I certify that the preceding 9 (nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

..........................[Sgd]................................

Associate

Dated 3 February 2016

Date of hearing	1 February 2016
Applicant	By telephone
Solicitor for the Respondent	Ms K Whittemore, by telephone