Cabot v Child Support Registrar

[2019] FCCA 3162

FEDERAL CIRCUIT COURT OF AUSTRALIA

CABOT v CHILD SUPPORT REGISTRAR [2019] FCCA 3162

Catchwords:
CHILD SUPPORT – Appeal against Departure Prohibition Order – appeal dismissed.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 72Q
Federal Circuit Court Rules 2001 (Cth), Schedule 1

Cases cited:

Jones v Child Support Registrar [2007] FCA 1732

Applicant: MR CABOT

Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 651 of 2019

Judgment of: Judge Cassidy

Hearing date: 2 October 2019

Date of Last Submission: 2 October 2019

Delivered at: Brisbane

Delivered on: 5 November 2019

REPRESENTATION

For the Applicant: Self-represented

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

THE COURT ORDERS:

1. That the Amended Notice of Appeal (Child Support) filed by the Applicant on 29 August 2019, be dismissed.

2. That the Applicant pay the Respondent’s costs, fixed in the amount of $7,200.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 651 of 2019

MR CABOT

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. In an Amended Notice of Appeal filed 29 August 2019, the Applicant sought orders under the ‘Orders sought’ section as follows:

   “…

   3. Appealing Departure Prohibition order pusuit [sic] to section 72Q of the Child Support [sic] Act.”

2. The grounds of appeal set out in the Notice are as follows:

   “1. Life in danger

   2. No prospect of gaining employment in Australia

   3. Payee entitled to child support has elected to collect their own money.”

The law

1. The relevant provisions that relate to a Departure Prohibition Order (“DPO”) are set out in s72D(1) and (2) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Collection Act”):

   “72D Registrar may make departure prohibition orders

   (1) The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:

   (a)the person has a child support liability or carer liability; and

   (b)the person has not made arrangements satisfactory to the Registrar for the 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)); or

   (iv)a carer liability; 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 carer liability; or

   (ii)making arrangements satisfactory to the Registrar for the child support liability or carer liability to be wholly discharged.

   (2) For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:

   (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) or (iv) 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.

   …”

2. In Jones v Child Support Registrar [2007] FCA 1732, Emmett J notes at paragraph 2:

   “2 Section 72D(1) of the Act authorises the Registrar to make a departure prohibition order prohibiting a person from departing from Australia for a foreign country, if, relevantly:

   • the person has a child support liability; and

   • the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and

   • the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability; and

   • 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 wholly discharging the child support liability or making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.”

3. The Judge goes on, at paragraphs 6 and 7, to opine:

   “6 An appeal may involve questions of fact or law or both. An appeal would ordinarily involve the determination by the Court of at least three principal questions. The first is whether the affected person has a child support liability. The second is whether the Registrar was satisfied as to the matters, and had the belief, referred to in s 72D. The third is whether reasonable grounds existed for the Registrar to be satisfied as to those matters and for the formation by the Registrar of the requisite belief.

   7 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.”

Background

1. The submissions of the Child Support Registrar (“the Registrar”), adequately summarise the background facts in this matter:

   “3. The applicant is the parent of [Child A], born … 2005, [Child V], born … 2010, and [Child K], born … 2013 and was liable to pay child support to the receiving parent, [NTS] pursuant to a registered maintenance liability until 7 July 2019. The Applicant is now liable to pay child support pursuant to a registered overseas maintenance liability lodged by New Zealand Inland Revenue (NZIR) on behalf of the receiving parent.

   4. The applicant is also the parent of [Child Y], born … 2002, [Child X], born … 2003, and [Child Z], born … 2004 and is liable to pay child support pursuant to a registered overseas maintenance liability lodged by NZIR on behalf of receiving parent, [LMN].

   5. At the date the DPO was issued, the applicant had an outstanding child support liability within the meaning of section 72E of the Collection Act of $28,600.78 (child support liability). As at 9 September 2019, the applicant owed the Commonwealth a total of $41,567.77, comprising child support arrears, late payment penalties and International additional amounts: see paragraph 15 of the Affidavit. A copy of the certificate produced under s 116(2) of the Act is contained at Annexure "DS-4" of the Affidavit.”

Was the DPO validly made?

1. I accept that I can determine whether an order was properly made but it is not available to this Court to exercise the administrative decision-making powers granted to the Registrar.

The liability

1. The DPO was made on 10 December 2018. The Applicant at that time had a child support liability of $28,600.78. The Applicant also owed international additional amounts of $2015.56 and late payment penalties of $7882.02. This is not disputed by the Applicant.

Satisfactory arrangements

1. The Affidavit of Mr A filed 9 September 2019, at Annexure ‘S-5’ sets out a phone call between the Applicant and an authorised officer of the Department of Human Services (“the Department”):

   “pp called in response to dpo email

   …

   I advised pp that as he has a cs debt dpo enforcement will be considered unless he can pay the debt in full

   Pp advised he cannot even afford the $157 payments per week and wants to lower this

   I advised that I cannot enforce what he pays as we have no income source at this time

   I advised that we have issued a s72a to Employer E

   Pp advised that he does not work for Employer E and they pay his trust

   He advised he is taking them to court to recoup monies they have taken

   Pp advised that we cannot stop him from travelling back to NZ

   I advised that we can

   Pp kept arguing with me that he will just take it to the courts and rebuttle it? [sic]

   I advised that he can take any action he wishes to revoke the dpo

   Pp refused to make any arrangement to pay his cs debt

   Receitp [sic] number offerred [sic]”

2. This evidence satisfies the requirement that the Applicant had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.

Capacity to pay

1. The decision maker considered the following as summarised in the Respondent’s submissions:

   “21. …

   (a) The searches undertaken by the Department in respect of the applicant;

   (b) The applicant's income tax return for the financial year ending 30 June 2016 in which he declared a taxable income of $64,244 from a trust;

   (c) The response from B Accounting Pty Ltd dated 5 July 2018 that revealed the applicant was a beneficiary of the C Pty Ltd Family Trust (the Trust) and that the Trust's main business activity was D Business;

   (d) The Commonwealth Government Job Outlook reveals that the average income for D Business and Labourers was $69,108 per annum;

   (e) The Equifax search dated 6 September 2018 that revealed the Applicant was a director of C Pty Ltd; and

   (f) The applicant was not in receipt of income support payments.”

2. I accept the Respondent’s submission that the Applicant did not have a transparent financial situation and it was therefore available to the decision maker to be satisfied that the Applicant had a greater capacity to pay the child support liability.

Recovery actions

1. Annexure ‘S-6’ of the Affidavit of Mr A sets out contact with the Applicant where he was informed of options available to him to address his child support liability.

2. Annexure ‘S-5’ of the Affidavit of Mr A, set out herein, informed the Applicant a DPO would be recommended. The Respondent conducted various searches with a view to enforcement.

3. The garnishee notice issued pursuant to s.72A of the Collection Act failed to result in the recovery of the child support liability.

4. This evidence indicates the number of times recovery actions were taken and their outcomes.

Occasions the debt was not paid

1. The evidence shows the Applicant was not making payments towards the outstanding liability.

2. I accept there has been a persistent non-payment of the child support liability that has gone to creating the debt owed by the Applicant.

Persistent and without reasonable ground failure to pay the debt

1. The Respondent swears:

   ·    The Applicant has not lodged outstanding tax returns;

   ·    The Respondent has conducted extensive searches in relation to the Applicant;

   ·    The last tax return showed a taxable income of $64,244.00. This was income from a trust.

   ·    The Applicant’s arrival card lists his occupation as “owner driver”

   ·    As at September 2018, the Applicant was listed as a director of C Pty Ltd.

   ·    There is no record of the Applicant being in receipt of Centrelink benefits.

2. This evidence satisfied the decision maker that the Applicant has persistently and without reasonable ground, failed to pay his child support debt.

Risk of departure without payment

1. The Applicant indicated in the phone call to the departmental officer he wished to depart Australia, so this provision is satisfied.

DPO an incentive to pay

1. The Applicant had a total of nine overseas travel movements. This evidence would justify a conclusion the DPO would act as an incentive for the Applicant to pay his debt.

The Applicant’s Grounds of Appeal

1. Grounds one and two, as set out above are irrelevant in coming to a decision in this appeal.

2. Ground three is also irrelevant, as there is currently a debt owing in both cases.

Conclusion

1. As the Applicant has not made out a case to set aside the DPO, the appeal ought to be dismissed with costs in accordance with Part 2, Division 2 of Schedule 1 to the Federal Circuit Court Rules 2001, in the amount of $7,200.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date:  5 November 2019