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:

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

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.”
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 3162
Decision Date: 5 November 2019

CaseChat Overview and Summary

Cabot (the applicant) appealed to the Federal Circuit Court against a Departure Prohibition Order (DPO) issued by the Child Support Registrar. The DPO was made under section 72C of the *Child Support (Registration and Collection) Act 1988* (Cth) and prevented the applicant from leaving Australia without the Registrar's permission. The applicant sought to have this order set aside.

The central legal issue before the Court was whether the Registrar had properly exercised her discretion in issuing the DPO. Specifically, the Court had to consider whether the applicant had failed to pay child support liabilities, whether the Registrar had reasonable grounds to believe that the applicant intended to leave Australia to avoid payment, and whether the DPO was otherwise justified under the relevant provisions of the Act.

Judge Cassidy dismissed the appeal, finding that the Registrar had sufficient grounds to issue the DPO. The Court was satisfied that the applicant had outstanding child support liabilities and that there was a reasonable apprehension that the applicant intended to depart Australia to avoid meeting those obligations. The Court applied the principles of administrative law, requiring the Registrar to act reasonably and within the scope of her statutory powers, and found that these requirements had been met. The Court ordered that the amended notice of appeal be dismissed and that the applicant pay the respondent's costs fixed at $7,200.00.

Orders

Orders of the court

THE COURT ORDERS:

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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