Camden v Child Support Registrar
[2020] FCCA 385
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAMDEN v CHILD SUPPORT REGISTRAR | [2020] FCCA 385 |
| Catchwords: CHILD SUPPORT – Appeal in respect of administrative decision to make Departure Prohibition Order – applicant bears onus to establish that DPO should not have been made – Registrar required to be reasonably satisfied of various matters – existence of child support liability – lack of satisfactory arrangements to discharge liability – persistent and unreasonable failure to pay –whether desirable to make DPO – has applicant discharged onus on basis issue of DPO was legally unreasonable or abuse of process – capacity of applicant to pay – appeal dismissed – costs follow event. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth) |
| Cases cited: Bentley v Child Support Registrar [2017] FCCA 1295 |
| Applicant: | MR CAMDEN |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | ADG 221 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 18 December 2019 |
| Date of Last Submission: | 18 December 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms Underhill |
| Solicitors for the Respondent: | Mills Oakley |
ORDERS
The application filed 28 May 2019, amended 23 September 2019, is dismissed.
The applicant pay the respondent’s costs in the amount of seven thousand two hundred dollars ($7,200.00).
IT IS NOTED that publication of this judgment under the pseudonym Camden v Child Support Registrar is approved pursuant to s.110MR B(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 221 of 2019
| MR CAMDEN |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to the provisions contained in Part VA of the Child Support (Registration & Collection) Act 1988.[1] This part of the Act is headed Departure Prohibition Orders.[2]
[1] Hereinafter referred to as “the Collection Act”
[2] Hereinafter referred to by the acronym “DPO”
In general terms, a DPO is an order which prohibits a person from leaving Australia, for overseas, if that person has a child support debt and the relevant authorities believe that the issue of such a DPO is necessary to ensure proper arrangements are made for the payment of that debt to the Commonwealth.
The identity of the applicant in these proceedings has been anonymised.[3] He is aggrieved that he is the subject of a DPO, which was made on 17 September 2018. Pursuant to the provisions of section 72Q of the Collection Act, he is entitled to appeal against the making of such an order in this court.
[3] I will refer to him in these reasons for judgment as “the applicant”
The applicant, who has represented himself throughout these proceedings, instituted such an appeal on 28 May 2019. The respondent to the appeal is the Child Support Registrar,[4] who resists the discharge of the relevant DPO and refutes any submission that the order was made without reasonable grounds.
[4] Hereinafter referred to as “the Registrar”
Background
There is no controversy that the applicant is the father of a child Mr B, who was born, in South Australia, in 1989. Mr B’s mother is not a party to these proceedings but is aware of them in general terms.[5]
[5] Given that the identity of the applicant has been suppressed in these proceedings, I will refer to Mr B’s mother as “the mother” in these reasons for judgment.
In particular, although Mr B is now an adult and self-supporting, the mother wishes to receive arrears of maintenance, due to her from the father, as a consequence of a court order made in her favour, in respect of the financial support required for Mr B during his infancy.
It is uncontroversial that the applicant and the mother have had an acrimonious relationship with one another since the time of Mr B’s birth. It is also clear that Mr B lived with the mother throughout his childhood and had little, if anything, to do with the applicant.
In these circumstances, the mother was entitled to seek an order for child maintenance, from the applicant, pursuant to the provisions of the Family Law Act 1975, which she did, apparently in tandem with other proceedings relating to Mr B’s parenting.
In this context, Gunn J, sitting in the Family Court of Australia at Adelaide, made an order directing the applicant to pay maintenance, for Mr B, in an amount of $65.00 per week, commencing on 7 May 1990.
A subsequent application, made by the applicant in 1994 to discharge this child maintenance order, was dismissed by Burton J, in the Family Court at Adelaide, in October of 1994.
As she was entitled to do, the mother registered the order of the Family Court, entitling her to receive periodic amounts of child maintenance from the applicant, with the Registrar.
The effect of such registration was to authorise the Registrar to collect maintenance payments due to the mother, from the applicant, on her behalf, pursuant to the provisions of Part III of the Collection Act.
Pursuant to the provisions of section 67 of the Collection Act, if child support is not paid, when it becomes due and payable, the outstanding amount attracts a penalty.
The Registrar has calculated that, between the commencement of collection and 21 September 2019, the applicant has incurred arrears of child maintenance of $37,723.93, together with penalties of $59,400.17, making a total debt of $97,124.10.
The applicant is not in a position to challenge this debt; the method of its calculation, including the penalties calculated to apply to it; nor to seek any form of remission of the moneys owed by him; in the current proceedings. Rather, the sole focus of the case is on the probity of the DPO, which is founded on the debt.
Pursuant to section 116(2) of the Collection Act, the Registrar has authority to establish the necessary evidentiary basis of any relevant registerable maintenance liability by means of the provision of a signed certificate. In the current case, the Registrar has provided such a certificate dated 24 September 2019, which evidences the quantum of the debt owed by the applicant to the Registrar in the amount of $99,080.05.[6]
[6] See annexure (5) to the affidavit of Ms C filed 24 September 2019
The applicant was born in the United Kingdom in 1946. He migrated to Australia in the 1970s and became an Australian citizen a few years later. He retained his UK citizenship and right of abode in that country. He is not currently in paid employment but receives an Australian aged pension, at the single rate, which results in him receiving $840.00 per fortnight from Centrelink.
Between 1997 and 2014, the applicant lived in the United Kingdom. During the course of his evidence to the court, he further deposed that he had been imprisoned, in the United Kingdom, between early 2004 and 2009, when he had been released on parole, which expired in early 2012.
As a consequence of his residency in the United Kingdom, including the periods during which he was imprisoned, the applicant has an entitlement to receive an aged pension from the British authorities. It is the applicant’s position that he personally does not receive any moneys from the UK government. This is controversial so far as the Registrar is concerned.
The applicant is now 73 years of age. He has re-partnered. His current partner is a person from Country D. She is not an Australian citizen and so she is not entitled to Australian social security payments.
It is on this basis that the applicant has been granted the full aged pension by the Australian authorities. It is his position that he fully utilises this pension in support of himself and his partner, with whom he lives in rented accommodation. It is further his position that he has no assets of any significant value.
The applicant commenced these proceedings because he wished to be able to travel to the United Kingdom to visit his sister, who has been diagnosed with breast cancer and is currently undergoing extensive treatment for it. In these circumstances, the applicant applied to the Registrar to be able to travel outside of Australia on humanitarian grounds relating to his desire to see his seriously ill sister.
It is the applicant’s position that it is axiomatically apparent that he can never pay the child maintenance debt currently standing against him and therefore the imposition of the DPO against him can only be regarded as an act of petty bureaucratic bastardry on the Registrar’s part. From his perspective, the DPO represents an infringement of his civil liberties and entitlement to travel where he pleases.
The Registrar does not agree, submitting that there was a proper basis to impose the order in question, which was based on the applicant’s persistent failure to pay his child maintenance obligations and the lack of candour, on his part, regarding his financial arrangements with relatives in the United Kingdom, about which the Registrar remains dubious.
The legal principles applicable
Two of the principle objects of the Collection Act, contained in section 3(1), are to ensure that children receive from their parents the financial supports that parents are liable to provide and to ensure that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.
The Collection Act and the related legislative provisions contained within the Child Support (Assessment) Act 1989[7] create machinery to enable these objectives to be achieved. In general terms, the scheme inaugurated by the twin pieces of legislation creates a system whereby a register of maintenance liabilities in respect of children, within Australia, is maintained by the Registrar to enable the regular collection of the sums due from liable parents for distribution to parents charged with caring for the applicable child or children.
[7] Hereinafter referred to as “the Assessment Act”
The expression registrable maintenance liability is defined by section 17 of the Collection Act. It includes a liability of a parent of a child to pay a periodic amount to the carer of that child for the maintenance of the child which arises from a court order. The monies owed by the applicant pursuant to the order of Gunn J are such a registrable maintenance liability.
Pursuant to section 30 of the Collection Act, once a maintenance liability has become registered pursuant to the provisions of the Act, the amounts payable become debts due to the Commonwealth and so it becomes responsible to collect them and to remit amounts so collected to the carer.
In my view, in this context, the court must examine the particular provisions relating to the making of DPOs contained in Part VA of the Act. In particular, section 72D(1) provides as follows:
“(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; 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 subsection18A(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.”
Section 72D(1)(c) is subject to further considerations contained in section 72D(2). In particular, in determining whether a person has persistently and without reasonable grounds failed to pay a child support debt, the Registrar must have regard to the following matters:
“(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) 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.”
In this context, it is the applicant’s position that the Registrar did not have regard to his capacity to pay the debt in question and has never taken action to recover the debt from him on previous occasions. In these circumstances, he contends that there are no reasonable grounds on which to make the relevant DPO.
Section 72Q of the Collection Act provides that a person aggrieved by the making of a DPO may appeal to this court against the making of the order. Section 72S provides that the court, on hearing such an appeal, may, in its discretion either make an order setting aside the DPO or dismiss the appeal.
In Bentley v Child Support Registrar[8] Judge Hartnett (as Her Honour then was) described the process of an appeal against a DPO and its interaction with the provisions of section 72D in the following terms:
“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. Further, any examination of the assessment underlying the debt is not to be undertaken in an appeal of this kind.”
[8] Bentley v Child Support Registrar [2017] FCCA 1295 at [27]
As indicated above, the lawful issue of a DPO is predicated upon the Registrar reaching a state of satisfaction in respect of the various matters delineated in section 72D. Necessarily, this must involve an examination of the Registrar’s (or of the relevant delegate’s) state of mind at the time the DPO was made. This has been the focus of much of the current proceedings.
In Jones v Child Support Registrar[9] Emmett J categorised an appeal arising under section 72Q of the Collection Act in the following terms:
“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.”
[9] Jones v Child Support Registrar [2007] FCA 1732 at [6]
In the current matter, as previously indicated, there can be no controversy that the applicant has a relevant liability, the quantum of which is readily identifiable given the section 116(1) Certificate, which has been tendered to the court.
In Jones, Emmett J detailed the type of evidence and the issues likely to be relevant regarding the state of satisfaction required to be demonstrated by the Registrar in order to ensure the validity of any DPO. His Honour wrote as follows:
“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) Act1977 (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.”[10]
[10] Ibid at [7] – [9]
In summary, before a DPO can be made, the person issuing the order must attain a state of satisfaction of mind in respect of each of the following matters:
·A child support debt exists;
·The debtor has not made arrangements satisfactory to the Registrar for the debt to be wholly discharged;
·The debtor has persistently and without reasonable cause failed to pay a child support debt arising from a registrable maintenance liability:
·It is desirable, on reasonable grounds, to make the DPO for the purpose of ensuring the debtor does not leave the country without satisfying one of the following:
(a)The discharge of the entire debt; or
(b)The entry of an arrangement, satisfactory to the Registrar for child support liability to be fully discharged.
In respect of the third consideration – the issue of persistent failure to pay – the relevant delegate must have regard to the following matters:
·The capacity of the debtor to pay the debt;
·The number of occasions on which action has been taken to recover the debt and the outcome of any such actions;
·The length of time the debt has been outstanding;
·Any other relevant matter.
It is the applicant’s position that it is demonstrably the case that he has no capacity to pay a debt of the magnitude involved in this case given his age; reliance on social security and lack of assets. In addition, he points to the fact that hitherto, over a period well in excess of twenty five years, the Registrar has not taken any action to recover the sum in question.
As previously indicated, the relevant delegate of the Registrar is Ms C, who is employed as a service manager in the child support division of the Commonwealth Department of Human Services. She was delegated with the authority to make a DPO pursuant to section 15 of the Collection Act. There is no issue regarding this delegation in the current proceedings.
On 23 September 2019 Ms C filed an affidavit in which she provided documentary evidence regarding the applicant’s child support liability and the various matters which she had considered prior to determining that a DPO should be made in respect of the applicant.
On 2 October 2019, the applicant issued a subpoena, directed to Ms C, requiring her to produce the CSA file and all documents pertaining to the issue of a DPO in respect of him. The Registrar objected to this subpoena on the basis that it was too broad in its scope and all relevant documents have been produced by Ms C in annexures to her affidavit.
The objection was determined on 31 October 2019. In his submissions on this occasion, the applicant contended that significant aspects of Ms C’s evidence was hearsay, particularly in respect of information relied upon by her in respect of telephone conversations, which had occurred between the applicant and an officer of the department in September 2018. The applicant contended that what Ms C had been told about the content of these conversations was incorrect.
I upheld the objection to the subpoena as I was satisfied that it was too broad in its scope. However, it was agreed that Ms C would attend personally in court in Adelaide for cross-examination by the applicant. Ordinarily, Ms C is a resident of Sydney. In addition, the solicitor for the Registrar, Ms Underhill, has filed an affidavit to which is attached a transcript of the telephone call of 12 September 2018, which the applicant had earlier sought.
The evidence
The applicant has filed three affidavits deposed by himself. In addition, he was cross-examined by counsel for the Registrar, Ms Underhill.
The Registrar relied on Ms C’s affidavit and the transcript of the telephone conversation, which occurred on 12 September 2018. The applicant cross-examined Ms C.
a)Ms C’s evidence
Ms C deposed that she holds a supervisory position in respect of debt enforcement in the Department of Human Services, the Commonwealth Agency responsible for the Child Support Agency. As such, she holds delegations from the Registrar to make DPOs.
She presented as a competent and knowledgeable public servant with significant seniority, who was well versed in her area of responsibility. In both her affidavit and her oral evidence she identified and addressed the four criteria, which she considered needed to be addressed before a DPO was made in respect of the applicant. More significantly, she delineated the evidence on which she relied to reach the conclusions that she did in respect of those matters.
The most significant piece of evidence relied upon by Ms C was a submission, which had been prepared by an administrative officer in the Agency’s DPO team. The submission had attached to it a number of documents. The submission recommended that the DPO be granted against the applicant and provided reasons as to why she should do so based on the applicable considerations delineated in section 72D.
Essentially, in administrative terms, it was Ms C’s role to check the submission, against the relevant legislative criteria, and determine whether to action the recommendation made in the submission.
Ms C had to reach a state of intellectual satisfaction that it was desirable to make the DPO in question. Given the contents of section 72D, this required Ms C to turn her mind to a number of issues and the various facts delineated by the administrative officer in regards to them in her submission.
Firstly, Ms C was satisfied that the applicant owed a child support debt in a sum of $99,080.05. There is no controversy about this sum, which is evidenced by the certificate provided to both the court and Ms C pursuant to section 116 of the Collection Act.
Secondly, Ms C considered the submission in respect of issues relating to the applicant having made satisfactory attempts to pay the debt in question. In this context, it was noted that the only payments received in respect of the debt had been in the nature of compulsory deductions from the applicant’s aged pension at the rate of between $40.00 and $50.00 per month.
In this context, Ms C was provided with details of a telephone conversation, which had taken place between the applicant and an officer of the Agency on 12 September 2018. The applicant has objected to how this conversation was minuted. He characterises it as being inaccurate and riddled with hearsay. It is in this context that the respondent secured a transcript of the conversation, which as previously indicated is annexed to Ms Underhill’s affidavit.
I have read the transcript. It is clear that the applicant was resentful in respect of what he regarded was an oppressive and bureaucratic intrusion into his affairs. He was not in a position to dispute that a child support debt existed so far as he was concerned. He expressed some rancour regarding the mother and previous arrangements for the care of the child concerned.
It remains the case that he disputes some of the conclusions drawn by the submission writer from this conversation, which is extensive in the sense that the applicant was given an opportunity to comment on matters put to him and chose to do so. Some uncontroversial aspects of the summary can be recorded as follows:
·His wife’s family funded his annual travel to Country D to enable his wife to attend a religious festival and to spend time with her family;
·He will not ask his wife or her family to assist with his child support debt;
·He does not currently spend all of his Aged Pension each fortnight, saving a portion of it to pay significant bills, when they arrive;
·He did not pay child support between 1995 and 2015 because he was living in the UK and receiving income support. In these circumstances, he did not believe he was required to pay child support;
·It was his expectation that the Agency would have taken him to court, prior to placing him under a DPO, so that he could establish he had no assets and it was capricious that it had not done so before considering imposing a DPO.
The areas of controversy arising from how the conversation was minuted centre on the following issues:
·The applicant’s capacity to access his UK pension entitlements;
·His ability to access some E Shares in his name;
·His prior level of asset backing.
In respect of the first issue, the applicant indicated that he did not have any resources. In this context he was asked about the receipt of a sum of 3,194[11] on 30 January, to which the applicant replied:
“Yeah I have a debt to my sister of £164,000.00. I mean, I have, you know, legal documents for that. And now and again she lets me say I told your colleague before, my – I am a pension (indistinct) in which Centrelink knows about. I told him about it. And I told them I get – I actually don’t get it. It goes to my sister. And now and then when I need money, she says, Yes, you can take some.”[12]
[11] There is no reference in the transcript to the currency concerned.
[12] Transcript between applicant and CSA dated 12 September 2018 at page 3
In respect of E Shares the applicant indicated that he held about $2,000.00 in such shares and he planned to sell the shares to pay a debt owed by him to a cousin. Later he indicated that in objective terms he did not own the shares personally.
The applicant objects to a statement in the memorandum provided to Ms C in which it is said that the applicant had previously owned a house in Australia; a house in the UK; and a yacht; when the child support liability had begun but he no longer had these assets.
In the transcript, the applicant said as follows in respect of the E shares and other assets previously owned by him:
“Cause I mean, you know, if you’ve got asset, that’s great. I mean, if I had his assets, I would pay – get you off my back. But I just don’t have anything anymore. You know, before Mr B was born, I had a house here, a house in London and a yacht. But I don’t have that anymore.”[13]
[13] Ibid at page 5
The applicant acknowledged previously owning assets. This was alluded to in the memorandum. However, I am satisfied that Ms C did not act on any false assumption that the applicant still maintained ownership of these assets, other than possibly the E shares. As such, there is no basis to the assertion that Ms C acted on the basis of unfounded hearsay.
In my view, it was open to Ms C to conclude that the only payments made in respect of the applicant’s child support debt had been through the Registrar taking administrative action to seize a portion of his pension. In this context, Ms C was satisfied that the applicant had not made any satisfactory arrangement to discharge the liability wholly.
In these circumstances, I do not consider that it can be said that it is legally unreasonable or illogical for Ms C to conclude that the applicant had not made a satisfactory arrangement to pay the whole of the debt. In my view, it is axiomatic that the applicant had made no voluntary arrangement whatsoever to pay any portion of the debt and felt that he was not in a position to do so.
The applicant’s position throughout the conversation was that he had no means of paying the debt and his whereabouts had been known to the Registrar over many years. He asserted the E shares belonged to his cousin and he had no other assets.
The evidence is unequivocal that the only means by which any of the debt had been paid was through compulsory deduction from the applicant’s aged pension. In this context, the applicant was asked about his previous overseas travel. The import of this aspect of the conversation, which is not particularly clear, is that neither his wife nor his sister have responsibility to pay his debts, although they may assist him in other ways.
Ms C provided further evidence on which she based her view that the applicant had persistently failed to pay the accrued arrears of child support. In this regard, she noted that the applicant had not filed a tax return since 30 June 1991, at which stage he had declared a taxable income of $9,098.00.
Ms C also noted that the applicant received an Australian Aged Pension and a UK pension in an amount of £121.90 per week. In this context, Ms C had access to a search provided by the Australian Transaction Reports and Analysis Centre (AUSTRAC), which indicated that the applicant had transferred funds from himself, in various addresses in the UK, to himself in suburban Adelaide, via several different banks, in seven separate transactions, the sum of A$49,717.00.
In addition, Ms C had available to her another AUSTRAC record which indicated the applicant had transferred the sum of $9,862.00 to himself in the UK. The total amount available to the applicant being $59,579.00
It is clear that the AUSTRAC records played a significant role in Ms C’s considerations; with the sums concerned representing over half of the debt in question. In this context, the applicant had conceded receiving some money from his sister in the UK, when he needed it, in the minuted telephone conversation of 12 September 2018.
In my view, this was a consideration relevant to the satisfactoriness or otherwise of the applicant’s arrangement to pay the debt. It being the position that he had clearly made no voluntary attempts to clear the debts but potentially had funds subject to his control to do so.
In addition, pursuant to powers conferred upon it by section 120 of the Collection Act, the Registrar forwarded a notice to the E Bank requiring the Bank to provide details of any accounts held by the applicant with it. The Bank responded to this notice by indicating the applicant held two accounts with it – one which he utilised to deposit his aged pension and the other which held a balance of $3,500.00 and which was listed as “E Share INV”.
In her affidavit, Ms C made no reference to the fact of the applicant having previously owned a yacht or real estate in Australia and the UK as being factors in her reaching a state of satisfaction regarding the appropriateness of the DPO, particularly in the context of him making satisfactory arrangements to pay the debt in question.
In this context, Ms C reached the conclusion that the applicant had not made any satisfactory arrangements for his child support liability to be wholly discharged and had a greater capacity to pay the debt than he had hitherto revealed. The applicant bears the onus of establishing that this state of belief, on Ms C’s part, was legally unreasonable.
Ms C deposed that she then went on to consider whether it was open to her to conclude that the applicant had persistently failed to pay his child support liability. In this context, she noted the following:
·The applicant had not lodged an income tax return since 1991;
·Records indicated the applicant received both an Australian and UK pension;
·The AUSTRAC records;
·The applicant had an account balance of $3,976.96 in a bank account in his name with the F Bank;
·The monies received into the E Bank account were denominated as E Share INV.
Significantly, Ms C further noted that the applicant had never paid any child support voluntarily and any payments received by the Registrar had been as a result of actions initiated by the Registrar. She further deposed that the institution of proceedings in a court to recover child support was one potential mechanism available to the Registrar to recover child support arrears but was one which had been ruled out in the circumstances of the current matter because it was not considered that they were likely to be successful.
Essentially, it was Ms C’s evidence that she concluded the applicant had some capacity to pay the debt in question; the debt had been outstanding for a very significant period of time; and the Registrar had attempted a number of other means to recover the debt over this period in the context of the applicant making no efforts himself to pay any of the debt.
In these circumstances, Ms C concluded that the applicant had persistently and without reasonable grounds failed to pay his child support liability.
The final matter for Ms C to consider was the desirability of making a DPO. In particular, whether the taking of a significant step vis-à-vis the applicant’s freedom of movement would act as an incentive to bring about the payment of the child support debt in question or lead to satisfactory arrangement for its payment.
From the applicant’s point of view, this is a significant consideration. In his submission the DPO has neither utility nor desirability so far as his situation was concerned. He asserts that it was axiomatic, from any proper analysis of his financial situation, that he was unable to either pay the debt or propose any arrangement for the debt’s discharge.
In these circumstances, he asserts that the only purpose for the imposition of the DPO was to penalise him personally, which is not a proper purpose of the DPO regime. Essentially, he asserts that the DPO was imposed for an improper purpose.
Ms C deposed that she had access to Immigration records in respect of the applicant, which indicated that he had travelled overseas on 16 prior occasions, between 2001 and 2017. Given she was satisfied that the applicant was aware of his obligation and given she considered there were no other viable means of securing payment of the debt, Ms C concluded that the making of a DPO might “provide the Applicant with an incentive to make satisfactory arrangements to wholly discharge the liability”.[14]
[14] See Ms C’s affidavit at [22]
The Grounds of Appeal
The applicant presented as a polite and courteous person, who felt frustrated by what he perceived to be an unjust and absurd process. On several occasions, he stated that he was not legally trained. In this context, he apologised if his grounds of appeal were not correctly expressed.
The applicant has provided many documents, which are attached to his various affidavits. They deal with many facets of his case, some of which are relevant to the DPO process and others which apply to other administrative actions of the Registrar.
As best as I can glean, the applicant’s complaint is that the Registrar did not correctly interpret the provisions of sections 72D and 72I of the Collection Act and denied him natural justice in making the DPO. He also complains that the Registrar did not follow its own policy in respect of the making of the DPO, which prohibits such orders being made as a punitive measure.
In regards to the denial of natural justice, the applicant invokes section 5 of the Administrative Decisions (Judicial Review) Act 1977.[15] He has not however filed a specific application in this regard. More significantly, the Collection Act itself provides a specific mechanism, through the agency of section 72Q to appeal against the making of any DPO.
[15] Hereinafter referred to as the ADJR Act
In Whittaker v Child Support Registrar [16] Lindgren J discussed whether the Registrar was under any duty to comply with the procedural fairness aspects of natural justice before making any DPO. After having considered the principles underpinning the Collection Act he concluded that the Registrar was not under any such duty, particularly in respect of giving the potential subject of a DPO the right to be heard prior to it being granted. His Honour said as follows:
“It will be recalled that the principal objects of the Collection Act are, inter alia, to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis: s 3(1)(a) and (b) of the Collection Act. 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 liable is out 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 the person an opportunity to be heard in opposition.”
[16] Whittaker v Child Support Registrar [2010] FCA 43 at [248] – [250]
Accordingly, I do not think that it can be said that the applicant has been denied natural justice or is able to bring any application under the ADJR Act. His rights of appeal are confined to those provided by the Collection Act. In any event, in the minuted telephone conversation between the applicant and the officer of the Agency the applicant was informed of the possibility of a DPO order being made against him and was given an opportunity to make comment in regards to it.
The applicant further asserts that the Registrar used wrong or old information; did not consider all the relevant facts; missed important details; and did not apply the law correctly. Essentially, as I understand his case it is that the making of the DPO, in respect of him, given his particular circumstances, axiomatically cannot have achieved its legislative purpose – namely, the payment of the debt – because it was patent that he would never be able to pay it and therefore the imposition of the order was an improper exercise of power.
In addition, in his supporting affidavit material, the applicant has raised complaints about the failure of the Registrar to revoke the DPO and grant him what is known as a Departure Authorisation Certificate.[17]
[17] Hereinafter referred to as a “DAC”
Section 72I relates to the revocation and variation of DPOs and requires the Registrar to revoke such an order if satisfied that the subject of the order
·no longer has a child support liability; or
·has made satisfactory arrangements to discharge the liability; or
·the Registrar is satisfied the liability is completely irrecoverable.
It is common ground that the applicant has applied, pursuant to section 72K of the Collection Act, for a DAC, which, if granted, would have allowed him to leave Australia. The certificate was not granted.
In this context, the applicant provided documentary evidence that his sister, who is a resident in the UK, is currently suffering breast cancer and is undergoing treatment for her condition. On this basis, the applicant applied for a DAC on humanitarian grounds in the context of his child support debt being completely irrecoverable.
Section 72K provides a mechanism whereby a person who is subject to a DPO may apply for a DAC to leave Australia. Other sections [section 72M] provide for conditions to be associated with any such departure from Australia, particularly in the form of the taking of security to ensure the person’s return.
Section 72L(2) requires the Registrar to grant a DAC if satisfied that:
·The person concerned is likely to return to Australia within a reasonable period of time;
·It is likely that the DPO will be revoked pursuant to section 72I; and
·The taking of security is not necessary.
If the Registrar is not satisfied as to these considerations, a DAC certificate may nonetheless be granted, pursuant to section 72L(3) if the Registrar is satisfied as to:
·The security provided to ensure return;
·If security cannot be granted, a DAC should be granted on humanitarian grounds and the granting of such a certificate is not detrimental to the interests of Australia.
The Registrar declined to grant the applicant a DAC on humanitarian terms. The applicant is aggrieved by this decision. However, as a consequence of the provisions contained in section 72T the applicant can only apply to the Administrative Appeals Tribunal in respect of issues relating to the application of section 72I, 72L and 72M of the Collection Act. Hence this court has no jurisdiction to deal with the applicant’s complaints regarding the DAC process.
The applicant’s evidence
The applicant has filed several affidavits and written several submissions. He has provided me with portions of the Child Support Guide which he contends are relevant to his situation. Relevantly, the Guide provides that the Registrar must not attempt recovery of child supports which are uneconomic to pursue or are not legally recoverable.
Given the serious illness of his sister, the applicant has deposed that he feels that the DPO represents an unwarranted infringement of his right to freedom of movement in both the short and longer term. He is also aggrieved that he cannot travel to Country D, for religious and cultural reasons, when it is his positon that it is his wife and her family who fund the travel.
The applicant contends that it is obvious that he cannot pay the child support debt in question. In this context, he invokes common sense and asserts that the Registrar has fallen into some form of error by fallaciously assessing his capacity to pay, on the basis of a number of false assumptions.
The applicant disputes that he has received funds from his cousin or sister in the UK. Rather he has deposed that he has a conditional loan from his sister in an amount of £135,000.00. He has provided a loan agreement to support this assertion, which is dated 1 October 2014. The document in question is silent about the application of his UK pension to the debt in question.
In his affidavit material, the applicant has stated that his sister has access to his UK pension and has forwarded amounts to him from time to time to assist him with the costs of setting up home again in Australia. Implicit, I think, in this evidence is the assertion that these sums will have to be paid back and the applicant himself is neither entitled nor able to access the UK pension.
In his submissions, the applicant has also submitted that the Registrar has misconceived the amounts noted as being received by him from AUSTRAC, which he asserts should be characterised as conditional loans. In all these circumstances, the applicant contends that the Registrar should not have issued the DPO against him.
Conclusions
There is no doubt that the applicant was and is subject to a significant child support debt, which has been outstanding for many years. It is also uncontroversial that the only payments which have been made in respect of the debt have been through the compulsory seizure of social security monies, given that the applicant has been outside of Australia for many years.
Given the applicant’s age; the fact that he is in receipt of social security; and has no assets of a significant value standing in his name; I can appreciate why he considers it oppressive that he not be permitted to leave Australia. I also appreciate that he feels aggrieved that the child who is subject to the relevant maintenance order is a child no longer and the Registrar has left it for many years before taking active steps, involving him personally, imposing the DPO upon him. Particularly that he has not been personally sued for the debt in question.
However, this is not the point of these proceedings, which centre on whether Ms C was entitled to be satisfied that it was desirable to issue the DPO in question as a mechanism to bring about the possible satisfaction of the long outstanding debt.
As such, it was not Ms C’s responsibility to be satisfied that the debt would be or could be paid in full. Rather, she was required to turn her mind to the question of whether, in the circumstances outlined to her, there was some utility in making the order sought.
In this context, the issue of the monies forwarded to the applicant from the UK and which were noted by AUSTRAC, in conjunction with the fact that the applicant had regularly travelled overseas, assume centrality. They were central to Ms C forming the conclusion, which she was ultimately required to reach, that it was desirable to prevent the applicant leaving Australia.
I appreciate the applicant disagrees with how the monies were characterised and asserts that they are in fact a loan. I am not in a position to ascertain the truth or otherwise of this assertion. Nor do I consider that I am obliged to do so in the context of these proceedings, which centre on whether it was open to Ms C to conclude, on the basis of the material available to her, that the applicant had not made satisfactory arrangements to pay the relevant child support debt in question.
Ms C was not required to be satisfied that the applicant did in fact have access to immediate funds. Rather, in the context of the objects and principles of the Collection Act and after considering the various matters in section 72D, she was required to be satisfied that it was desirable to make a DPO.
As Ms C put it, the making of the DPO was intended to be an incentive for the applicant to engage in some discussions with the Registrar regarding a possible satisfaction of the debt. It is, in my view, a misconception of this exercise that it be required by the maker of any DPO that he or she be satisfied that funds or means are unequivocally available to discharge the debt.
As Lindgren J observed, the public policy underlying the Collection Act is that liable parents should pay their child support debts. As such, a DPO represents a significant arrow in the quiver of enforcement. It is not necessary for the person issuing a DPO to be satisfied that the issue of the DPO will bring about immediate payment.
Rather such a person must be satisfied that there is a debt; no satisfactory arrangements have been made to pay it; the debt itself has been consistently avoided; and it is desirable in the sense of having some possible utility to make the relevant order.
In this case, the applicant disputes that he personally was able to access the monies noted by AUSTRAC as having come to him and further asserts that the sums actually available to him were less than he actually received and were, in any event, utilised to service his personal living expenses.
The Agency did not accept that this was so when it made its recommendation to Ms C. In my view, it was not Ms C’s responsibility to check the probity of the monies said to have been received by the applicant and whether he actually could or could not access them.
Her function was to determine whether there was utility in making the DPO as a mechanism to assist the applicant to consider making some proposal to satisfy the outstanding child support debt. One factor relevant to assessing this utility was the possible availability of some source of funds to satisfy the debt in question.
It would be antithetical, to utilise Lindgen J’s terminology, to the objects of a DPO, if the person issuing it had to be satisfied that any possible financial transaction, in respect of which he or she had some level of suspicion, were in fact positively available to be earmarked towards paying a child support debt. Rather the legislative intent of a DPO is to bring a recalcitrant debtor to the table in order to discuss an arrangement to pay the relevant debt.
Essentially, it was not for Ms C and, by extension, not for this court, to determine whether the applicant will be able to pay the debt in question. As Lindgren J said in Whittaker:
“[I]t is true that the Registrar is required to be satisfied that the person has a child support liability (s 72D(1)(a)), but the fact that a decision maker must form an opinion as to the existence of such a liability as a step in arriving at the ultimate conclusion on which to base his or her order regulating the future rights and obligations of the person, does not mean that the decision-maker determines existing rights and obligations.”[18]
[18] See Whittaker (supra) at [315]
In addition, in respect of the making of a DPO, the Registrar has the initiative and is not required to consult with any other person before making the decision to issue a DPO.
Rather, before making such an order, the Registrar must consider that the making of a DPO is part of a wide ranging scheme, the principal object of which is to ensure children receive financial support from their parents and that they do not avoid their obligations in this regard. As such, the making of a DPO is not to be regarded as a punishment, rather it is an order directed towards public policy considerations, regarding the desirability of child support debts being paid.[19]
[19] Ibid at [318]
In this particular case, Ms C was entitled, on the material available to her, to conclude that the applicant had persistently and over many years failed to pay his child support obligations. In this context, Ms C was required to consider the applicant’s capacity to pay the debt.
In this context, the fact that, at least on a prima facie basis, the applicant had a source of income in the UK and had had remitted to him various sums of money, which were approximately half of the debt in question, were relevant matters for Ms C to consider. As previously indicated, she was not required to achieve a state of absolute certainty that these monies could, in fact, be earmarked to pay the debt.
More significantly, on the basis of the applicant’s conduct and attitude, particularly in the light of her suspicions attaching to the not insignificant sums remitted to the applicant from the UK, in my view, Ms C was also entitled to conclude that there was some utility, in terms of the collection of the debt, in making the DPO.
The applicant bears the onus of establishing that Ms C has incorrectly applied the law or that she relied on an issue of fact, which is obviously wrong. I also accept that it is open to the court to dismiss the DPO if it is satisfied that it was capriciously made or for some improper purpose.
To fall within jurisdiction, all administrative decisions require an evident and intelligible justification. All statutory powers are to be exercised reasonably.[20] One yardstick, frequently used to gauge whether an administrative decision is to be regarded as legally reasonable, is to ask whether the decision is one which no reasonable person could have made. It is a stringent test.
[20] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [26]
A court, such as this one, should not lightly interfere with the statutory responsibilities of an administrative body. In the different context of the review of an administrative decision arising under the Migration Act, in Minister for Immigration & Border Protection v SZVFW[21] Kiefel CJ said as follows of this test:
“…it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.”
[21] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30 at [11]
It is not my function to substitute my view of the facts presented to Ms C and potentially reach a different conclusion in respect of them to her. I must rather determine whether the material made available to Ms C was legally sufficient to enable her to be satisfied of the various considerations arising under section 72D.
In this context, it was not her responsibility to determine definitively whether the applicant had, in fact, the means to repay the debt. As previously indicated, she was required to determine whether it was desirable to make the DPO given the surrounding circumstances.
It is clearly the applicant’s view that he can never pay the child support debt in question. It is also his position that it would be unfair to allow the debt to stand, given he was incarcerated in the UK for a significant period of time. In this context, I note that there are both administrative and legal avenues available to the applicant to discharge arrears of child support, which are beyond the remit of these proceedings.
In actual terms, the debt represents the financial support for almost the entirety of MR B’s infancy, together with substantial penalties. Given that he has no assets and is an aged pensioner, the applicant submits that it is axiomatic the debt can never be repaid and, in effect, the Registrar has left it too late to pursue him and therefore the only motivation for the issue of the DPO can be to penalise him for the debt.
In these circumstances, the thrust of his case is that it cannot be regarded as desirable to issue the DPO against him, given the amount of the debt; the overall improbability of it ever being re-payed; and his financial circumstances; given the impact the order will have on his entitlement to travel freely.
It would be naïve to consider that there is not significant merit in the applicant’s submissions regarding the likelihood of payment of the child support debt. On any view, it is a very significant sum of money and he is not obviously a person of means. However, that is not the test for the issue of a DPO.
The purpose of a DPO is to act as a spur or incentive for a debtor to engage in some form of dialogue, with the Registrar, in respect of the outstanding debt, in circumstances where the Registrar has grounds for concluding that there has been a persistent failure to pay, which the Registrar regards as objectively unreasonable.
Ms C reached the view, on the basis of the evidence regarding the applicant’s pension entitlements in the UK and the advance to him of significant sums of money from his sister in that country, that his persistent non-payment was unreasonable. This led her to reach a state of satisfaction that it was desirable to make the DPO in question.
It may be the case that another delegate could have taken a different view of the evidence available in the case, but that does not render Ms C’s determination legally unreasonable or otherwise made for an improper purpose divorced from the principles of the Collections Act.
In this context, the following comments of Crennan & Bell JJ in Minister for Immigration & Citizenship v SZMDS[22] are germane:
“…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[22] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131]
Ms C was entitled to place the emphasis she considered appropriate on the fact that documents available to her demonstrated that the applicant had been forwarded significant sums of money from the UK and the fact that he had a history of regular overseas travel and ostensibly at least had some sources of income which could conceivably be allocated towards his child support debt.
In addition, given the overall structure of the Act, particularly its underlying statutory objectives, she was entitled to reach the conclusion that it was desirable to make a DPO in respect of the applicant in the hope that this might represent some form of incentive for him to approach the Registrar in the light of his persistent failure to pay his child support obligations.
Another delegate might conceivably have reached a different conclusion to that reached by Ms C and placed different weight on the various considerations applicable, particularly those delineated in section 72D(2)(a) of the Act. However, that of itself does not render Ms C’s decision unreasonable or otherwise improper.
In these circumstances, I have reached the conclusion that the applicant has not discharged the burden placed on him pursuant to section 72Q of the Collection Act and his application should therefore be dismissed.
The Registrar seeks costs, particularly the disbursements incurred in securing the attendance of Ms C at court in Adelaide to be cross-examined by the applicant. The cost sought by the Registrar have been calculated pursuant to the provisions of Part 2 of Schedule 1 of the Federal Circuit Court Rules 2001 and total $7,200.00.
Costs in relation to those proceedings are governed by the Family Law Act1975.[23] The general rule is that each party bears their own costs.[24] However, the court may make an order for costs if it is satisfied there are circumstances that justify it doing so.[25] In making that determination, the Court is required to consider the matters set out in section 117(2A) of the Act.
[23] Section 105, Child Support (Registration and Collection) Act1988
[24] Section 117(1), Family Law Act 1975
[25] Section 117(2), Family Law Act 1975
The considerations contained in the section include the financial circumstances of the parties concerned; the conduct of the parties to the proceedings; and whether one of the parties concerned has been wholly unsuccessful. The court is also authorised to consider any other matter which it considers relevant.
The Registrar is a Commonwealth funded instrumentality charged with collecting arrears of child support, which are deemed to be a debt owed to the Commonwealth. Axiomatically, it has ample resources to fund proceedings such as these and is obliged to take necessary steps to recover money owed to the Commonwealth.
The applicant is not obviously a wealthy person. However, in my estimation, his dealings with the Registrar have not always been transparent. In his conversation with the Registrar, prior to the making of the DPO, he has made it clear that he regarded any attempt by the Agency to recover monies from him as an affront.
However, he himself has never made any attempt to discharge the arrears of child support long standing against him. Rather, he has ignored the matter and acted on the assumption that he was and is immune to any action to recover the debt in question. Although I accept that he was in prison, in the UK, for many years, inexorably over time, he has allowed the debt to build up and up.
The Registrar has never forgiven the debt and remains obligated to use whatever remedies are reasonably available to it to recover it. One of these remedies is to prevent a debtor leaving Australia so that there can be some discussion regarding payment of the debt.
The Registrar utilised the DPO in circumstances in which the debt had been ignored by the applicant and he himself had made scant efforts to explain his circumstances to the Agency. In addition, apart from his application in 1994 to Burton J to vary the order, the applicant has made little effort to remedy the debt through conventional means.
I have found that there was no improper purpose attaching to the Registrar’s decision to impose the DPO. As he was entitled to do the applicant sought to challenge the order and elected to put to Ms C personally what he believed were the improper actions of the Registrar.
The applicant has been wholly unsuccessful in his effort to attach any improper purpose to the actions of Ms C. He required her attendance in Adelaide to be cross-examined. In my view there must be some cost implications in this decision, notwithstanding the fact the applicant is not legally represented and, in his own expression, is not learned in the law.
For these reasons, I propose to make the order for costs as sought by the respondent. The application, as subsequently amended is dismissed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 27 February 2020
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