Camden v Child Support Registrar - [2020] FCCA 385

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)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth), ss.3, 15, 17, 30, 67, 72D, 72I, 72K, 72L, 72M, 72Q, 72S, 72T, 105, 116
Family Law Act 1975 (Cth), s.117
Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.2

Cases cited:

Bentley v Child Support Registrar [2017] FCCA 1295
Jones v Child Support Registrar [2007] FCA 1732
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Whittaker v Child Support Registrar [2010] FCA 43

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…

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: [2020] FCCA 385
Decision Date: 27 February 2020

CaseChat Overview and Summary

In *Camden v Child Support Registrar*, Judge Brown of the Federal Circuit Court of Australia considered an appeal against an administrative decision to make a Departure Prohibition Order (DPO) against the applicant. The Registrar, represented by Ms C, a supervisory officer with delegation to make DPOs, sought to uphold the order. The applicant sought to have the DPO set aside.

The court was required to determine whether the Registrar had been reasonably satisfied of the necessary matters to justify the making of the DPO, specifically whether there was a child support liability, whether satisfactory arrangements had been made to discharge that liability, and whether it was desirable to make the DPO. The applicant also contended that the decision to make the DPO was legally unreasonable or an abuse of process, and the court considered the applicant's capacity to pay. The onus was on the applicant to establish that the DPO should not have been made.

Judge Brown reasoned that Ms C had properly considered the relevant criteria under section 72D of the *Child Support (Registration and Collection) Act 1984* (Cth). Ms C was satisfied that the applicant owed a significant child support debt of $99,080.05, a fact not in dispute. Regarding satisfactory arrangements for payment, the court noted that the only payments made were compulsory deductions from the applicant's aged pension, amounting to between $40 and $50 per month. Ms C also considered a transcript of a telephone conversation from 12 September 2018, where the applicant expressed resentment but did not dispute the existence of the debt. The court found that Ms C had reached a state of intellectual satisfaction that making the DPO was desirable, and the applicant had not discharged the onus of proving the DPO should not have been made.

The application was dismissed, and the applicant was ordered to pay the respondent's costs in the amount of $7,200.00.

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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