CDL19 v Child Support Registrar

Case [2021] FCA 689

FEDERAL COURT OF AUSTRALIA

CDL19 v Child Support Registrar [2021] FCA 689

Appeal from: CDL19 v Child Support Registrar [2020] FCCA 385
File number: SAD 47 of 2020
Judgment of: CHARLESWORTH J
Date of judgment: 28 June 2021
Catchwords: FAMILY LAW AND CHILD WELFARE – decision to issue a departure prohibition order against the appellant under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) in relation to a child support debt – appeal from judgment of Federal Circuit Court of Australia dismissing an appeal under s 72Q of the Child Support (Registration and Collection) Act 1988 (Cth) – whether primary judge misconstrued s 72D – whether primary judge correctly apprehended the nature of the appeal – whether the original-decision maker exercised the power for an improper purpose – whether the decision-maker was obliged to afford procedural fairness – whether it was a precondition to the exercise of the power to be satisfied that the person subject to the order had the present capacity to repay an outstanding child support debt in full
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 13

Child Support (Registration and Collection) Act 1988 (Cth) ss 17, 72D, 72E, 72I, 72Q, 72X, 116

Family Law Act 1975 (Cth)

Cases cited:

CDL19 v Child Support Registrar [2020] FCCA 385

Jones v Child Support Registrar [2007] FCA 1732

Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528

Shaw v Yarranova Pty Ltd (2017) 252 FCR 267

Whittaker v Child Support Registrar [2010] FCA 43; 264 ALR 473

Whittaker v Child Support Registrar [2010] FCAFC 112

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 89
Date of hearing: 16 November 2020
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: Mr C Bishop
Solicitor for the Respondent: Mills Oakley

ORDERS

SAD 47 of 2020
BETWEEN:

CDL19

Appellant
AND:

CHILD SUPPORT REGISTRAR

Respondent

ORDER MADE BY:

CHARLESWORTH J

DATE OF ORDER:

28 JUNE 2021

THE COURT ORDERS THAT:

1.The appeal is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J

  1. The appellant has a child support liability for the purposes of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act). At the time of the decision giving rise to this appeal, that liability exceeded $36,000.00. With the addition of late payment penalties, there is an unpaid debt exceeding $97,000.00.

  2. The child support liability relates to a child (“S”) born in 1989.  It arose by virtue of an order made in 1990 under the Family Law Act 1975 (Cth) in proceedings between the appellant and the child’s mother. The order gives rise to a right in the mother to be paid arrears in respect of the child’s financial support during his infancy. In 1994, the Family Court of Australia dismissed an application by the appellant to have the 1990 order…

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Details
AGLC
CDL19 v Child Support Registrar [2021] FCA 689
Case
[2021] FCA 689
Decision Date

CaseChat Overview and Summary

CDL19 appealed against a decision of the Child Support Registrar to issue a departure prohibition order (DPO) under section 72D of the Child Support (Registration and Collection) Act 1988 (Cth). The Registrar issued the DPO in relation to a child support debt owed by CDL19. The Federal Circuit Court of Australia dismissed CDL19's appeal against the Registrar's decision. CDL19's appeal was to the Full Court of the Federal Court of Australia. The appeal raised issues concerning whether the primary judge had misconstrued the relevant statutory provision, whether the primary judge correctly understood the nature of the appeal, whether the original decision-maker exercised the power for an improper purpose, and whether the decision-maker was obliged to afford procedural fairness. It was also argued that it was a precondition to the exercise of the power to be satisfied that the person subject to the order had the present capacity to repay an outstanding child support debt in full.

The Full Court found that the primary judge had not erred in his interpretation of the relevant statutory provision. The Court held that the Registrar was not required to be satisfied that CDL19 had the present capacity to repay the child support debt in full, as a precondition to issuing the DPO. The Full Court found that the primary judge had correctly understood the nature of the appeal and that there was no evidence to support the argument that the Registrar exercised the power for an improper purpose. The Court also held that the Registrar was not obliged to afford procedural fairness to CDL19, as the rules of procedural fairness had no application to the original decision to issue the DPO. The Full Court found that the primary judge had correctly considered the evidence in relation to CDL19's ability to access his UK pension and the timing of the disposal of his assets.

The Full Court dismissed the appeal and affirmed the decision of the Federal Circuit Court of Australia. The appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Without the benefit of submissions on the question, it seems to me that the proper procedure for putting additional or contradictory material before the Registrar is on an application under s 72X of the Collection Act to have the DPO revoked. That procedure appears to be the intended means by which the person affected by a DPO may properly present evidence and make submissions to the Registrar in support of his or her position, given that the rules of procedural fairness have no application to the original decision to issue the DPO. The appellant in fact made an application for the revocation of the DPO in 2018, which was unsuccessful. This appeal does not concern the delegate’s later decision to refuse to revoke the DPO.Evidence of the delegate’s decision The appellant did not receive written reasons for the decision to issue the DPO at the time that the decision was made. The delegate deposed to the reasons for the decision in an affidavit affirmed on 24 September 2019. She was cross-examined by the appellant. The following narrative is drawn from the summary of the delegate’s evidence as related by the primary judge: CDL19 at [48] – [83]. The delegate received a document titled “Submission to make a Departure Prohibition Order – under Child Support (Registration and Collection Act) 1988 Part VA, Section 72D” (the Submission), prepared by an administrative officer within the Child Support Agency’s “DPO Team”. The delegate deposed that upon considering the Submission and its attachments, she was satisfied that the DPO should be issued. The delegate said that she was satisfied that the appellant owed a child support debt in the sum of $99,080.05. Proof of the fact of the debt was facilitated in the proceedings by a certificate issued under s 116 of the Collection Act. The delegate was provided with a file note containing a summary of a telephone conversation which had taken place between the appellant and an officer of the Agency (hereafter, “officer A”) on 12 September 2018. A full transcript of the telephone conversation was also in evidence. The full transcript was not before the delegate at the time that the decision to issue the DPO was made. On the basis of the summary of the conversation and document searches, the delegate deposed to having taken into account the following information in determining that the appellant had not made satisfactory arrangements for the liability to be wholly discharged:a.He does not spend his Centrelink Age Pension each fortnight, as he saves it up for more important bills when they arrive;b.He owes his cousin in the United Kingdom (UK) £164,000 and has his UK pension paid directly to his cousin;c.When he requires extra money, his cousin will let him withdraw from the loan;d.He did not pay child support between 1995 and 2015 because he did not believe he had to pay as he was in receipt of income support payments in the UK;e.If he could find a way to stop the department from taking child support from his Centrelink Age Pension he would.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The reasons of the primary judge in connection with this evidence will be summarised in the course of considering the appellant’s arguments on this appeal.Consideration The first argument is that the primary judge erred in failing to find that the Registrar had acted on false or misleading information. That argument must be rejected. The primary judge correctly encapsulated the parties’ positions as follows:23.It is the [appellant’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.24.The Registrar does not agree, submitting that there was a proper basis to impose the order in question, which was based on the [appellant’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 passage at [24] represents a summary of the Registrar’s evidence and submissions, which the appellant did not suggest was inaccurate. In relation to the appellant’s ability to access his UK pension, the primary judge said that it was clear that the Australian Transaction Reports and Analysis Centre records had played a significant role in the delegate’s considerations. His Honour noted that that the sums transferred to the appellant represented over half of the debt in question. The primary judge continued:71… In this context, the [appellant] had conceded receiving some money from his sister in the UK, when he needed it, in the minuted telephone conversation of 12 September 2018.72.In my view, this was a consideration relevant to the satisfactoriness or otherwise of the [appellant’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. It is otherwise unclear what point the appellant sought to make about any discrepancy between the file note and the transcript of his telephone conversation with officer A on this topic. In my view, the file note does not misrepresent what the appellant said in the conversation. The file note correctly records the appellant’s assertion that his UK pension was devoted entirely to paying off a loan owed to his sister in the UK. Plainly the delegate was entitled to have regard to the appellant’s access to considerable sums from his sister (whether via the loan agreement or otherwise) when assessing the extent to which the appellant could access his UK pension or what appeared to be a loan facility closely associated with it. In respect of the appellant’s prior ownership of real estate and a yacht, the primary judge observed that the delegate had made no reference in her affidavit to the fact that the appellant had previously owned that property as a factor in reaching her decision. It is implicit in that conclusion that his Honour did not regard the timing of the disposal of those assets (and any discrepancy between the file note and the transcript on the topic) to have been a matter that bore on the exercise of the power to issue the DPO. To the extent that there existed discrepancies, it is apparent that the primary judge did not consider the timing of the disposal of the assets to have materially contributed to the delegate’s reasons. The appellant’s submissions on this appeal have not demonstrated error in the reasoning of the primary judge on that issue.