CONFIDENTIAL and CHILD SUPPORT REGISTRAR
[2013] AATA 81
•19 February 2013
[2013] AATA 81
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4724
Re
CONFIDENTIAL
APPLICANT
And
CHILD SUPPORT REGISTRAR
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 19 February 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
IT IS NOTED THAT PUBLICATION OF THIS DECISION IS APPROVED BY THE ADMINISTRATIVE APPEALS TRIBUNAL PURSUANT TO S 110X(4)(H) OF THE CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988 (CTH).
CATCHWORDSCHILD SUPPORT – Departure prohibition order – No grounds requiring revocation of departure prohibition order – No grounds for exercising discretion to revoke departure prohibition order – Use of the Guide – Decision under review affirmed.
LEGISLATION
Child Support (Registration and Collection) Act 1988 (Cth) ss 72D, 72I, 72K
CASES
Onder & Child Support Registrar and Sari (No 2) (2011) 250 FLR 345
Re O’Neill and Child Support Registrar [2010] AATA 545REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
The applicant is the father of K. He and K’s mother are divorced. Pursuant to a child assessment agreement registered in 2003, the applicant was liable to pay child support payments to the mother until K was 18 years of age. The applicant made timely and appropriate fortnightly payments until October 2008 but, from 1 November 2008 to 20 November 2012, his payments were in arrears by $61,410.41 and the Child Support Registrar (CSR) assessed him as having a child support debt of $74,124.34. This included a penalty component of $12,713.93.
From 2008 to 2012, the applicant travelled outside Australia on several occasions including to France from where he returned on 15 June 2012. On 27 June 2012, the CSR imposed, under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”), a Departure Prohibition Order (DPO) on the applicant which had the effect of prohibiting him from departing Australia for a foreign country. On 21 September 2012, the CSR refused to revoke the DPO. The applicant sought review of that decision on 18 October 2012.
ISSUES AND LEGISLATION
The Objects of the Act are set out in s 3 thereof and read:
3 Objects of Act
1The principal objects of this Act are to ensure:
(a)that children receive from their parents the financial support that the parents are liable to provide; and
(b)that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and
(c)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
2It is the intention of the Parliament that this Act shall be construed and administered, to the greatest extent consistent with the attainment of its objects, to limit interferences with the privacy of persons.
Provision is made for revocation of a DPO in s 72I of the Act which, in so far as relevant, reads:
72I Revocation and variation of departure prohibition orders
1The Registrar must revoke a departure prohibition order in respect of a person if:
(a)the person no longer has a child support liability; or
(b)the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or
(c)the person has a child support liability, but the Registrar is satisfied that the liability is completely irrecoverable.
2…
3The Registrar may also, at the Registrar’s discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it desirable to do so.
4…
In this matter, the Tribunal is not dealing with the matter of whether or not the DPO should have been made by the CSR.[1] The issue for determination is whether the DPO should be revoked under ss 72I(1) or (3) of the Act.
EVIDENCE
[1] See Re O’Neill and Child Support Registrar [2010] AATA 545 [26].
The applicant
The applicant gave the following evidence.
He has been unemployed since 2008 and has been in receipt of the disability support pension (DSP) under the Social Security Act 1991 since October 2010. He and his wife were divorced in 2003. Following this, he worked with and then lived in a de facto relationship with Ms P until December 2010. He is now associated with another woman whom he variously described as his new girlfriend and his partner. He said that her parents live in Japan and that his reason for seeking revocation of the DPO was to enable him to travel there with her, at her expense, to meet them. He described them as aged and not well enough to travel to Australia. He said that his offer to post a bond, to be provided by his new girlfriend, with the CSR as security for his return to Australia had been rejected.
The applicant worked as a tiler with his father and in 1996 commenced business as a sole trader manufacturing timber products. In 2004, he commenced an association with Ms P who became an investor in the timber business which was incorporated in 2005 as ABC Pty Ltd. He and Ms P were sole directors and shareholders in the company and were its only full time employees. The business was very successful, especially when it expanded to include international marketing of its products. Stresses attributed by the applicant to his involvement in Family Court proceedings with his wife from 2003 to 2008, as well as a workplace injury, forced him to stop work in 2008. He has not been in remunerative work since.
The applicant resigned as a director of the company in September 2008 and, in March 2010, transferred his shares to Ms P. He was unsure how that transaction came about but said that Ms P had his power of attorney in relation to financial matters. He received no payment for his interest in the company and explained that he was financially “screwed” by her as he had been by his wife. He agreed that Ms P still uses his name in business documentation, bank records and on the business website. Though he denied any involvement with the business, he stated he provides assistance, without charge, to Ms P when she requires it. He explained that he does this because he has greater expertise than she does in the technical aspects of the timber business. He shares the same Post Office mail box as the company but collects only his personal mail from it.
The applicant said that he has no savings, no assets except for personal items and no income apart from his DSP. He agreed that he had made all required child support payments until October 2008 and that $44.04 automatically has been deducted each fortnight for child support payments from his DSP. He voluntarily paid an additional $50 per fortnight in child support from November 2011 after he was advised that, by so doing, he would avoid a DPO. He ceased that voluntary payment when the DPO was imposed in June 2012. The applicant agreed that his reduced rate of child support payments since October 2008 meant that he had accumulated a liability. He did not dispute the respondent’s calculations of that debt and agreed that a non-payment penalty, as stated by the respondent, had been added to the debt.
The applicant described his accommodation needs as being met by spending two to three days per week with his new girlfriend and the remainder of the week in a small unit owned by Ms P. The unit is made available to him free of charge. Prior to this, he lived in a unit on the site of the business premises which he and Ms P had previously shared until December 2010. Again, he stayed there without paying rent.
The applicant agreed that he was absent from Australia from 23 July 2008 until 9 August 2008 in Dubai; from 27 May 2010 until 20 July 2010 in France; from 13 until 22 September 2010 in Japan with Ms P; from 21 until 26 February 2011 in Japan; from 7 February 2012 until 8 April 2012 in France with Ms P; and from 8 until 14 June 2012 in France. He described these as business trips but said that the trip from February to April 2012 with Ms P had also been in the form of an attempted reconciliation between them. He agreed that he had advised on his incoming passenger card on 14 June 2012 that he was bringing certain “goods/samples” into Australia for “business/commercial use”. He explained that this was a reference to certain items of lingerie he purchased for his new girlfriend who was commercially involved with such products.
The applicant agreed that the stock of the business was sold at public auction in June 2012. Ms P had requested him to engage an agent and he helped her out by contacting Quaid Auctioneers with whom he had dealt previously. The applicant denied that he had represented himself as an employee to the agency and said that he had not received any of the proceeds of the sale.
Though he agreed that his name remained in the company’s accounts with the ANZ Bank, the applicant said that he had no role in relation to them. He agreed that he had a Visa Gold account with a credit limit of $35,000 and that the business had made a payment of $87 into that account in recent months. However, he said that the payment was an automatic discharge of a routine administrative charge and that he did not use the account.
Auction results
The company’s stock was sold at public auction in June 2012. Quaid Auctioneers advised that the total of sales was $90,065. The Director of Quaid Auctioneers advised by letter dated 22 January 2013 that he was initially approached by the applicant who had identified himself as an employee of the company. He advised that subsequent instructions came from the company director, Ms P. He also wrote that instructions for the auction were received at times directly from the applicant who had advised that he was conveying the instructions of the director of the company.
Bank records
Statements from the ANZ Bank identified various company accounts as at 22 January 2013. These include a family trust account, an Access Select Cheque Account and a Business Classic Cheque Account of which both Ms P and the applicant are shown as signatories. Another statement is for a Visa Gold account in the applicant’s name with available credit of $35,000. A transfer from the company’s bank account to the applicant’s visa account of $87 is recorded on 10 December 2012.
Determinations of child support
On 20 July 2009, the Social Security Appeals Tribunal (“the SSAT”) determined that, for the period 10 October 2008 until 1 November 2010, the applicant’s taxable income should be treated as being $196,506. The applicant’s appeal against that decision to the Federal Magistrates Court was dismissed on 10 February 2010. On 24 December 2010, the CSR assessed the applicant’s annual child support liability, for the period from 2 November 2010 to 31 October 2013, at $17,951. In doing so, the CSR accepted the findings of the SSAT in relation to the applicant’s capacity to make payments and noted that there was no evidence of health problems which would prevent the applicant from providing for K. The applicant’s objection to that decision was disallowed on 11 April 2011 and that decision was affirmed on 12 March 2012.
Taxation records
An Australian Taxation Office search result was in evidence. It reported the business’ sales from 1 April 2011 to 30 June 2011 at $38,181; from 1 July 2011 to 30 September 2011 at $29,252; from 1 October 2011 to 31 December 2011 at $91,768; and from 1 January 2012 to 31 March 2012 at $14,525.
Travel documents
Two sets of the applicant’s overseas travel documents were in evidence. His incoming passenger card on 14 June 2012 noted that he was bringing certain “goods/samples” into Australia for “business/commercial use”. On that form, he also described Ms P as his emergency contact gave his intended address as that of the company. That address was also given in the passenger card dated 8 April 2012.
The Guide
The respondent has published The Guide to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[2] Matters relating to DPOs are set out in Chapter 5.2.11 of the Guide. For the revocation of a DPO, it reads:
[2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
Revoking a DPO
Once a DPO is made, the Registrar must revoke it in certain circumstances and may revoke or vary it in other circumstances (section 72I). The Registrar can revoke or vary a DPO in response to representations made by the child support debtor or because of the Registrar becoming aware of new information.
When the Registrar must revoke a DPO
The Registrar must revoke a DPO when both of the following two tests are satisfied.
The first test has two alternative parts. Either
·the child support liability has been wholly discharged or that satisfactory arrangements have been made to discharge the debt
OR
·The (sic) Registrar is satisfied that the child support liability is completely irrecoverable.
(If either of these conditions is present, the first test is satisfied.)
AND
The second test applies to future child support liability and also has two alternative parts. Either
·the Registrar is satisfied that any child support liability to which the person may become subject to in respect of matters that have already occurred will be wholly discharged or that satisfactory arrangements will be made to discharge those liabilities
OR
·the Registrar is satisfied that any such child support liability will be completely irrecoverable.
(If either of these conditions is present, the second test is satisfied.)
When the Registrar may revoke a DPO
Even where the tests outlined above are not satisfied, the Registrar has discretion to revoke a DPO where the Registrar considers it desirable to do so. The Registrar will exercise this discretion in a way that supports the objects of the Acts.
Varying a DPO
The Registrar also has discretion to vary a DPO. The Registrar will only vary a DPO to correct errors on the face of the order.
The Registrar will not use the discretion to vary a DPO to allow the departure from Australia of a child support debtor. Where the Registrar is satisfied that it is appropriate and necessary for a debtor to depart Australia, for a defined period, the Registrar will either revoke the DPO or issue a DAC.[3]
CONTENTIONS
[3] The Guide refers to the prospect of the applicant seeking a Departure Authorisation Certificate (DAC) and this process was explained to the applicant at the hearing.
The respondent
For the respondent, Donna Smith submitted that the child support debt had increased to $65,316.71 and that his total debt, including penalties of $14,341.03, totalled $79,657.74 as at 6 February 2013. Ms Smith submitted:
·That the child support liability was due and payable by the applicant and that he has a child support liability under s 72I(1)(a) of the Act.
·That the applicant’s current liability is $688.06 per fortnight and that his current payment rate is $44.04 per fortnight which is an automatic deduction from his DSP. Ms Smith conceded that an additional $50 per fortnight was paid by the applicant from 17 November 2011 until 14 June 2012. However, she submitted that this rate of repayment was not an arrangement satisfactory in order for the applicant’s liability to be wholly discharged under s 72I(1)(b) of the Act. In particular, she submitted, this was the case because of the substantial financial resources, as assessed by the SSAT, available to him and which could be used to discharge the liability.
·That, in relation to s 72I(1)(c) of the Act, the payments actually made by the applicant, in light of his available financial resources, means that the liability is not completely irrecoverable.
·That the discretion in s 72I(3) of the Act ought not be exercised in the applicant’s favour because to do so would be inconsistent with the object of the Act that children receive from their parents the financial support that the parents are liable to provide.[4]
[4] Citing Onder & Child Support Registrar and Sari (No 2) (2011) 250 FLR 345.
The applicant
The applicant submitted that he had no assets and no income apart from his DSP; that he had no capacity to meet the child support liability alleged against him by the CSR; that irrelevant matters had been relied on and relevant matters had not been considered by the CSR in calculating that liability; that the liability was irrecoverable because of his financial situation; that the CSR was acting unreasonably in refusing his request to travel to Japan with his new girlfriend especially when he had proposed that a bond be provided to ensure his return to Australia; and that the CSR decision amounted to punishment of him with a consequence that he was being treated like a criminal and was effectively being held under “house arrest”.
CONSIDERATION
I have noted the matters raised by the applicant in his submissions. As noted above, concern here is not with the merits of the decision to impose the DPO. As to his request to travel to Japan, reference was made during the hearing to the prospects of his applying for a Departure Authorisation Certificate (a DAC).[5] I have also noted his submissions concerning the consequences of a DPO being made and have referred below to the significance of the Objects of the Act in that regard.
[5] A DAC may be sought under s 72K of the Act.
I had concerns with the applicant’s evidence and do not accept that he was a witness of truth in aspects of it. In particular, that is the case with his explanations of arrangements with Ms P and of his recent association with the timber business. His assertion that he had no role in the business for some years following the sale is not consistent with the continued use of his name in bank accounts, with payments of administration charges to his Visa Gold account, with the continued use of the same postal address as the business and with the extent of travel with Ms P as recently as February to April last year. Inconsistency also arises in his claim that he was “screwed” financially by Ms P and yet remains willing to provide, free of charge, technical advice to assist Ms P with her business. The applicant clearly played a significant role in settling the arrangements for the auction of the business assets and I note the statement by the Director of Quaid Auctioneers that he initially introduced himself as an employee of the business. The applicant had difficulty in giving an accurate account of his accommodation arrangements. He gave various accounts of these arrangements until he settled on the split arrangement between his new girlfriend’s home and the unit owned by Ms P. Ms P provides that accommodation without cost to the applicant and he resided, on his evidence, in the unit at the business premises for long periods free of charge even though he claimed to have no role in the running of the business.
I am satisfied that the applicant continues to have an involvement in the business which he established and I accept the analysis of the SSAT that this provided him with a financial resource which places him in a situation where he is capable of meeting his child support obligations. I accept the submissions of Ms Smith that, under s 72I(1)(a) of the Act, the applicant has a child support liability of $688.06 per fortnight as well as a child support debt, including penalty components, of $79,657.74 as at 6 February 2013, which is due and payable by him. Given his child support liability of $688.06 per fortnight, I accept Ms Smith’s submission that his current payment rate of $44.04 per fortnight is not a satisfactory arrangement in order for the applicant’s liability to be wholly discharged under s 72I(1)(b) of the Act. I am also satisfied that, under s 72I(1)(c) of the Act, the applicant’s liability is not completely irrecoverable because of the availability to him of financial resources associated with the business. It follows that I am not required, under s 72I(1) of the Act, to revoke the DPO.
That decision is consistent with the principal object of the Act to ensure that children receive from their parents the financial support that the parents are liable to provide.[6] The Act also provides that it is to be construed and administered, to the greatest extent consistent with the attainment of its objects.[7] That object is also relevant to the discretion in s 72I(3) of the Act. Given the financial circumstances of the applicant, I am satisfied that it is not desirable that the DPO be revoked. As to the variation of the DPO, I have noted the terms of the Guide which provides that a DPO should be varied only to correct errors on the face of the order and that a DPO should not be varied to allow the departure from Australia of a child support debtor. There is no material which points to an error on the face of the DPO and I am satisfied that it should not be varied.
[6] See s 3(1)(a) of the Act and para 3 (above).
[7] See s 3(2) of the Act and para 3 (above).
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 19 February 2013
Date of hearing 6 February 2013 Applicant In person Advocate for the Respondent Ms Donna Smith
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