CONFIDENTIAL and CHILD SUPPORT REGISTRAR

[2010] AATA 800

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 800

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2403

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL

Applicant

And  CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 1 September 2010

Place Brisbane

Decision  For the reasons given orally at the hearing, the Tribunal affirms the decision under review.

......................[Sgd]........................

Senior Member

CATCHWORDS

HUMAN SERVICES – child support – issue of departure prohibition order – failure to make any payments – bankrupt – departure authorisation certificate refused – applicant wishes to visit elderly parents – applicant not a flight risk – debt unable to be paid in near future – applicant unable to give security – revocation or variation of departure prohibition order not desirable – decision affirmed.

Child Support (Registration and Collection) Act 1988 (Cth), ss 72L, 72M

Administrative Appeals Tribunal Act 1975 (Cth), s 35(2)

REASONS FOR DECISION

14 October 2010 Senior Member Bernard J McCabe

1. A decision was given orally at the hearing in this matter. One of the parties subsequently requested written reasons. These reasons have been prepared from the transcript. The name of the applicant has been suppressed pursuant to s 35(2) of the Administrative Appeals Tribunal Act 1975 and he is referred to as Mr Confidential in these reasons.

2.      I am only focused on a very narrow question in these proceedings. I appreciate Mr Confidential has had a long history of dealing with the Child Support Agency and that he has found that to be an unsatisfactory experience. He is unhappy with his treatment at their hands.

3.      I must accept the figure that I have been given, which says Mr Confidential currently owes something in the excess of $40,000 worth of child support, including penalties. He has not made any payments. I appreciate that is because he has been bankrupt for a period of about 12 months now and within that period he has not been in a position to pay down the amount he owes. It appears he will not be in a position to make any payments in the immediate future either. That is the starting point for my decision. 

4.      The departure prohibition order was issued. To be exempted from that, a departure authorisation certificate is required. The Child Support Registrar (“the Registrar”) has refused to give him one of those. The circumstances in which the Registrar can refuse to give a certificate are carefully defined.  We must go through what are really quite closely-drawn criteria.  This legislation was introduced because there were fathers who were not just unable to meet their obligations, but who were really being quite devious in their attempts to avoid them.  As a result, the criteria are drawn in a very tight way and, as is often the case with tightly-drawn criteria, they may restrict our flexibility.

5. I have to pay very careful attention to the legislation. The key provision is s 72L of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”), which describes when the Registrar must issue a departure authorisation certificate. The first step in that process is s 72L(2), which says that if certain things are satisfied, then the Registrar must so issue the certificate.

6.      Questions have been raised about whether Mr Confidential is likely to return to Australia.  He said he is going to return and I note that he has substantial links with the Australian community. He has been a man of substance in the community in the past, a local councillor, involved in community groups and his wife lives here. She has a business here as well, although I appreciate that business conditions are difficult at the moment. I note that he does not have any ongoing contact with his daughters and we did not go into why that was so, nor did we need to. I did not form the impression that he is unlikely to come back, so I am not suggesting that he is a flight risk.

7. The second leg of the provision says that circumstances must exist where the Registrar can be satisfied that the debt will be paid in short order, for example, if the cheque is in the mail. These are the criteria in s 72L. But he cannot pay the debt at the moment, and it is not going to be paid any time in the near future, because he is currently unemployed. Even when he becomes employed again, perhaps when he gets his real estate licence or salesman’s licence back, it is going to take some time for him to get back on his feet. However he is an able-bodied man of some talent, it would appear, with experience and skills. There is no reason to believe that he will be unable to pay the debt at some point in the future. So the difficulty is that he will not satisfy the criteria in s 72L(2), since he is not a hopeless case.

8.      If the liability is not irrecoverable, the liability is not going to be discharged.  Satisfactory arrangements for discharging the debt are not going to be made in the near future but, by the same token, the debt is not irrecoverable. 

9. Since he falls down on one of the three headings, it is not necessary for the person to give a security under section s 72M. We then need to look at 72L(3), which asks if the person has given security under section 72M. Mr Confidential has not. He is not in a position to do so. If he is unable to give such security, the Registrar must be satisfied that the certificate should be issued on humanitarian grounds. He has identified some humanitarian grounds in his wish to visit his parents. He has visited them in the past on a reasonably regular basis. They are not living together, so they are not providing each other with support. They are both elderly but, as he pointed out, they are in good health, and his father, who has been ill in the past, is doing alright at the moment. Old age is something that we can take into account but not to the point where we would regard it as a pressing humanitarian concern that would automatically justify the exercise of discretion.

10. That leaves the residual discretion in s 72L which says that the Registrar may also, at the Registrar’s discretion, revoke or vary a departure prohibition order if it is considered desirable to do so. What is “desirable” must be determined with reference to the statutory criteria and the objectives of the legislation. The legislation is designed, as far as possible, to make sure that fathers pay their child support obligations. From time to time, of course, you can allow people out of the country, because not everyone is subject to a departure prohibition order, but even if they are, it may not compromise the objectives of the Act if they are allowed out. The objectives of the legislation need to be advanced in some way.

11.     Mr Hickey, for the Registrar, says that this is just not one of those special or unusual cases where it is desirable to allow Mr Confidential to go. He says the evidence does not suggest that there is anything that would allow me to be satisfied that it is desirable.  I am conscious that this is a fairly significant imposition on Mr Confidential.  I accept his evidence that he just wants to go home to see his parents and it is a difficult thing to say to him that he cannot go.  Unfortunately though, having regard to the legislation and the circumstances that have been described, I do not think I am free to overturn the order and allow Mr Confidential to leave.

12.     This means that, right now, the departure prohibition order cannot be lifted. What happens in the future, however, would depend on a range of circumstances, including his ability to earn an income to discharge the obligation.  It would also include, obviously, the circumstances of his parents. While I find that on humanitarian grounds they are elderly but in good health, if that were to change, that is certainly something that could be taken into account.

13.     The Tribunal affirms the decision under review.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ................[Sgd]...........................................................
  Patrick MacDonald

Date of Hearing  1 September 2010 
Date of Decision  1 September 2010
Date of Written Reasons          14 October 2010
Applicant  Self-represented

Solicitor for the Respondent     Mr P Hickey, Clayton Utz