DNSN and Child Support Registrar (Child support)

DNSN and Child Support Registrar (Child support) [2024] AATA 3548 (8 October 2024)
Division:GENERAL DIVISION
File Number(s): 2024/4704
Re:DNSN
APPLICANT

AndChild Support Registrar
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member.

Date: 8 October 2024
Place:Melbourne

The Tribunalrefuses the applicant’s application to extend the time within which it may apply for review of the respondent’s decision dated 2 April 2024.
................................[SGD]........................................
R Cameron, Senior Member.
Catchwords
CHILD SUPPORT – Extension of time application – whether there is an acceptable explanation for the delay - Departure Prohibition Order (DPO) issued – application for an extension of time to revoke DPO refused – no application for Departure Authorisation Certificate (DAC) made – suggestion private agreement between parents - whether DPO should be revoked on humanitarian grounds – whether obligation to revoke DPO – decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Acts Interpretation Act 1901 (Cth)
International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6.
Cases
Custodial Limited and Australian Investments and Securities Commission (2005) ALD 510
Federal Commissioner of Taxation v Munro (1926) 38 CLR 153
Hunter Valley Developments Pty Ltd v Cohen
REASONS FOR DECISION
R Cameron, Senior Member
INTRODUCTION

The applicant has sought an extension of time under section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) to enable the review of a decision made by the respondent, the Child Support Registrar, to refuse an application made by him to revoke a Departure Prohibition Order (‘DPO’) previously made on 5 March 2021.[1]
[1] A copy of the DPO made 5 March 2021 was Annexure A to the respondent's outline of submissions lodged on 14 August 2024.
RELEVANT FACTS
The DPO was made on 5 March 2021 pursuant to the provisions of Part V Departure Prohibition Orders of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the CSA’).
An interlocutory hearing of the application was conducted on 26 August 2024. There was an extensive written submission, with annexures, lodged by the applicant which did not come to the attention of the Presiding Member of this Tribunal until the morning of the hearing. After hearing oral submissions from both parties, the Tribunal decided to deliver these written reasons.
The applicant is the father of two children, presently 11 and 9 years of age. Relevantly, a liability with respect to child support due on the part of the applicant, was registered under the applicable provisions of the CSA on 3 February 2020 with Services Australia as the collection agency.
As noted above, the DPO was issued on 5 March 2021.
The applicant sought revocation of the DPO on 2 February 2024. This application was considered by a delegate of the Child Support Registrar and a decision was made on 2 April 2024 to refuse to revoke the DPO.[2] The letter of 2 April 2024 stated, amongst other things, that the Child Support Registrar had decided to refuse the applicant’s application for revocation of the DPO because his child support liability debt had not been paid in full.
[2] A copy of the letter of 2 April 2024 addressed to the applicant refusing his application to revoke the DPO is Annexure B to the respondent's outline of submissions of 14 August 2024.
Also in evidence before the Tribunal was a submission prepared by an officer of the respondent, which considered the reasons why the applicant sought revocation of the DPO together with the matters that must be relevantly considered by the respondent under section 72I of the CSA, Revocation and variation of departure prohibition orders.[3]
[3] The submission was Annexure D to the respondent's outline of submissions of 14 August 2024.
Amongst other things in the submission prepared by an officer of the respondent, it recorded that the applicant had not lodged any tax returns with the Australian Taxation Office since registration of the case on 3 February 2020. When asked whether this was correct by the Tribunal during the hearing of this application, he acknowledged that it was.
The respondent’s written submission also recorded that the last tax return lodged by the applicant was for the 2015-16 financial year, when he declared a taxable income of $427,862.
Another matter referred to in the submission was that the current assessment had been based on the 2022-23 provisional (indexed default) income for the applicant of $514,290.12, and a taxable income with (Australian Taxation Office ‘ATO’ income) for his former partner of $35,052.
It was also recorded in the respondent’s written submission by an officer of the respondent that prior to the DPO being made on 5 March 2021, the applicant had been a regular traveller with 115 movements recorded.
On 5 June 2024, the applicant wrote again to the Child Support Registrar requesting revocation of the DPO. Amongst other things, the grounds relied upon by the applicant was that the claim made against him by Services Australia was based on fraudulent accounting figures provided to that agency by the ATO. Further, he stated that the ATO fraudulently, and knowingly, claimed incorrect amounts were earned by him giving rise to a tax liability. It was also contended by the applicant in that letter that the ATO had agreed not to take any enforcement action against him concerning a debt claimed by that agency. Finally, he also contended that he had been making regular payments each month to his former partner, in compliance with a ‘private agreement’ that they had entered into. For this reason, he reiterated his submission that the DPO should never have been issued in the first place.
In evidence before the Tribunal was a “‘Child Support Payer Transaction Statement for the period 01/03/2020 to 14/08/2024.” The document is clearly both a “business record” and a “Commonwealth record’”, for the purposes of the Evidence Act, which contains a series of entries showing how the child support liability is made up or calculated. The balance due as at 14 August 2024 recorded in that statement is $149,242.75.
THE POWER TO GRANT AN EXTENSION OF TIME
Under section 29(7) of the AAT Act, the Tribunal may extend the time for the making of an application for review of a decision if the Tribunal is satisfied that it is reasonable in all circumstances to do so.
In an application for an extension of time, as has occurred in this case, the Tribunal frequently considers the several factors identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (‘Hunter Valley’).[4] Whilst those factors are frequently referred to, they are not to be used as some kind of checklist to be crossed off prior to reaching the state of satisfaction that section 29(7) of the AAT Act requires. Similarly, not one of the factors or another should have greater or lesser emphasis placed on them in such applications.
[4] (1984) 58 ALR 305.
THE APPLICANT’S CONTENTIONS
The Tribunal has read and considered the applicant’s written submissions. There are several matters that are identified in the applicant’s very lengthy submissions that warrant reference.
As noted earlier, the applicant contends that when this child support case was registered on 3 February 2020, it was contrary to a binding private agreement that had been entered into between himself and his former partner. This agreement having been adhered to strictly by him for approximately 11 years despite what he describes as his impecunious circumstances.
The applicant conceded that his application for review of the respondent’s refusal to revoke the DPO was made outside the 28-day period prescribed by the relevant sections of the AAT Act. However, he points to the fact that this application was made relatively soon after the expiration of that period being a relatively short 43-day delay.
Although there was no other documentary evidence before the Tribunal concerning it, the applicant informed this Tribunal that he is party to another application before it, challenging an assessment made against him by the ATO. It would appear that matter had been listed for a directions hearing on 29 May 2024. The applicant assumed that such matter and this matter were, as he put it, ‘inextricably connected’ and would proceed together.
The applicant did acknowledge that during the hearing of the application concerning the ATO on 29 May 2024, the presiding Deputy President explained to him that whilst the Tribunal could deal with the revocation refusal application, it was ‘in a different jurisdiction of the AAT to the ATO matter’.
He then addressed each of these factors identified by Wilcox J in Hunter Valley.
Concerning the explanation for the delay several things were relied upon. They are as follows:
(a)the DPO was issued relying upon ATO default assessments of his claimed income which were the result of fraudulent accounting practices;
(b)he had been disputing those assessments for the past 7 years;
(c)as part of that process, he had made an application to this Tribunal in March 2024 for a review of such assessments which were formally accepted by the Tribunal on 21 March 2024; and
(d)as part of his AAT application, he made a request for a “stay order” so as to prohibit the ATO from enforcing legal claimed tax debt, which he repeated was based on fraudulent accounting that led to the original default assessments.
As to the merits of the substantive application, the applicant, in robust language, contended that the claims against him are baseless. He submitted that he does not have, and at no point ever had, a legitimate verifiable child support liability at any time. Therefore, the respondent Registrar should never have issued the DPO.
The applicant also emphasised that his letter to the respondent Registrar on 5 June 2024 had not been responded to. Therefore, he submitted that if this Tribunal were inclined to reject his application to review the respondent’s refusal of 2 April 2024 to revoke the DPO, it could in the alternative, rely on such lack of response as a refusal, or perhaps a deemed refusal, to revoke the DPO, meaning that this application which was made on 2 July 2024, would not in fact be out of time.
The question of prejudice was then addressed by reference to both the respondent and the general public in terms of disruption to established practices.
The applicant contended that there was simply no evidence of any demonstrable prejudice to the respondent in the material before the Tribunal.
As for the question of wider prejudice, there were a number of matters raised by the applicant which need not be reproduced for the purposes of these reasons. However, amongst other things, the matters raised by the applicant were said to support a conclusion that there was no evidence tendered by the respondent which would demonstrate how the public, or any other established practices, would be prejudiced in the relevant sense if the extension of time were granted. He emphasised that three and a half years had passed since the DPO was made without any additional payments. Therefore, this is clear evidence that a condition or pre-requisite to the valid making of a DPO had not been satisfied, namely that there were grounds for the reasonable belief that the making of the order would make the payment of the debt by him more likely.
The applicant strongly disputed the contentions contained in paragraph 42 of the respondent’s submissions, which asserted that he had not provided full disclosure of his financial circumstances. In response, he stated that he is unable to provide full disclosure of his financial circumstances until such time as he is able to travel to New Zealand to obtain all relevant accounts and documents that relate to his taxation affairs, in particular his present dispute with the ATO. Apparently, he has been in dispute with the ATO for approximately seven years, with such disputes now before this Tribunal for adjudication.
Several references were made throughout the applicant’s submission concerning the fact that he makes monthly payments to his former partner in the amount of $1,000 per month, together with other regular payments for his children’s needs including clothing, footwear, sports activities such as swimming lessons and soccer training, together with other school requisites such as uniforms and so on. It is emphasised by the applicant that he has strictly adhered to this private agreement with his former partner such that there is no need for any registration under the Child Support legislation, let alone the necessity for the DPO to have been issued, and to remain in force. Therefore, he emphasises that he has, in making the contributions he does to his children, complied with the principal objectives of the Child Support legislation.
Another matter raised by the applicant in his submissions was said to be a ‘[h]uman [r]ights abuse’ which was occasioned by the making of, and refusal to revoke the DPO. The Tribunal was referred to the International Covenant on Civil and Political Rights (‘the Convention’).[5] Amongst other things, he contends that the making of, and refusal to revoke the DPO, is inconsistent with several articles of the Convention because the foundation for the issue of the DPO was for a claimed debt based solely on fraudulent accounting.
[5] International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6.
CONSIDERATION
Whilst it is acknowledged that in many instances, applications for extension of time under section 29(7) of the AAT Act are successful, the 28-day prescribed time limit within which to seek review in this Tribunal should not be ignored. As was noted by Wilcox J in Hunter Valley, it is a prima facie rule that proceedings commenced outside the prescribed period will not be entertained.[6]
[6] Hunter Valley (n4) 310.
The Tribunal acknowledges the submissions on the part of the applicant that he has been engaged in a long-running dispute with the ATO, resulting in such disputes being ventilated in the Tax and Commercial Division of this Tribunal. In the material provided, there was reference to the applicant’s account of interactions he had with a then Deputy President of this Tribunal, which he says led him to believe that both his matters involving the Commissioner of Taxation and this matter would ultimately be heard together. Whilst that may be so, it is by no means certain. However, there was no suggestion that in any way the applicant was informed that he was not required to, or otherwise misled about the need to make an application within 28 days of the respondent’s decision of 2 April 2024 not to revoke the DPO.
The applicant is clearly an intelligent and articulate man. He also presented as someone who is very much alive to protecting his interests. There was no dispute that he had received the notice from a delegate of the respondent on 2 April 2024 refusing his application to revoke the DPO. That notice in clear and unequivocal language informs the recipient that he could ask this Tribunal to review that decision. It also stated that he must do so within 28 days from the date of receipt of the letter. Armed with that letter, he should have, within the time, made the application to this Tribunal. He was clearly on notice of the necessity to do so.
It was not suggested on behalf of the applicant that he was not fully aware of his right to seek a review of the decision not to revoke the DPO. Being aware of such rights, it is not appropriate or in the interests of justice for him to rest on those rights and then seek the indulgence of an extension of time from the Tribunal.[7]
[7] Re: Custodial Limited and Australian Investments and Securities Commission (2005) 88 ALD 510.
A careful examination of his lengthy written submissions, even if they are elevated to the status of admissible evidence, do not properly explain why the applicant did not make the application for review of the decision of 2 April 2024 within the prescribed time limit of 28 days.
There is simply no, or no sufficient evidence, that enables the Tribunal to conclude that the applicant did not understand or was otherwise misled about the necessity to make the application within 28 days. Therefore, the Tribunal concludes that an acceptable explanation for the applicant’s delay has not been provided by him.
As for the question of prejudice, the starting point must be that the Transaction Statements that were before the Tribunal reveal a significant debt, which it will be recalled is $149,242.75 as at 14 August 2024.[8] This debt has steadily increased over a period of more than 4 years. The Transaction Statements, as both business records and Commonwealth documents, are prima facie proof of their contents. Whilst the applicant has steadfastly contended that he does not owe the debt recorded in those statements, he has provided no detail which enables the Tribunal to rebut the presumption of the accuracy of the amount recorded as owing in such statements. It is one thing to say that the ATO has levied assessments based upon fraudulent accounting, but a completely different thing, which is missing in this matter, to explain how such documents or assessments are inaccurate by reason of such fraudulent accounting. There is just no evidence.
[8] The Transaction Statements are Annexure C to the respondent's outline of submissions of 14 August 2024.
As for the suggestion of a private agreement between the applicant and his former partner. There is no evidence beyond his bald assertions of the existence of same. It is recorded in the submission made by an officer of the respondent concerning the question of revocation of the DPO, that the applicant’s former partner confirmed that the applicant pays $1,000 per month directly into her bank account. However, it also noted that the respondent agency had not been provided with any evidence in support of an alleged ‘private child support agreement’. The lack of evidence is telling, for instance, has it been evidenced in some way in writing? As often occurs these days, some informal arrangements are recorded by an exchange of emails. None were produced, let alone any other documentation. There is an evidentiary vacuum concerning this question. If for instance, the applicant’s former partner had made a statement corroborating his allegations of a binding and enforceable private agreement, the position might have been different. Regrettably, there is just no evidence other than his broad assertions about such a private agreement.
Given that there is a significant and binding debt outstanding from the applicant, the DPO is an important process that can be adopted by the respondent to assist in collection of debts of this kind. It should be recalled that the objects of the Child Support legislation are, amongst other things, 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 made on a regular and timely basis.[9] In this setting, there is a prejudice to the applicant’s former partner and her children if the DPO is not allowed to remain in place because it is an important part of a collection mechanism mandated by the CSA.
[9] See e.g, s 3 "Objects of the Act" of the Child Support (Registration and Collection) Act 1988.
Although it has to some extent been canvassed already in these reasons, some brief reference should be made to the question of the merits of the substantive application. Whilst the Tribunal acknowledges that the threshold test in determining the merit of the substantial application is low, the Tribunal is not satisfied on the material that has been placed before it by the applicant that his case is arguable. Once again, it must be repeated that there are number of general statements made by the applicant in support of the contention that the debt revealed in the Transaction Statements before the Tribunal is not owed. Those statements are that the ATO has raised assessments or asserted that the applicant has earned income based upon fraudulent accounting or assessment practices engaged in by the ATO and that there is a private agreement, particulars of which have not really been furnished, between him and his former partner. This evidence, if it can even be categorised as such, does not enable the Tribunal to reach a conclusion that he even has an arguable case.

There is another reason why the Tribunal is not satisfied that it is reasonable in all the circumstances to grant the extension of time sought by the applicant. That is because the applicant has, as noted above, written again to the respondent Child Support Registrar on 5 June 2024 further seeking revocation of the DPO. By writing again to the Registrar on 5 June 2024, the previous application for revocation of the DPO made on 2 February 2024 has become superseded. In the event that the respondent is not prepared to accede to that most recent request, the applicant could seek to review that later decision in this Tribunal. It is an alternative avenue of relief.
Alternatively, there is another option open to the applicant if he wishes to travel overseas as he seeks to do. He can apply for a departure authorisation certificate, provided he satisfies the requirements of s 72L of Child Support (Registration and Collection) Act 1988 (Cth). Whilst the Tribunal cannot speculate on whether such an application would succeed, it is nonetheless another option open to him which would enable him to travel to New Zealand as he seeks, without the DPO necessarily being revoked.
As for the contention that there has been a ‘human rights abuse’ and the inconsistency with the International Covenant on Civil and Political Rights, the Tribunal cannot accept such contentions. It does not see the CSA and its operative provisions enabling the issue of a DPO as either a human rights abuse or otherwise being inconsistent with the International Covenant on Civil and Political Rights. It was not altogether clear from the applicant’s submission whether he is contending that the acts of the respondent in not revoking the DPO violated that international convention. Insofar as such acts were carried out in reliance on the powers contained in the CSA, whether they were unenforceable by reason of such inconsistency, or alternatively, whether the CSA in some sense is unconstitutional and in excess of the power vested in the Parliament of the Commonwealth of Australia.
Whilst it is not necessary, nor appropriate, to embark upon some excursion into statutory construction, it goes without saying that a decision-maker in the shoes of the Tribunal in engaging in a process of statutory construction is required to give effect to the text of the statute, read in context and have regard to its apparent purpose. The usual process of statutory construction is not overridden by some other principal, such as that of legality or any inconsistency within international convention to which the Commonwealth of Australia is a party. When one examines the objects of the CSA contained in s 3 of that Act, as previously mentioned, it is clearly within the power of the Parliament of the Commonwealth of Australia. It is also appropriate to note that one of the other objects of the CSA not previously mentioned, is to ensure 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. Given this object, the process of issuing a DPO as a means of enforcing an outstanding child support obligation, does not constitute a human rights abuse on the material before the Tribunal or is otherwise necessarily inconsistent with International Covenant on Civil and Political Rights.
It is also perhaps appropriate when considering this aspect of the applicant’s contentions, to mention that there is a presumption that a law passed by Parliament is constitutional. In other words, Parliament did not intend to pass an act beyond constitutional bounds.[10] This presumption is to some extent also enshrined in the provisions of section 15A of the Acts Interpretation Act 1901 (Cth) which provides that every act shall be read and construed subject to the Constitution and read down to be within power if necessary.
[10] Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180 per Isaacs J.
The Tribunal reaches its conclusion that there has been no human rights abuse or conduct otherwise inconsistent with the Convention because the evidence before it does not provide a platform or foundation for reaching such a conclusion.
CONCLUSION
By reason of the foregoing matters, the Tribunal is unable to be satisfied that it is reasonable in all the circumstances to grant the extension of time sought by the applicant. Accordingly, the application will be refused.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

......................[SGD]...........................
Associate
Dated: 8 October 2024

Date(s) of hearing: 26 August 2024

Applicant: Self-Represented

Advocate for the Respondent: Ms Kathryn Lieschke

Solicitors for the Respondent: Seconded Lawyer Services Australia

[2024] AATA 3548

8 October 2024

Key Legal Topics

Areas of Law

Administrative Law

Family Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Jurisdiction

Date(s) of hearing:	26 August 2024
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Kathryn Lieschke
Solicitors for the Respondent:	Seconded Lawyer Services Australia