Emmanuel Ezekiel-Hart and Child Support Registrar
[2014] AATA 612
•28 August 2014
[2014] AATA 612
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0279
Re
Emmanuel Ezekiel-Hart
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 28 August 2014 Place Canberra The decision under review is affirmed.
................................[sgd]........................................
RM Creyke, Senior Member
Catchwords
CHILD SUPPORT PAYMENT – Departure prohibition order – Whether applicant satisfies criteria for revocation of departure prohibition order – whether discretion to revoke departure prohibition order should be exercised.
Legislation
Child Support (Registration and Collection) Act 1988 (Cth) ss 3, 17, 17A, 72I, Part VII, VIIA, VIII
Cases
Re O’Neill and Child Support Registrar [2010] AATA 545
Secondary Materials
REASONS FOR DECISION
RM Creyke, Senior Member
Mr Emmanuel Ezekiel-Hart has sought review of a decision of the Child Support Registrar, dated 23 December 2013, to refuse to revoke a departure prohibition order made under section 72I of the Child Support (Registration and Collection) Act 1988 (Cth) (Act).
The Tribunal is satisfied that it has jurisdiction in this matter. The application was heard on 31 July 2014 by conference telephone.
Background
Mr Ezekiel-Hart, born 1964, was registered on 25 May 2007 to pay child support for two children in Australia, born respectively in 1999 and 2002. The child support assessment application was accepted on 19 June 2007. Mr Ezekiel-Hart, who normally resides in Australia, is a sole trader.
On 16 October 2013, the Child Support Registrar made a departure prohibition order under section 72D of the Act prohibiting Mr Ezekiel-Hart from departing Australia for a foreign country.
At that time, Mr Ezekiel-Hart had not made payments of child support amounting to $7,166.69, comprising $6,611.36 in outstanding child support payments, and penalties of $555.33. At the time, Mr Ezekiel-Hart’s monthly child support liability was $296.17. Collection of Mr Ezekiel-Hart’s child support payments has been undertaken by enforced collection by Centrelink deductions and 2 TRIPS (tax refund intercept process) in 2008.
Mr Ezekiel-Hart has made payments to his former partner outside the agency collection system. Mr Ezekiel-Hart’s former partner has declared receipt of non-agency payments from him as follows:
·17 January 2013 - $250;
·18 October 2012 - $250;
·3 August 2012 - $75:
·15 October 2008 - $50.
In the submission relating to his Departure Authorisation Certificate further figures for non-agency payments showed:
·2 July 2014 - $250;
·20 March 2014 - $250;
·4 March 2014 - $250.
On 15 November 2013, Mr Ezekiel-Hart sought revocation of the departure prohibition order. At that time Mr Ezekiel-Hart’s arrears were $7,515.75, comprising $6,907.53 in child support and $608.22 in penalties. On 21 November 2013, Mr Ezekiel-Hart was notified that his application had been refused.
On 13 December 2013 Mr Ezekiel-Hart made another application for the departure prohibition order to be revoked. At that time his arrears were $7,867.18 comprising $7,203.70 in child support payments, and $663.48 in penalties. His regular child support liability at that time was $47.50 a month commencing 1 December 2013. The rejection of that claim is before this Tribunal.
Again, in early July 2014, Mr Ezekiel-Hart applied for a departure authorisation certificate to go overseas to assist a daughter who resides outside Australia and who had been injured and required an operation. In addition he claimed he wished to attend the funeral of his aunt. Previously he had made applications in April 2014 that he wished to go overseas to see his child, and in May to do likewise because his child was unwell. He was unable to provide medical evidence of his daughter’s injury, or evidence of the death of his aunt. In each case he indicated that he intended to depart Australia only for a short period. No mention was made in the latest, July 2014 application, of his intention to study while overseas.
On 14 July 2014 the Child Support Registrar issued a departure authorisation certificate permitting Mr Ezekiel-Hart to travel out of Australia sometime between 14 July and 21 July and to return to Australia no later than 30 July 2014.
As a ‘goodwill’ gesture, prior to his departure, Mr Ezekiel-Hart paid the Child Support Agency $500.00. On 16 July 2014, Mr Ezekiel-Hart also verbally undertook to begin paying $250.00 a month from August 2014 towards the arrears.
At the date of the hearing, 31 July 2014, Mr Ezekiel-Hart had not returned to Australia and in an email to the Tribunal of 29 July 2014 he indicated that he is enrolled to do further study overseas which concludes in July 2015 and he intends to return to Australia in August 2015.
Legislation
The relevant legislation is the Child Support (Registration and Collection) Act 1988 (Cth) (Act). Part VA of the Act provides for departure prohibition orders; Division 4 of that Part provides for the making of departure authorisation certificates. Relevant provisions are section 72D (making of departure prohibition orders), section 72I (Revocation and variation of departure prohibition orders), and 72L (making of departure authorisation certificates).
Issues
The issues are:
·Whether Mr Ezekiel-Hart satisfies the criteria in section 72I(1) of the Act for revocation of the departure prohibition order; and
·If not, whether the Tribunal should revoke the departure prohibition order in the exercise of its discretion under section 72I(3) of the Act.
Consideration
Mr Ezekiel-Hart has been under a registrable child support maintenance liability since 2007.[1] At the time of the decision to make a departure prohibition order he was in arrears to the tune of $7,867.18, comprising $7,203.70 in child support payments, and $663.48 in penalties. At the hearing it was established that these amounts took into account the non-agency payments made by Mr Ezekiel-Hart.
[1] Child Support (Registration and Collection) Act 1988 (Cth) ss 17, 17A.
In view of his liability and the arrears of his child support payments, a departure prohibition order was made in October 2013 in relation to Mr Ezekiel-Hart, a decision which was affirmed by the Child Support Registrar. That is consistent with the objects of the Act which are ‘to ensure (a) that children received from their parents the financial support that the parents are liable to provide’ and ‘to ensure (b) that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis’.[2]
[2] Ibid s 3(1)(a), (b).
In the meantime, in July 2014, Mr Ezekiel-Hart sought and obtained a departure authorisation certificate so he could leave Australia. The certificate was granted for Mr Ezekiel-Hart to depart in the period between 14 July and 21 July 2014, and to return no later than 30 July 2014. Mr Ezekiel-Hart had not returned by 30 July 2014 and advised that he does not intend to return until August 2015.
The Child Support Registrar has submitted that in addition to the arrears of child support maintenance, Mr Ezekiel-Hart’s unreliability and lack of good faith is indicated by his breach of the departure certificate order. As a submission dated 30 July 2014 stated:
[Mr Ezekiel-Hart’s] failure to advise the delegate of his intention to study overseas and to withhold information about his true travel arrangements raises concerns about [his] commitment to discharging the outstanding child support liability. It remains the Child Support Registrar’s position that it would be inappropriate and contrary to the intention of the legislation to revoke the departure prohibition order in these circumstances.
As the representative submitted non-agency payments were only made after the departure prohibition order was made, the $500 ‘goodwill’ payment appeared to be made solely to ensure Mr Ezekiel-Hart obtained a departure authorisation certificate, there was no regularity in his non-agency payments, and Mr Ezekiel-Hart’s undertakings about payments of $250 a month, commencing in August 2014, are called into question in the light of his failure to adhere to the other undertaking made in relation to obtaining the departure authorisation certificate. In particular the representative referred to Mr Ezekiel-Hart’s breach of his undertaking that he would return no later than 30 July 2014.
When the Tribunal asked Mr Ezekiel-Hart at the hearing what arrangements he had made to commence paying $250 a month from August 2014, his response was that he disputed the liability to do so.
In addition in the hearing Mr Ezekiel-Hart contended that the Child Support Registrar failed to ensure that the child support assessments affecting him were correct, that the Child Support Registrar has taken into account fraudulent documents when it has made its assessments, that as a consequence the liability assessed is incorrect, and therefore the assessment could not form the basis for a departure prohibition order. He also asserted that the Child Support Registrar has failed to support the parenting orders made by the Family Court of Australia, and that insufficient regard has been given to his consistent care and support of his children in Australia. He also made allegations of fraud and unfairness in the processes of the Child Support Registrar.
In response, the Child Support Registrar pointed out that it is not the Tribunal’s role to examine whether liability for child support exists or has been correctly calculated;[3] nor is it the role of the Child Support Registrar to enforce parenting payment orders. That is the responsibility of the Family Court of Australia.
[3] Re O’Neill and Child Support Registrar [2010] AATA 545.
The Registrar also said it is not the role of the Tribunal to review the percentage of care arrangements. As was pointed out, Mr Ezekiel-Hart is able to raise that issue at any time with the Registrar and he has done so in the past. There is an internal objection procedure,[4] and a further right of merit review by the Social Security Appeals Tribunal,[5] and an appeal on a question of law to a court.[6] The Tribunal has no role in this process. Finally the Child Support Registrar submitted that the claims of fraud and unfairness were not sufficiently specific to be substantiated.
[4] Child Support (Registration and Collection) Act 1988 (Cth) Part VII.
[5] Ibid Part VIIA.
[6] Ibid Part VIII.
The Child Support Registrar concluded that although Mr Ezekiel-Hart had been granted a departure authorisation certificate, it was doubtful that the order would have been made had the officer been aware of the subsequent facts. These include the failure of Mr Ezekiel-Hart to return to Australia as he had undertaken, the absence of any regular pattern of payments of the arrears of the debt, and Mr Ezekiel-Hart’s continued reliance on his argument that the liability was incorrectly calculated as a reason for his ongoing refusal to continue to make payments as promised, including of non-agency payments from August 2014.
The Tribunal notes the circumstances in which it can revoke or vary a departure prohibition order. Section 72I of the Act states:
(1) The 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. …
(3) The 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.
There was no dispute that Mr Ezekiel-Hart has a continuing child support liability. His children in Australia are 12 and 15 respectively and he meets the other criteria for liability to pay child support maintenance.[7]
[7] Child Support (Registration and Collection) Act 1988 (Cth) s 72I(1)(a).
The Tribunal is also not satisfied that arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged.[8] Mr Ezekiel-Hart’s failure to return to Australia on or before 30 July 2014 casts doubt on the likelihood of his compliance with the other undertakings he made in July 2014 to the Child Support Registrar. These concerned the regular repayments of amounts to reduce his arrears of child support payments. That doubt was supported when Mr Ezekiel-Hart, in response to a specific question from the Tribunal about his arrangements to make those promised payments, indicated he maintains his view that he has no liability to do so.
[8] Ibid s 72I(1)(b).
The history of the accumulation and continuation of the arrears of child support payment, Mr Ezekiel-Hart’s failure to raise these issues with the Child Support Registrar, or to accept the response of the Registrar when he does so, his irregular payments of support outside agency processes, his concealment of the fact that he had enrolled in a course overseas which he intends to attend, all mean that the Tribunal cannot be satisfied that his liability will be discharged and in a timely manner.
Nor is the Tribunal satisfied that the liability is completely irrecoverable. Mr Ezekiel-Hart is a sole trader, he has managed to make several overseas trips during the period when he had an accumulating child support debt, the evidence establishes that he has a taxation liability which indicates he is capable of earning, and since October 2012 he has made additional payments of over $2000.00 towards meeting the arrears. All these facts indicate he has sources of funds. That means there is no evidence that the arrears are completely irrecoverable.[9]
[9] Child Support (Registration and Collection) Act 1988 (Cth) s 72I(1)(c).
Finally, when the Tribunal asked Mr Ezekiel-Hart were there any factors which made it desirable for the Tribunal to revoke the order,[10] Mr Ezekiel-Hart’s response was to reiterate that he had fulfilled his duty towards his children, that he had been making non-agency payments towards diminution of the debt, he had continued to make his regular payments up to December 2014, he continued to dispute the amount of the arrears, and his record indicates he is interested in the welfare and improvement of his children.
[10] Ibid s 72I(3).
The Tribunal notes that despite Mr Ezekiel-Hart’s avowal of interest in the welfare and improvement of his children he has chosen to attend a course which will keep him outside Australia for another twelve months and presumably limit the opportunities for him to see, much less assist, in any practical sense with the welfare and improvement of his children. In addition, he continues to dispute amounts of arrears of payments of child support for his children.
A consequence of that dispute is that there are considerable arrears of payments which could have been, but are not, available for their welfare and improvement. He has consistently denied his liability to make those payments even after unsuccessfully seeking review of the amounts. His refusal to accept the rulings, while not being willing to seek further review by a court, indicate that it is unlikely in the foreseeable future that he will repay the amounts owed. In these circumstances, the Tribunal is not able to find that it is desirable to revoke the departure prohibition order.
Accordingly the Tribunal finds that Mr Ezekiel-Hart’s application for a variation or revocation of his departure prohibition order was not sustained. The Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .........................[sgd]...............................................
Associate: Sarah Wardell
28 August 2014
Date of hearing 31 July 2014 Applicant In person Advocate for the Respondent Hannelore Schuster Solicitors for the Respondent Department of Human Services