Feras Naboush and Child Support Registrar
[2014] AATA 930
•15 December 2014
[2014] AATA 930
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1060
Re
Feras Naboush
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal The Hon Brian Tamberlin QC, Deputy President
Date 15 December 2014 Place Sydney The decision under review is affirmed.
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The Hon Brian Tamberlin QC, Deputy President
CATCHWORDS
CHILD SUPPORT – departure prohibition order – child support liability not wholly discharged – no satisfactory arrangements for discharge – whether criteria to revoke are satisfied – discretion to revoke – decision under review affirmed
LEGISLATION
Child Support (Registration and Collection) Act 1988; ss72D(1); 72E; 72I; 72K; 116
CASES
Re O’Neill and Child Support Registrar [2010] AATA 545
REASONS FOR DECISION
The Hon Brian Tamberlin QC, Deputy President
15 December 2014
The Applicant seeks review of a decision of 14 February 2014 made by a delegate of the Respondent, the Child Support Registrar, not to revoke a departure prohibition order (DPO) made on 18 January 2008.
The DPO prohibited the Applicant from departing Australia without wholly discharging his child support liability or making satisfactory arrangements for such discharge.
The Applicant has not wholly discharged his child support liability nor did he make any satisfactory arrangements for discharge of such liability.
The DPO is made under s 72D(1) of the Child Support (Registration and Collection) Act 1988 (the Act).
The present application for revocation is made pursuant to s 72I of the Act, which relevantly provides:
(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.
(Emphasis added)
ISSUES
There are two issues to be determined in this matter:
(a)first, whether the Applicant satisfies the criteria in s 72I of the Act so that the DPO must be revoked; and
(b)if not, whether the Tribunal should exercise its discretion under s 72I(3) to revoke the DPO.
Whether criteria to revoke are satisfied
The Applicant currently has a child support liability as defined in s 72E of the Act. That section provides that a person has a child support liability if the person has a registrable maintenance liability in an amount payable under the Act. A registrable maintenance liability is a “child support debt” where the liability remains unpaid in whole or in part.
Under s 116(1) of the Act, the mere production of a document signed by the Registrar purporting to be a copy to be the entry in the Child Support Register (the Register) in relation to a registrable maintenance liability is prima facie evidence that the liability is a registrable maintenance liability and the liability is duly registered under the Act. It further provides evidence that the particulars of the entry in the Register in relation to the liability as set out in the document and all of those particulars are correct. Subsection (2) provides that the mere production of a certificate in writing signed by the Registrar certifying that the amount specified in the certificate was on the date of the certificate due and payable, is prima facie evidence that the matter stated in the certificate. Being prima facie evidence, the evidence can be rebutted upon satisfactory evidence to the contrary being produced.
The Respondent has tendered a certificate under s 116(2) of the Act certifying that the amount of $6,344.78 is due and payable by the Applicant in relation to registered maintenance liabilities in respect of a child support debt. This amount remains unpaid as at 21 October 2014. . This amount includes penalties.
The Applicant does not dispute that he has not made any payments satisfactory to the Respondent. Nor does he contend that any moneys have been paid since the date of the s 116 certificate.
The Applicant refers to an income tax assessment and to some documents provided by the Respondent. He states that the amount has been calculated on a false basis and that there is no money whatsoever owing by him. I am satisfied, having regard to the provisions of s 116, and the absence of any credible evidence to the contrary, that there is a substantial amount presently owing in respect of registered maintenance liabilities in respect of a child support debt. It has not been shown on the evidence that the Applicant no longer has a child support liability.
I am also satisfied that no arrangements satisfactory to the Registrar have been made for discharge. I am not satisfied on the evidence that the amount owing is completely irrecoverable.
The word “completely” presents a high threshold to be satisfied. The evidence does not rise to this level. The Applicant has not produced any credible or supporting evidence that carries any weight in relation to the debt being completely irrecoverable. Rather he claims that over the past 10 or so years he has not received any income or had any financial support, assets or income. However, he concedes he has been receiving financial support from family members and friends but has not worked a single day despite his failure to give evidence of any incapacity which could prevent him from earning income. He states he is in good health, physically and mentally, and claims that he has never made any attempt to claim income support from any government. Indeed, he has never made any attempt to find work. He asserts that he has never been in any remunerative employment in his lifetime. He is now over 40 years of age. His family provides him with accommodation from time to time, buys him clothing, and provides him with food and all his other needs.
There is no corroboration as to the precise detail or level of support in the evidence before the Tribunal. His assertions were made in generalised and vague terms. I am not satisfied that the Applicant will not be able to obtain work sometime in the future or that he is incapable of obtaining financial assistance in some form so that he can meet at least part of his child support debt. He has made no attempt to discharge any part of the debt.
Therefore, on the evidence before me, I cannot be satisfied that the debt is completely irrecoverable. The word ‘irrecoverable’ is a word of wide import, and this width is expanded by the use of the word ‘completely.’ Whilst ever there is some reasonable prospect of recovering money from the Applicant, the DPO should not be revoked. The Applicant contends that because no moneys have been recovered in the past decade or so in respect of child support this demonstrates the debt is ‘completely irrecoverable’. I do not agree. There is no reason the Applicant cannot have recourse to income support. Nor is there any reason, having regard to his physical and mental condition, which satisfactorily explains why he has not attempted to find work. He has an income earning capacity in my view and there is a real possibility of the Applicant having or receiving some form of finance out of which he would be able to pay some child support.
The Applicant contends that the Tribunal should examine the assessment of the amount of child support owed and find that he does not have any liability. However, the legislative framework does not contemplate that a decision maker will embark on an investigation of the correctness of the assessment that has been made for the purpose of determining liability. I agree with the observations of Senior Member Bean (as she then was) in Re O’Neill and Child Support Registrar [2010] AATA 545 at [16], that it is not open to a decision-maker in an application to revoke “to look behind the assessment to determine whether a person has a child support liability for the purpose of these provisions”.
Discretion to revoke
The second issue is whether the discretion should be exercised to revoke the DPO.
In exercising this discretion it is important to examine the principal objects of the Act; that is, to ensure that children receive financial support that parents are liable to provide and that periodic payments are made by parents towards the maintenance of their children on a regular and timely basis. In the present case the conduct of the Applicant is contrary to both of these objectives. On the evidence, he has a substantial child support liability in excess of $6,000 in respect of which no attempts have been made to make any payment. As noted above, I do not consider the liability has become irrecoverable. The Applicant concedes that he has no travel plans at the present time, so that he cannot rely on the nature and purpose of any proposed travel or the likely impact of that travel on the non-revocation. In the interests of enforcing payment of the child support debt, I must bear in mind that once an Applicant is outside of the jurisdiction of Australia it may become difficult if not impossible to recover the debt.
I note that there is express provision in the Act for a person to make an application for a departure authorisation certificate under s 72K. This has not been explored by the Applicant and I have taken this alternative into account. The provisions relating to departure authorisation certificates require the Registrar to be satisfied that it is likely the person will depart from and return to Australia within an appropriate period. The availability of this alternative, in my view, is relevant to the assessment as to whether the DPO should be revoked.
In these circumstances, I consider the DPO provides some incentive for the Applicant to meet the debt, or take necessary steps to resolve any dispute in relation to it. Revocation would not further the objects of the Act.
DECISION
In all the circumstances, including the persistent failure to make any child support payments and the way in which the Applicant appears to have arranged his financial affairs, I consider the correct and preferable decision is that the DPO should not be revoked and the decision under review should be affirmed.
22. I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of The Hon Mr Brian Tamberlin QC, Deputy President.
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Associate
Dated 15 December 2014
Date of hearing 24 November 2014 Applicant In person Solicitors for the Respondent Department of Human Services
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