Hailu and Child Support Registrar (Child support second review)
[2019] AATA 982
•30 April 2019
Hailu and Child Support Registrar (Child support second review) [2019] AATA 982 (30 April 2019)
Division:GENERAL DIVISION
File Number: 2018/6788
Re:Mulugeta Hailu
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Ms Anna Burke AO, Member
Date:30 April 2019
Date of written reasons: 23 May 2019
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Ms Anna Burke AO, Member
Catchwords
CHILD SUPPORT – Departure Prohibition Order (“DPO”) – no grounds requiring revocation of DPO – no grounds for exercising discretion to revoke DPO – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Child Support (Registration and Collection) Act 1988
Cases
O'Neill and Child Support Registrar [2010] AATA 545
Secondary Materials
Australian Government, Child Support Guide, Version 4.38 (4 February 2019)
REASONS FOR DECISION
Ms Anna Burke AO, Member
23 May 2019
INTRODUCTION
On 22 October 2018 the Child Support Registrar (Registrar) made a decision to refuse to revoke the Departure Prohibition Order (DPO) against Mr Hailu under s 72I of the Child Support (Registration and Collection) Act 1988 (Collection Act). Mr Hailu is seeking a review of this decision.
The application was heard on 30 April 2019. Mr Hailu was self-represented. Mr Adam Cunynghame of Sparke Helmore Lawyers appeared for the respondent. The Tribunal was assisted by the services of an Amharic interpreter.
The Tribunal provided an oral decision at the conclusion of the hearing, affirming the decision under review. Mr Hailu subsequently requested written reasons for the decision in accordance with s 43(2A) of the Administrative Appeals Tribunal Act 1975. These are those reasons.
BACKGROUND
Mr Hailu is a 56-year-old Australian citizen, originally from Ethiopia, who is self-employed as a taxi driver. Mr Hailu is divorced and has three children, for whom he has a child support liability which will end in 2024 when his youngest child turns 18. Mr Hailu’s ex-partner had requested the Registrar calculate and collect child support in respect of their three children on her behalf.
On 3 September 2018 a delegate of the Registrar issued Mr Hailu a DPO under s 72D of the Collection Act. In the submission to make the DPO the delegate noted that:
·Mr Hailu’s monthly liability is $35;
·since September 2011 collection arrangements from Mr Hailu have strictly been by way of enforcement; and payments have only been received via withholding of Centrelink payments that Mr Hailu has intermittently received;
·Mr Hailu has been in arrears since 7 November 2013;
·the Child Support Agency’s (the Agency) last contact with Mr Hailu was 23 October 2017, when he advised that he did not agree with the arrears and did not offer to make any payments;
·in February 2018 Mr Hailu’s ex-partner confirmed she would like the Agency to continue to seek outstanding arrears. At that stage Mr Hailu had an outstanding child support liability of $10,141.83;
·the last child support collection was on 6 June 2018 via a Centrelink deduction of $49.11;
·on 23 February 2018 Mr Hailu listed his occupation on an incoming passenger card as self-employed; and
·Mr Hailu has travelled overseas three times between January 2016 and February 2018 for periods of up to six months.
On 20 October 2018 the delegate of the Registrar determined that the DPO should not be revoked and, in addition to the information noted above, noted that Mr Hailu had transferred $11,334 overseas between April 2015 and August 2018.
THE ISSUES IN CONTENTION
The issue in contention is whether Mr Hailu’s DPO should be revoked in accordance with the Collection Act.
RELEVANT LEGISLATION
Section 72D of the Collection Act gives the Registrar the power to make a DPO. The Child Support Guide explains:
A DPO prevents a person who has persistently failed to meet their child support liability commitments, or carer liability commitments, from leaving Australia without either discharging all debts or making satisfactory arrangements to do so. A DPO places significant restrictions on the freedom of movement of citizens and residents of Australia and visitors to Australia, and will not be made without consideration of all relevant circumstances Where a DPO is in force, the Registrar can vary or revoke the DPO, or can issue a departure authorisation certificate (DAC).
Section 3 of the Collection Act states that the principal objects of the 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.
(2) It 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.
Section 72I(1) of the Collection Act provides that the Registrar must revoke a DPO in respect of a person if:
(a) the person no longer has a child support liability or carer liability; or
(b) the person has a child support liability or carer 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 or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.
Section 72I(3) of the Collection Act provides that the Registrar may also revoke a DPO at their own discretion:
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.
CONSIDERATION
The respondent tendered in evidence a certificate issued under s 116(2) of the Collection Act certifying that at 29 April 2019 Mr Hailu had a child support debt of $10,190.01 and penalties of $3,373.18.
Person no longer has a child support liability
Mr Hailu disputes the calculation of the liability, arguing that he has submitted tax returns which have not been taken into account in the calculation of his child support liability. As the Tribunal explained to Mr Hailu at numerous stages, the Tribunal did not have jurisdiction to reconsider the liability. However, it was open to Mr Hailu to challenge the amount in dispute by seeking a change of assessment or by applying to the Federal Court of Australia. Mr Hailu advised the Tribunal that he had not sought a review of his liability.
The Tribunal's jurisdiction under s 72T of the Collection Act is relevantly limited to a review of the Registrar's decision under s 72I; that is, the refusal to revoke Mr Hailu's DPO. The Tribunal’s jurisdiction does not extend to a review of the initial decision to impose the DPO. Nor does s 72T of the Collection Act empower the Tribunal to review the basis for the assessment of Mr Hailu's liability. Therefore, the Tribunal accepts the assessment under s 116(2) of the Collection Act as a valid assessment. As such, Mr Hailu has a child support liability and cannot fulfil s 72l(1)(a) of the Collection Act for his DPO to be revoked.
The person has made arrangements to satisfy the Registrar the liability has been made or will be wholly discharged
Mr Hailu argued that he had sought to make arrangements with the Registrar to discharge the liability and had made voluntary payments of $105 on 16 October 2018 and $106.80 on 15 January 2019. Mr Hailu told the Tribunal: “What I want today is to be able to travel. If this is resolved we can negotiate how much I need to pay each month. I will make a promise to pay. I just want to be a free man and I will pay how much I can afford.”
The respondent argued that given the size of the debt, it will take Mr Hailu 13 years to discharge the debt at the amount of $100-$150 a month. The respondent pointed to Mr Hailu’s lengthy history of failing to pay child support and that payments have only been received via garnisheeing Mr Hailu’s Centrelink benefits as evidence that Mr Hailu had not entered into a repayment arrangement which was satisfactory to the Registrar.
The Tribunal found that Mr Hailu had not entered into a satisfactory arrangement to discharge his child support liability; and therefore he did not fulfil the requirements of s 72l(1)(b) of the Collection Act for his DPO to be revoked.
The registrar is satisfied that the liability is completely irrecoverable
Mr Hailu argued that he did not have the capacity to pay the debt as he was suffering from significant health issues including high blood pressure, cholesterol issues and depression. Furthermore, he only worked casually because of his health. He was not in receipt of any Centrelink benefits and he relied upon his extended family for financial support. While he owned and drove a taxi, this did not derive significant income and had acquired a taxi licenses as they were now very cheap.
Mr Hailu told the Tribunal that he had received a government house 10 months ago. While this had greatly reduced his rental burden, prior to that he had paid significant amounts of rent and was repaying debts to his family in Australia and overseas.
Mr Hailu told the Tribunal he travelled to Ethiopia frequently so that he could receive traditional medicines which he believed were of significant benefit to his health. He particularly wanted to take the holy water from a church in Ethiopia and that this was not available in Australia as it comes from the ground and is naturally hot. He explained that when he is in Ethiopia he stays with family and friends and does not pay for anything and when he returns to Australia he transfers money overseas as repayment.
The respondent contended that Mr Hailu had the capacity to repay the debt and it was not completely irrecoverable as he was the owner and operator of a taxi, had travelled overseas on numerous occasions, had transferred significant sums of money overseas, and had recently made voluntary repayments to child support.
The Tribunal found that Mr Hailu’s debt was not completely irrecoverable as he had the capacity to repay and therefore did not fulfil the requirements of s 72l(1)(c) of the Collection Act for his DPO to be revoked.
Discretion to revoke the DPO
Mr Hailu argued that the Tribunal (standing in the shoes of the Registrar) should use its discretion to revoke his DPO, maintaining that he was very happy to pay the money as he understood that the money was for his children even though he disagreed with the debt. He advised the Tribunal he was happy to pay the money once he could afford to, claiming he would pay $300 to $400 every month, which would pay off the debt in two to three years. He advised the Tribunal that he would save by not eating food.
Mr Hailu emphasised to the Tribunal that it needed to consider the health implications the DPO was having. The stress it was causing him was very serious and his health was already extremely bad. He argued he needed to travel to Ethiopia regularly so that he could partake in traditional medicine and that as a free man he should not be prohibited from travelling.
Mr Hailu advised the Tribunal that he had previously been subject to a DPO in 2011 and this had been resolved. Mr Hailu was aware that he could apply for a Departure Authorisation Certificate (DAC); but it was not clear to the Tribunal if he had done so unsuccessfully or had not attempted as he had believed he would be unsuccessful.
On the day of the hearing Mr Hailu provided the Tribunal with medical records from several years ago which indicated he had been involved in a major car accident which had left him with significant health issues.
Mr Hailu advised the Tribunal that he is receiving ongoing medical treatment in Australia. Mr Hailu did not furnish any current medical evidence of his need to travel to Ethiopia.
The respondent argued that it was well established that the Registrar must exercise his discretion to revoke a DPO according to the principal objectives of the Collections Act, to ensure children receive the financial support that their parents are liable to provide and that it is regularly paid on time.
The respondent took the Tribunal to the matter of O'Neill and Child Support Registrar [2010] AATA 545 where Senior Member Bean decided that:
Whilst on its face s 72I(3) appears to confer quite a wide discretion, I consider that it must nevertheless be construed in context, having regard to the whole of s 72D and s 72I. In my view, having regard to the terms of both provisions, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the person the subject of the DPO. In particular, the current amount of their child support liability, the arrangements the person has made for payment of their child support liability, the extent to which the liability has become irrecoverable, the nature and purpose of the proposed travel and the likely impact of that travel on the capacity of the Registrar to recover the debt. I also consider that the statutory framework contemplates regard being had to the fact that a person subject to a DPO may apply for a DAC in respect of any particular instance of proposed travel.
The respondent argued that the Tribunal should not exercise its discretion to revoke the DPO as Mr Hailu owed a significant debt; he had not entered into a satisfactory payment arrangement; he frequently travelled overseas and may leave the Australian jurisdiction making it difficult or impossible to recover the debt; currently had no pressing reason for travel; and could apply for a DCA at any stage if he urgently required to travel overseas.
The Tribunal concurred with the reasoning of Senior Member Bean. Whilst on its face s 72I(3) of the Collection Act appears to confer quite a wide discretion, it must nevertheless be construed in accordance with the principles of the Collection Act, taking into account the various factors the Senior Member outlined.
The Tribunal found that Mr Hailu’s children are not receiving financial support from their father, as evidenced by his significant debt and long history of failure to pay off his child support liability.
The Tribunal found that there was no basis on which to exercise its discretion to revoke the DPO as Mr Hailu has a significant, long-standing child support debt and ongoing liability, has not entered a reasonable repayment plan, and has the capacity to pay.
Additionally, the Tribunal did not find there was evidence to exercise its discretion to revoke the DPO to allow Mr Hailu to travel to seek traditional treatment for his numerous health issues. Whilst the Tribunal accepted Mr Hailu has significant health issues it did not find that Mr Hailu needed to travel to Ethiopia to access appropriate medicinal care. The Tribunal noted that Mr Hailu is currently accessing and receiving treatment for his health issues through Australia’s health system.
The Tribunal also noted that the statutory framework allows an individual subject to a DPO, such as Mr Hailu, to apply for a DAC in respect of any particular instance of proposed travel; and he could seek a DAC at any time.
The Tribunal, having considered all the evidence placed before it, found that Mr Hailu did not meet the requirements of s 72l of the Collection Act for the DPO to be revoked; nor was his situation such that it was desirable for the Tribunal to exercise its discretion to revoke the DPO.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the written reasons for the decision herein of Ms Anna Burke AO, Member
[sgd]........................................................................
Associate
Dated: 23 May 2019
Date of hearing:
30 April 2019
Applicant:
In person
Advocate for the Respondent:
Mr Adam Cunynghame
Solicitors for the Respondent:
Sparke Helmore Lawyers
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