Hall and Child Support Registrar (Child support)
[2019] AATA 115
•11 February 2019
Hall and Child Support Registrar (Child support) [2019] AATA 115 (11 February 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5601
Re:Gary Hall
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Member R West
Date:11 February 2019
Place:Melbourne
The Tribunal affirms the decision of the Child Support Registrar of 4 September 2017 to refuse to revoke a departure prohibition order against the Applicant made under s 72D of the Child Support (Registration and Collection) Act 1988 on 1 June 2016.
[sgd]........................................................................
Member R West
Catchwords
Child Support Liability – departure prohibition order – revocation – decision affirmed
Legislation
Child Support (Registration and Collection) Act 1988
Child Support (Assessment) Act 1989
Cases
O’Neill and Child Support Registrar [2010] AATA 237
O’Neill and Child Support Registrar [2010] AATA 545
Whittaker v Child Support Registrar [2010] FCA 43
Onder and Child Support Registrar and Sari (No.2)(2011) FLR 345
REASONS FOR DECISION
Member R West
11 February 2019
This is an application under s 72T(1) of the Child Support (Registration and Collection) Act 1988 (the Act). The Applicant seeks a review of the decision of the Child Support Registrar (the Registrar) of 4 September 2017 to refuse to revoke a departure prohibition order (DPO) made under s 72D of the Act on 1 June 2016 which prohibited the departure of the Applicant from Australia.
The Tribunal conducted a hearing of the application on 21 November 2018. The Applicant was represented by his partner, Ms Lena Hall, and the Respondent by Ms Belinda Lewis, a solicitor from the Department of Human Services. The Respondent lodged a copy of all the material documents in compliance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
In reviewing the Registrar’s decision, the Tribunal stands in the shoes of the Registrar under s 72T of the Act. There are two relevant provisions of s 72I under which the Registrar may revoke a DPO.
Under s 72I(1) the Registrar must revoke a DPO in respect of a person if any one of the three following conditions are satisfied:
a.the person no longer has a child support liability or carer liability; or
b.the person has a child support 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 or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.
The Respondent tendered in evidence a certificate issued under s 116(2) of the Act[1] certifying that at 5 October 2018 the Applicant had a child support debt of $25,968.11 and penalties of $2,514.83. The Applicant conceded that this represented his current child support liability but indicated that he intended to dispute the calculation of the liability in pending court proceedings. The Applicant conceded that he had made no arrangements with the Registrar to discharge the liability and accepted that the liability was not completely irrecoverable. In light of these concessions I am satisfied that none of the conditions specified in s 72I(1) are met. Accordingly, I am not required by that section to revoke the Applicant’s DPO.
[1] See T documents – ST 1 at page 58
Under s 72I(3) the Registrar has a discretion to revoke or vary a DPO in respect of a person if the Registrar considers it desirable to do so.
The Applicant submitted that the Tribunal should revoke his DPO under s 72I(3) for three reasons:
a.maintenance of the DPO is unlawful due to an error of fact made in the decision which assessed the debt;
b.the continuation of the DPO does not serve any purpose and further damages the relationship between the Applicant and the Respondent; and
c.the DPO is an unwarranted interference with the Applicant’s freedom of movement.
The Tribunal’s jurisdiction under s 72T is relevantly limited to a review of the Registrar’s decision under s 72I; that is, the refusal to revoke the Applicant’s DPO. Its jurisdiction does not extend to a review of the initial decision to impose the DPO;[2] nor does s 72T empower the Tribunal to review the basis for the assessment of the Applicant’s liability.[3] As matters stand at the time of this decision, I accept the lawfulness of the s 116(2) assessment and I reject the first ground relied on by the Applicant.
[2] See O’Neill and Child Support Registrar [2010] AATA 237 at [20]
[3] It is clear from s 72E that matters of assessment are intended to be dealt with under the Child Support (Assessment) Act 1989 and any challenges to assessments made are to be pursued through the avenues provided in that Act. The intention of s 72E is to “deem” a registrable maintenance liability which is a child support debt to be a “child support liability”, for the purposes of s 72D and s 72I. This in turn has the further effect that it is not open to a decision-maker, including this Tribunal, to “look behind” such an assessment in order to determine whether a person has a “child support liability” for the purposes of those provisions.
The Applicant submitted that the continuation of the DPO does not improve the likelihood of the respondent recovering the child support debt. He argued firstly that his failure to pay is because he challenges the calculation of the debt and it is not the result of him avoiding his responsibilities. Secondly, he said that his family ties to Australia and the evidence of his travel history strongly indicate that he is not a flight risk. He gave evidence that his previous overseas trips had all been holidays of short duration.
The Applicant provided evidence that the DPO had prevented him from taking a cruise given to him as a wedding present and from attending a close friend’s pre-wedding trip to England.
The Applicant said that he has no immediate and definite plans to travel overseas but wishes to travel at some stage with his wife and their children to her former home in Eastern Europe to visit relatives. He stated that the special needs of his stepdaughter and the challenging behaviour of his two sons made it impossible for his wife to make the trip without his assistance. When questioned about this assertion, the Applicant’s wife, who represented the Applicant at the hearing, conceded that she could make alternative arrangements to travel herself and to take at least one of the children with her.
On the evidence presented to the Tribunal, I am not satisfied that the continuation of the DPO is likely to cause more than inconvenience for the Applicant’s family members.
While I accept that the Applicant would be likely to return to Australia within a reasonable time if he were to undertake the travel he has in contemplation, the lack of any definite travel proposal makes it unclear what effect the revocation of the DPO would have on the capacity of the Registrar to recover the debt. It is difficult to be satisfied that it is desirable to revoke the DPO if the consequences of that decision are not clear.
The Respondent relied on s 72K of the Act which allows a person subject to a DPO to apply for a departure authorisation certificate (DAC) in respect of any particular instance of proposed travel. I give little weight to this option. Under s 72L of the Act, the conditions for the issue of a DAC are very restrictive. They require, in effect, that the conditions for the revocation of the DPO are imminent or that the Applicant has given security under s 72M of the Act. It seems unlikely that either option would be available to the Applicant given his current circumstances.
The Registrar’s discretion under s 72I(3) of the Act, while a broad discretion, must be exercised having regard to the purpose and objects of the Act. Two of the principal objects of the Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and to ensure that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis. Having regard to the scheme of the Act, it seems to me that the imposition of a DPO is designed to serve two purposes.[4] Firstly, to prevent recovery being frustrated by the person who owes a child support debt leaving the country. Secondly, as part of a suite of enforcement mechanisms available under the Act, to provide an incentive for the person to meet their child support obligations.[5]
[4] See Whittaker v Child Support Registrar [2010] FCA 43 at [6] and Onder and Child Support Registrar and Sari (No.2)(2011) 250 FLR 345
[5] These mechanisms include deductions from wages, collection from third parties, deduction from social security payments, late penalties and recovery proceedings in court.
While I am mindful of the effect of the DPO on the Applicant’s family members, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the Applicant himself.[6]
[6] O’Neill and Child Support Registrar [2010] AATA 545 at [24]
In exercising my discretion under s 72I(3) I have regard to the Applicant’s circumstances at the time of my decision. The Applicant has a significant child support liability being $28,482.94 including penalties. He has made no arrangements to discharge this liability nor has he any current intention to do so. He has elected to challenge the assessment in the Federal Circuit Court of Australia. He may or may not have the liability varied or revoked as a result of those proceedings. The Tribunal is not in a position to assess the likely outcome of those proceedings. In the interim, the DPO provides an ongoing incentive for the Applicant to resolve the issue of his outstanding child support debt one way or another and in that respect it accords with the overall objective of the Act. I am not satisfied that it is desirable to revoke the DPO.
Accordingly, I affirm the decision under review.
I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Member R West
[sgd]........................................................................
Associate
Dated: 11 February 2019
Date(s) of hearing: 21 November 2018 Advocate for the Applicant: Ms Lena Hall Advocate for the Respondent: Ms Belinda Lewis Solicitors for the Respondent: Department of Human Services
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