Hyde v Child Support Registrar - [2016] FCCA 3006

FEDERAL CIRCUIT COURT OF AUSTRALIA

HYDE v CHILD SUPPORT REGISTRAR

[2016] FCCA 3006

Catchwords:
CHILD SUPPORT – Appeal against making of departure prohibition order – jurisdiction to make administrative orders – alleged denial of procedural fairness – whether an obligation to afford procedural fairness when issuing a departure prohibition order – consideration of relevant issues – was there a child support liability – whether delegate satisfied as to statutory criteria at time of decision – whether delegate held requisite belief at time of decision - whether reasonable grounds for delegate to be satisfied and to hold requisite belief at time of decision.

COURTS AND JUDGES – Jurisdiction – whether jurisdiction to make administrative orders on an appeal against making of departure prohibition order.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), Part VA, ss.15(1), 17, 72D, 72E, 72I, 72Q, 72R, 72S, 116(2)

Albaugh & Child Support Registrar [2007] FMCAfam 1106
Edelsten v Federal Commissioner of Taxation (1989) 20 ATR 238; (1989) 85 ALR 226; (1989) 89 ATC 4120
Hyde & Hyde [2014] FCWAM 261
Jones v Child Support Registrar [2007] FCA 1732
Onder v Child Support Registrar & Anor (No.2)[2011] FMCAfam 430; (2011) 250 FLR 345; (2011) 45 Fam LR 577
Russo & Child Support Registrar [2009] FMCAfam 437
T v Commissioner of Taxation (Cth) (1986) 18 ATR 1; (1986) 86 ATC 4894
Whittaker & Anor v Child Support Registrar & Anor [2010] FCA 43; (2010) 264 ALR 473; (2010) FLC 98-049
Williams v Child Support Registrar [2009] FMCA 481; (2009) 109 ALD 343

Applicant:

MR HYDE

Respondent:

CHILD SUPPORT REGISTRAR

File Number:

PEG 32 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

19 March 2014

Date of Last Submission:

19 March 2014

Delivered at:

Perth

Delivered on:

25 November 2016

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms A Ladhams

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the applicant’s Notice of Appeal (Child Support) filed 6 February 2014 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hyde v Child Support Registrar is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 32 of 2014

MR HYDE

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Hyde (“Mr Hyde”), appeals by Notice of Appeal (Child Support) filed on 6 February 2014 (“Appeal” and “Notice of Appeal” respectively), against a decision of the respondent, the Child Support Registrar (“Registrar”) made on 13 November 2013, being a decision pursuant to s.72D of the Child Support (Registration & Collection) Act 1988 (Cth) (“Registration & Collection Act”) to issue a departure prohibition order (“DPO”) to prevent Mr Hyde from travelling outside of Australia.
The Appeal is made under s.72Q of the Registration & Collection Act, which allows a person aggrieved by the making of a DPO to appeal to this Court against the making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 3006
Decision Date: 25 November 2016

CaseChat Overview and Summary

Hyde (the applicant) appealed to the Federal Circuit Court against the making of a departure prohibition order by the Child Support Registrar. The core of the dispute concerned the Registrar's jurisdiction to make such an order and whether the applicant had been denied procedural fairness in the process.

The court was required to determine several key legal issues. These included whether the Registrar had the jurisdiction to make administrative orders in the context of an appeal against a departure prohibition order, whether the applicant was entitled to procedural fairness before the order was issued, and whether the delegate who made the decision was satisfied as to the statutory criteria and held the requisite belief at the time of the decision. The court also considered whether there were reasonable grounds for the delegate to be satisfied and to hold that belief.

Judge Lucev reasoned that the Registrar's delegate was satisfied that the applicant had a child support liability and that the applicant had not paid the amount due. The delegate was also satisfied that the applicant had been given notice of the intention to make a departure prohibition order and had been given an opportunity to respond, thereby affording procedural fairness. The court found that the delegate held the requisite belief that the applicant had failed to pay the amount due and that there were reasonable grounds for this belief, as the applicant had not provided any evidence to the contrary.

Consequently, the applicant's Notice of Appeal was dismissed.

Orders

Orders of the court

That the applicant’s Notice of Appeal (Child Support) filed 6 February 2014 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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