John Varley and Child Support Registrar
[2014] AATA 517
•29 July 2014
[2014] AATA 517
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1796
Re
John Varley
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 29 July 2014 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
CHILD SUPPORT – Deportation Prohibition Order (“DPO”) – No grounds requiring revocation of DPO – No grounds for exercising discretion to revoke DPO – Objects of the Child Support (Registration and Collection) Act 1988 (Cth) – Use of the Child Support Guide – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Child Support (Registration and Collection) Act 1988 (Cth) ss 3, 72E, 72I, 72K
CASES
O’Neill and Child Support Registrar [2010] AATA 545
Onder & Child Support Registrar and Sari No 2 [2011] FMCAfam 430
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Whittaker and Child Support Registrar [2010] FCA 43
SECONDARY MATERIALS
Child Support Guide, Australian Government
REASONS FOR DECISION
Mr R G Kenny, Senior Member
29 July 2014
BACKGROUND
The following facts are not in dispute. John Varley (“the applicant”) is the father of two children born in 1997 and 1999, respectively. The children live with their mother. Pursuant to the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”), a child support assessment was registered in September 2000 and the parents entered into a child support agreement in November 2000 under which the applicant’s child support liability was to be determined thereafter. The agreement was set aside by the
Family Court of Australia for the period from 11 March 2003 until 31 August 2006 after which liability continued under the agreement in the amount of $919.92 per fortnight. On 14 May 2010, a Departure Prohibition Order (“DPO”) was issued against the applicant because of his child support liability which, at that time, was in the amount of $116,057.67. On 19 March 2014, the applicant applied to the Child Support Registrar (“CSR”) (“the respondent”) to have the DPO revoked. On 1 April 2014, his claim was rejected. The matter is to be determined by the Tribunal in the absence of the parties without a formal hearing.[1]
[1] In accordance with s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUE AND LEGISLATION
The Objects of the Act are set out in s 3 thereof and read:
3 Objects of Act
(1) The principal objects of this 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.
Provision is made for revocation of a DPO in s 72I of the Act which, in so far as relevant, reads:
72I Revocation and variation of departure prohibition orders
(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.
The respondent has published the Child Support Guide (“the Guide”) to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[2] Matters relating to DPOs are set out in Chapter 5.2.11 of the Guide. For the revocation of a DPO, it reads:
[2] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.
Revoking a DPO
Once a DPO is made, the Registrar must revoke it in certain circumstances and may revoke or vary it in other circumstances (section 72I). The Registrar can revoke or vary a DPO in response to representations made by the child support debtor or because of the Registrar becoming aware of new information.
When the Registrar must revoke a DPO
The Registrar must revoke a DPO when both of the following two tests are satisfied.
The first test has two alternative parts. Either
·the child support liability has been wholly discharged or that satisfactory arrangements have been made to discharge the debt
OR
·the Registrar is satisfied that the child support liability is completely irrecoverable.
(If either of these conditions is present, the first test is satisfied.)
AND
The second test applies to future child support liability and also has two alternative parts. Either
·the Registrar is satisfied that any child support liability to which the person may become subject to in respect of matters that have already occurred will be wholly discharged or that satisfactory arrangements will be made to discharge those liabilities
OR
·the Registrar is satisfied that any such child support liability will be completely irrecoverable.
(If either of these conditions is present, the second test is satisfied.)
Wholly discharged
A debt is wholly discharged when no part of it remains owing. A child support debt can be wholly discharged either by payment of the debt or by an administrative or judicial process that decreases the amount of the debt. Where either or both of these processes result in no part of the debt remaining payable, the debt is wholly discharged. A debt treated as uneconomic to pursue is not wholly discharged.
Satisfactory arrangements
Those arrangements that lead the Registrar to be satisfied that the debt will be wholly discharged are satisfactory arrangements. A common sense approach is required to determine whether arrangements are satisfactory in each case. A payment arrangement that effectively requires the presence of the debtor in Australia to function is not a satisfactory arrangement. Where the debtor has sold property and needs to leave Australia before settlement occurs, a section 72A notice in relation to the known proceeds would be a satisfactory arrangement.
Completely irrecoverable
A debt will be regarded as completely irrecoverable when there is no prospect that the debtor will be able to make any payment towards it.
When the Registrar may revoke a DPO
Even where the tests outlined above are not satisfied, the Registrar has discretion to revoke a DPO where the Registrar considers it desirable to do so. The Registrar will exercise this discretion in a way that supports the objects of the Acts.
Varying a DPO
The Registrar also has discretion to vary a DPO. The Registrar will only vary a DPO to correct errors on the face of the order.
The Registrar will not use the discretion to vary a DPO to allow the departure from Australia of a child support debtor. Where the Registrar is satisfied that it is appropriate and necessary for a debtor to depart Australia, for a defined period, the Registrar will either revoke the DPO or issue a DAC.[3]
[3] The Guide refers to the prospect of the applicant seeking a Departure Authorization Certificate.
The issue for determination is whether the applicant’s DPO should be revoked under
s 72I(1) or (3) of the Act.
SUBMISSIONS
The applicant
In attachments to a letter, dated 6 June 2014, from the applicant, he described a history of financial setbacks from 2000 onwards involving property disputes, including court proceedings, that he had with the children’s mother and also in business generally. These meant that, while he could afford to meet his child support liabilities in the past, he was no longer able to do so. One such attachment was a Child Support Statement indicating that the total amount of the applicant’s child support liability, as at 4 June 2014, was $155,632.33. The applicant is no longer in work, has no savings and is in poor health. His only income is what he receives by way of his benefits under Australian and British Government social security legislation which totalled $31,195 and $30,694 in the tax years ending 30 June 2012 and 30 June 2013, respectively. From this, the CSR deducted $1,192.62 per year towards his child support liability. The applicant submitted that, at that rate of payment, it would not be possible for the liability to be met completely in his lifetime. Therefore, he submitted, the liability is irrecoverable and this was sufficient for the DPO to be revoked.
The applicant referred to a letter, dated 27 October 2012 from the Child Support Agency (“CSA”), in which it is stated:
Your case is currently registered as private collect. This means that you are to make payments directly to [the children’s mother].
He submitted that, because his liability was registered in that way, there was no jurisdiction for the CSA to issue him with a DPO. He submitted that the only reason that the CSR is involved in the enforcement of the agreement is that he has no idea of the whereabouts of the children and their mother.
The applicant also submitted that punitive measures were being applied to him by the CSA and that it was not the purpose of the Act to punish liable parents.
The respondent
For the respondent, Mr Christopher Bishop completed a statement of facts, issues and contentions dated 30 June 2014. Therein, he submitted that the applicant has a child support liability under s 72I(1)(a) of the Act for which no arrangements have been made for this to be wholly discharged in accordance with s 72I(1)(b) of the Act. He also submitted that, as deductions were made each fortnight from the applicant’s social security payments, and because he has an annual income in the order of $30,000, the liability is not completely irrecoverable in accordance with s 72I(1)(c) of the Act.
Mr Bishop also submitted that there should be no exercise of discretion in favour of the applicant, as provided for in s 72I(3) of the Act, because to do so would be inconsistent with the Objects of the Act that children receive from their parents the financial support that the parents are liable to provide.[4]
[4] Citing Onder & Child Support Registrar and Sari No 2 [2011] FMCAfam 430, O’Neill and Child Support Registrar [2010] AATA 545 at [24] and Whittaker and Child Support Registrar [2010] FCA 43 and the Child Support Guide (“the Guide”).
Mr Bishop referred to the respondent’s letter, dated 27 October 2012, in which the applicant was advised that his case is “currently registered as private collect”. He submitted that this was clearly an error but that, in any event, the applicant still had a child support liability and that the Child Support Payment Summary, issued by the CSR on 19 May 2014, makes it clear that the CSR has been involved since 2003 in seeking to enforce the terms of the agreement.
CONSIDERATION
In this matter, I am not dealing with the question of whether or not the DPO should have been made by the CSR.[5] However, I have noted the applicant’s reference to the letter he received from the CSR advising that his child support agreement was registered as a “private collect”. As the agreement has been enforced by the CSR by deducting amounts from the applicant’s fortnightly social security payments, I accept as correct Mr Bishop’s contention that the content of the letter was in error. That is also confirmed by the terms of the Child Support Payment Summary to which he referred and which records accruals of debt through until 2014.
[5] See O’Neill and Child Support Registrar [2010] AATA 545 at [26].
I am satisfied that the applicant has a child support liability.[6] The Statement noted above records the amount as $155,632.33 which comprises a maintenance amount and a late payment penalty amount.[7] The only payments made in recent years by the applicant are through the amounts deducted from his fortnightly social security payments. Currently, this is $45.87.[8] For the purposes of s 72I(1)(b) of the Act, the Guide provides that satisfactory arrangements are those “that lead the Registrar to be satisfied that the debt will be wholly discharged”. I am satisfied that the applicant’s fortnightly payment does not meet that description. I am also satisfied that, under s 72I(1)(c) of the Act, the applicant’s liability is not completely irrecoverable. The Guide provides that a debt will be regarded as completely irrecoverable “when there is no prospect that the debtor will be able to make any payment towards it”. Currently, the applicant is making a payment, albeit a relatively small one in the context of the total debt. Nonetheless, such payment means that the debt is not completely irrecoverable. It follows that the terms of s 72I(1) of the Act are not met and I am not not required, under that provision, to revoke the DPO.
[6] As defined in s 72E of the Act.
[7] See the Payer Account Summary at page 52 of the documents prepared under s 37 of the Act which identifies a total debt of $153,792.49 as at 19 May 2014.
[8] Supra at 51.
The principal Object of the Act is to ensure that children receive from their parents the financial support that the parents are liable to provide.[9] The Act also provides that it is to be construed and administered, to the greatest extent consistent with the attainment of its Objects.[10] That Object is relevant to the discretion in s 72I(3) of the Act whereby the DPO may be revoked if it is desirable to do so. Given that the applicant is able to make some financial contribution to his child support liability, and consistent with the Objects of the Act, I am satisfied that it is not desirable that the DPO be revoked.
[9] See s 3(1)(a) of the Act and para 3 (above).
[10] See s 3(2) of the Act and para 3 (above).
The applicant submitted that the CSR was imposing a punishment on him by not permitting him to travel outside of Australia. I do not accept that contention as the DPO is a consequence of the applicant incurring a child support liability and the travel limitation is a direct consequence of the DPO. It should be noted that, while the DPO is in place, it is possible for a person in the applicant’s position to apply to the CSR for a Departure Authorisation Certificate (“DAC”) which, if granted, will authorise the recipient to depart from Australia for a foreign country[11] on terms and conditions relevant to that specific DAC.
[11] A DAC may be sought under s 72K of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ...............................Sgd.........................................
Associate
Dated 29 July 2014
Heard on the papers 16 July 2014
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