[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.
.............................Sgd...........................................
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…
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- Case
- [2014] AATA 517
- Decision Date
CaseChat Overview and Summary
The tribunal found that the DPO was a consequence of the applicant's child support liability and not a form of punishment. It noted that the applicant could apply for a Departure Authorisation Certificate (DAC) if granted, would allow him to travel outside Australia. The tribunal was satisfied that the applicant had a child support liability, which was evidenced by the Child Support Payment Summary and the ongoing deductions from his social security payments. The tribunal also found that the applicant's fortnightly payments did not lead to the Registrar being satisfied that the debt would be wholly discharged, and the debt was not completely irrecoverable as the applicant was making some payments. Therefore, the tribunal concluded that there were no grounds under s 72I(1) of the Act to revoke the DPO. Additionally, considering the objects of the Act, particularly ensuring that children receive financial support from their parents, the tribunal found that it was not desirable to revoke the DPO as the applicant was capable of making some financial contribution.
The tribunal affirmed the decision under review and upheld the DPO. It is noted that the applicant had a child support liability, but this was not sufficient grounds for the revocation of the DPO under the Act. The tribunal's decision was consistent with the objects of the Act, which aim to ensure children receive financial support from their parents.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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).