Leggett and Child Support Registrar (Child support)

[2019] AATA 230

Leggett and Child Support Registrar (Child support) [2019] AATA 230 (22 February 2019)

Division:GENERAL DIVISION

File Number:           2018/1929

Re:Sandy Leggett

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:22 February 2019

Place:Perth

The decision under review is affirmed.

.........[Sgd].....................................................

Member C Edwardes

CATCHWORDS

CHILD SUPPORT – child support debt – departure prohibition order (DPO) issued to Applicant – refusal by Respondent to allow Applicant to depart Australia to visit mother-in-law – decision under review affirmed.

LEGISLATION

Child Support (Registration and Collection) Act 1988 (Cth) – ss 3(1), 72I, 72D, 72K, 72L, 72T, 116(2)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Naboush and Child Support Registrar [2014] AATA 930
O’Neill and Child Support Registrar [2010] AATA 545

SECONDARY MATERIALS

Department of Social Services – Guides to Social Policy Law: Child Support Guide (Version 4.38 – Released 4 February 2019)

REASONS FOR DECISION

Member C Edwardes

22 February 2019

INTRODUCTION

1. The Applicant seeks a review of a decision of the Child Support Registrar (CSR), made on 24 March 2018 to refuse an application made by him for the revocation of a Departure Prohibition Order (DPO), issued pursuant to s 72I of the Child Support (Registration and Collection) Act 1988 (Cth) (the Act) on 6 March 2017 (T8, 41).

2. The Administrative Appeals Tribunal (the Tribunal) has jurisdiction to hear this matter as provided for in s 72T of the Act.

   72T  Applications for review of certain decisions

   (1)Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M.

   BACKGROUND

3. A DPO was issued against the Applicant pursuant to s 72D of the Act on 6 March 2017 (T8, 41).

4. The DPO was issued on the basis that the Applicant owed a child support debt. A certificate issued pursuant to s 116(2) of the Act states (T10, 68):

   I hereby certify that the following amounts totalling $28,646.70 are due and payable by Mr Sandy Leggett and remain unpaid as at the 24^th Day of May 2018 in respect of registered maintenance liabilities:

   ·         Child Support debt $25,201.54

   ·         Penalties of $3,445.16

   This amount is payable to the Commonwealth in relation to registrable maintenance liability under section 30 (child support debt) and section 67 (penalties) of the Child Support (Registration and Collection) Act 1988.

5. The Applicant’s request to revoke his DPO was refused on 24 March 2018 by the Department under s 72I of the Collection Act. The refusal notice stated (T11, 69):

   Your application has been refused because:

   ·         your child support debt has not been paid in full

   ·         you have not made satisfactory arrangements to pay your child support debt, and

   ·         the delegate considers that your child support debt can be recovered in part or in full.

6. The DPO prevents the Applicant from travelling overseas.  It was duly issued by the Department, and on 7 March 2017 the Applicant was informed (T8, 39):

   It is an offence for you to attempt to leave Australia while a Departure Prohibition Order is in force unless you have a valid Departure Authorisation Certificate.

7. The notice provided to the Applicant states (T8, 39):

   This order has been issued because:

   ·         you have a child support debt;

   ·         you have not made satisfactory arrangements to pay the entire debt;

   ·         you have persistently and without reasonable grounds failed to pay child support debts; and

   ·         there are reasonable grounds to make the order to ensure that you do not leave Australia without paying the entire debt or making satisfactory arrangements to do so.

8. The Applicant separated from his first wife in 2001 and second wife in 2013.  He is an Australian citizen and is 50 years of age.

9. The Applicant is the owner of Removal and Storage WA Pty Ltd (T7, 35).

10. The Applicant is the father to 3 children.  [Child 1] born 30 October 1995, [Child 2] born 14 March 1997 and [Child 3] born 2002, from 2 marriages (T7, 30-31).

11. The Applicant has an aggregated amount of outstanding child support payments for [Child 1], [Child 2] and [Child 3] (T7, 32).

12. The Applicant applied to the General Division of the Administrative Appeals Tribunal on 29 April 2018 to review the decision of the Department.  He stated in his application (T1, 2):

    My mother is 80 years old and sick in Mauritius her home place.  I need to be able to travel there …

    ISSUES

13. The issues for the Tribunal to consider derive from s 72I(1) of the Act and turn on:

    ·whether the Applicant still has a child support liability;

    ·whether the Applicant has made satisfactory arrangements to pay this liability; and

    ·whether the liability is recoverable.

    RELEVANT LEGISLATION AND POLICY

14. The relevant legislation and policy for this matter is contained in the:

    ·Child Support (Registration and Collection) Act 1988 (Cth)

    ·Child Support Guide (the Guide)

15. The policy framework behind this application is contained in the Guide. The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

16. Section 3(1) of the Act states:

    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.

17. Section 72I(1) of the Act states:

    72IRevocation 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.

18. Section 72I(2) of the Act states:

    (2)However, if the Registrar considers that the person may later become subject to a child support liability or carer liability in respect of, or arising out of, matters that have occurred, the Registrar must not revoke a departure prohibition order under subsection (1) unless the Registrar is satisfied:

    (a)that the liability will be wholly discharged; or

    (b)that arrangements satisfactory to the Registrar will be made for the liability to be wholly discharged; or

    (c)that the liability will be completely irrecoverable.

19. Section 72I(3) of the Act states:

    (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.

20. Section 72E of the Act states:

    Meaning of child support liability

    For the purposes of this Part, a person has a child support liability if:

    (a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A, subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and

    (b)an amount payable under the registrable maintenance liability is a child support debt; and

    (c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.

    (Original emphasis.)

21. Section 72K of the Act states:

    Application for departure authorisation certificate

    (1)A person in respect of whom a departure prohibition order is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a departure authorisation certificate).

    (2)The application must be in the approved form.

    (Original emphasis.)

22. Section 72L of the Act states:

    When Registrar must issue departure authorisation certificate

    (1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.

    (2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:

    (a)that, if the certificate is issued:

    (i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and

    (ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and

    (b)that it is not necessary for the person to give security under section 72M for the person’s return to Australia.

    (3)If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:

    (a)the person has given security under section 72M for the person’s return to Australia; or

    (b)if the person is unable to give such security, the Registrar is satisfied:

    (i)that the certificate should be issued on humanitarian grounds; or

    (ii)that refusing to issue the certificate will be detrimental to Australia’s interests.

23. Section 116(2) of the Act states:

    The mere production of a certificate in writing signed by the Registrar, certifying that an amount specified in the certificate was, on the date of the certificate, due and payable by a specified person to the Commonwealth in relation to a specified registrable maintenance liability or under a specified provision of Part IV, is prima facie evidence of the matters stated in the certificate.

    EVIDENCE

24. The Application was heard in Perth on 18 February 2019.  The Applicant appeared in person and the Respondent was represented by Ms Underhill from Mills Oakley.

    ·Exhibit A1 – Applicant’s undated statement (Received 18 July 2018).

    ·Exhibit A2 – Statutory declaration dated 17 July 2018.

    ·Exhibit A3 – Medical Certificates dated 17 July 2017 and 9 May 2017.

    ·Exhibit A4 – Default notice dated 27 March 2018.

    ·Exhibit A5 – Tax Bill from Australian Tax Office dated 16 June 2018.

    ·Exhibit A6 – Email from Applicant to Tribunal dated 18 July 2018.

    ·Exhibit A7 – Email from Applicant to Tribunal regarding Departure Order dated 17 July 2018.

    ·Exhibit R1 – T documents (T1-T13, pp1-88, ST1-ST2, pp89-116).

    ·Exhibit R2 – Statement of Facts Issues and Contentions (SOFIC) dated 30 August 2018.

    ·Exhibit R3 – Certificate of Debt dated 18 February 2019 issued pursuant to s 116(2) of the Act.

    ·Exhibit R4 – Child Support Payer Transaction statements issued 18 February 2019.

25. The Tribunal has reviewed all of the material before it and is satisfied all relevant evidence was before it and that both parties were provided with an opportunity to address the evidence in writing.  Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

26. The Respondent made the following contentions (R2):

    Does the applicant no longer have a child support liability?

    5.1Section 72E provides that a person has a child support liability if they have a registrable maintenance liability in an amount payable under the Act. A registrable maintenance liability is a “child support debt” where the liability remains wholly or partially unpaid.

    5.2It is not open to the Tribunal to look behind or draw conclusions inconsistent with previous child support assessments. A certificate under s 116(2) of the Registration and Collection Act is prima facie evidence of the debt.

    5.3The debt as evidenced by the s 116(2) certificate as at 24 May 2018 is comprised of overdue child support payments in the amount of $25,201.54 and late payment penalties of $3,445.16. (T10/68)

    5.4The applicant continues to have a child support liability and the condition precedent to revocation under s 72I(1)(a) does not exist.

    Have satisfactory arrangements been made for the debt to be wholly discharged?

    5.5The words “arrangements satisfactory … for the liability to be wholly discharged” are not further defined in the Collection Act.  Per the Guide at instruction 5.2.11:

    A common sense approach is required to determine whether arrangements are satisfactory in each case.

    5.6A decision-maker is therefore to consider such factors as the size of the debt, the proposed period of any arrangement, the applicant’s compliance with previous arrangements and the extent to which the parent has the capacity to repay the debt in full.

    5.7The applicant has made no child support payments since 11 November 2015.  (T12/71–83).  The applicant entered into a payment arrangement with the Registrar on 10 September 2015 and made one payment under the arrangement (T9/47).  The applicant has not entered into any further payment arrangements and does not have a current arrangement to discharge his child support debt.

    5.8The condition precedent to revocation under s 72I(1)(b) does not exist.

    Is the child support liability completely irrecoverable?

    5.9In Naboush and Child Support Registrar, Deputy President Tamberlin said:

    The word ‘irrecoverable’ is a word of wide import, and this width is expanded by the use of the word ‘completely’.  Whilst ever there is some reasonable prospect of recovering money from the Applicant, the DPO should not be revoked.

    5.10This is consistent with the policy in the Guide at instruction 5.2.11.

    5.11There is no evidence that the applicant is completely incapable of paying any of his debt.  On 18 May 2018, the SSCSD found that the applicant “currently has income of approximately $23,400.” (ST1/98 at [59])

    5.12The condition precedent to revocation under s 72I(2)(c) does not exist.

    Discretionary revocation

    5.13The Tribunal has said that the discretion in s 72I(3) “is to be exercised not entirely at large, but taking account of the purpose and objects of the legislation.”4 This is consistent with the policy in the Guide.

    5.14Subsection 3(1) of the Collection Act provides:

    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 the 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 relating to maintenance obligations arising from family relationship parentage or marriage.

    5.15In O’Neill and Child Support Registrar, the Tribunal considered that:

    [T]he 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.

    …

    [I]n the context of an application of this kind, it is neither necessary or [sic] appropriate in my view for the Tribunal to embark on a detailed consideration “on the merits” of whether the DPO should have been imposed at the time at which it was.  The decision under review is the decision not to revoke the DPO, not the decision to impose it.  Indeed this Tribunal does not have jurisdiction to review the imposition of DPOs.

    5.16It has been judicially observed that a DPO is a form of security that prevents the recovery of a child support debt from being frustrated.  It may be issued as a general preventative measure as well as in response to a specific, threatened departure.  It follows that, in an application for revocation, it is relevant to consider whether the DPO acts as an incentive in the particular case to discharge the child support debt.

    5.17The existence of the applicant’s mounting child support debt and failure to make any payments for more than two and a half years demonstrates that he is not providing financial support to his children on a regular and timely basis as Parliament intended. The Registrar contends that this is a factor which strongly weighs against the exercise of the discretion in s72I(3).

    5.18The history of the matter demonstrates that the imposition of the DPO has resulted in the applicant engaging with his assessment.  After the DPO was issued, the applicant applied for a change of assessment and the decision has been reviewed internally and externally by the SS&CSD.

    5.19The applicant says that he wishes to travel overseas to visit his infirm mother-in- law.

    5.20A person who is prevented from leaving Australia by reason of a DPO may apply for a departure authorisation certificate (DAC), authorising departure from Australia for a foreign country pursuant to s 72K of the Collection Act. Considerations relevant to issuing a DAC are found in s 72L and include humanitarian grounds. There is therefore an avenue other than revocation of the DPO which may facilitate travel.

    5.21There are no circumstances advanced (or evidence in support of same) which weigh in favour of the exercise of the discretion to revoke the DPO under s 72I(3). In all the circumstances, the Tribunal should not exercise the discretion to revoke the DPO.

27. The Applicant contends (A7):

    My mother is over 80 years and has diabetes and not well [sic] if I need to go and to be with her in emergency.  I feel that this will not happen and I could miss saying goodbyes to her.  She is very worried she’s never going to see me again.

28. The Applicant has also provided a Statutory Declaration and an affidavit which contain material not relevant to his application.

29. The Applicant states his application for the Tribunal to revoke the DPO is based on “humane grounds” (A7).

    HEARING

30. The application was heard on 18 February 2019.  The Applicant appeared in person and the Respondent was represented by Ms Underhill from Mills Oakley.

31. The Tribunal would like to thank the Applicant and Respondent for their assistance.

32. The Applicant opened by stating he had made offers of payment which the CSR had refused to accept as suitable payments.  He was currently paying through mandatory deduction from his Centrelink payments.

33. The Respondent opened by relying on the SOFIC (R2) and referred the Tribunal to s 72I of the Act.

34. Under cross-examination the Applicant said:

    ·He had 3 children.

    ·He accepted he had a liability, although the quantum was in dispute.

    ·He had made an offer to pay child support prior to the DPO being registered however the quantum was not agreed to.

    ·He thought the amount was $100/week, however because no agreement was finalised with the CSR, he made only spasmodic payments (R4).

    ·He accepted his priority was to sustain his business and he would maintain his business payments at the expense of his child support obligations.

    ·He had not worked for 12 months and is going in for shoulder surgery shortly which will put him out of work for 12 months.

    ·He had been in a relationship for the past 5 years with a Mauritian lady.

    ·He sponsored her through a fiancée visa and agreed to fund her medical expenses.

    ·His travel to visit his mother-in-law in Mauritius will be funded by his parents.

    ·He said with the business downturn in late 2016 and property decline he could not afford to pay his child support debt.

    ·He did not have an answer when the Tribunal asked why during the successful period of operation of the business he did not make regular payments.  He did acknowledge that he had not made an effort to continue payments.

    CONSIDERATION

1. A Certificate issued under s 116(2) of the Registration and Collection Act states that the Applicant had child support debt of $25,201.54 and penalties of $3,445.16 as at 24 May 2018. This amount is payable to the Commonwealth as a child support debt (T10, 68).

2. The Tribunal is satisfied the Applicant has a child support liability and is the subject of a DPO issued on 6 March 2017 (T9, 53).

3. The Tribunal notes the last payment made by the Applicant for child support occurred on 11 November 2015 (T7, 32).

4. The Tribunal notes the report dated 3 March 2017 (T7, 30-38) which states:

   Since 27 June 2016 when these cases were referred for DPO enforcement, DHS CS has:

   ·         Made two successful telephone contacts with Mr Leggett, no arrangement to pay was made in either conversation.

   ·         Issued two specific Please Contact DHS CS letters, the last being returned to DHS CS.

   ·         Issued six child support account statements to Mr Leggett’s postal address, of which three account statements have been returned to DHS CS.

   …….

   The last successful contact with Mr Leggett occurred on 20 January 2017.

   ……..

   Every effort has been made to discuss his child support debt, however Mr Leggett has failed to make a suitable arrangement to pay his child support debt.

5. The Report also outlines the number of unsuccessful telephone contacts with the Applicant, noting in reference to the last successful contact with the Applicant that “Mr Leggett refused to complete the Proof of Identity (POI) check with DHS CS or discuss his child support debt… Mr Leggett terminated the call before his child support debt could be discussed” (T7, 33).  The report concludes that the Applicant “has the available financial resources to address his child support debt in full.”

6. The Report states further inquiries concerning the Applicant’s travel itinerary reveal the following (T7, 36):

   …Mr Leggett has travelled overseas on sixteen separate occasions travelling at least twice each year since the 2015 calendar year.  Most recently, Mr Leggett arrived in Australia on 4 January 2017 after spending twenty one days in Mauritius.

7. The report indicates that an examination of the financial position of the Applicant, inclusive of cash and property indicates that he is capable of meeting his child support obligations.  The report notes that in January 2017 he transferred an amount of $2050.00 to a person in Mauritius (T7, 36).

8. The evidence before the Tribunal indicates that the Applicant as the father of his children has flagrantly ignored his responsibilities to pay child support since 2010.

9. The Tribunal found the explanations of the Applicant as to why he had ignored his child support obligations to be unconvincing particularly during times his business was in a healthy condition.

10. The Tribunal is mindful of the objects of the Act in particular s 3(1)(a):

    (a)that children receive from their parents the financial support that the parents are liable to provide; …

11. The Tribunal finds on the evidence available the Applicant (R3):

    ·has a child support debt in the amount of $25,296.63 and late payment penalties of $4,853.85;

    ·has made no satisfactory arrangements to discharge this child support debt; and

    ·his financial situation is not an impediment to him discharging this debt.

    DECISION

12. For the reasons outlined above the decision under review is affirmed.

I certify that the preceding 46 (forty six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

..........[Sgd]..........................................................

Associate

Dated: 22 February 2019

Date of hearing:	18 February 2019
Applicant:	In person
Counsel for the Respondent:	Ms M Underhill
Solicitors for the Respondent:	Mills Oakley