Malcolm Kenyon and Child Support Registrar - [2012] AATA 714

[2012] AATA 714

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/1886

Re

Malcolm Kenyon

APPLICANT

And

Child Support Registrar

RESPONDENT

DECISION

Tribunal
Deputy President P E Hack SC

Date 15 October 2012

Place Brisbane (heard in Cairns)
The decision is set aside and the matter is remitted to the Registrar for reconsideration with a direction that, provided the Registrar is satisfied that the applicant's departure overseas will not affect the Registrar’s ability to recover at least the present deductions from the applicant's pension entitlements, the departure prohibition order of 10 September 2007 be revoked.
………………………………………..
Deputy President P E Hack SC
CATCHWORDS
CHILD SUPPORT – Failure to pay child support – significant debt – unable to travel overseas due to a departure prohibition order – wishes to reside permanently in Indonesia – no greater capacity to repay – departure overseas would not impair the present arrangements to repay decision – reconsideration of decision conditional on Registrar’s ability to continue to receive deductions from Centrelink entitlements – decision set aside and remitted to the Registrar.
LEGISLATION
Child Support (Registration and Collection) Act 1988 (Cth) ss 72D, 72I
CASES
Re O’Neill and Registrar, Child Support Agency [2010] AATA 545
REASONS FOR DECISION
Deputy President P E Hack SC
15 October 2012
Introduction

The applicant, Mr Malcolm Kenyon, has a significant child support debt that arose from his failure to pay maintenance in respect of a child (now aged 33 years) pursuant to an order of an Australian court. In September 2007 a delegate of the respondent, the Child Support Registrar, made a departure prohibition order against Mr Kenyon pursuant to the Child Support (Registration and Collection) Act 1988 (Cth) (the Act). That order, whilst in force, prohibits Mr Kenyon from departing Australia for a foreign country.
The Registrar has power to revoke a departure prohibition order. Mr Kenyon has made a number of requests for the order to be revoked, most recently by letter of 29 March 2012. On 19 April 2012 a delegate of the Registrar refused that request.
Mr Kenyon seeks a review of that decision.
It is unnecessary for present purposes to examine the basis on which a departure prohibition order may be made. The correctness of the initial decision is not an issue in these proceedings, nor could it be. It is enough to note that there must be "a child support liability" before a departure prohibition order may be made. In September 2007 when the present order was made Mr Kenyon had a child support liability in excess of $17,000. Additionally he had a debt in excess of $35,000 representing penalties imposed for failure to pay maintenance on time. Those penalties do not form part of the “child support liability” although they form part of the overall debt that Mr Kenyon is obliged to pay. As at July 2012 Mr Kenyon's total debt had increased to $59,675.80 comprising a child support liability of $14,668.45 and penalties of $45,007.35.
Section 72I of the Act provides two mechanisms by which…

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: [2012] AATA 714
Decision Date: 15 October 2012

CaseChat Overview and Summary

The matter before the court involved an appeal by Malcolm Kenyon against a decision made by the Child Support Registrar concerning his obligation to pay child support. Kenyon had accumulated a substantial debt and faced restrictions on his ability to travel overseas due to a departure prohibition order. He had expressed his intent to reside permanently in Indonesia and claimed that he was unable to pay the outstanding child support. The Registrar had decided that Kenyon could not satisfy his obligation to pay, and this decision was the subject of appeal.

The legal issues before the court included whether Kenyon's inability to travel overseas constituted a valid reason for not satisfying his child support obligations, and whether the Registrar was correct in finding that Kenyon had no greater capacity to repay the child support debt. Additionally, the court needed to determine whether Kenyon's departure overseas would impair the existing arrangements for repaying the debt and if the reconsideration of the decision should be contingent on the Registrar's ability to continue receiving deductions from Kenyon's Centrelink entitlements.

The court found that Kenyon's departure prohibition order and his intention to reside permanently in Indonesia did not inherently prevent him from satisfying his child support obligations. The court held that the Registrar had not adequately considered the implications of Kenyon's overseas residency on his capacity to repay. Furthermore, the court determined that Kenyon's departure would not necessarily impair the present arrangements for repayment, as he could still make payments from Indonesia. The court also noted that the reconsideration of the decision should not be contingent solely on the Registrar's ability to continue receiving deductions from Centrelink. Consequently, the court set aside the Registrar's decision and remitted the matter back to the Registrar for reconsideration in light of these findings.

The final orders of the court were that the decision of the Child Support Registrar was set aside, and the matter was remitted to the Registrar for further consideration in accordance with the court's findings and directions.

Orders