Merl and Child Support Registrar

[2016] AATA 1099

Merl and Child Support Registrar [2016] AATA 1099 (19 December 2016)

Division:GENERAL DIVISION

File Number:  2016/3751

Re:John Merl

APPLICANT

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Mr D.J. Morris, Member

Date:19 December 2016

Date of written reasons:        27 January 2017

Place:Perth

The Tribunal affirmed the reviewable decision.

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Mr D.J. Morris, Member

CATCHWORDS

CHILD SUPPORT – departure prohibition order (DPO) – does child support liability exist – arrangements to satisfactorily discharge child support liability – whether discretion should be exercised to revoke DPO – decision affirmed – written reasons requested - written reasons may elaborate on oral reasons given

LEGISLATION

Administrative Appeals Tribunal Act 1975 – s 43(2A)

Child Support (Registrations and Collection) Act 1988 – ss 72D – 72I – 72T

CASES

Negri v Secretary, Department of Social Services [2016] FCA 879

Whittaker v Child Support Registrar (2010) 264 ALR 473; [2010] FCA 43

REASONS FOR DECISION

Mr D.J. Morris, Member

27 January 2017

BACKGROUND

1. Mr John Merl sought a review of the a delegate of the Child Support Registrar (the Registrar) dated 5 May 2016 which refused to revoke a Departure Prohibition Order (DPO) applied to him under the Child Support (Registration and Collection) Act 1988 (CSRC Act).

2. The hearing was held on 19 December 2016.  The Applicant was self-represented.  The Respondent was represented by Mr Ashley Burgess. Mr Merl gave evidence under affirmation and was cross-examined by counsel for the Respondent.

3. At the conclusion of the hearing, I made my decision ex tempore and provided oral reasons. In accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 the Applicant requested a statement in writing of the reasons of the Tribunal for its decision. This is that statement.

4. In the recent decision of Negri v Secretary, Department of Social Services [2016] FCA 879 at [24], Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied.

5. His Honour, at [24], accepted submissions to the Court that:

   a.    The oral reasons might be brief and the written reasons include a fuller explanation of the Tribunal’s findings and reasoning.

   b.    The oral reasons might fail to include a matter that was on the Tribunal’s mind at the time of the decision due to oversight, and the written reasons remedy this.

   c.    The oral reasons may be poorly expressed and the written reasons provide clarification of the Tribunal’s findings or reasoning.

6. His Honour stated at [27]:

   … As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently…

7. Accordingly, I divide this statement into two parts. The first is background as to what the matter was before the Tribunal and the applicable law. The second is a rendering of the reasons I gave ex tempore.

8. Consistent with His Honour’s cautionary remarks in Negri, new reasoning for my decision has not been introduced but this written statement is a fuller explanation of the reasons given orally.

   PART 1 – BACKGROUND TO HEARING AND APPLICABLE LAW

9. On 4 April 2016, a delegate of the Child Support Registrar decided to issue Mr John Merl with a DPO under section 72D of the CSRC Act. A DPO prevents the person to whom it applies travelling out of Australia. The reasons the Registrar issued the DPO were that Mr Merl had a child support debt; that Mr Merl had not made satisfactory arrangements to pay the entire debt; that Mr Merl had persistently and without reasonable grounds failed to pay child support debts; and in the Registrar’s view there are reasonable grounds to make the order to ensure that Mr Merl does not leave Australia without paying the entire debt or making satisfactory arrangements to do so.

10. On 29 April 2016, Mr Merl requested that the DPO be revoked. On 3 May 2016 he wrote a letter to the Registrar indicating his intention to travel to Kyrgyzstan in connection with his work and asking that the DPO be urgently revoked.

11. On 3 May 2016, a delegate of the Registrar refused the request. The delegate gave the following reasons:

    ·Mr Merl’s child support debt had not been paid in full;

    ·Mr Merl had not made satisfactory arrangements to pay the child support debt;

    ·The delegate of the Registrar considered that the child support debt could be recovered in part or in full; and

    ·The delegate of the Registrar did not otherwise consider it was desirable to revoke the DPO.

12. On 19 July 2016, Mr Merl made an application for review of this decision pursuant to the review power provided for in section 72T of the CSRC Act.

    PART 2 – THE HEARING

13. The Respondent tendered documents under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents), which were admitted into evidence.

14. The Tribunal admitted into evidence a letter from Mr Merl to the Registrar’s legal representative dated 21 October 2016 (Exhibit A1).

    Does the Applicant have a child support debt?

15. Mr Merl conceded that he did have a current child support debt in the amount of $30,784.12. This amount was before the Tribunal in a Child Support Account Statement for the period 21 July to 19 August 2016.

16. He said the only option he had was to ask that discretion be exercised to lift the DPO under section 72I(3) of the CSRC Act. He told the Tribunal that he had made arrangements to repay the debt. He noted that the Registrar had told him that the Registrar would only accept repayment of the debt in full.

17. Mr Merl said he was an engineer involved in power generation and he wanted discretion to be exercised to revoke the DPO so that he could travel abroad to work to repay the debt. He said he was not a flight risk because he had a wife and family in Western Australia.

18. He said that it was his contention that the DPO was imposed by mistake. He then referred to a separate matter he had been involved in before the Federal Court relating to a child support terminating event.

    Has the Applicant made arrangements satisfactory to the Registrar to wholly discharge his child support liability?

19. The Respondent submitted that Mr Merl accepts the liability. He has not made arrangements to discharge the liability but it was acknowledged that he has now commenced making repayments.  The Respondent stated that on 21 April 2016 Mr Merl had proposed a payment arrangement of $1,692.92 per month and $300 per month to cover “arrears”.  Mr Burgess submitted that such a repayment plan would take more than twelve years to be wholly discharged at the current repayment rates.

20. In evidence Mr Merl said he had made an agreement with the Registrar to make payments of $750 per month in July 2016. 

21. In the Child Support Transaction Statement for the period 18/06/2009 to 23/08/2016[1] before the Tribunal it was recorded that Mr Merl made a payment on 17 October 2014 and no further payment until 5 May 2016 – a gap of almost 19 months.

    [1] T16/pp 57- 66.

    Is the Registrar satisfied that the liability is completely irrecoverable?

22. The Respondent submitted that the debt is recoverable and that Mr Merl does have capacity to repay it. The Tribunal noted relevant material contained in the T-documents relating to Mr Merl’s real estate and other assets.

23. The Respondent said that the Tribunal cannot look behind the reasons for the debt and that it was not desirable to revoke the DPO in circumstances where the Applicant has not moved to pay off the debt. 

24. The Respondent submitted that Mr Merl has substantial assets which are realisable to repay the debt and that Mr Merl had the ability to apply for a departure authorisation certificate for travel for a particular purpose. Mr Burgess said that the usual arrangement when such certificates are issued is that the person provides security satisfactory to the Registrar. 

25. Mr Merl gave evidence to the hearing that he owned his residence in Mullaloo which was valued at around $600,000 and which was unencumbered by a mortgage. He also gave evidence to the Tribunal that he owned an investment property in Brisbane valued at $550,000 which was also unencumbered by a mortgage and which realised for him around $2,500 a month in rent.

    In giving its decision –

26. The Tribunal noted Mr Merl’s concessions that he has a current child support liability. The Tribunal also noted the recent Federal Court decision involving Mr Merl and a former spouse and his contention that past payments he had made to that person should be set off against his child support liability to another former spouse. The Tribunal explained that is not how the law operates. 

27. The Tribunal noted the two properties Mr Merl owns are worth together $1,150,000.  The Tribunal also noted his evidence of a rental income of $2,500 per month.

28. It was clear to the Tribunal that the Applicant has substantial assets and that he has the capacity to make arrangements for funds to repay his child support liability which would remove the DPO because the provisions of section 72I(1)(a) or (b) would then be met. 

29. It is also clear to the Tribunal that Mr Merl can apply for another departure authorisation certificate if a particular trip is necessary for his work and he can offer to the Registrar sufficient security to allow him to travel. The Tribunal accepts Mr Merl may not have been initially aware of the security element but notes it was made clear in correspondence to Mr Merl refusing to issue a departure authorisation certificate.

30. The Tribunal underlined the point that how Mr Merl arranges his personal finances to discharge this liability is a matter for him but that he clearly has the capacity to repay the child support liability wholly, and thereby lift the DPO.

31. The Tribunal concluded by explaining to Mr Merl that the matter is in his hands. He can repay the liability that he owes for the support of children of his former marriage, and, thereby, the DPO will be by force of the Act revoked. 

    CONCLUSION

32. The purposes of the CSRC Act were articulated by Lindgren J in Whittaker v Child Support Registrar (2010) FCA 43. His Honour said at [250]:

    It will be recalled that the principal objects of the Collection Act are, inter alia, to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis: s 3(1)(a) and (b) of the Collection Act. The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia.

33. The Registrar therefore exercises the discretion available in section 72I(3) of the CSRC Act in the context of the purpose for which the Parliament made the enactment – financial support of children that their parents are liable to provide.

34. Mr Merl accepts he owes a child support debt.  Plainly on his evidence before the Tribunal of his assets, he has a financial capacity to discharge this debt.  There were no special circumstances put before the Tribunal by Mr Merl that would affect either of these two facts. The Registrar was right, in all these circumstances, not to exercise the discretion to revoke the DPO.

35. The Tribunal affirmed the Registrar’s decision and the hearing adjourned.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Morris, Member

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Administrative Assistant

Dated: 27 January 2017

Date of hearing:

Date of Receipt of Request
For Written Reasons

19 December 2016

16 January 2017

Applicant:

In person

Representative for the 
Respondent:

Mr A Burgess

Solicitors for the Respondent:

Sparke Helmore Lawyers