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.
........................................................................
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

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).
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.
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.
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.
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.
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…
Accordingly, I divide this statement into two parts. The first is background as to what the matter…

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: [2016] AATA 1099
Decision Date: 19 December 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr John Merl for a review of a decision by the Child Support Registrar to issue a departure prohibition order (DPO) against him. The Registrar had issued the DPO on the grounds that Mr Merl had an outstanding child support debt, had not made satisfactory arrangements to discharge this debt, and had persistently failed to pay his child support obligations. Mr Merl sought the revocation of the DPO to enable him to travel overseas for work.

The Tribunal was required to determine whether Mr Merl had a child support debt and, if so, whether he had made satisfactory arrangements to discharge that liability. The Tribunal also had to consider whether, in light of these circumstances, the discretion to revoke the DPO under section 72I(3) of the Child Support (Registration and Collection) Act 1988 (CSRC Act) should be exercised in Mr Merl's favour.

The Tribunal found that Mr Merl conceded he owed a child support debt of $30,784.12. The Tribunal noted that the purpose of the CSRC Act is to ensure children receive financial support from their parents and that enforcement of these obligations is more difficult if a parent departs Australia. Applying this principle, the Tribunal concluded that Mr Merl had the financial capacity to discharge his debt and had not presented any special circumstances to warrant the revocation of the DPO. Consequently, the Tribunal affirmed the Registrar's decision not to revoke the DPO.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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