Newell v Child Support Registrar
[2015] FCCA 2815
•2 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWELL v CHILD SUPPORT REGISTRAR | [2015] FCCA 2815 |
| Catchwords: CHILD SUPPORT – Departure Prohibition Order – stay – no jurisdiction to order stay – the merits of the application would not justify a stay if jurisdiction was present. |
| Legislation: Child Support (Assessment) Act 1989 |
| Jones v Child Support Registrar [2007] FCA 1732 Yathopoulos & Komine & Anor [2013] FCCA 267 |
| Applicant: | MR NEWELL |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 829 of 2015 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 29 September 2015 |
| Date of Last Submission: | 29 September 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 2 October 2015 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Child Support Registrar: | Mr C Bishop of Department of Human Services |
ORDERS
That the oral application made on 29 September 2015 by the applicant to stay the Departure Prohibition Order dated 24 June 2015 be dismissed for want of jurisdiction.
IT IS NOTED that publication of this judgment under the pseudonym Newell v Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 829 of 2015
| MR NEWELL |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
This is a matter where the Court heard an oral application made on 29 September 2015 for the stay of a Departure Prohibition Order that restrains Mr Newell from travelling outside of Australia. It was agreed by the parties that I could hear it on the first return date, so it proceeded that afternoon on the oral application. The respondent Child Support Registrar (“Registrar”) submitted through Mr Bishop that I had no jurisdiction to stay the operation of the Departure Prohibition Order in a section 72Q appeal of the Child Support (Registration & Collection) Act 1988 (Cth) (Collection Act).
I note that there have been a number of cases that looked at a stay of a Departure Prohibition Order in a section 72Q appeal and, in particular, Jones v Child Support Registrar [2007] FCA 1732 and Yathopoulos & Komine & Anor [2013] FCCA 267. Neither of those cases dealt with the jurisdiction point and both of them implied that the Court did have the power to consider a stay in the circumstances of those cases.
Background
The background is summarised in the written submissions provided by the Registrar in Court on 29 September 2015:
“4. The Applicant is the father of two children, X (born (omitted) 2007) and Y (born (omitted) 2009), in respect of whom he is liable to pay child support.
5. The child support assessment was registered on 2 August 2010.
6. On 24 June 2015 Mr S, a delegate of the Registrar, issued a DPO against the Applicant. As at 1 June 2015 the Applicant had an outstanding child support liability in the amount of $29,858.71 and late payment penalties in the amount of $5,787.37. Therefore the total child support debt was in the amount of $35,646.08 and this amount remains outstanding today.
7. On 4 September 2015, following an application by the Applicant pursuant to section 72I of the Collection Act, the Registrar refused to revoke the DPO. The Applicant has not sought review of that decision by the Administrative Appeals Tribunal (AAT).
8. On 8 September 2015, following an application by the Applicant pursuant to section 72L of the Collection Act, the Registrar refused to issue a departure authorisation certificate. The Applicant has not sought review of that decision by the AAT.
9. On 10 September 2015 the Applicant filed this appeal seeking the DPO be set aside.
10. On 25 September 2015 the Registrar was informed by the Applicant that he intended to seek an order that the operation of the DPO be stayed pending determination of his appeal.”
The Stay Application
Section 111C of the Collection Act relevantly provides for stay orders and, in particular, it provides:
“This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the AAT for an AAT first review; or
(d) under Part 6A or 7 of the Assessment Act.”
I accept that section 111C(1)(b), (c) and (d) do not apply and that is because they are matters in relation to a Registrar, the Administrative Appeals Tribunal (“AAT”) or parts of the Child Support (Assessment) Act 1989 (“Assessment Act”) that are not relevant to this case. I have to consider section 111C(1)(a) of the Collection Act which, on looking at it, seems to be a broad jurisdiction. It says:
“…(a) in a court having jurisdiction under this Act;”
However, section 111C(1)(a) is confined by the definition of a “court having jurisdiction under this (Collection) Act” which is set out in section 4 of the Collection Act. The definition is:
““court having jurisdiction under this Act” does not include a court that has jurisdiction under this Act only in relation to the recovery of amounts of child support.”
I note that the case before me does not dispute the quantum or the fact of the child support owed. This is a matter in relation to the recovery of amounts of child support. The Registrar submits that, properly applied, the definition is consistent with a stay being available only where there is a proceeding on foot that challenges or calls into question the child support liability.
Part VA of the Collection Act establishes the Departure Prohibition Order legislative regime and certainly the Court has jurisdiction under that part of the Collection Act. The Federal Court has jurisdiction as well. Section 72Q, relevantly, provides:
“Appeals to courts against making of departure prohibition orders
(1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order.
(2) This section has effect:
(a) subject to Chapter III of the Constitution; and
(b) despite anything contained in section 9 of the Administrative Decisions (Judicial Review) Act 1977 ”
Section 72Q determines matters only in relation to the making of a departure prohibition order and I note section 72S provides that:
“A court hearing an appeal under section 72Q against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the order; or
(b) dismiss the appeal.”
Section 72S is the statutory mechanism that sets out what the powers of the Court are. It does not suggest, on its face, that there is any power to stay the order on an interlocutory application. I am, therefore, satisfied that, as the Registrar submitted, that if the legislature intended the Court’s jurisdiction to be enlivened in such appeals by the general provisions, it would not have enacted section 72Q and section 72S of the Collection Act.
The interpretation contended for by the Registrar gives section 111C(1)(a) work to do and I accept that argument. I accept that the departure prohibition regime is in relation to the recovery of amounts of child support and, in this matter, where the Federal Circuit Court’s jurisdiction is enlivened pursuant to section 72Q, the applicant’s notice of appeal did not institute a proceeding falling within the meaning of section 111C(a) of the Collection Act. The applicant does not dispute anything in relation to the debt owed or the quantum of the debt. I accept, therefore, that I have no jurisdiction to make a stay order.
I am fortified in coming to that conclusion by the additional submissions the Registrar made at paragraph 28 of the written submissions:
“The Registrar submits the following further supports this conclusion:
-the DPO regime under Part VA of the Collection Act specifically confers jurisdiction on this Court and the Federal Court under section 72Q, outside the general jurisdictional provisions of the Collection Act and the Assessment Act;
-section 72S of the Collection Act provides that a court hearing a section 72Q appeal may either, in its discretion, make an order setting aside the DPO or dismissing the appeal;
-the general jurisdictional provisions under section 99 of the Assessment Act and section 104 of the Collection Act do not confer any jurisdiction on the Federal Court;
-the Federal Court's only jurisdiction under the child support legislative scheme is therefore conferred by section 72Q of the Collection Act, being the power to hear and determine an appeal against the making of a DPO;
-the Registrar submits the DPO regime is solely in relation to the recovery of amounts of child support and consequently the Federal Court has no jurisdiction to make a stay order under section 111 C of the Collection Act;
-it would therefore be inconsistent for the Federal Circuit Court's jurisdiction under section 111 C of the Collection Act to be enlivened by a proceeding instituted in this Court under section 72Q;
-the DPO regime is modelled on the regime established under the Taxation Administration Act 1953 within which no power is conferred on a Court to stay the operation of a DPO; and the DPO regime provides for the issuing of a departure authorisation certificate (DAC) under Division 4 of Part VA of the Collection Act which allows a person to temporarily leave Australia provided certain requirements are met, a process that would be rendered nugatory by the making of a stay order.”
In the alternative, the Registrar submits that if the Court did conclude contrary to the Registrar’s submissions that it had jurisdiction to make the stay order under section 111C, the Registrar submitted that I should not make the order.
I will, as a precaution, consider the merits of the stay application in case my conclusions as to the law are incorrect. In the case of Jones v Child Support Registrar [2007] FCA 1732, supra, Emmett J said at paragraph 6:
“An appeal may involve questions of fact or law or both. An appeal would ordinarily involve the determination by the court of at least three principal questions. The first is whether the affected person has a child support liability. The second is whether the Registrar was satisfied as to the matters, and had the belief, referred to in s.72D. The third is whether reasonable grounds existed for the Registrar to be satisfied as to those matters and for the formation by the Registrar of the requisite belief.”
The Judge went on at paragraph 10 to say:
“It appears to me that, before a stay could be granted, I would have to be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting that the appeal might succeed. Secondly, it would be necessary for the Court to have regard to the balance of convenience. Section 111C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding. That, I suspect, does not go much beyond the balance of convenience. Clearly, it is very inconvenient for the applicant to be restrained from departing Australia. He was intending to travel to Thailand for a vacation of some 10 days, a substantial part of which has now elapsed.”
In the present case there can be no dispute that at the time of making the Departure Prohibition Order the applicant had a child support liability and that was the case when the matter was run before me in the oral application because of the certificates tendered by the Registrar. The remaining essential ingredient of section 72D depends on the state of mind of the Registrar and that, as was acknowledged in Jones v Child Support Registrar [2007] FCA 1732, at this stage of the proceeding the applicant does not know and, therefore, the Court does not know the nature of the material before the Registrar that may have justified the making of the order.
I accept the submission of the Registrar that the Court cannot be satisfied that the applicant has a sufficient likelihood of success in relation to the first test articulated in Jones v Child Support Registrar [2007] FCA 1732.
With respect to the second test – the balance of convenience – the Registrar accepted that this is an inconvenient position that the applicant is in because he is prevented from departing Australia in circumstances where he had some prospects of obtaining a job in (country omitted). Although, I note in the affidavit the applicant filed by leave on 29 September 2015 from his partner Ms R, she indicated in the last paragraph that the opportunity for that job had now passed.
The other aspect of the case is that the applicant owes substantial child support and I have to balance his inconvenience against the inconvenience of the children for whom the child support liability, if paid, would benefit.
In my view, the Registrar and the children that would benefit from the child support would have their debt potentially frustrated if the gentleman was allowed to leave for (country omitted) and that was the point that was made by Judge Whelan in Yathopoulos & Komine & Anor [2013] FCCA 267. The Judge held the stay would have the same effect as revoking an order in that it would no longer provide the security it currently does for both the first and second respondent to prevent recovery being frustrated. There is also a public interest in recovery not being frustrated.
In conclusion, I am satisfied that I have no jurisdiction to stay the Departure Prohibition Order made on 24 June 2015 and I will, therefore, dismiss the oral application made by Mr Newell on 29 September 2015 for want of jurisdiction. If I am wrong on the jurisdiction issue I consider, for the reasons set out herein, that it is not desirable to stay the order, taking into account the interests of the persons who may be affected by the outcome of these proceedings.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 22 October 2015
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