Onder and Child Support Registrar and Sari (No.2) - [2011] FMCAfam 430

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ONDER & CHILD SUPPORT REGISTRAR and SARI (No.2)

[2011] FMCAfam 430

CHILD SUPPORT – Appeal against departure prohibition order – statutory interpretation.

Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988, ss.4, 72D, 72I, 72Q, 111C
Taxation Administration Act 1953, ss.14S, 14T

Albaugh & Child Support Registrar [2007] FMCAfam 1106
Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129; (1920) 26 ALR 337
Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443
Edelsten v Federal Commissioner of Taxation [1989] FCA 13; (1989) 16 ALD 763; (1989) 85 ALR 226; (1989) 89 ATC 4120; (1989) 20 ATR 238
Jones v Child Support Registrar [2007] FCA 1732
Russo & Child Support Registrar [2009] FMCAfam 437
Pattenden v Commissioner of Taxation [2008] FCA 1590; (2008) 175 FCR 1; (2008) 106 ALD 482; (2008) 74 ATR 92
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41
Troughton v Deputy Commissioner of Taxation[2008] FCA 18; (2008) 166 FCR 9; (2008) 99 ALD 571; 2008 ATC 20-001; (2008) 69 ATR 234
Whittaker v Child Support Registrar [2010] FCA 43; (2010) 264 ALR 473
Whittaker v Child Support Registrar [2010] FCAFC 112
Williams v Child Support Registrar [2009] FMCA 481; (2009) 109 ALD 343

Applicant:

MR ONDER

First Respondent:

CHILD SUPPORT REGISTRAR

Second Respondent

MS SARI

File Number:

SYC 1078 of 2010

Judgment of:

Monahan FM

Hearing date:

4 November 2010

Date of Last Submission:

4 November 2010

Delivered at:

Sydney

Delivered on:

24 June 2011

REPRESENTATION

Solicitors for the Applicant:

Counsel for the Applicant:

Paul & Paul Lawyers

Mr Foster

Solicitors for the First Respondent:

Counsel for the First Respondent:

Sparke Helmore Lawyers

Mr Johnson SC

Solicitors for the Second Respondent:

Counsel for the Second Respondent:

Robyn Sexton & Associates

None

ORDERS

THE COURT ORDERS THAT:

The Initiating Application filed 3 June 2010 be dismissed.
The costs application of the First Respondent in relation to the appeal be adjourned to 27 July 2011 at 10:00am.
Subject to paragraph two (2) herein, all extant applications before the Federal Magistrates Court be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Onder & Child Support Registrar and Sari (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1078 of 2010

MR ONDER

Applicant

And

CHILD SUPPORT REGISTRAR

First Respondent

MS SARI

Second Respondent

REASONS FOR JUDGMENT

Introduction

This decision involves an initiating application filed on 3 June 2010 by MR ONDER (“the Father”) appealing against the making of a departure prohibition order (“the DPO”) by the first respondent, the CHILD SUPPORT REGISTRAR (“the CSA Registrar”) pursuant to s.72Q(1) of the Child Support (Registration and Collection) Act 1989 (Cth) (“the Collection Act”) (“the Appeal application”).
As part of the Appeal application the Father had sought, by way of interim order, a stay of the DPO pursuant to s.111C(3) of the Collection Act (“the stay application”).
The stay application was considered by me on 11 June 2010 and was dismissed for the reasons given on that day.[1]
[1] Onder & Child Support Agency & Sari [2010] FMCAfam 693.
The second respondent is MS SARI (“the Mother”). The Mother did not seek to be heard in respect of the proceedings before this Court.
The Father has also filed an application in the Family Court of Australia on 23 February 2010, which was subsequently amended by his Further Amended Initiating Application filed 1 June 2010 (“the FCoA Application”). The FCoA Application seeks the following orders:
“1. That the Overseas Child Maintenance Order made in the United Kingdom and dated 27 June 2006 being the registrable overseas maintenance liability dated 15 October 2008 registered pursuant to section 18A of the Child Support (Registration and Collection) Act 1988 be discharged with effect from the date to which same presently stands paid pursuant to section 66S(2)(a) of the Family Law Act, 1975 and/or pursuant to Regulation 36(2) of the Family Law Regulations.
2. That in the alternative and/or in addition to Order 1 above and 3 or 4 below that the said maintenance liability dated 15 October 2008 be otherwise suspended with effect from the date to which same presently stands paid pursuant to Section 66(2)(b) of the Family Law Act, 1975 and/or pursuant to Regulation 36(2) of the Family Law Regulations.
3. That alternatively to Orders 1 and 2 above enforcement of the said Overseas Maintenance Order be stayed.
4. That in the alternative and/or in addition to Order 1, 2 and 3 above that the registered overseas maintenance liability dated 15 October 2008 be otherwise varied by reducing the amount payable to $697.00 per month less such amount as reflects the credit to be given to the Applicant for such part of the property settlement as the Court sees fit pursuant to section 66S(2)(d) of the Family Law Act, 1975 and/or pursuant to Regulation 36(2) of the Family Law Regulations with such variation order to be effective as from the date to which the same presently stands paid.
5. That in the alternative to Orders 1 or 2, 3 or 4 above that the Overseas Child Maintenance Order referred to in Order 1 above be registered pursuant to section 110A of the Family Law Act, 1975 and/or on such other basis as this Honourable Court deems fit and upon such registration be discharged to the date that same stands
as paid by the Applicant.
6. That the Respondent Mother pay the Applicant’s costs on an indemnity basis.”
The Father was not able to file and consolidate the Appeal application with his FCoA application due to lack of jurisdiction.[2]
[2] Pursuant to s.72Q(1) of the Collection Act, appeal applications under can only be made to the Federal Magistrates Court or the Federal Court of Australia.
When parties were last before the Family Court of Australia on

9 August 2010, Registrar Crawford gave the parties liberty to relist the FCoA Application before the Docket Registrar for a procedural hearing after the hearing of the Appeal application before this Court.
The hearing of the Appeal application took place on 4 November 2010 and is the subject of this decision. On that occasion, the Father was represented by Mr Foster of Counsel (as he then was) and the CSA Registrar was represented by Mr Johnson SC.

Documentation

The Father relied on the following documents in support of the Appeal application:
·Initiating Application filed 3 June 2010;
·Father’s Affidavit sworn 25 May 2010 and filed 3 June 2010 (“the Father’s affidavit”); and
·Father’s Case Outline document dated 3 November 2010.
The Father also relied upon a number of documents produced by the CSA Registrar which became Exhibit “A1”.
In opposing the Appeal application the CSA Registrar relied on the following documents:
·Affidavit of Mr V, affirmed and filed 11 June 2010 (“Mr V’s affidavit”). Mr V is the Delegate of the Commonwealth Government’s Department of Human Services’ Child Support Program;
·Affidavit of Mr M sworn 3 November 2010 and filed in Court, with leave, on 4 November 2010 (but only in respect of payments up to the date of the DPO order);[3]
·Judgment of Deputy District Judge David Hodson (UK) dated 18 July 2006. His Honour is a Deputy District Judge at the Principal Registry of the Family Division, High Court of Justice, London; and
·First Respondent’s Submissions document filed 1 November 2010.
[3] Transcript, 4 November 2010, page 4.
The CSA Registrar also relied upon a number of documents produced under subpoena issued to the ANZ Bank which became Exhibit “R1”.

Background

The Father and Mother commenced cohabitation shortly prior to their marriage in [location omitted] on [date omitted] 1997. Throughout their cohabitation the Father and Mother resided in the United Kingdom apart from the period 2000-2004 when they lived in Australia. They separated in late 2004 and their divorce became final in 2006.
There are two children of the marriage; namely [X], born [in] 1998, and [Y], born [in] 2001 (“the children”).
During the time that the Father and Mother lived in Australia, the Father was employed in Sydney with [company omitted].
Following separation, the Father returned to Australia in early 2006 and has remarried. The Mother has also remarried and has remained living in the United Kingdom with the children and her new husband.

Proceedings in the United Kingdom

On 18 July 2006 the Mother obtained various family law related orders in the United Kingdom. The orders were made by Hodson DDJ following a hearing that took place on 9 June 2006 (“the UK decision”)[4].
[4] Reserved Judgement of Deputy District Judge David Hodson, In the Marriage of [Ms Sari] (the wife) and [Mr Onder], 18 July 2006.
Although the Father was legally represented at the 2006 hearing, the Father did not attend. Hodgson DDJ was informed by the Father’s lawyers that the Father was, in fact, in Sydney.[5] His Honour refused the Father’s lawyers’ request for an adjournment and the final hearing proceeded for reasons stated in the UK decision.
[5] Ibid, p 5.
In relation to child maintenance, his Honour made an order for the Father to pay the Mother the sum of ₤10,000.00 per child per annum commencing 1 June 2006 and payable quarterly in advance (“the child maintenance orders”).
His Honour’s reasons for making the child maintenance orders were as follows:
“82. I now turn to maintenance. I am asked to make a maintenance order of ₤800 per child per month. This works out to ₤19,200. I have looked again at the indirect costs of the wife as primary carer, quite possibly only carer. I do also take account, in the totality of discretion, that the husband wanted private schooling and is now allowing his parents in law to pay them. I direct that there should be child maintenance at the rate of ₤10,000 per child per annum, to commence on first June, payable quarterly in advance. I date from first June as that was only a few days before the final hearing. I make it payable quarterly in advance ad this will be easier for international payments. I am satisfied in the circumstances of the case that the husband has the financial resources to make these payments. There should not, after all, be any better treatment of his new stepchild, who might, even now, be enjoying the benefit of a round the world trip at a total cost of about 4500 Australian dollars being not far short of ₤2000.
83. The Australian child support agency is one of the leading such agencies around the world. It was the model for the English system if only the model had been fully borrowed. It acts as a collection agency for International child support. Even in the past 12 months it has gone through a radical reform, ironically under the guidance of Professor Patrick Parkinson who was originally a relatively minor law lecturer in Wales but is probably Australia’s leading family law academic with the ear of the government. Next Monday he is speaking to our President in England about what we can learn from the Australian process. I do not know the exact status of the husband’s work or other situation in Australia but if there is any organisation or international body which can best make sure the money is paid, it is the Australian child support agency. I hope he pays voluntarily to his children but if he does not, I hope that the wife and her lawyers and the English child support agency and other elements of the DCA will work with the Australian child support agency for this payment to be made.
84. For the record, I am satisfied I have jurisdiction to make this child maintenance order because the payer father is out of the jurisdiction and not working for an English company. Moreover, having this jurisdiction, I have made this order as part of an overall package in this case, some thing which we are prevented when the child support agency applies. If subsequently the [father] was to be back within the jurisdiction and give disclosure, some other elements of the overall settlement might need review as to what was fair and just.”[6]
[6] Ibid, paragraphs 82-84.
The child maintenance orders were registered with the CSA Registrar for collection on 16 September 2008.
On 14 July 2009, a DPO was issued against the Father by the CSA Registrar (“the 2009 DPO”). Mr V outlines the reasons for the issue of the 2009 DPO in paragraphs 4-9 of his affidavit.

Law

Part V of the Collection Act deals with the payment and recovery of child support debts.
Under s.72D(1), the CSA Registrar (or delegate) has the power to make an order prohibiting a person from departing from Australia if:
·the person has a child support liability;[7]
·the person has not made arrangements satisfactory to the CSA Registrar for the child support liability to be wholly discharged;[8]
·the CSA Registrar is satisfied that the payer has persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability[9] or registrable overseas maintenance liability;[10] and
·the CSA Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the payer does not depart without wholly discharging the child support liability[11] or making satisfactory arrangements for the liability to be wholly discharged.[12]
[7] Section 72D(1)(a) of the Collection Act.
[8] Section 72D(1)(b) of the Collection Act.
[9] Section 72D(1)(c)(i)-(ii) of the Collection Act; see also ss.17 and 17A.
[10] Section 72D(1)(c)(iii) of the Collection Act; see also s.18A.
[11] Section 72D(1)(d)(i) of the Collection Act.
[12] Section 72D(1)(d)(ii) of the Collection Act.
For the CSA Registrar to be “satisfied that the person has persistently and without reasonable grounds failed to pay” the relevant child support debt, regard must be had to the following matters:
·the capacity of the person to pay the debt or debts;[13]
·the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;[14]
·in the case of a registrable overseas maintenance liability:
o the length of time for which the debt(s) have remained unpaid after the day on which they became due and payable, and
o the number of occasions on which the debt(s) had not been paid on or before the day on which they became due and payable;[15] and
·such other matters as the Registrar considers appropriate.[16]
[13] Section 72D(2)(a) of the Collection Act.
[14] Section 72D(2)(b) of the Collection Act.
[15] Section 72D(2)(da) of the Act.
[16] Section 72D(2)(e) of the Act.
A person who knowingly breaches a DPO may face a maximum penalty of 60 penalty units or imprisonment of 12 months, or both.[17]
[17] Section 72F of the Act.
The CSA Registrar does have the power, however, under ss.72K-72P of the Collection Act to grant a “departure authorisation certificate” that would allow the relevant person to temporarily leave Australia.
As previously stated, any appeal in relation to a DPO need to be made to the Federal Court of Australia or the Federal Magistrates Court.[18] Any application for a review of a decision by a CSA Registrar to revoke or vary a DPO,[19] or regarding the issue, or non-issue, of a departure authorisation certificate,[20] is made to the Administrative Appeals Tribunal.[21]
[18] Section 72Q of the Act.
[19] Sections 72I-72J of the Act.
[20] Sections 72K-72P of the Act.
[21] Section 72T of the Act.
Pursuant to s.72S of the Collection Act, a Court hearing an appeal under s.72Q may, in its discretion, make an order setting aside a DPO or may otherwise dismiss the appeal. As Emmett J stated in Jones v Child Support Registrar [2007] FCA 1732 (“Jones”):
“5. In an appeal under s. 72Q of the Act, the person aggrieved must establish that the order was wrongly made. That may be done by satisfying the Court that any one of the essential elements of s.72D is absent. However, the Registrar bears no onus of establishing the validity of the order.”
Consequently, the onus is cast upon the appellant, or the Father in this case, who must establish that a DPO was wrongly made. This is conceded by the Father in this case.[22]
[22] Father’s Case Outline document filed 3 November 2010, pp 5-6.
In Whittaker v Child Support Registrar [2010] FCA 43, (2010) 264 ALR 473 (“Whittaker”). Lindgren J found that the CSA Registrar is not subject “to a duty to comply with procedural fairness aspects of natural justice before making the DPO”.[23] His Honour also stated that:
“291. ...Generally...speaking, the terms of s 72D(1) show that a DPO is intended to “ensure” that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.”[24]
[23] Whittaker v Child Support Registrar [2010] FCA 43 at [248].
[24] Ibid at [291].

Submissions

Both Counsel provided the Court with written and oral submissions.

Submissions for the Father

The basis for the Father’s Appeal application is that the 2009 DPO was wrongly made and should be set aside.
In relation to s.72D(1)(a) and (b) of the Collection Act, the Father conceded that:[25]
·he had a child support liability;[26] and
·he had not made arrangements satisfactory to the CSA Registrar for the liability to be wholly discharged.[27]
[25] Father’s Case Outline document dated 3 November 2010, pages 7-9, and in particular paragraph 5.8.
[26] Section 72D(1)(a) of the Collection Act.
[27] Section 72D(1)(b) of the Collection Act.
In relation to s.72D(1)(c) and (d) of the Collection Act, the Father submitted that:[28]
·on the material before the CSA Registrar, he could not have been satisfied that the Father had persistently and “without reasonable grounds” failed to pay the relevant child support debt;[29] and
·the CSA Registrar could not have believed on reasonable grounds that it was “desirable” to make the 2009 DPO for the purpose of ensuring that the Father did not leave Australia without wholly discharging the relevant child support debt or making arrangements satisfactory to the CSA Registrar to wholly discharge it.[30]
[28] Ibid, page 8-9.
[29] Section 72D(1)(c) of the Collection Act.
[30] Section 72D(1)(D) of the Collection Act.
Mr Foster outlined the Father’s specific arguments in paragraphs 5.9-5.10 of the Father’s Case Outline document (emphasis in original):
“5.9 It is contended on behalf of the Applicant that on the material before him the Registrar could not be satisfied that the Applicant has persistently and without reasonable grounds failed to pay the child support debt (s72D(1)(c))
5.9.1 The liability was at the relevant time $116,267, that has accrued from July 2006 without notice to the Applicant.
5.9.2 The Applicant provided to the Registrar a Statement of Assets/Liabilities in February 2009. That statement disclosed his then monthly income, his personalty, his savings, his expenses and liabilities.
5.9.3 The proceedings in the UK stripped him of his assets in that country, with his then wife receiving the matrimonial home. The Applicant received a release of all arrears of child maintenance and spousal support to May 2006 by reason of the capital vested by the Court in the Wife. The Court noted that the Applicant would retain his pension (superannuation) funds in both the UK and Australia. The Wife’s evidence in those proceedings was the subject of some criticism and circumspection by the court (Reasons for Judgment at 9, 36, 53, 55, 56[)].
5.9.4The Applicant was made redundant in the UK (Judgment at 46) and it appears the child support orders on the basis of perceived needs (Judgment at 82) were made on an expectation of future income in the IT industry just as the global melt down was setting in (Judgment at 53, 67.) and with no reference to the [Applicant’s] capacity to pay or income circumstances at the time the order was made.
5.9.5The CSA enquiries did not reveal any financial circumstance other than as asserted by the Applicant. The Wife made unsubstantiated assertions none of which were subject to any enquiry or verification by the CSA.
5.9.7On the evidence before the CSA it could not be satisfied that the Applicant’s failure to pay the arrears was due to anything other than his impecuniosity faced with a debt of $116,000.
[Footnote: Unlike the circumstances in Russo (supra) where the debt was about $36,000 and the CSA had unearthed a money trail of company BAS statements, bank transfers, and asset ownership, and Albough [2007] FMCAfam 1106, where the debt was about $11,000 and the payer had income of $70,000 and CSA unearthed a real estate property, seven motor vehicles owned by the payer and overseas money transfers or Williams [2009) FMCA 481 where the debt was about $11,000 and the payee had a child support income of $64,436 and had paid his legal fees of $50,000 from a family trust. ]
5.9.10[sic] The Registrar must have regard to the matters set out in s72D(2) for the purpose of considering s72D(1)(c):
Firstly, capacity to pay. The Registrar on the material before him had a payer with limited income and no realisable assets with a debt of over $115,000.
Secondly, the number of occasions that recovery action has been taken. The answer is none. No recovery action has been taken. There is nothing in the material before the Registrar to indicate otherwise, Not one garnishment attempt, no Enforcement Summons to have the payee examined.., nothing.
Thirdly, the age of the debt and the non payment period before registration for enforcement. There is no factual issue as to this aspect.
5.9.11Fourthly, such other matters as the Registrar considers appropriate. There is no indication of any other matter being taken into account.
5.10It is contended that the Registrar could not believe on reasonable grounds that it was ‘desirable’ to make the order for the purpose of ensuring the Applicant did not leave Australia without wholly discharging the debt or making arrangements satisfactory to the Registrar to wholly discharge the liability (s72D(1)(d)).
5.10.1 The Applicant lives and works in Australia and has a partner here.
5.10.2He had departed and returned to Australia on several occasions.
5.10.3In Whittaker v Child Support Registrar [2010] FCA 43, the Court said:
‘Generally speaking, the terms of s 72D(1) show that a DPQ is intended to “ensure” that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.
It may be that the present submission is intended to distinguish between a purpose of preventing a particular imminent departure from Australia and a more general prevention of any departure from Australia. In my view even the latter is within para (b) of 5 72D(1). That is to say, that paragraph is satisfied if the Registrar believes on reasonable grounds that it is “desirable” to make the DPO for the purpose of “ensuring” (a strong word: see Troughton v Deputy Commissioner of Taxation [2008] FCA 18; (2008) 166 FCR 9 at [20]) that the person does not depart at any time in the future from Australia for any foreign country without first discharging the child support liability or making arrangements satisfactory to the Registrar for its discharge[.]
Apparently, however the Registrar would not hold that belief on reasonable grounds unless there was evidence of a risk that the person would depart from Australia for a foreign country, and no doubt this would commonly be established by evidence of past departures or of an intention to depart in the future’ per Lindgren J at [291-293].
5.10.3 [sic] The Applicants circumstances clearly were indicative of the DPO having no effect on any prospect of recovery of the whole of the liability in terms of his capacity to pay. Nor indeed ‘ensuring” that the Applicant discharged his child support liability or made arrangements satisfactory to the Registrar for its discharge. There was clearly strong evidence of no capacity to do so before the Registrar. Indeed the real risk is that the Applicant might lose what contract work he has.”

Mr Foster also submitted that given that provisions of the Act regarding DPOs are modelled upon the power of the Australian Tax Office (“ATO”) to make a DPO under s.14S of the Taxation Administration Act 1953 (Cth) (“the Tax Act”), the case law relevant to that provision “is instructive of the way in which the CSA DPO legislation should be interpreted.”[31]
[31] Father’s Case Outline document dated 3 November 2010, p.11.
Paragraph 5.11 of the Father’s Case Outline document states:
“The courts have interpreted the ATO provision, which is similar in terms to the CSA DPO provision, to provide a test that the Commissioner:
‘believed on reasonable grounds that it is desirable to stop a person leaving Australia because it is necessary to collect the tax that is owed to the government and that that discharging the tax liability will be affected by the person going overseas’ - Jessop J. in Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9.
The Court [has] stated in Edelston v Federal Commissioner of Taxation (1989) 85 ALR 226 at 231:
‘it is only the possibility or likelihood that the taxpayers departure from Australia would adversely affect the revenue that there should be under this Act a restriction on the right of an individual in a free society to travel without bureaucratic impediment. The power to issue a DPO may not be exercised penally or for other puposes [sic].’
The Courts have held that the ATO belief for the purposes of s14S(1)(b) must be based on ‘facts sufficient to induce that state of mind in a reasonable person’: Pattenden v Commissioner of Taxation [2008]FCA 1590 at [58]. The provisions of s72D are in all important respects the same. Thus the belief of the DPO officer is insufficient. Such a requirement is a hedge against the arbitrary use of the power and that protection is not to be trivialized by the use of the word ‘desirable’ in the provision: Pattenden v Commissioner of Taxation [2008] FCA 1590 at [93].
The Commonwealth Ombudsman has informed the CSA that where it believes the three grounds set out in s72D(1) are met then the DPO should only be made where it believes on objectively reasonable grounds that it is desirable to stop the payer leaving Australia because their intended departure would in some way affect the GSA ability to collect overdue child support.
There is no judicial authority as to this issue in the context of CSA DPO’s. It is contended that this Court should adopt the test adopted for the purposes of the ATO legislation. In that circumstance the DPO should be set aside.”

Submissions for the CSA Registrar

Mr Johnson SC commenced his submissions by noting that with respect to s.72D(1)(a) and (b) of the Collection Act, there was “common ground”:
“... that there is a child support liability, and that the applicant has not made arrangements satisfactory to the registrar for the child support liability to be wholly discharged.”[32]
[32] Transcript, 4 November 2010, page 19.
In respect of s.72D(1)(c) and (d) of the Collection Act, Mr Johnson referred the Court[33] to the observations of Emmett J in Jones when his Honour stated that the difficulty with these pre-requisites[34] “is that they depend upon the state of mind of the Registrar”.[35] Mr V explains his decision to make the 2009 DPO in his affidavit, in particular at paragraph 6. On the basis of information he reviewed, Mr V determined that the Father “had the capacity to pay his child support debt, which was a substantial amount in arrears”[36] and “that the criteria necessary to make a Departure Prohibition Order had been satisfied”.[37]
[33] Ibid, page 20.
[34] Referring here to s.72D(1)(b)-(d) of the Act.
[35] Jones & Child Support Registrar [2007] FCA 1732 at [9].
[36] Mr V’s affidavit, paragraph 7.
[37] Ibid, paragraph 8.
More specifically, in respect of s.72D(1)(c), Mr Johnson submitted that:
“… the UK judgment was a part of what was before the decision maker, and so the decision maker has this evidence or other material … indicating that the applicant has not wholly disclosed his position, and he’d be entitled to infer that if the applicant wasn’t wholly disclosing his position back before the judge, then he might not be wholly disclosing it now.
… the UK judgment found that he could afford to pay maintenance of 10,000 pounds with respect to each child. That finding, that he could afford to pay maintenance of 10,000 pounds per annum in relation to each child occurs at paragraph 82 of the judgment. And Mr V, in paragraph 7, appears to have taken that into account in reaching his satisfaction that the applicant did have capacity to pay child support. Another matter to bear in mind is that the applicant does seem to be involved in some complex affairs, that the material before the decision maker suggested that he was the director of three companies.
There’s … a certain complexity about his life which only goes so far, only goes so far on its face, but it feeds in to the difficulty that the decision maker might have as to whether or not the judge’s findings in the United Kingdom to the effect that he’d been not revealing assets were or were not without foundation.
The man finds himself in a situation where he’s been found by an English judge to have not disclosed his assets, and there’s a complexity about his affairs which leaves much unexplained. One of the things that’s unexplained is, in effect, travel expenses. The applicant had travelled overseas on some dozen occasions in the year between June of ’08 and June of ’09, and that’s extracted in the material attached to Mr V’s affidavit. Now, he’s never come forward with any explanation as to the funding of those trips and where he stayed, and the style in which he lived whilst he was so travelling.
… Then, with respect to the house in [omitted], well, he lives in that house. The address …was given as his residential address in the asset liabilities form, to which you’ve been taken. Now, that’s a rather dot point trip through some of that material attached to Mr V’s affidavit and the judgment, but from that material, I would submit to your Honour that a decision maker could be satisfied, could honestly be of the view, that the applicant was somebody who had persistently and without reasonable grounds refused to pay.”[38]
[38] Transcript, 4 November 2010, pages 21-23.
Mr Johnson acknowledged that while there has not been any formal recovery action taken by the CSA Registrar against the Father, there was evidence that discussions had taken place between the CSA Registrar and the Father “to try to get him to adhere, and that those have proved fruitless”.[39]
[39] Ibid, page 23.
Mr Johnson also acknowledged that there was also evidence before the Court that the Father’s business structures are very complex and difficult for the CSA Registrar to administratively collect child support payments from.[40]
[40] Ibid, pages 23-24 (referring to email from Ms D dated 9 July 2009 attached as Annexure “A” to Mr V’s affidavit).
In respect of s.72D(1)(d) of the Collection Act, Mr Johnson submitted that the existence of a DPO “can be an incentive to make payment” and it is “simply not necessary that [a DPO] also aid some other recovery action”.[41] The fact that a DPO gives a liable parent an incentive to pay makes it in itself an aid to recovery by encouraging payment.[42]
[41] Transcript, 4 November 2010, page 24.
[42] Ibid.
Mr Johnson further submitted that, even if the case law relevant to s.14S of the Tax Act did apply in relation to the DPO provision in the Collection Act, then it remains:
“… self evident that his being in Australia would aid other recovery action if it occurred. If some funds emerge which the child support registrar wishes to recover, then obviously it’s going to be easier if he’s here. There was reference in Whittaker’s case to the fact there must at least be some evidence that the applicant travels.
Well, he does travel. He travelled some dozen times in the year preceding the making of the DPO. I’ve already mentioned that he’s failed to bring to hearing, at least, any challenge to the liability itself and seemed to be rather slow bringing about that challenge. He had the agency, in effect, encouraging him to do it, but that hasn’t been brought to finality, and another thing to be borne in mind by the court in looking at this scenario is that a part of the legislative scheme, as I mention in written submissions, is provision for departure authorisation certificates. And so the legislature has itself envisaged that there might be some means by which people can depart Australia during the currency of a DPO if strict conditions are fulfilled.
In this case, the DPO is likely to act as an incentive for him to pay child support ...”[43]
[43] Ibid.
In any event, Mr Johnson submitted that the CSA Registrar did not accept the Father’s argument that the case law relevant to s.14S of the Tax Act has application to the interpretation of the DPO provisions in the Collection Act. Although Mr Johnson was not asking the Court to decide whether the decisions referred to by Mr Foster were wrong in law as regards s.14S of the Tax Act, he did submit that a literal reading of s.72D of the Collection Act, “and not that which was reached in Dalco,[44] would be preferable”.[45]
[44] Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443.
[45] Transcript, 4 November 2010, page 25.
Mr Johnson thereafter proffered two reasons for the non-application of the judicial view taken in relation to s.14S of the Tax Act in the interpretation of s.72D of the Collection Act:
“… firstly, they’ve not been held to apply to this section. This is the first time, I think, that anyone is being asked to find that they do apply in the respect that my friend has mentioned.
…The second thing is that the objects of the legislation are different. The object of the [Act] … particularly in [s.3(1)(a) and (b)], is to – and these are the principal objects – to ensure that the children receive from their parents the financial support that the parents are liable to provide and the periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis, and that Australia is in a position to give effect to his obligations under international agreements …
Now, those primary obligations, perhaps particularly those in [s.3](a) and (b), favour an interpretation of these provisions which gives the words their literal effect, and in that respect, your Honour, I might note that when one looks closely at Jessup J’s decision in … Troughton[46] at … paragraphs 20 and 21, what your Honour finds is that Jessup J in Troughton was, in fact, inclined himself to take a literal view of the language in section 14S of the Tax Administration Act. He was inclined to reach the opposite view that had been reached in Dalco and Edelsten, but he noted Dalco and Edelsten, and then he followed them.”[47]
[46] Troughton v Deputy Commissioner of Taxation[2008] FCA 18; (2008) 166 FCR 9; (2008) 99 ALD 571; 2008 ATC 20-001; (2008) 69 ATR 234.
[47] Transcript, 4 November 2010, page 25.
In further support of his submission that s.72D of theCollection Act should be interpreted literally, Mr Johnson also asked the Court to note that the Second Reading Speech for the amending legislation made no reference to the importation of s.14S of the Tax Act.[48] In moving the amending legislation the then Minister for Community Services did state:
“Amendments made by the bill will also enable the registrar to issue a departure prohibition order to prevent a payer who has persistently failed to meet his or her child support obligations from leaving the country. In practice, the CSR [that is, the CSA Registrar] will use this power if the payer is able to pay the outstanding debt, but has consistently refused to do so, and other attempts to collect this debt has been unsuccessful. If the payer makes satisfactory arrangements to pay the debt, the CSR will be able to revoke the order and will also be able to authorise a specific departure if appropriate. The provisions are consistent with the existing DPO order scheme in place in relation to taxation debtors.”[49]
[48] Ibid, pages 25-26.
[49] The Hon. Larry Anthony MP, Child Support Legislation Amendment Bill (No 2) 2000, Second Reading Speech, 30 August 2000, Parliamentary Debates, House of Representatives, pp 19614-19615.
While Mr Johnson conceded that the relevant provisions are consistent, he submitted that such consistency does not mean “that the Dalco idea necessarily invades upon its purpose”.[50]
[50] Transcript, 4 November 2010, page 26.
Mr Johnson then went on to argue that if s.72D of the Collection Act is given “its literal effect, which is consistent with its purpose”,[51] then the decision of Lindgren J in Whittaker will further assist the analysis. In that case, an argument was raised that the CSA Registrar’s “bad faith” in issuing a DPO was established by the CSA Registrar having regard to an irrelevant consideration, namely “the desirability of using the DPO to ‘secure civil debt’”.[52] Mr Johnson then noted that this, of course, is the same complaint made by the Father in the present case.
[51] Ibid.
[52] Whittaker v Child Support Registrar [2010] FCA 43 at [290].
In respect of that argument, Lindgren J says in Whittaker at paragraphs 291-293:
“291. … Generally speaking, the terms of section 72D(1) showed that a DPO is intended to ‘ensure’ that a person does not depart Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the registrar for its discharge. While the DPO is not security in a proprietary sense, it is security in a broader sense, a procedure designed to prevent recovery being frustrated.
292. It may be the present submission is intended to distinguish between a purpose of preventing a particular imminent departure from Australia and a more general prevention of any departure from Australia. In my view even the latter is within para [(d)][53] of 72D(1). That is to say, the paragraph is satisfied if the Registrar believes on reasonable grounds that it is desirable to make the DPO for the purpose of ‘ensuring’ (a strong word: see Troughton v Deputy Commissioner of Taxation [2008] FCA 18; (2008) 166 FCR 9 at [20]) that the person does not depart at any time in the future from Australia for any foreign country without first discharging the child support liability or making arrangements satisfactory to the registrar for its discharge.
293. Apparently, however, the Registrar would not hold that belief of reasonable grounds unless there was evidence of a risk that the person would depart from Australia for a foreign country, and no doubt this would commonly be established by evidence of past departures or intention to depart in the future.”
[53] Ibid at [292]. His Honour refers to para (b) in the reported decision but I accept the submission that his intention was to refer to para (d).
Mr Johnson submitted that it is clear from the above quotation that his Honour was rejecting the ‘irrelevant consideration’ argument raised by the liable parent in Whittaker and, given the facts of that case, if a DPO is made it will encourage the liable parent to pay.[54] Given the reality that the Father in the case before me has a history of travelling outside Australia, and indeed proposes future travel at regular intervals,

Mr Johnson further submitted that his Honour’s view runs contrary to argument raised by the Mr Foster.[55]
[54] Transcript, 4 November 2010, page 27.
[55] Ibid.
Lastly, Mr Johnson stated that when Whittaker was on appeal before the Full Court of the Federal Court of Australia, it “did not itself have any great deal to say about this”.[56] Their Honours did state at paragraph 57 of their decision:
“57. … the appellant asserts that the trial judge erred in finding that a DPO could be issued for the purpose of enforcement of a liability under the Collection Act (ground 20). The trial judge characterised this argument as a complaint that the decision to issue the DPO involved an irrelevant consideration. The trial judge dismissed this argument at [290]–[294] of his reasons. The appellants have not articulated any error in his Honour’s approach to this point. Accordingly, ground 20 of the appeal should be rejected.”[57]
[56] Ibid.
[57] Whittaker v Child Support Registrar [2010] FCAFC 112 (per Keane CJ, Moore and Perram JJ).

Discussion and findings

This Court has to decide whether the DPO was wrongly made in this case. If so, then the Appeal application may be upheld and the DPO set aside. If not, then the Appeal application may be dismissed. The discretion to set aside the DPO rests with the Court.[58]
[58] Section 72S of the Collection Act.
As stated previously, the onus is cast upon the Father to satisfy “the Court that any one of the essential elements of s.72D” of the Collection Act was absent at the time of the making of the 2009 DPO.[59]
[59] Jones & Child Support Registrar [2007] FCA 1732 at [5] (per Emmett J).
In Albaugh & Child Support Registrar [2007] FMCAfam 1106, Sexton FM stated (emphasis in original):
“19. The Federal Magistrates Court can only consider whether a Departure Prohibition Order has been properly made. The questions that need to be determined were outlined by the Federal Court in Poletti v Deputy Commissioner of Taxation (1994) 124 ALR 373. This decision considered s.14V of the Taxation Administration Act 1953 which is in similar terms to s.72Q(1) of the [Collection] Act. The principles adopted by the Court in Poletti were applied by Emmett J in Jones where his Honour stated [at paragraph 6] that:
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 section 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.”
It is noted that this statement of the law by Emmett J has been accepted in a number of other decisions of this Court including Williams v Child Support Registrar [2009] FMCA 481; (2009) 109 ALD 343[60] and Russo & Child Support Registrar [2009] FMCAfam 437.[61] Justice Emmett’s decision was also referred to by Counsel in their submissions.
[60] Williams v Child Support Registrar [2009] FMCA 481 (per Lucev FM at [84]-[85]).
[61] Russo & Child Support Registrar [2009] FMCAfam 437 (per Sexton FM at [18]).
The Court will now consider the “three principal questions” in the context of the case before me.

Question 1: Does the Father have a child support liability?

It is conceded by the Father that he has a child support liability.
The Court therefore finds that, at the relevant date, the Father had a child support liability.

Question 2: Was the CSA Registrar satisfied as to the matters, and did (s)he have the belief, referred to in section 72D(1)?

While the Father also conceded that he had not made arrangements satisfactory to the CSA Registrar for the child support liability to be wholly discharged, he disputes that the CSA Registrar was satisfied as to the relevant matters and had the requisite belief referred to in s.72D(1)(c) and(d) of the Collection Act.
Prior to considering these issues further, it is appropriate to firstly consider the arguments as to whether s.72D of the Collection Act should be interpreted literally, as the CSA Registrar submits, or in light of the judicial interpretation and commentary relevant to s.14S of the Tax Act, as the Father submits.

Law

It would be fair to say that a literal interpretation of s.72D makes it harder for the Father to succeed in the Appeal application because, as Emmett J observed in Jones, the difficulty in challenging s.72D(1)(b)-(d) “is that they depend upon the state of mind of the Registrar”. Emmett J stated:
“7. … The question that is most likely to be involved in an appeal under s 72Q is whether reasonable grounds existed for the Registrar to be satisfied as to the relevant matters or for the holding of the requisite belief.
8. Ordinarily, the material before the Registrar would not be known to an applicant. However, an applicant is entitled to have produced for his consideration the material on which the Registrar relied in making the order and any other material that was before the Registrar that bears on the reasonableness of the grounds for the Registrar’s belief or satisfaction. It may be that an applicant would be entitled to have such material produced to the Court by the Registrar by means of subpoena or discovery. Further, it may be that the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) could be called in aid to require the Registrar to give reasons for the decision to make the relevant order.
9. For the applicant to succeed in the present appeal, it would be sufficient for him to demonstrate that one of the four prerequisites for the making of a departure prohibition order was not satisfied. The first prerequisite is satisfied. As I have said, the applicant accepts that he has a child support liability and he did not suggest that the amount of the liability was so small as to be negligible. The difficulty with the other three prerequisites is that they depend upon the state of mind of the Registrar ...”

At the core of the Father’s argument is the decision of Young J in Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443 (“Dalco”) and, more specifically, his Honour’s interpretation of s.14S of the Tax Act. In that case his Honour, in considering an appeal under s.14V of the Tax Act against the making of a DPO under s.14S, stated that s.14T of the Tax Act:
“…gives a clue that the matters which spark the making of a s.14S order are that the recoverability of tax will be affected by the departure of the taxpayer from Australia”.
Section 14T of the Tax Act is similar to s.72I of the Collection Act and relates to the Commissioner’s power to revoke or vary a DPO. His Honour stated:
“Accordingly, once the Commissioner is satisfied that the tax is completely irrecoverable then it cannot be the case that collection of the tax will be affected by the taxpayer going outside Australia and the raison d'etre for making the order has gone so that the order must be revoked.
I am of the view that that is the way that one approaches the section. The Commissioner is to believe on reasonable grounds that it is desirable to stop a person leaving Australia because it is necessary to collect the tax that is owed to the government and that that discharging of the tax liability will be affected by the person going overseas.”[62]
[62] Dalco v Federal Commissioner of Taxation (1987) 19 ATR 443 at 447-448.
As Mr Foster submitted, this view was adopted by Einfeld J in Edelsten v Federal Commissioner of Taxation [1989] FCA 13: (1989) 16 ALD 763; (1989) 85 ALR 226; (1989) 89 ATC 4120; (1989) 20 ATR 238, where he stated:
“17. In other words, it is only [on] the possibility or likelihood that the taxpayer's departure from Australia would adversely affect the revenue that there should be under this Act a restriction on the right of an individual in a free society to travel without bureaucratic impediment. The power to issue a DPO may not be exercised penally or for other purposes.”
This view was followed more recently by Jessup J in Troughton v Deputy Commissioner of Taxation[2008] FCA 18; (2008) 166 FCR 9; (2008) 99 ALD 571; 2008 ATC 20-001; (2008) 69 ATR 234, a case referred to by both Counsel in this case but for different purposes. From my reading of paragraphs [20]-[23] of that decision, it is clear that, “uninstructed by authority”, Jessup J would have interpreted s.14S of the Tax Act literally but for the case law.[63] As a consequence, his Honour stated:
“22. It follows that s 14S(1)(b) should be read not literally, but as though it referred to a belief by the Commissioner (on reasonable grounds) that it was desirable that the person not leave Australia without discharging the tax liability or making the arrangements there referred to. Thus it is not to be taken as a given that, in every case, the departure of the person from Australia will make it unlikely, or at least less likely, that the tax liability will be discharged, or that the ability of the Commissioner to recover the tax will be impaired. These are things which must be considered by the Commissioner in every case. The purpose of s 14S, and accordingly a central purpose of Pt IVA, is not the prevention of persons (owing tax) from leaving Australia simpliciter: it is the prevention of such persons from leaving Australia where, in the Commissioner’s belief reasonably arrived at, the recovery of tax would or might thereby be impaired.
23. In that result, at least so far as revealed by s 14S, the general scope and objects of Pt IVA of the Administration Act are as contended for by both sides in the present case. As contended for by the Commissioner, they are the protection of the revenue. As contended for by the applicant, they are the prevention of persons (owing tax) from leaving Australia where that would affect the recoverability thereof.”
[63] Troughton v Deputy Commissioner of Taxation[2008] FCA 18 at [20]-[21].
This summary of the law in relation to s.14S of the Tax Act was in turn endorsed by Logan J in Pattenden v Commissioner of Taxation [2008] FCA 1590; (2008) 175 FCR 1; (2008) 106 ALD 482; (2008) 74 ATR 92 at [93].
The question for the Court to decide, of course, is whether the Dalco reasoning has application in the context of s.72D of the Collection Act, or not.
As the learned authors of the text Statutory Interpretation in Australia[64] have observed there are two general approaches to the interpretation of legislation in the Australian context; the “literal approach” and the “purposive approach”.[65]
[64] Geddes, R. & Pearce, D. C., Statutory Interpretation in Australia, 6^th ed, Lexis Nexis Butterworths, Australia, 2006
[65] Ibid, at [2.2].
The literal approach has been defined and explained in a number of cases. In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) [1920] HCA 54; (1920) 28 CLR 129, Higgins J stated:
“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.”[66]
[66] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ case”) (1920) 28 CLR 129 at 161-2.
More recent judicial statements have allowed for possible alternative approaches.[67] In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841, Gummow, Kirby and Hayne JJ stated:
“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”[68]
[67] Geddes, R. & Pearce, D. C., op cit, at [2.3].
[68] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [78].
Speaking extra-judicially, the Hon. James Spigelman AC,[69] has described the development in the approaches to judicial interpretation in Australia as a movement from “text to context”.[70] That said, in a recent article “The intolerable wrestle: Developments in statutory interpretation” (2010) 84 ALJ 322, his Honour opined:
“However, there are a number of recent High Court judgments which indicate that the degree of flexibility with respect to the text [emphasis added] that has, on occasion, been displayed by judges in intermediate courts of appeal, has gone too far. There are indications that the judiciary must, with greater force and clarity, re-focus its intention on the text itself
… The task of the courts is to interpret the words used by Parliament. It is not to divine the intent of Parliament. The courts must determine what Parliament meant to say by the words it used. The courts do not determine what Parliament intended to say”.[71]
[69] Chief Justice of the New South Wales Supreme Court, 1998-2011.
[70] See Spigelman J J, “From Text to Context: Contemporary Contractual Interpretation” (2007) 81 ALJ 322.
[71] Spigelman J J, “The intolerable wrestle: Developments in statutory interpretation” (2010) 84 ALJ 322 at 827-8.

Conclusion

While it is undeniable that the DPO provisions in relation to child support are consistent with the DPO scheme in place for taxation debtors, the Court agrees with the CSA Registrar’s submission that the objectives of the respective legislation differ. Section 3 of the Act states:
“(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.
(2)It is the intention of the Parliament that this Act shall be construed and administered, to the greatest extent consistent with the attainment of its objects, to limit interferences with the privacy of persons.”
The Father has a child support liability which he acknowledges remains outstanding. He further acknowledges that he has not made arrangements satisfactory to the Registrar for that liability to be wholly discharged.
While the effect of registration of the Father’s liability is that it becomes a debt due to the Commonwealth,[72] child support is neither taxation revenue nor a tax on parenting. Such debts are to be paid to the eligible parent and not to the consolidated revenue of the Commonwealth.
[72] Section 30 of the Collection Act.
While the CSA Registrar may collect child support liabilities in some circumstances, most usually by automatic deduction from salary or wages, one of its primary functions is to enforce the payment of arrears by liable parents. Given the periodic nature of child support payments, this function may need to be exercised on more than one occasion.
There is merit in the submission from the CSA Registrar that if s.72D of the Collection Act is given “its literal effect, which is consistent with its purpose”, then “the desirability of using the DPO to “secure civil debt””[73] is not an irrelevant consideration by the CSA Registrar. [74]
[73] Whittaker v Child Support Registrar [2010] FCA 43 at [290].
[74] Transcript, 4 November 2010, page 26.
Consistent with the view expressed by Lindgren J in Whittaker, s.72D(1)(d) of the Collection Act is satisfied if it is established by the evidence that the CSA Registrar believed on reasonable grounds that it was desirable to make a DPO for the purpose of “ensuring” that the liable parent does not depart the country at any time in the future without first discharging the child support liability or making arrangements satisfactory to the CSA Registrar for its discharge.[75]
[75] Whittaker v Child Support Registrar [2010] FCA 43 at [292].
The Court will now consider the evidence and submissions in light of the s.72D(2) factors.

(i) Capacity of person to pay the debt or debts

It is clear from the evidence of Mr V, and the information available to the Registrar which is contained in Mr M’s affidavit, that Mr V had regard to the Father’s capacity to pay his child support liability.
It should be noted that the recommendation from Mr H dated 6 July 2009, found at Annexure “A” to Mr V’s affidavit, that:
“Capacity has been established by both the UK judge and including the information sourced with respect to Mr Onder’s business interests, and including his other assets in Australia. Any off shore assets Mr Onder may have is difficult to establish”.

(ii) Number of occasions action taken to recover debt and outcome

Similarly, it is clear from the evidence that Mr V had regard to the number of occasions on which action has been taken to recover the debt or debts from the Father, and the outcome.[76]
[76] See in particular, Mr V’s affidavit, paragraph 6.
While the Court understands the Father’s argument that the Court should take into account that no formal recovery proceedings have been taken by the CSA Registrar against the Father, it is clear from the evidence that negotiations to secure payment have taken place.

(iii) Length of time debt remained unpaid and number of occasions debt not been paid

The Father does not raise an issue in respect of s.72D(2)(da) of the Collection Act.[77]
[77] Father’s Case Outline document filed 3 November 2010, page 9, paragraph 5.9.10

(iv) Other matters the Registrar considers appropriate

While the Father asserts that there is no evidence that the Registrar considered any other matter, it is clear from Mr V’s affidavit that the size of the on-going child support liability, and the Father’s decision to only pay $3,000.00 towards his child support liability was a relevant consideration.
Given the above, the Court finds that at the relevant date:
·the Father had not made arrangements satisfactory to the CSA Registrar for that liability to be wholly discharged; and
·that Mr V considered the material available to him and was satisfied that the Father’s failure to pay his child support liability was without reasonable grounds having regard to the matters in s.72D(2) of the Collection Act.

Question 3: Did reasonable grounds exist for the CSA Registrar to be satisfied as to the relevant matters and for the holding of the requisite belief?

The Father’s argues that the CSA Registrar could not have believed on reasonable grounds that it was “desirable” to make the DPO for the purposes articulated in s.72D(1)(d)(i)-(ii) of the Collection Act.[78] The Father asserts that his circumstances are indicative of the DPO having no effect on any prospect of recovery of the whole child support liability.[79]
[78] Ibid, paragraph 5.10.
[79] Ibid, paragraph 5.10.3.
In response, the CSA Registrar questions the Father’s circumstances. As previously stated, on the basis of information he reviewed, Mr V determined that the Father “had the capacity to pay his child support debt, which was a substantial amount in arrears”[80] and “that the criteria necessary to make a Departure Prohibition Order had been satisfied”.[81]
[80] Mr V’s affidavit, paragraph 7.
[81] Ibid, paragraph 8.
While the Father asserts there is “strong evidence” that he has no capacity to discharge the child support liability,[82] there is clear evidence that the Father regularly travels overseas for business purposes despite his modest taxable income. As stated previously,

Mr V’s affidavit attaches, at Annexure “A”, the letter from Mr H dated 6 July 2009 in support of the making of a DPO against the Father. In relation to s.72D(1)(d) of the Collection Act it states that the Father:
“… has in excess of 130 international movements; this is at odds with his stated income and his claim that he is merely a consultant for his Father in law’s company ...
[departure and arrival dates omitted]
This pattern of travel show[s] that in just over a 12 month period [the Father] has travelled from Australia on more than a dozen occasions.”[83]
[82] Father’s Case Outline document filed 3 November 2010, page 9, paragraph 5.10.3.
[83] Mr H’s letter dated 6 July 2009, marked as Annexure “A” to Mr V’s affidavit.
It is not for this Court to question why the Father chooses to commit so much of his energy into a [omitted] business that produces only a modest income. Nor is it for this Court to question the Father’s motives for undertaking such a considerable amount of overseas travel to further his business interests. That said, it is clear to the Court that the CSA Registrar formed the view that the issue of a DPO against the Father was likely to act as an incentive for him to pay the child support liability. His child support liability is considerable.
As stated earlier, s.72D(1)(d) of the Collection Act is satisfied if the evidence establishes that the CSA Registrar believed on reasonable grounds that it was desirable to make the DPO for the purpose of ensuring that the liable parent does not depart Australia at any time in the future without first discharging the child support liability or making arrangements satisfactory to the Registrar for its discharge.[84]
[84] Whittaker v Child Support Registrar [2010] FCA 43 at [292] (per Lindgren J).
Consequently, the Court finds that reasonable grounds existed for the Registrar to be satisfied as to the s.72D matters and for the formation by him of the requisite belief.

Decision

Given the above findings, the Appeal application must fail.
The Father’s application filed on 3 June 2010 is dismissed.
Given that the CSA Registrar has sought an order for costs, the Court will adjourn the matter to a convenient date to consider the parties’ submissions as to whether a costs order should be made, and if so, the basis upon which it should be made.
There will be orders of the Court to reflect this decision.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Monahan FM

Date: 23 June 2011