Peters and Child Support Registrar (Child support) - [2020] AATA 996

Peters and Child Support Registrar (Child support) [2020] AATA 996 (29 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/4022
Re:Raymond PETERS
APPLICANT

AndChild Support Registrar
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:29 April 2020
Place:Adelaide

The Tribunal affirms the decision of the Child Support Registrar made on 14 June 2019 to refuse to issue the applicant a departure authorisation certificate
.....................[Sgnd].........................................
Deputy President Britten-Jones
CATCHWORDS
CHILD SUPPORT – refusal to issue a departure authorisation certificate – child support debt – where the applicant is unable to give security - whether a departure authorisation certificate should be issued on humanitarian grounds – the decision under review is affirmed
LEGISLATION
Child Support (Registration and Collection) Act 1988
Child Support (Assessment) Act 1989
CASES
CDL19 v Child Support Registrar [2020] FCCA 385
REASONS FOR DECISION
Deputy President Britten-Jones

This is an application for review of a decision of a delegate of the respondent, the Child Support Registrar (Registrar), made on 14 June 2019, to refuse to issue the applicant a departure authorisation certificate (DAC) under s 72L of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act).[1]
[1] All references to legislation are to the Collection Act unless otherwise stated
Background
On 17 September 2018, a delegate of the Registrar made a Departure Prohibition Order (DPO) pursuant to s 72D to prohibit the applicant from departing Australia for a foreign country. The applicant filed an appeal in the Federal Circuit Court against the making of the DPO. The appeal was heard by Judge Brown on 18 December 2019. That appeal was dismissed on 27 February 2020 as reported in CDL19 v Child Support Registrar [2020] FCCA 385. The background facts are similar to this matter[2] and I adopt part of the reasons of Judge Brown as follows:
[2] The applicant agreed that these background facts are not contentious
[5]There is no controversy that the applicant is the father of a child [Mr B], who was born, in South Australia, in 1989. Mr B’s mother is not a party to these proceedings but is aware of them in general terms.
[6] In particular, although [Mr B] is now an adult and self-supporting, the mother wishes to receive arrears of maintenance, due to her from the father, as a consequence of a court order made in her favour, in respect of the financial support required for [Mr B] during his infancy.
[7]It is uncontroversial that the applicant and the mother have had an acrimonious relationship with one another since the time of [Mr B]’s birth. It is also clear that Mr B lived with the mother throughout his childhood and had little, if anything, to do with the applicant.
[8]In these circumstances, the mother was entitled to seek an order for child maintenance, from the applicant, pursuant to the provisions of the Family Law Act 1975 , which she did, apparently in tandem with other proceedings relating to [Mr B]’s parenting.
[9] In this context, Gunn J, sitting in the Family Court of Australia at Adelaide, made an order directing the applicant to pay maintenance, for [Mr B], in an amount of $65.00 per week, commencing on 7 May 1990.
[10] A subsequent application, made by the applicant in 1994 to discharge this child maintenance order, was dismissed by Burton J, in the Family Court at Adelaide, in October of 1994.
[11] As she was entitled to do, the mother registered the order of the Family Court, entitling her to receive periodic amounts of child maintenance from the applicant, with the Registrar.
[12]The effect of such registration was to authorise the Registrar to collect maintenance payments due to the mother, from the applicant, on her behalf, pursuant to the provisions of Part III of the Collection Act.
[13]Pursuant to the provisions of section 67 of the Collection Act, if child support is not paid, when it becomes due and payable, the outstanding amount attracts a penalty.
[14]The Registrar has calculated that, between the commencement of collection and 21 September 2019, the applicant has incurred arrears of child maintenance of $37,723.93, together with penalties of $59,400.17, making a total debt of $97,124.10.
[15]The applicant is not in a position to challenge this debt; the method of its calculation, including the penalties calculated to apply to it; nor to seek any form of remission of the moneys owed by him; in the current proceedings. Rather, the sole focus of the case is on the probity of the DPO, which is founded on the debt.
[16]Pursuant to section 116(2) of the Collection Act, the Registrar has authority to establish the necessary evidentiary basis of any relevant registerable maintenance liability by means of the provision of a signed certificate. In the current case, the Registrar has provided such a certificate dated 24 September 2019, which evidences the quantum of the debt owed by the applicant to the Registrar in the amount of $99,080.05.
[17]The applicant was born in the United Kingdom in 1946. He migrated to Australia in the 1970s and became an Australian citizen a few years later. He retained his UK citizenship and right of abode in that country. He is not currently in paid employment but receives an Australian aged pension, at the single rate, which results in him receiving $840.00 per fortnight from Centrelink.
[18]Between 1997 and 2014, the applicant lived in the United Kingdom. During the course of his evidence to the court, he further deposed that he had been imprisoned, in the United Kingdom, between early 2004 and 2009, when he had been released on parole, which expired in early 2012.
[19]As a consequence of his residency in the United Kingdom, including the periods during which he was imprisoned, the applicant has an entitlement to receive an aged pension from the British authorities. It is the applicant’s position that he personally does not receive any moneys from the UK government. This is controversial so far as the Registrar is concerned.
[20]The applicant is now 73 years of age. He has re-partnered. His current partner is a person from [Country D]. She is not an Australian citizen and so she is not entitled to Australian social security payments.
[21]It is on this basis that the applicant has been granted the full aged pension by the Australian authorities. It is his position that he fully utilises this pension in support of himself and his partner, with whom he lives in rented accommodation. It is further his position that he has no assets of any significant value.
[22]The applicant commenced these proceedings because he wished to be able to travel to the United Kingdom to visit his sister, who has been diagnosed with breast cancer and is currently undergoing extensive treatment for it. In these circumstances, the applicant applied to the Registrar to be able to travel outside of Australia on humanitarian grounds relating to his desire to see his seriously ill sister.
[23]It is the applicant’s position that it is axiomatically apparent that he can never pay the child maintenance debt currently standing against him and therefore the imposition of the DPO against him can only be regarded as an act of petty bureaucratic bastardry on the Registrar’s part. From his perspective, the DPO represents an infringement of his civil liberties and entitlement to travel where he pleases.
[24]The Registrar does not agree, submitting that there was a proper basis to impose the order in question, which was based on the applicant’s persistent failure to pay his child maintenance obligations and the lack of candour, on his part, regarding his financial arrangements with relatives in the United Kingdom, about which the Registrar remains dubious.
On 27 May 2019, the Registrar received an application from the applicant for a DAC. The applicant stated that his intention was to travel to the United Kingdom from 15 June 2019 to 15 September 2019 to visit his sister who had been diagnosed with cancer. The applicant stated that his sister would be paying for his airfares to the United Kingdom.
On 14 June 2019, a delegate of the Registrar refused to issue the applicant a DAC. On 8 July 2019, the applicant lodged an application for review of the decision to refuse to issue a DAC. The Tribunal has jurisdiction to determine this application pursuant to s 72T.
It is not in dispute that Mr Peters’ child support debt as at 24 February 2020 was a total amount of $99,747.89 (the debt), comprising $35,832.55 in child support arrears and $63,915.35 in late payment penalties.
APPLICABLE LAW
The statutory provisions governing DPOs and DACs are set out in Part VA of the Collection Act. Although this application relates to a DAC it is appropriate to consider the legal principles for DPOs so as to understand the context in which a DAC may be issued.
Departure Prohibition Orders
Judge Brown set out the legal principles applicable to an appeal from the making of a DPO and I adopt his reasons as follows:
[25]Two of the principle objects of the Collection Act, contained in section 3(1), are to ensure that children receive from their parents the financial supports that parents are liable to provide and to ensure that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis.
[26]The Collection Act and the related legislative provisions contained within the Child Support (Assessment) Act 1989 create machinery to enable these objectives to be achieved. In general terms, the scheme inaugurated by the twin pieces of legislation creates a system whereby a register of maintenance liabilities in respect of children, within Australia, is maintained by the Registrar to enable the regular collection of the sums due from liable parents for distribution to parents charged with caring for the applicable child or children.
[27]The expression “registrable maintenance” liability is defined by section 17 of the Collection Act. It includes a liability of a parent of a child to pay a periodic amount to the carer of that child for the maintenance of the child which arises from a court order. The monies owed by the applicant pursuant to the order of Gunn J are such a registrable maintenance liability.
[28]Pursuant to section 30 of the Collection Act, once a maintenance liability has become registered pursuant to the provisions of the Act, the amounts payable become debts due to the Commonwealth and so it becomes responsible to collect them and to remit amounts so collected to the carer.
[29] In my view, in this context, the court must examine the particular provisions relating to the making of DPOs contained in Part VA of the Act. In particular, section 72D(1) provides as follows:
(1)The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability; and
(b)the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c)the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i)child support debts arising from a registrable maintenance liability under section 17; or
(ii)a child support debt arising from a registrable maintenance liability under section 17A; or
(iii)one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and
(d)the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i)wholly discharging the child support liability; or
(ii)making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.”
[30]Section 72D(1)(c) is subject to further considerations contained in section 72D(2). In particular, in determining whether a person has persistently and without reasonable grounds failed to pay a child support debt, the Registrar must have regard to the following matters:
(2)For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:
(a) the capacity of the person concerned to pay the debt or debts;
(b)the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c)if subparagraph (1)(c)(i) applies — the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(d)if subparagraph (1)(c)(ii) applies — the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;
(da) if subparagraph (1)(c)(iii) applies:
(i)the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and
(ii)the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(e)such other matters as the Registrar considers appropriate.”
Departure Authorisation Certificates
Section 72 K provides for the making of an application for a DAC:
72K Application for departure authorisation certificate
(1) A person in respect of whom a departure prohibition order is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a departure authorisation certificate).
(2) The application must be in the approved form.
Note: For approved form see section 72X.
Section 72L provides the circumstances in which the Registrar must issue a DAC:
72L When Registrar must issue departure authorisation certificate
(1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.
(2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:
(a)that, if the certificate is issued.
(i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and
(ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and
(b) that it is not necessary for the person to give security under section 72M for the person’s return to Australia.
(3)If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:
(a) the person has given security under section 72M for the person’s return to Australia; or
(b)if the person is unable to give such security, the Registrar is satisfied:
(i)that the certificate should be issued on humanitarian grounds; or
(ii)that refusing to issue the certificate will be detrimental to Australia’s interests.
Section 72M allows a person to give such security as the Registrar considers appropriate for the person’s return to Australia:
72M Security for person’s return to Australia
(1)A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person’s return to Australia by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.
Evidence
Mr Peters gave evidence by telephone and was cross examined. His evidence was as follows.
Mr Peters borrowed £135,000 from his sister in 1987 which he used to buy his house in Australia. A written loan agreement dated 1 March 1987 provided for interest at 1.5% annually and that the loan shall be repaid at any time agreed between the lender and borrower. There was a later loan agreement for the same amount dated 1 October 2014.
The order for child maintenance in 1990 was by consent in the amount of $65 per week. Mr Peters was earning about $40,000 per annum at that stage but he then lost his job. Thereafter, he received Centrelink benefits of $164 a week and could not afford to pay $65 a week in child maintenance.
In 1994, Mr Peters sold his house and paid some arrears with respect to the child maintenance and paid some interest to his sister. He moved to Tasmania and obtained part-time work on a fishing boat. He stayed in Tasmania for about two years when he drank and gambled away about $30,000 which were proceeds from the sale of the property. After spending two years in Tasmania Mr Peters went with his girlfriend to Cairns but was unable to obtain employment there. He stayed for two years. During this period in Tasmania and Cairns he was not able to afford the $65 a week in child maintenance.
In 1997 Mr Peters’ sister paid his fare back to the United Kingdom and problems followed. He became homeless for a period and was then charged and found guilty of possessing firearms that he said he knew nothing about. He was sentenced to 11 years and spent seven years in a UK prison from 2003 until he was released in 2009 on parole. During this period Mr Peters made no child maintenance payments.
Mr Peters turned 65 in 2011 and became entitled to a UK pension at £120 a week. The pension gets paid to a bank account in his name in the UK. He agreed to give his UK pension to his sister as a contribution towards repaying the loan to her.
He returned to Australia penniless in October 2014. Mr Peters has since then received benefits from Centrelink from which he pays a compulsory contribution of $25 a week towards the debt. In December 2014 he received two payments totalling $19,076.00 from his sister to set himself up in Australia. She provided further funds to him upon request. In 2015 there were three payments totalling $10,483.00. In November 2016, shortly before his wedding in Myanmar, his sister sent two payments totalling $5,010.00. On 17 November 2017, shortly before he and his wife travelled again to Myanmar for a Buddhist festival, his sister sent a payment of $1,670.00. There was a final payment of $3,194.00 from his sister on 30 January 2018. The total payments from the sister for the period 2014 to 2018 were $39,855.00.
Mr Peters lived on his own for a period until he married his current wife in 2015. His age pension is now $840 per fortnight.
Mr Peters rents a one-bedroom unit in Adelaide and lives basically. He has been there with his wife since June 2015. He applied for legal aid so as to challenge the $25 a week compulsory contribution but his application for legal aid was rejected. He decided not to pursue the challenge to the $25 a week, and it is currently being deducted from his age pension.
In 2018 the child support agency issued a DPO because he had been to Myanmar for his wedding in late November early December 2016 and again with his wife in December 2017 for a Buddhist festival.
In 2018 Mr Peters’ sister became ill with cancer and was receiving radiotherapy. When he could not visit his sister in June 2019 because of the DPO, his niece went to live with Mr Peters’ sister to assist. She had a mastectomy in late 2019. Her condition has stabilised since then but a lump in her lung has recently been found. She wrote to Mr Peters on 24 April 2020 saying that ‘They seem to think the thing on the lung is not growing fast so will not do anything yet.’ Mr Peters said with respect to his sister that ‘she seems pretty good now apart from the lung issue’. He said that at the moment his sister is not dying but it could change very quickly. His sister is 77 years old and lives independently with her husband. He is 82 years old and requires care from the sister, which she provides.

Mr Peters says that he cannot afford to pay any security and that if he could he would simply pay out the debt. He would like to visit his sister at Christmas this year and said ‘I’d like to see her just in case she deteriorates’. He hopes that if his sister gets well enough then she might be able to visit him in Australia.
Mr Peters said that the loan from his sister in 1987 was well before when his son was born. On that basis he considers that he is legally and morally obliged to repay the loan to his sister by making available the UK pension to her. Mr Peters has not asked his sister to be released from the loan because he knows that she would not agree to it because they have an arrangement.
He says that a common sense approach is required because he does not have the money to pay any more than $25 a week. In these circumstances he considers it unfair that he is not able to travel.
Under cross examination, Mr Peters accepted that he had not provided statements of the account into which the UK pension gets paid. He explained that the account is in his name, but it is his sister who has access to the account. He admitted receiving money from his sister for “Travel” just 5 days before travelling, for the second time, to Myanmar. He does not keep a ledger of the loan repayments to his sister because he will never pay it all back. He will pay the UK pension to his sister until he dies. He started to receive the UK pension in about 2011 and has been receiving about £6,000 annually for 9 years now.
Issues
Mr Peters relies solely on the humanitarian ground in s 72L(3)(b)(i) in support of his application for review. He expressly said that he no longer relied upon s 72L(2). The humanitarian ground is only available if Mr Peters is unable to give security – that is the first issue. If he is unable to give security then a DAC should be issued if there are humanitarian grounds – that is the second issue.
Is Mr Peters unable to give security?
Section 72L(3)(b) refers to “such security” which is a reference to security under s 72M for the person’s return to Australia. The amount of that security is commensurate with, and should not be substantially less than, the amount of the debt, namely the amount of $99,747.89. Mr Peters contends that he does not have the capacity to pay security of that amount. He says that he has no assets of any significant value and his only available income is his age pension of $840 per fortnight. He says that the UK pension amount of £120 per week is not available to him because it is paid to his sister in reduction of his debt to her. Even if it were available to him, Mr Peters contends that he still would not have the capacity to pay the required security.
The respondent submits that the applicant has failed to provide full and frank disclosure of his financial circumstances such that there is insufficient evidence before the Tribunal to support a finding that the applicant is unable to pay his child support debt, or otherwise provide appropriate security for his return to Australia. It is true that the applicant has not provided all the details and documentation relevant to this issue. In particular, the applicant has not provided statements from the bank account into which his UK pension is paid. Despite not providing this information I consider it highly improbable that there is an amount anywhere near the amount of the debt in that bank account or elsewhere. If there were, then I would expect the sister to have used it to repay her debt.
Mr Peters has given evidence that he has no assets of significant value and his only income comes from the Australian and UK pensions. I accept that evidence. There is no evidence of any other assets held by Mr Peters. He has had to rely on the generousity of his sister at times when he needed extra money. He lives basically in a one bedroom unit rented from the local council. It is highly unlikely that there are hidden assets or bank accounts of any value.
The main issue of contention is the UK pension which provides an income stream of £120 per week. The UK pension is paid into an account in the name of Mr Peters and he is entitled to that money. He chooses to pay that money to his sister in reduction of his debt to her. In so doing he is preferring one creditor over another. That is his choice but it has consequences and does not mean that the income stream should not be included when considering whether he is unable to give security. I would include the UK pension income stream as an entitlement of Mr Peters when considering whether he is unable to pay the necessary security. The UK pension[3] and the age pension total approximately $1,320.00 per fortnight or $34,320.00 per annum. However, even on the basis of this income stream, I am satisfied that Mr Peters is unable to pay the security.
[3] I have applied a generous exchange rate such that £240 equates to AUS$480
Humanitarian grounds
Mr Peters contends that the DAC should be issued on humanitarian grounds. He wants to travel to the UK to visit his sister who has been unwell. Mr Peters concedes that his sister’s health has stabilised since she underwent a mastectomy in late 2019. At the time that Mr Peters applied for a DAC he was very concerned because his sister had been diagnosed with cancer. Mr Peters provided a report dated 21 May 2019 that diagnosed a malignant tumour of the left breast with osteosarcoma. Since that time the cancer has been operated on, and her condition has stabilised. No further medical reports have been provided. Mr Peters accepts that there is no urgency for him to visit his sister. He says that he would like to visit her at Christmas time in case she deteriorates.
In Damouni v Minister for Immigration, Local Government and Ethnic Affairs[4] French J considered the legislative requirement in s 6A(1)(e) of the Migration Act 1958 that there are ‘strong compassionate or humanitarian grounds’ for the grant of an entry permit. French J said at 428:
The class of cases in which persons seek the right to enter Australia and which excite compassionate or humanitarian responses is wide. There is little to be gained by trying to draw out distinctions between “compassionate” grounds on the one hand and “humanitarian” grounds on the other. The term is a collocation which ultimately invites a normative judgment. Common to many if not all the circumstances it addresses, is the element of hardship — actual or prospective — in its various manifestations including physical, emotional and economic harm. … It may be actual, to be alleviated by the grant of an entry permit or prospective in the event that such grant is withheld. There is no requirement that if hardship be the issue, it must be suffered by the applicant for the permit. The breadth of the term “strong compassionate or humanitarian grounds” necessarily extends to a consideration of the impact on other parties of a refusal to grant a permit. The consequences of a decision for the family and other persons whose fortunes are closely linked to those of the applicant lie within its purview.
[4] (1989) 18 ALD 425
I am required to consider all of the circumstances with respect to Mr Peters and his sister as at the date of my decision. Humanitarian grounds include compassionate grounds and requires an assessment of any hardship suffered as a result of not issuing the DAC. Mr Peters has concerns for the health of his sister but her health has improved in recent times. Mr Peters’ sister is not currently hospitalised. She lives independently with her husband for whom she provides care. She was able to obtain assistance from her niece when she fell ill last year. She appears to have adequate support without Mr Peters. Mr Peters said in evidence that she is doing ok and ‘seems pretty good now apart from her lung issue’. The sister told Mr Peters in her latest communication that she had had a CT scan and ‘they seem to think the thing on lung is not growing fast so will not do anything yet’. She is having more tests but there is no suggestion on the current evidence that the “lung issue” is life threatening. Mr Peters even expressed the hope that his sister may be able to visit him in Australia which suggests that the situation with her health is not so dire.
As to the emotional hardship that Mr Peters would suffer, I do not consider it to be significant. His sister’s health has stabilised and he accepts there is no immediate urgency for him to see her. It is unfortunate for him that he is unable to visit his sister with whom he has a close relationship, but he finds himself in this position because of his own conduct. That conduct of not paying child maintenance has been ongoing for many years. Leaving aside the compulsory contributions made from 2014, the last time Mr Peters paid child maintenance was in 1995. The debt he owes is significant. The object of the Act includes that maintenance payments are paid on a regular and timely basis. Mr Peters has failed to do that. I am not satisfied on the evidence that the DAC should be issued on humanitarian grounds.
Conclusion
Mr Peters’ application for review fails because I am not satisfied that there are humanitarian grounds that would justify the issuing of a DAC. On the current evidence, the decision to refuse to issue a DAC is the correct or preferable decision.
I affirm the decision of the delegate of the respondent made on 14 June 2019.

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

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Associate

Dated: 29 April 2020

37.