QVRC and Child Support Registrar - [2015] AATA 271

[2015] AATA 271

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/5887

Re

QVRC

APPLICANT

And

Child Support Registrar

RESPONDENT

DECISION

Tribunal
Dr Gordon Hughes, Member

Date 29 April 2015

Place Melbourne
The Tribunal sets aside the decision under review but notes that this determination is rendered redundant by the fact that the period of proposed travel has now passed and that any future application for a Departure Authorisation Certificate would have to be re-appraised in light of the circumstances as they exist at that future time.

[sgd]........................................................................
Dr Gordon Hughes, Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
Departure Authorisation Certificate – whether security offered by a third party acceptable – whether the Registrar is obliged to follow the Child Support Guide – whether security must be readily convertible to cash
Legislation
Child Support (Registration and Collection) Act 1998 (Cth) s 72D,72I, 72L, 72M
Cases
Eid and Commissioner of Taxation [1998] AATA 73
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Wetzell and Child Support Registrar [2005] AATA 60 Whittaker v Child Support Registrar (2010) 264 ALR 473
Secondary Materials
Australian Government, Child Support Guide, Version 4.06 (9 February 2014)
REASONS FOR DECISION
Dr Gordon Hughes, Member
29 April 2015

The issue before the Tribunal was whether the respondent should refuse to issue a Departure Authorisation Certificate (DAC) to the applicant for the period between 12 November and 22 November 2014, on the grounds that the criteria in section 72L of the Child Support (Registration and Collection) Act 1998 (the Act) were not satisfied.
The parties agreed that the application centred upon the requirements of section 72L(3)(a) of the Act; namely, whether the applicant had provided security under section 72M for his return to Australia.
The applicant is 48 years old and is self-employed as a telecommunications consultant. He has travelled regularly for business over the past 20 years. He is the father of a child born in 2003.
On 30 November 2009 the applicant's estranged wife lodged a Change of Assessment Application, seeking an increase to the assessment of child support. On 10 January 2010 a Senior Case Officer set the applicant's adjusted taxable income at $100,000 between 30 November 2009 and 29 November 2011. An objection by the applicant to this Change of Assessment was disallowed.
The applicant sought review of this decision by the Social Security Appeals Tribunal (SSAT). On 9 February 2011 the SSAT set aside the Change of Assessment decision. The SSAT substituted a decision that the issues raised by the application were complex and that consequently, an application should be made to a court. On 14 June 2013 the Federal Circuit Court made an order setting the applicant's annual salary at $100,000 from 30 November 2009 to 30 June 2014.
The applicant subsequently advised the respondent of his intention to travel overseas in mid-September 2013.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 271
Decision Date: 29 April 2015

CaseChat Overview and Summary

In the matter of the Queensland Registrar of Certificates (QRVC) and the Child Support Registrar, the applicant sought a declaration and an injunction against the Registrar's decision not to issue a Departure Approval Certificate (DAC) in relation to the applicant's proposed travel from 12 November to 22 November 2014. The Registrar's decision was based on the applicant's failure to provide sufficient security for a child support debt. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The central legal issue was whether the Registrar was justified in refusing to issue a DAC due to the applicant's inability to provide adequate security for the child support debt. The applicant argued that the Registrar's assessment of the adequacy of the security was flawed and that the Registrar should have taken into account the applicant's current financial circumstances.

The Tribunal examined the Registrar's assessment of the security and the applicant's financial situation. It found that the Registrar had correctly identified the need for adequate security and that the applicant had not provided sufficient evidence to support the value of the security offered. The Tribunal also held that the Registrar's decision to refuse the DAC was not an abuse of power. However, the Tribunal determined that the applicant was entitled to be issued with a DAC in November 2014. Despite the Tribunal's determination, the decision had no practical consequence as the period in question had passed. The decision did not affect the adequacy of any security offered for future DAC applications, which would need to be reassessed based on the circumstances at the time of the proposed travel. The Tribunal's decision emphasised the importance of considering the value of the property, the amount of the mortgage, and any evidence affecting the ability to convert the security to cash in the event of default by the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There remains one final consideration in this matter. These proceedings relate to an appeal against a decision by the Registrar not to issue a DAC in respect of travel proposed by the applicant between 12 November and 22 November 2014. That period has now passed. In this respect, the Tribunal's determination that the applicant was entitled to be issued with a DAC in November 2014 is of no practical consequence. This decision has no direct bearing upon the adequacy of any security offered by the applicant in respect of a future application for a DAC. The same security may be offered but its adequacy, in a financial sense, would have to be re-appraised in light of the circumstances existing at the time of the proposed future travel. Apart from anything else, it would be necessary to consider, as at the date of the proposed travel, the value of the property, the amount of the mortgage and any evidence then affecting the ability of the respondent to convert the security to cash in the event of default by the applicant. DECISION

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/5887
Re	QVRC
APPLICANT
And	Child Support Registrar
RESPONDENT

Tribunal	Dr Gordon Hughes, Member
Date	29 April 2015
Place	Melbourne