Rai and Child Support Registrar (Child support)
[2018] AATA 3965
•23 October 2018
Rai and Child Support Registrar (Child support) [2018] AATA 3965 (23 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0569
Re:Rohit Kumar Rai
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:23 October 2018
Place:Melbourne
The reviewable decision of 1 August 2017 is affirmed.
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Senior Member D. J. Morris
Catchwords
CHILD SUPPORT – departure prohibition order (DPO) – does child support liability exist – stay order made by Court – arrangements to satisfactorily discharge child support liability – whether discretion should be exercised to revoke DPO – decision affirmed
Legislation
Child Support (Registration and Collection) Act 1988, ss 3, 72D, 72I, 116
Cases
Naboush and Child Support Registrar; Re: [2014] AATA 930
O’Neill and Child Support Registrar; Re: [2010] AATA 545Whitaker v Child Support Registrar; Re: [2010] FCA 42
REASONS FOR DECISION
Senior Member D. J. Morris
23 October 2018
Mr Rohit Rai has asked the Tribunal to review a decision of the delegate of the Child Support Registrar (the Registrar) dated 1 August 2017 which refused to revoke a Departure Prohibition Order (DPO) applied to him under the Child Support (Registration and Collection) Act 1988 (the Act).
The hearing was held on 3 August 2018 by telephone. Mr Rai represented himself, made submissions and gave evidence. He was cross-examined by Mr Jamie Grant, representing the Respondent.
The Registrar lodged a volume of documents on 29 March 2018 (T-documents) under section 37 of the Administrative Appeals Tribunal Act 1975, which were taken into evidence. The Applicant provided the following documents which were taken into evidence: Letter dated 6 November 2017 from the General Manager, Child Support Smart Centres, Department of Human Services (the Department) (Exhibit A1); Statement of Facts, Issues and Contentions of the Applicant dated 2 May 2018 (Exhibit A2); Copy of letter from the Mr Rai to the General Manager, Child Support Smart Centres of the Department dated 4 December 2017 (Exhibit A3); Copy of letter from Mr Rai to the General Manager, Child Support Smart Centres of the Department dated 14 October 2017 (Exhibit A4); Copy of letter from Mr Rai to the General Manager, Child Support Centres of the Department dated 8 August 2017 (Exhibit A5).
At the conclusion of the hearing, the Tribunal reserved its decision. Although leave was not given for parties to make further submissions, on 26 September 2018 the Applicant made a further written submission to the Tribunal. In the interests of fairness, the Tribunal gave the Respondent the opportunity to respond, which occurred on 2 October 2018. The material was taken into account in this decision.
Background facts
On 31 May 2017 a delegate of the Registrar decided to issue Mr Rai with a DPO under section 72D of the Act. A copy of the DPO was before the Tribunal (T10, p 29). A DPO prevents a person to whom it applies travelling out of Australia. The reasons set out by the Registrar in the letter to Mr Rai advising him that it had been issued (T11, p 40) were that Mr Rai had a child support debt; that Mr Rai had not made satisfactory arrangements to pay the entire debt; that Mr Rai had persistently and without reasonable grounds failed to pay child support debts; and that in the Registrar’s view there were reasonable grounds to make the DPO to ensure that Mr Rai did not leave Australia without paying the entire debt or making satisfactory arrangements so to do.
On 5 July 2017 Mr Rai wrote to the General Manager, Child Support Smart Centres of the Department (T2, p 5). The letter relevantly said:
Please find enclosed the orders made by the Family Court of Western Australia dated 9 June 2017.
…
I also draw your attention to the Departure Prohibition Order issued by the CSA dated 31 May 2017 which is now without merit. Kindly rescind this order immediately and provide me with confirmation of this otherwise I will proceed with legal action against the agency. Please refer to order number 1 which relates to a stay order on all current child support assessments relating to this case.
Attached to the letter was a copy of an Order made under the Act by the Magistrates Court of Western Australia dated 9 June 2017 which relevantly stated:
1.Until further order of the Court, a stay issue in relation to all current child support assessments in relation to the child [child named and date of birth cited].
2.The proceedings be adjourned to 3 October 2017 at 9.30 am for further monitoring.
3.The Applicant, Rohit Khumar [sic] Rai, have leave to attend that hearing by telephone.
4.At that hearing the Court will consider putting in place orders to discharge the orders made 18 October 2010 and will consider an order requiring the repayment of all child support payments made to the Respondent, [named], from the commencement of any child support assessment.
In his evidence at the hearing, Mr Rai said that he had provided to the Tribunal a letter (A1) from the Department which stated that as of 6 November 2017 there was ‘no child support assessment in place’ during the period he asked for a change. Mr Rai told the Tribunal that this letter was in response to his letter dated 14 October 2017 (A4) which related to two periods, the first from 1 July 2015 to 30 June 2016 and the second period from 1 July 2016 to 30 June 2018.
Mr Rai made certain submissions about the falsification of income and assets by Ms A, who is the mother of the minor child who is the subject of the child support assessment.
When asked by the Tribunal what had happened in relation to the order made by the Magistrates Court on 9 June 2017, Mr Rai said that the Family Court of Western Australia had since made an indefinite order to stay current child support assessments.
The Respondent’s contentions
Mr Grant submitted that the question before the Tribunal is not whether the DPO must be revoked in the light of the interim stay order but whether, even if is found that there is no present liability, Mr Rai is likely to have a future liability for child support and if the ultimate conclusion is that Mr Rai is likely to become liable in the future, section 72I of the Act would not be able to be satisfied. Mr Grant said that the interim order made by the Court on 9 June 2017 is somewhat moot because there is no evidence that the child support liability will be discharged.
Mr Grant drew the Tribunal’s attention to a certificate issued under section 116(2) of the Act by the General Manager, Child Support, of the Department (T7, p 27). The certificate stated:
I hereby certify that the following amounts totalling $54,229.52 are due and payable by ROHIT KUMAR RAI and remained unpaid as at the 26th day of March 2018 in respect of registered maintenance liabilities:
·Child support debt of $52,561.70
·Penalties of $1,667.82
This amount is payable to the Commonwealth in relation to a registrable maintenance liability under section 30 (child support debt) and section 67 (penalties) of the Child Support (Registration and Collection) Act 1988.
Mr Grant submitted that the Tribunal has accepted in the past that it cannot go behind a child care assessment and drew the Tribunal’s attention to the decision of Senior Member Bean (as she then was) in O’Neill and Child Support Registrar [2010] AATA 545, at [17] and [18]:
Having regard to the terms of s 72E and the matters to which a decision-maker is required to have regard in s 72D and s 72I, in my view the legislative framework also does not contemplate that a decision-maker will embark upon an investigation of the correctness of assessments which have been made under the Assessment Act for the purpose of determining the reliability of these in the context of considering whether it is desirable to revoke a DPO. Rather, the legislative framework contemplates that debt issues will be dealt with under the Assessment Act but that in the context of applying s 72D and s 72I, the currently applicable child support assessment will be regarded as “final” for the purpose of applying those provisions.
For these reasons I have concluded that it is not open to this Tribunal in the context of the current application to “look behind” the child support assessments which have been made in Mr O’Neill’s case and which are referred to at paragraph 19(b) of the respondent’s Statement of Facts, Issues and Contentions and also set out in paragraphs 3 – 6 of the Respondent’s Submissions on Jurisdiction.
Mr Grant submitted that Mr Rai had parentage orders made in 2010 by the Court which are still in place and there is no evidence that they have been discharged.
Mr Grant submitted that the Respondent accepts that the Department’s letter dated 6 November 2017 “was self-evidently incorrect”.
Mr Rai read to the Tribunal, in his evidence, an order of the Court made on 18 April 2018 which he said he had received around May 2018.
Mr Grant said that as the minor child the subject of the child care assessment was aged 9, the liability is expected to run for some time. Mr Grant said that there is no evidence of any arrangement for payment of the liability or that the child support liability was completely irrecoverable. Mr Grant drew the Tribunal’s attention to the fact that Mr Rai had made substantial payments in the past, for example a payment of $23,410.75 on 1 November 2012 (T6, p 22) and a payment of $16,726.11 on 5 April 2016 (T6, p 24).
At the conclusion of the hearing, the Tribunal directed that Mr Rai provide a copy of the Court order to which he referred dated 18 April 2018.
On 8 August 2018, Mr Rai provided to the Tribunal a copy of an Order of the Magistrates Court of Western Australia dated 18 April 2018. The Order relevantly stated:
Upon the proceedings coming before the Court this day:
IT IS ORDERED THAT:-
1. Until further order of the Court, the proceedings be stayed with liberty to the parties to apply to relist once the other actions in the Child Support Agency and the Federal Circuit Court are finalised.
2. The proceedings otherwise be transferred to the Family Court of Western Australia.
Consideration
Section 71I of the Act states:
Revocation and variation of departure prohibition orders
(1)The Registrar must revoke a departure prohibition order in respect of a person if:
(a)The person no longer has a child support liability or carer liability; or
(b)The person has a child support liability or carer liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or
(c)The person has a child support liability or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.
(2)However, if the Registrar considers that the person may later become subject to a child support liability or carer liability in respect of, or arising out of, matters that have occurred, the Registrar must not revoke a departure prohibition order under subsection (1) unless the Registrar is satisfied:
(a)that the liability will be wholly discharged; or
(b)that arrangements satisfactory to the Registrar will be made for the liability to be wholly discharged; or
(c)that the liability will be completely irrecoverable.
(3)The Registrar may also, at the Registrar’s discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it is desirable to do so.
…
Much of Mr Rai’s written submissions and his oral contentions centred on his views about the inaccurate assessment by the Department of the income and liabilities of Ms A. The Tribunal made clear at the hearing, and reiterates here, that the Applicant has other avenues to pursue those matters: the question before the Tribunal is whether the decision not to revoke the DPO relating to Mr Rai was a correct decision in law and, where a discretionary power is available, whether that discretion has been exercised in a preferable manner.
It is clear to the Tribunal that the 18 April 2018 Order made by the Court is subject to further order of the Court. It is not a final order. The effect of the order is to suspend Mr Rai’s child support liability until the court makes a further decision, but the liability is not extinguished.
It is also clear to the Tribunal from the certificate provided under section 116 of the Act that as of 26 March 2018 he has an outstanding child support liability. There was no evidence advanced by Mr Rai that he had made arrangements with the Registrar to discharge his child support liability. It is regrettable that a letter was sent to Mr Rai by the Department dated 8 November 2017 which suggested he did not have a current child support assessment. The Tribunal concludes, on the basis of the section 116 certificate, that letter was plainly wrong, and it is reasonable that Mr Rai was frustrated by receiving it. However, on the other hand, the Tribunal considers that for Mr Rai to interpret what is effectively a stay order by the Court as a final decision is disingenuous.
On the information before the Tribunal, and the proof as mentioned above of substantial bulk payments in the past of child support liability, the Tribunal is not satisfied that Mr Rai’s liability is completely irrecoverable. As Deputy President Tamberlin, QC, stated in Naboush and Child Support Registrar [2014] AATA 930 (Naboush), at [15]:
The word ‘irrecoverable’ is a word of wide import, and this width is expanded by the use of the word ‘completely’. Whilst ever there is some reasonable prospect of recovering money from the Applicant, the DPO should not be revoked.
The circumstances in Naboush were materially different from those applying to Mr Rai. Mr Naboush said he had never been in remunerative employment. Mr Rai gave evidence to the Tribunal that, while he was not currently working, he has been gainfully employed in the past in Australia and his Australian income tax records support that. He has, as mentioned above, made substantial repayments to the Department in 2012 and 2016.
There have been a number of child support assessments which have assessed Mr Rai’s adjusted taxable income at $309,677 per annum for the period 1 January 2015 to 31 August 2015; $541,777 per annum for the period 1 September 2015 to 31 August 2016; and $560,800 per annum for the period 1 September 2016 to 31 December 2019 (T3, p 13). Mr Rai disputed this assessment of his income in the hearing but the Tribunal is completely satisfied on the evidence that Mr Rai has the capacity to pay his child support assessment liability. Therefore the Tribunal finds the elements of section 72I(1) of the Act are not satisfied in terms of requiring the Registrar to revoke the DPO.
In terms of section 72I(2) of the Act, relating to future liability, the Tribunal notes that the liability of Mr Rai is a substantial amount of money, and that, noting that the minor child is aged 9, it is likely that this amount will continue to grow, in the absence of any final determination by the Courts. The Tribunal finds that the provisions of section 71I(2) of the Act are not satisfied.
Should the discretion be exercised to revoke the DPO?
In terms of the capacity for the Registrar (or, standing in his shoes, the Tribunal) to exercise discretion under section 72I(3) of the Act, the Tribunal considers that this discretion is not exercised ‘at large’ but that the Registrar, in exercising such discretion, is bound to do so consistent with the objects of the Act.
Section 3 of the Act states:
Objects of the Act
(1)The principal objects of the 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 obligations or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
The purposes of the Act were further articulated by Lindgren J in Whittaker v ChildSupport Registrar (2010) FCA 42 (Whittaker), where he stated, after summarising section 3(1)(a) and (b) of the Act, at [250]:
The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia.
The Tribunal notes (at T8, p 32) that Mr Rai has a total of 33 travel movements since his first entry to Australia. Mr Rai stated that he is a citizen of the Republic of the Fiji Islands and has no intention to make his permanent home in Australia. Also in the papers was an assertion by an officer of the Department (T8, p 32): “Information has been received from a third party that Mr Rai intends to leave Australia permanently, once the AAT decision has been finalised.”
At the hearing, this assertion by the officer was raised with Mr Rai who was asked whether he intended to leave Australia permanently, and he replied: “Yes, because it’s my civil right to do that.” In his 26 September 2018 submissions, Mr Rai clarified to make clear that he does not intend to leave Australia permanently until the proceedings before the Family Court of Western Australia are finalised.
The Tribunal also notes that Mr Rai has been subject to previous DPOs and, on the papers before the Tribunal (T8, p3):
Since 26 February 2009, when the case became collectable by the Department, Mr Rai has persistently failed to pay the assessed rate of child support as it has become due and payable, resulting in him accruing a child support debt.
The Child Support Payer Transaction Statement for the period 26//02/2009 to 04/12/2017 issued on 4 December 2017 (T6, p 21-26) reflects Mr Rai’s consistently poor record of paying his child support liability.
Taking all this evidence into account, and in particular Mr Rai’s admission that he intends to leave Australia permanently and the likelihood that collection of a child support liability from a person who has left Australia would be significantly diminished (as stated in Whittaker), the Tribunal finds that there is no basis for the discretion available under section 74I(3) to be exercised to revoke or vary the DPO applied to Mr Rai and, in fact, that it is preferable that that discretion not be exercised in the Applicant’s favour in this instance because to do so would be inconsistent with the objects of the Act.
In summary, the Tribunal finds there is no reason to revoke the DPO under section 72I of the Act. The interim court orders do not extinguish the child support liability, nor, at present, the accrual of a future liability. If Mr Rai wants the DPO to be revoked, the solution is in his hands: he can pay his outstanding child support liability and, if he does so, the Registrar must, under section 72I(1) of the Act, revoke the DPO.
DECISION
The reviewable decision of 1 August 2017 is affirmed.
38. I certify that the preceding 37 (thirty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
..........................[sgd]..........................................
Associate
Dated: 23 October 2018
Date of hearing: 3 July 2018
Date of final submissions: 2 October 2018 Applicant: Self-represented
Advocate for the Respondent: Mr Jamie Grant, Sparke Helmore
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Stay of Proceedings
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Jurisdiction
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Remedies
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Judicial Review
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