Re O'Neill and Child Support Registrar
[2010] AATA 545
•21 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 545
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3498
GENERAL ADMINISTRATIVE DIVISION ) Re ALAN WILLIAM O’NEILL Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Senior Member K Bean Date21 July 2010
PlaceAdelaide
Decision Pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975, the Tribunal directs that the scope of the hearing and the evidence to be received at the hearing will be limited to the following issues:
(a) the legal validity of the Departure Prohibition Order;
(b) the current amount of Mr O’Neill’s registrable maintenance liability for the purposes of s 72E of the Child Support (Registration and Collection) Act 1988 (the Collection Act);
(c) Mr O’Neill’s current financial position and whether his child support liability is completely irrecoverable;(d) any arrangements Mr O’Neill has made for discharge of his child support liability;
(e) matters relevant to the question of whether he should be permitted to leave Australia notwithstanding his child support liability, including:
(i) the nature and purpose of any travel proposed by Mr O’Neill;
(ii) the relevance of the fact that Mr O’Neill can seek a Departure Authorisation Certificate and the efficacy of this in his circumstances;
(f) the likely impact of any travel proposed by Mr O’Neill on the respondent’s ability to recover the debt;
(g) the matters referred to in s 72I(2) of the Collection Act; and(h) any other matter in respect of which leave is given at the hearing.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
PRACTICE AND PROCEDURE – Whether Directions should be made pursuant to s 25(4A) of the AAT Act limiting the scope of the hearing – considerations relevant to reviewing a decision not to revoke a Departure Prohibition Order – it is not necessary or appropriate for the Tribunal to undertake a full review of the correctness of the decision to impose the Departure Prohibition Order – nor is it open to the Tribunal to attempt to determine the ‘true’ extent of the applicant’s child support liability – directions made limiting the scope of the hearing accordingly
Administrative Appeals Tribunal Act 1975 s 25(4A)
Child Support (Assessment) Act 1989 s 6AChild Support (Registration and Collection) Act 1988 ss 72D, 72E, 72I
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Re O’Neill and Child Support Registrar [2010] AATA 237
REASONS FOR DECISION
21 July 2010 Senior Member K Bean 1. The applicant, Mr Alan O’Neill, is an inventor and the holder of an Australian Distinguished Talent permanent visa, granted in October 2006. He has two children as a result of his relationship with an ex de facto partner[1]. He was first assessed for child support on 28 February 2005 under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act). As at October 2007, he had a child support debt of $9,873.97 (consisting of $9,511.16 maintenance and $362.81 late payment penalty)[2].
[1] T19/98
[2] T3/12
2. Having regard to that debt, on 4 October 2007 a delegate of the Registrar of the Child Support Agency (the Agency) issued a departure prohibition order (DPO) pursuant to s 72D(1) of the Child Support (Registration and Collection) Act 1988 (the Collection Act)[3]. The effect of that order was that Mr O’Neill was prevented from leaving Australia, unless the order was revoked or a departure authorisation certificate (DAC) was granted.
[3] T2/11
3. Following discussions with Mr O’Neill, on 22 February 2008, a decision was made by an officer of the Agency not to revoke the DPO.
4. On 28 July 2009, Mr O’Neill filed an application to this Tribunal seeking review of the decision imposing the DPO. However, following communications between the parties and with the Tribunal in relation to the Tribunal’s jurisdiction, on 17 September 2009 he filed an Amended Application for Review in relation to “Decisions not to revoke a departure prohibition order, which was granted against me on 4 October 2007”. The respondent subsequently identified a particular decision not to revoke the DPO, dated 22 February 2008, and did not object to an extension of time being granted to enable review of that decision, which subsequently occurred. The T documents and s 37 statement have accordingly been prepared in relation to that decision.
5. Mr O’Neill’s amended application has been listed for final hearing on 9 August 2010. However, with a view to clarifying the scope of the hearing and considering what directions, if any may be required pursuant to s 25(4A) of the AAT Act, an interlocutory hearing was held on 29 June 2010 in relation to the following preliminary issues:
(a) the extent to which it is open to the Tribunal to “look behind” the child support assessments referred to in paragraph 19(a) of the respondent’s Statement of Facts, Issues and Contentions;
(b) the extent to which it is open to the Tribunal to examine the circumstances surrounding the issue of the DPO in determining whether it should be revoked; and
(c) the extent to which it is open to the Tribunal to re-examine matters which have been the subject of findings by the Social Security Appeals Tribunal and the Federal Magistrates’ Court as referred to at paragraphs 26 and 27 of the respondent’s Statement of Facts, Issues and Contentions.
6. Before proceeding to consider these issues in light of the parties’ contentions, I propose to set out the most important aspects of the applicable statutory framework.
statutory framework
7. The provisions which are most relevant to determination of the issues currently before me are ss 72D, 72E and 72I of the Collection Act, each of which provides as follows:
“72D Registrar may make departure prohibition orders
(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 subsection 18A(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.
(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.
(3) A departure prohibition order must be in the approved form.
72E Meaning of child support liability
For the purposes of this Part, a person has a child support liability if:
(a)the person has a registrable maintenance liability of a kind mentioned in section 17 or 17A, subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and
(b)an amount payable under the registrable maintenance liability is a child support debt; and
(c)the day on which the debt became due and payable under section 66 has passed, and the debt remains unpaid in whole or in part.
…
72I 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
(b)the person has a child support 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, 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 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 desirable to do so.
(4)The Registrar may revoke or vary a departure prohibition order under subsection (1) or (3):
(a) on application by the person in the approved form; or
(b) on the Registrar’s own motion.”
consideration
8. For convenience, I propose to set out the main contentions of each party followed by my reasons and conclusions in relation to each of the issues in turn.
Issue (a) – the extent to which it is open to the Tribunal to “look behind” the relevant child support assessments
Contentions
9. In his oral and written submissions, Mr Horan for the respondent contended that the question of whether a person has a child support liability, for the purposes of s 72D and s 72I, is circumscribed by s 72E. That section effectively provides that, for the purpose of those provisions, if a person has a registrable maintenance liability of the kind specified, which is also a registered child support debt and which remains unpaid, the person is taken to have a child support liability.
10. The respondent further contended that Mr O’Neill has such a registered child support liability. Further he had made at least six applications for departures under s 6A of the Assessment Act, which to date had not resulted in his child support liability being erased. In any event, the respondent submitted that the fact a payer disputes liability for a child support debt is not relevant for the purposes of either s 72D or s 72I of the Collection Act.
11. The respondent acknowledged the applicant’s verbal contention that he had appealed a decision of Federal Magistrate Brown in relation to one of his departure applications, being a decision of 15 May 2009. However, the respondent noted that any appeal which had been lodged would be out of time and in any event may not be successful. Further, even if that appeal was successful, it could not be assumed that the assessment would be reversed such as to eliminate any child support liability. In this context, the respondent submitted that it was neither desirable nor appropriate for the Tribunal to canvass the extent of the applicant’s child support liability in the context of determining the matters before it.
12. In his written and oral submissions, Mr O’Neill challenged the accuracy of many of the assessments made to date, as well as the correctness of the decision of Federal Magistrate Brown. Whilst he accepted that it was not open to the Tribunal to determine in any authoritative way his ‘true’ child support liability, he maintained that the assessment history was relevant to the issues before the Tribunal. In relation to what he claimed was a marked inconsistency between various assessments he also contended that:
“… the AAT must be aware of them in deciding whether or not a liability of sufficient accuracy and confidence exists (and hence whether on liability or desirability grounds it should be revoked) …”[4]
[4] Applicant’s submissions received 2 July 2010, p 3.
13. In other words, he contended that the question of the likely accuracy of the assessments which had been made and the degree of confidence the Tribunal could have in them, was relevant to the question of whether it was desirable for the DPO to be revoked. He therefore submitted that it was:
“… essential and equitable that I be allowed to refer to the text of the assessment and objection decisions of the CSA and SSAT, and be able to present outstanding matters as regards those assessments and decisions, in the form of evidence not considered in those decisions. It is finally essential that contradictions between these decisions be understood and resolved by the AAT using whatever necessary independent evidence is necessary.”[5]
[5] Applicant’s submissions, received 2 July 2010, p 3.
Reasons and Conclusions
14. There was no dispute on the material before me that Mr O’Neill continues to have a child support liability within the meaning of s 72E of the Collection Act.
15. If that provision did not exist and the question of whether Mr O’Neill had a child support liability was “at large” and open to be addressed in the context of applying s 72I, there would be considerable force in Mr O’Neill’s submissions. In these circumstances it would be strongly arguable that it would be open to the Tribunal to embark on an inquiry as to whether there was still a child support liability and if so, the extent of this.
16. As contended by the respondent, however, it appears that the purpose of s 72E is to avoid the need for any such inquiry to be made in the context of s 72D or s 72I. It is clear from s 72E that matters of assessment are intended to be dealt with under the Assessment Act and any challenges to assessments made are to be pursued through the avenues provided in that Act. The intention of s 72E is to “deem” a registrable maintenance liability which is a child support debt to be a “child support liability”, for the purposes of s 72D and s 72I. This in turn has the further effect that it is not open to a decision-maker, including this Tribunal, to “look behind” such an assessment in order to determine whether a person has a “child support liability” for the purposes of those provisions.
17. 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.
18. 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.
Issue (b) – the extent to which it is open to the Tribunal to examine the circumstances surrounding the issue of the DPO
Contentions
19. The respondent contended that the criterion of “desirability” contained in s 72I(3) should be read in light of the comparable criterion under s 72D(1)(d) for the making of a DPO. The respondent submitted:
“The discretion to revoke or vary a DPO under s 72I(3) might be exercised, for example, where there are compelling reasons to allow a person to depart Australia notwithstanding that he or she has not discharged a child support liability nor made satisfactory payment arrangements. This might involve consideration of matters such as the purpose and duration of the intended travel and the quantum of the child support liability”.[6]
[6] Respondent’s submissions on jurisdiction [21]
20. Mr O’Neill contended that high standards of fairness and accuracy were required in determining whether to impose a DPO and the same type of process and issues should be followed and had regard to in deciding whether to revoke a DPO. He contended that historical matters could be relevant to whether a DPO should be revoked and asserted that, as a result of an investigation by the Ombudsman, the CSA had revoked DPOs in the past based upon a review of the circumstances which led to their imposition. He also pointed out that the part of the CSA’s Law and Policy Guide relating to DPOs was contained within the T documents, amounting to an admission by the respondent that the matters referred to in that document were relevant to whether the DPO should be revoked.
21. Mr O’Neill maintained that in considering whether it was desirable to revoke the DPO, the Tribunal should hear from those officers within the CSA holding relevant delegations as to their reasons for maintaining the DPO. He submitted that the criterion of desirability should be read broadly so as to allow the Tribunal to consider any basis upon which the DPO may be unsafe, unreasonable or unfair. He submitted that new information was clearly relevant as to whether a DPO should remain in place. He submitted that:
“… it is also commonsense, necessary and obvious that the CSA must look back at the evidence behind, and reasons for, the DPO, and see if anything has changed that would give reason for the DPO to be revoked …”[7]
[7] Applicant’s submissions, p 4
22. He further submitted that the criterion of desirability was deliberately broad and unfettered so as to allow a decision-maker to potentially revoke a DPO for a wide range of reasons, including mistakes in the imposition of the DPO. He further contended:
“The AAT must look at these historical circumstances because of the serious impact of a DPO on a basic common law right of freedom to travel, especially given that I am a British Citizen and have foreign work commitments. A DPO requires high standards of accuracy and sureness about its imposition, and those standards do, and must, be reapplied when retention and revocation is considered and failures in the process corrected.”[8]
[8] Applicant’s submissions, p 5
Reasoning and conclusions
23. Having carefully weighed the above arguments, I have reached the conclusion that, having regard to the principles of statutory construction, and the case law concerning the considerations which are relevant in exercising a statutory discretion[9], there are limits on what the Tribunal may have regard to in deciding whether it is desirable to revoke a DPO.
[9] See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
24. Whilst on its face s 72I(3) appears to confer quite a wide discretion, I consider that it must nevertheless be construed in context, having regard to the whole of s 72D and s 72I. In my view, having regard to the terms of both provisions, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the person the subject of the DPO. In particular, the current amount of their child support liability, the arrangements the person has made for payment of their child support liability, the extent to which the liability has become irrecoverable, the nature and purpose of the proposed travel and the likely impact of that travel on the capacity of the Registrar to recover the debt. I also consider that the statutory framework contemplates regard being had to the fact that a person subject to a DPO may apply for a DAC in respect of any particular instance of proposed travel.
25. I accept Mr O’Neill’s submission that s 72I is broad enough to allow the Registrar, or this Tribunal, to revoke a DPO which has been imposed in error. Further, in reviewing the decision not to revoke the DPO, it is open to and appropriate for this Tribunal to consider whether there has been any fundamental error attending the imposition of the DPO such as to render it legally invalid. For example, it would be open to this Tribunal to revoke the DPO if it was satisfied that the decision to impose the DPO had been affected by a failure to accord procedural fairness, the taking into account of irrelevant considerations or the failure to take into account relevant considerations, or an absence of jurisdiction[10].
[10] See Pearce, D, Administrative Appeals Tribunal, 2nd Ed, Butterworths, 2007 at [2.12]
26. However, in the context of an application of this kind, it is neither necessary or appropriate in my view for the Tribunal to embark on a detailed consideration “on the merits” of whether the DPO should have been imposed at the time at which it was. The decision under review is the decision not to revoke the DPO, not the decision to impose it. Indeed this Tribunal does not have jurisdiction to review the imposition of DPOs[11].
[11] See Re O’Neill and Child Support Registrar [2010] AATA 237 at [17]-[20]
27. If the imposition of the DPO was not justified, it is likely to be the case in any event that, having regard to an applicant’s current circumstances, the Tribunal will conclude that the DPO should be revoked. As a decision to revoke a DPO cannot be given retrospective effect, providing the DPO was validly imposed, there is little to be gained in practical terms by the Tribunal also considering whether the DPO should have been imposed or whether it should have been revoked earlier.
28. I have therefore concluded that, whilst it is open to Mr O’Neill to argue that the imposition of the DPO was affected by some fundamental legal error of the kind I have referred to, in the context of determining whether the DPO should be revoked (or varied) it is neither necessary nor appropriate for this Tribunal to embark on a full review of the correctness of the decision to impose the DPO, as at the time that decision was made.
Issue (c) – the extent to which it is open to the Tribunal to re-examine matters which have been the subject of findings by the Social Security Appeals Tribunal and the Federal Magistrates’ Court
Contentions
29. It follows from my conclusion in relation to Issue (a) that in my view it is not open to this Tribunal to “look behind” the decisions of the Federal Magistrates’ Court or the Social Security Appeals Tribunal in relation to the existence of the child support liability or its current amount.
30. The respondent contended at one stage that the findings of the Social Security Appeals Tribunal and Federal Magistrates’ Court were also conclusive as to recoverability[12]. In its written submissions on jurisdiction, however, the respondent appeared to resile from that position stating:
“The questions whether the applicant has made satisfactory arrangements to discharge the child support liability and whether the liability is completely irrecoverable will involve consideration of the applicant’s current financial circumstances. They do not require any consideration of the matters which gave rise to the child support liability.”[13]
[12] Respondent’s Statement of Facts and Contentions, [25] and [26]
[13] Respondent’s submissions [17]
31. That concession was also made orally at the interlocutory hearing, when Mr Horan confirmed that the respondent did not seek to prevent the applicant putting on evidence relating to the irrecoverability of the debt or arrangements made to discharge it. In my view, that concession was properly made as the findings made by the Social Security Appeals Tribunal and/or Federal Magistrates’ Court in relation to these issues on different evidence than that before the Tribunal are not binding upon the Tribunal.
32. It follows that it will be open to Mr O’Neill at the hearing to seek to tender evidence in relation to his current financial circumstances insofar as this is relevant to whether the debt is completely irrecoverable or not. It will also be open to him to seek to tender evidence of any arrangements he has entered into for discharge of the debt.
33. It also follows from my above conclusions that it is not necessary for me to rule upon a further question which arose at the interlocutory hearing, being whether the decision of the Federal Magistrates’ Court gives rise to an issue estoppel, or makes it desirable that this Tribunal not allow litigation of matters which have been litigated in the Federal Magistrates’ Court.
directions
34. In light of my conclusions above, I have decided to make the following directions pursuant to s 25(4A) of the Administrative Appeals Tribunal Act 1975:
The scope of the hearing and the evidence to be received at the hearing will be limited to the following issues:
(a) the legal validity of the Departure Prohibition Order;
(b) the current amount of Mr O’Neill’s registrable maintenance liability for the purposes of s 72E of the Collection Act;
(c)Mr O’Neill’s current financial position and whether his child support liability is completely irrecoverable;
(d) any arrangements Mr O’Neill has made for discharge of his child support liability;
(e) matters relevant to the question of whether he should be permitted to leave Australia notwithstanding his child support liability, including:
(i)the nature and purpose of any travel proposed by Mr O’Neill;
(ii) the relevance of the fact that Mr O’Neill can seek a Departure Authorisation Certificate and the efficacy of this in his circumstances;
(f)the likely impact of any travel proposed by Mr O’Neill on the respondent’s ability to recover the debt;
(g) the matters referred to in s 72I(2) of the Collection Act; and
(h) any other matter in respect of which leave is given at the hearing.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: .............J Coulthard..........................................
AssociateDate of Hearing 29 June 2010
Date of Decision 21 July 2010
Advocate for the Applicant Self represented
Counsel for the Respondent Mr C Horan
Solicitor for the Respondent Clayton Utz
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