Roger Shahani and Child Support Registrar
[2014] AATA 312
[2014] AATA 312
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1786
Re
Roger Shahani
APPLICANT
And
Child Support Registrar
RESPONDENT
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member
Date 19 May 2014 Place Sydney The decision under review is affirmed.
............[sgd]............................................................
Mr Dean Letcher, QC, Senior Member
CHILD SUPPORT – Departure Prohibition Order – revocation –child support liability – no arrangement to wholly discharge liability – liability recoverable –discretion not enlivened – decision under review affirmed.
Child Support (Registration and Collection) Act 1988: ss 3, 72D, 72H, 72I, 72T, 112
Kevin Lui and Commissioner Taxation [2009] AATA 626
Re ONeill and Child Support Registrar [2010] AATA 545
Whittaker v Child Support Registrar 2010 264 ALR 473
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REASONS FOR DECISION
Mr Dean Letcher, QC, Senior Member
19 May 2014
The Applicant is the subject of child support orders made under the Child Support (Registration and Collection) Act 1988 (“the Act”). On 28 March 2014 a Departure Prohibition Order (“DPO”) was issued under s 72D(1) of the Act, preventing the Applicant from travelling outside Australia.
On 4 April 2014 a delegate of the Child Support Registrar refused his application to revoke the DPO. The Applicant seeks review of that decision by this Tribunal pursuant to s 72T of the Act.
FACTUAL BACKGROUND
The Applicant and his ex-wife have been engaged in long-running Family Court proceedings involving property and children. Child support orders have been made, appealed, varied and re-visited. Relevantly, the Full Court of the Family Court upheld in part the Applicant’s appeal against a single judge’s orders and the orders of the Full Court on 16 September 2013 concluded:
“86. So that it is clear, it is the payment of periodic and non-periodic child support by the father commencing on 11 April 2012 that is the issue for the rehearing and not the effect of the orders on his obligation to pay child support prior to that date”.
That order meant that the amount owing for the period before 11 April 2012 was fixed and not to be altered. No stay has been ordered on recovery of that amount, nor of the weekly amounts already ordered to be paid in respect of child support after 11 April 2012.
The Full Court remitted to a different judge the rehearing of the question of what support should be payable for the period after 11 April 2014. No hearing date has been set for that rehearing but a date may be fixed at the next mention on 24 June 2014. The Court Varied Amount for each child is $272.19 per child per week, although the Applicant says he will seek to argue, because he has a very low income, that amount should be more like $20.00 per week. As the matter stands, unless and until the Family Court alters its present orders, the Applicant is the subject of child support orders of $2,367.08 per month from 11 April 2012 to date and continuing, as well as the arrears to 11 April 2012. In the last calendar year the Applicant has paid $1,846 voluntarily and other amounts by enforced collection methods totalling some $20,108.90.
LEGAL BACKGROUND
Under s 72H of the Act, a DPO continues in force until it is revoked or until it is set aside by a court.
Section 72I provides that:
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.
EVIDENCE BEFORE THE TRIBUNAL
Section 72I(1) directs a DPO must be revoked if (a), (b) or (c) are established and, if not, discretion may be applied if it is determined desirable to do so.
The Applicant gave evidence that he believed he had no ‘child support liability’ because he intended to challenge the amount claimed during forthcoming Family Court proceedings - he regarded the amount claimed as speculative and not definite. Further, he believed that ‘arrangements’ depended on the outcome of those proceedings, and that reliance on the outcome was the appropriate arrangement. He also stated that he regarded the liability as recoverable but only when it was judicially decided and he had appropriate income.
As to s 72 (1)(a) of the Act, the evidence was that the Applicant had a ‘child support liability’, as defined in s 72E of the Act, because he had a ‘registrable maintenance liability’ certified as at 7 May 2014 to be $49,452.71. Under s 116(2) of the Act, that certificate is prima facie evidence of the amount and the liability.
As to s 72(1)(b) of the Act, in respect of that liability, there was no arrangement made to discharge it wholly, and indeed in a telephone conversation between the Applicant and a Child Support Agency officer on 26 March 2014, the most that the Applicant was prepared to offer was $26.00 per week (probably for each of the two children). There was no evidence to suggest that another or better offer has been made since. The Applicant said that his view was that he would await a decision by the Family Court judge whenever that occurred.
As to s 72(1)(c) of the Act, in his evidence the Applicant rejected the idea that the liability was completely irrecoverable, saying in his evidence in chief:
“It’s not irrecoverable, it is recoverable”.
He went on to say that he would be happy to enter into an agreement to pay $2,000.00 a year until his income increased. In any event, even the smallest recovery would mean that the liability was not ‘completely irrecoverable’, and the evidence was that sums had been recovered by garnishee, taxation refund interception and employer withholdings, while caveats had been lodged against properties in which he had interests.
The Applicant did not contest the applicability of these subsections, although he criticised the lack of ‘commercial mind’ and lack of understanding of those Agency officers with whom he dealt.
In relation to s 72I(3), this is a provision requiring the exercise of a discretion as to whether it is ‘desirable’ to revoke or vary a DPO. It is a well-established principle of law that such a discretion is to be exercised not entirely at large, but taking account of the purpose and objects of the legislation (Whittaker v Child Support Registrar 2010 264 ALR 473 at 291 per Lingren J; Re ONeill and Child Support Registrar [2010] AATA 545] and see Kevin Lui and Commissioner Taxation [2009] AATA 626 per Buchanan J at [23-24, 26]).
With respect to this case, s 3 of the Act commences:
“3 Objects of Act
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….”
The Applicant has exercised his own views as to the amount that he should be paying and, despite various enforcement measures, he has not altered those views or complied with the Child Support Orders. As a consequence, there is a certified outstanding liability of over $45,000. One effect of a DPO is to secure the presence within the Australian jurisdiction of the liable person, another is to provide an incentive to discharge the liability or reduce it by regular and timely payments. The severity of a DPO may be alleviated by seeking the issue of a ‘Departure Authorisation Certificate’ (“DAC”) permitting brief trips overseas under specified conditions.
The Applicant submitted that the DPO should be revoked on discretionary grounds, including that “the risk is very small that he would leave and not return”, that his mother was unable to travel to Australia due to her age, that he wished to attend his twin brother’s wedding and that allowing him to travel would assist Australia’s export of products he used to distribute. He stated that overseas travel would allow him to maximise his income and allow him to reduce the liability. I note that when the Applicant was employed his contributions did not match his established liabilities.
The Respondent stressed the purpose and objects of the Act, the size of the liability, apparent unwillingness of the Applicant to comply with the objects of the Act and the probable beneficial effects of the DPO on the Applicant’s attitude to compliance.
CONCLUSIONS
It has not been demonstrated that the factors in s72I(1)(a) or (b) exist. Further, it has not been demonstrated that the liability is completely irrecoverable, as per s72I(1)(c). I find that significant amounts of the liability are recoverable, and this is also likely to be the case in the future. On that basis, there should be no revocation of the DPO pursuant to s 72I(1). With respect to the discretion available in s72I(3), which can be enlivened if s72I(1)(a), (b) or (c) can’t be met, it has not been demonstrated that it is desirable to revoke the DPO. To do so would, in my view, be contrary to the objects and purpose of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member ...........[sgd].............................................................
Associate
Dated 19 May 2014
Date of hearing 14 May 2014 Applicant In person Counsel for the Respondent Mr B D Kaplan Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
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