Roughan and Child Support Registrar (Child support) - [2018] AATA 352

Roughan and Child Support Registrar (Child support) [2018] AATA 352 (26 February 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0810
Re:Michael Gerard Roughan
APPLICANT

AndChild Support Registrar
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:26 February 2018
Place:Sydney

The decision under review is set aside and in substitution find that the applicant satisfies section 72I(1)(b) of the Child Support (Registration and Collection) Act 1988 (Cth) and the Departure Prohibition Order of 2 September 2016 be revoked.
.......................[sgd].............................................
Senior Member A Poljak
CATCHWORDS
CHILD SUPPORT – Departure Prohibition Order (“DPO”) – child support debt –satisfactory arrangement in place for debt to be wholly discharged – debt not irrecoverable – discretion to revoke or vary – basis for revocation of DPO – decision under review set aside
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) s 106A(6)
Child Support (Registration and Collection) Act 1988 (Cth) ss 3, 72A, 72D, 72E, 72I and 116(2)
CASES
Naboush v Child Support Registrar [2014] AATA 930
Whittaker v Child Support Registrar (2010) 264 ALR 473
SECONDARY MATERIALS
The Child Support Guide
REASONS FOR DECISION
Senior Member A Poljak
26 February 2018

On 7 November 2000, an application for a child support assessment was made in respect of a child of the applicant, Mr Roughan (“the child”). The child support assessment application was subsequently refused as it was not established that the applicant was the parent of the child.
On 7 May 2015, the Magistrates Court of Western Australia found that the applicant was the father of the child. In accordance with section 106A(6)(a) of the Child Support (Assessment) Act 1989 (Cth) (“the AssessmentAct”), the Child Support Registrar (“the Registrar”) was then taken to have accepted the application for child support assessment lodged on 7 November 2000.
On 20 August 2015, the Registrar issued assessments in respect of the child from 7 November 2000, and a child support liability of $148,814.56 was raised against the applicant. The applicant lodged an objection to the decision that he was required to pay child support from 7 November 2000, however his application was unsuccessful.
As a consequence of the applicant’s child support liability, the Registrar issued a Departure Prohibition Order (“DPO”) on 2 September 2016 pursuant to section 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”).
The applicant applied for a revocation of the DPO.
On 1 November 2016, the Registrar refused to revoke the DPO on the basis that the applicant did not satisfy section 72I of the Act. The applicant seeks review of this decision.
The issues to be determined in these proceedings are:
(a)whether the applicant has a child support liability within the meaning of section 72E of the Act; and
(b)if so:
(i)whether satisfactory arrangements have been made for the liability to be wholly discharged; or
(ii)the liability is completely irrecoverable.
(c)whether it is otherwise desirable to revoke or vary the DPO.
RELEVANT LEGISLATIVE PROVISIONS
Section 3(1) of the Act provides that the…

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: [2018] AATA 352
Decision Date: 26 February 2018

CaseChat Overview and Summary

This matter concerned an application by the applicant, Mr Roughan, to revoke a Departure Prohibition Order (DPO) made against him by the Child Support Registrar. The dispute centred on whether the applicant's child support liability was such that a DPO was warranted, and if so, whether there were grounds for its revocation. The decision was made by Senior Member A Poljak in the context of child support legislation.

The court was required to determine two primary legal issues. Firstly, whether the applicant had a continuing child support liability as defined by the Act, and secondly, whether satisfactory arrangements had been made for this liability to be wholly discharged. The court also considered the Registrar's discretion to revoke or vary a DPO under section 72I(3) of the Act, and whether the debt was irrecoverable, which would preclude the satisfaction of section 72I(1)(a).

Senior Member Poljak reasoned that the applicant did indeed have a child support liability, evidenced by a certificate confirming an unpaid debt of $88,441.12 in child support and $14,973.54 in penalties. However, the court found that the applicant had made satisfactory arrangements for the discharge of this liability, despite its significant size and the delayed assessment. This conclusion was based on the applicant's consistent monthly payments since November 2015, a lump sum payment of $71,680.28 in October 2016, and the fact that the debt was not irrecoverable, as evidenced by these payments. The court applied a "common sense approach" to assessing the satisfactory nature of the payment arrangements, considering the size of the liability, the applicant's circumstances, and their capacity to repay.

Consequently, the court set aside the decision under review and substituted a finding that the applicant satisfied section 72I(1)(b) of the Child Support (Registration and Collection) Act 1988 (Cth). The Departure Prohibition Order made on 2 September 2016 was ordered to be revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As I have already highlighted above, the applicant is making payments towards his child support liability and this is evidence that the debt is recoverable. Accordingly section 72I(1)(c) of the Act is not satisfied.DECISION For all of the above reasons, I am satisfied that the applicant has a child support liability and that the liability is not completely irrecoverable. For the detailed reasons set out above, I am however satisfied that there is a satisfactory arrangement in place to wholly discharge the child support liability having regard to, but not limited to, the size of the debt, the proposed period of the arrangement, and the extent to which the applicant has capacity to repay the debt in full. He has entered into a payment arrangement and has undertaken steps to work with the child’s mother to discharge this liability. The decision under review is set aside and in substitution find that the applicant satisfies section 72I(1)(b) of the Child Support (Registration and Collection) Act 1988 (Cth) and the Departure Prohibition Order of 2 September 2016 be revoked.

Ratio Decidendi

Legal Principle Established

However, s 72I(3) provides that the Registrar may, at the Registrar’s discretion, revoke or vary a DPO in respect of a person if the Registrar considers it desirable to do so.CONSIDERATIONChild support liability The applicant currently has a child support liability as defined in section 72E of the Act. That section provides that a person has a child support liability if the person has a registrable maintenance liability in an amount payable under the Act. A registrable maintenance liability is a “child-support debt” where the liability remains unpaid in whole or in part. There is no dispute on the material before me that the applicant continues to have a child support liability within the meaning of s 72E of the Act. A Certificate under subsection 116(2) of the Act, confirms the applicant owes a debt payable to the Commonwealth in relation to a registrable maintenance liability. The debt encompasses maintenance liabilities in the amount of $88,441.12 in child-support debt and $14,973.54 in penalties. The debt remains unpaid as at 21 April 2017. Accordingly, s 72I(1)(a) of the Act is not satisfied.Whether a satisfactory arrangement has been made for the liability to be wholly discharged Section 72I(1)(b) of the Act provides that the Registrar must revoke a DPO in respect of a person if arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged. The Child Support Guide (“the Guide”) requires a “common sense approach” to determine whether arrangements are satisfactory for the debt to be wholly discharged. In determining whether or not a payment arrangement is satisfactory, it is necessary to have regard to a number of factors, such as the size of the liability, the applicant’s circumstances, the proposed period of any payment arrangement, and their capacity to discharge the liability. The circumstances of this case are unique. Despite the child support assessment being issued in November 2000, the assessment was not accepted at the time, and a child support liability was not raised until July 2015. The assessment is approximately 14 years after the original application and amounts to a significant debt. The applicant submits that despite this, they have attempted to pay off the debt in the form of a lump sum payment and by entering into acceptable payment arrangements. The Child Support Payer Transaction Statement for the period 07/11/2000 to 21/04/2017 shows that since 3 November 2015, the applicant has been making various payments on a monthly basis (excluding September 2016). On 12 July 2016, the applicant entered into one payment arrangement and agreed to make a one-off $500 payment while DHS Child Support investigated the applicant’s finances. The applicant made the payment by the agreed date of 29 July 2016. On 30 August 2016, a section 72A garnishee notice was issued in regards to a real estate property settlement to which the applicant was a party. On 4 October 2016, a lump sum payment of $71,680.28 was made by the applicant towards the child-support debt. This payment went a considerable way towards satisfying the debt.