Sawyer v Child Support Registrar

[2015] FCCA 2679

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAWYER v CHILD SUPPORT REGISTRAR [2015] FCCA 2679

Catchwords:
CHILD SUPPORT – Application to discharge departure prohibition order – no grounds made out – application dismissed.

Legislation:
Child Support (Registration and Collection) Act 1988, ss.72D, 72L, 72Q, 72T, 72V

Applicant: MR SAWYER

Respondent: CHILD SUPPORT REGISTRAR

File Number: BRG 702 of 2015

Judgment of: Judge Jarrett

Hearing date: 4 August 2015

Date of Last Submission: 4 August 2015

Delivered at: Brisbane

Delivered on: 4 August 2015

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the Respondent: Mr C. Bishop

ORDERS

1. The application to review the decision of the Child Support Registrar to issue a departure prohibition order be dismissed.

2. The application to revoke the Departure Prohibition Order commencing on 16 July 2015 be dismissed.

3. The application for a Departure Authorisation Certificate be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sawyer v Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 702 of 2015

MR SAWYER

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application filed in the Cairns registry of this Court seeking orders that, first of all, the application be heard urgently;  secondly, that:

   Departure prohibition order commencing on 16 July 2015 be revoked.

   And finally:

   Departure authorisation certificate be issued to enable me to travel to (country omitted) on (omitted) 2015.

2. The applicant has appeared for himself in these proceedings.  Attached to his application is a notification from the Department of Human Services, Child Support dated 16 July, 2015 notifying the applicant that a delegate of the Child Support Registrar has made a decision under s.72V of the Child Support (Registration and Collection) Act 1988 to issue him with a departure prohibition order to prevent him from travelling outside of Australia.

3. The notification records that the order was issued because:

   a)the applicant has a child support debt; 

   b)the applicant has not made satisfactory arrangements to pay the entire debt;

   c)the applicant has persistently and without reasonable grounds failed to pay the child support debts;  and

   d)there are reasonable grounds to make the order to ensure that the applicant does not leave Australia without paying the entire debt or making satisfactory arrangements to do so.

4. Attached to that notification was a copy of the departure prohibition order signed by a delegate of the Child Support Registrar on 16 July, 2015. 

5. It seems that the applicant has also made an application for a departure authorisation certificate because attached to his application is another letter from the Department of Human Services, Child Support dated 29 July, 2015.  In that letter the applicant is notified that a delegate of the Child Support Registrar had made a decision under s.72L of the Child Support (Registration and Collection) Act 1988 to refuse his application for a departure authorisation certificate.  The grounds upon which the certificate was refused are set out in that notification. 

6. Also attached to the application is a letter headed “To whom it may concern” dated 1 August, 2015 from a person named Ms S, who is described as “advocate”.  The letter says this:

   It is hereby informed that Mr Sawyer, (country omitted) is facing trial in case (omitted) number (omitted), under section (omitted) in the court of (country omitted) Courts, (country omitted).  And next date of hearing in this case is now 6/8/2015 whereas last date of hearing in the above noted case was 24/2/2015 before the honourable court.  It is further informed that the undersigned is representing him as his counsel and the above noted case since 7 March 2015.  The aforementioned information is true and correct to the best of my knowledge and record.

7. It is signed by the advocate and is dated 1 August, 2015.  In his affidavit filed in support of his application yesterday the applicant says in the first paragraph that he is an applicant in the appeal against a decision of the Child Support Registrar to issue a departure prohibition order, but then at the conclusion of his affidavit in paragraph 4 he says:

   Refusing to issue departure authorisation certificate will cause me to in breach of my (omitted) court case.  I may be found to be in contempt of the (omitted) court and a warrant issued for my arrest.  This will cause ongoing issues for me in the future.  I have annexed and marked annexure A a copy of correspondence from my solicitor in (country omitted) confirming my requirement to attend (country omitted) Court on 6 August 2015. 

8. Both the application and the last paragraph of the affidavit tend to suggest that this Court is asked to order either that the departure prohibition order be revoked or that the applicant be granted a departure authorisation, but this Court has no jurisdiction to do either of those things. 

9. Section 72L of the Child Support (Registration and Collection) Act is the section pursuant to which departure authorisations are issued. By s.72T an application may be made to the Administrative Appeals Tribunal for a review of a decision of the Registrar under s.72L to either issue or perhaps not issue a departure authorisation certificate.

10. Section 72Q deals with the jurisdiction of this Court when it comes to that particular part of the Child Support (Registration and Collection) Act. It provides that a person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of the order. In respect of departure prohibition orders an appeal might be brought to this Court, but in respect of departure authorisation certificates, a review might be commenced in the Administrative Appeals Tribunal. This Court has no jurisdiction to review the Registrar’s refusal to issue a departure authorisation certificate. To the extent that the application seeks me to do just that, the application is dismissed.

11. In respect of the appeal against the making of a departure prohibition order, the applicant swears in his affidavit that the reasons he disputes the issue of the departure prohibition order are:

    a)there was not an established child support debt;

    b)there is a dispute as to the child support payable in relation to his child with a person called Ms R;

    c)he has been in “recent discussions” with Child Support to resolve the child support dispute;  and

    d)therefore, s.72D(a) of the Child Support (Registration and Collection) Act 1988 has not been met.

12. There does not seem to be any dispute that there is a child support debt in existence.  The argument made by the applicant is that he disputes the amount of the liability, it seems, that the Registrar says is owed by him to the Registrar and to the Commonwealth, but there does not seem to be a dispute that there is a debt.  As Mr Bishop points out, for the purposes of s.72E of the Act, there is a child support liability. 

13. To the extent that the applicant takes issue with the amount of the child support debt and in respect of his assertion that he has been in “recent discussions” with the Child Support Registrar, he tells me in submission, not in his affidavit, that he had discussions with the Child Support Registrar about the debt in 2012.  He has lodged an objection but his objection was refused and since that time he has done nothing.  He may have had a recent telephone conversation with the Child Support Registrar or somebody from that office, but between the refusal of his objection and now, which, on any view of it, seems to be a considerable period of perhaps years, he has done nothing.  To the extent that he says that he has been in recent discussions to resolve the child support dispute, his oral submissions are at odds with his sworn affidavit. 

14. I am not satisfied at all that the requirements of s.72D(a) – whether that be subsection (1)(a) or (2)(a) – are not met in this case.

15. The applicant argues that it is necessary for him to leave Australia to go to (country omitted) because he has an important court case to attend to.  He says in his affidavit that he has been charged with a criminal offence and he intends to plead guilty to the relevant charge on that day.  He says he is likely to return to Australia because his wife and children are here, as are his parents and his brother and his wife and their children.  He says that he is permanently employed in Australia and so he is likely to return.  He gives evidence that he has left the country before and has always returned. 

16. Whilst all of those things might be so, the applicant’s material does not demonstrate that the Registrar’s decision was wrong. He does not demonstrate that the Registrar has made an erroneous decision. The Registrar’s power to issue a departure prohibition order under section 72D is a discretionary power and, as such, it seems to me that I ought only interfere with that decision if it can be demonstrated that the Registrar has made an error of law or an error of principle, or has not taken into account a relevant consideration or has taken into account an irrelevant consideration.

17. On all of the material before me I can be satisfied of none of those things.  In all of those circumstances the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.

Associate: 

Date: 1 October 2015