T & G & Child Support Registrar

[2003] FMCAfam 197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & G & CHILD SUPPORT REGISTRAR [2003] FMCAfam 197

FAMILY LAW – Child support – departure prohibition order by Child Support Registrar restraining applicant from leaving Australia – applicant applying to Court to have order set aside – applicant seeking compensation for loss of income and seeking return of deposit – whether Court has jurisdiction.

Child Support (Registration and Collection) Act 1988, ss.72D; 72E; 72H; 72I; 72Q; 72T
Taxation Administration Act 1953, ss.14S; 14T; 14U; 14V; 14X; 14Y

T v F.C.T (1986) 86 ATC 4894

Applicant: VT

First Respondent: KG

Second Respondent: CHILD SUPPORT REGISTRAR

File No: PAM 237 of 2001

Delivered on: 6 January 2003

Delivered at: Parramatta

Hearing date: 6 January 2003

Judgment of: Scarlett FM

REPRESENTATION

The Applicant: In person

The First Respondent: No appearance

Solicitor for the Second Respondent:

Mr McCulloch

Australian Government Solicitor

ORDERS

1. That part of the application seeking orders against the Second Respondent is dismissed.

2. The parties are to pay their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 237 of 2001

VT

Applicant

And

KG

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the father of a boy aged 12 years for variation of parenting orders in so far as the first respondent mother is concerned. The first respondent did not appear on the hearing date and played no part in the proceedings. The applicant also sought orders against the second respondent, the Child Support Registrar, as follows:

   (a)official review of child support obligation from 2 May 2001 to
   31 December 2002;

   (b)revocation of prohibition order issued on 8 February 2002 by respondent;

   (c)the respondent pays compensation to applicant for loss of income and other incidentals while being held in Australia; and

   (d)return of a deposit payment of $1250.00 from respondent payable to applicant.

2. The second respondent, the Child Support Registrar, opposes the application and submits that the Court does not have jurisdiction to make the orders sought.

Background

1. The applicant and the first respondent are the parents of a child aged

   
   

   12 years. The child resides with the mother in Sydney. The father, who is a Czech national, resides in the Czech Republic. He visits Australia each year to his two children.

2. The Child Support Agency made an administrative assessment of child support which commenced on 7^th February 2001. The child support payments are in arrears, and have been for some time.

3. On 8^th February 2002 a Departure Prohibition Order was issued against the applicant pursuant to section. 72D of the Child Support (Registration and Collection) Act 1988. As a result, the applicant was unable to leave Australia to return to the Czech Republic. On or about 23^rd February 2002 he entered into an arrangement with the Child Support Agency that he would deposit a sum of $1,250.00 as a security deposit, and the agency issued a Departure Authorisation Certificate under section. 72L of the Act.

4. The orders that the applicant seeks are to review the child support assessment for the relevant period, to seek the revocation of the Departure Prohibition Order, to obtain a refund of the deposit of $1,250.00 and to claim some form of compensation for the fact that he was delayed in Australia whilst unable to leave because of the Departure Prohibition Order.

Issues

1. The issues before the court are whether the Court has the jurisdiction to make the orders sought.

Conclusions

1. The request for an “official review” is not an order which can be made. If the applicant wishes to apply for a departure from the administrative assessment through the Court, he must first satisfy the court that the requirements of section116 (1A) or section 116(1B) have been met. The applicant has not made the necessary application to the Registrar pursuant to Part 6A of the Child Support (Assessment) Act 1989 nor am I satisfied that proceedings for either enforcement or variation of contact orders are such that it would be in the interest of the applicant and the first respondent to deal with these matters in the same proceedings.

2. Turning now to the orders sought relating to the departure prohibition order, I note that section. 72D of the Child Support (Registration and Collection) Act, which empowers the Child Support Registrar to make a departure prohibition order, is in similar terms to section. 14S of the Taxation Administration Act 1953. Section. 72Q(1) entitles a person aggrieved by the making of a departure prohibition order to appeal to the Federal Court against the making of the order. The court hearing the appeal may either set the order aside or dismiss the appeal

   
   

   (section. 72S).

3. Once a departure prohibition order has been made and has not been set aside on appeal, there are provisions made for the Registrar to revoke or vary the order (section. 72I), to issue a departure authorisation certificate (section. 72L) or for a person to give security for the person’s return to Australia (section. 72M). If the person subject to a departure prohibition order is not satisfied with the Registrar’s response to an application under one of those sections, he or she may seek a review of that decision from the Administrative Appeals Tribunal. Section 72T states:

   “72T (1) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M.”

4. In this case, the Applicant did not challenge the making of the departure prohibition order by means of an appeal to the Federal Court. He did enter into an arrangement for the lodgment of a security deposit so that he could obtain a departure authorisation certificate. What the applicant should have done is to make application to the Administrative Appeals Tribunal under section. 72T. The time has passed for challenging the making of the departure prohibition order in the Federal Court.

5. The applicant may have been misled by the wording of a letter he received from the Child Support Registrar dated 8^th February 2002, when the departure prohibition order was made. That letter advised him:

   “If you do not agree with our decision to make the order you may appeal to the Federal Court of Australia.”

6. That statement may well have been correct at the time, but when the making of the order is unchallenged by an appeal, the proper avenue for the review of an administrative decision by the Registrar lies only with the Administrative Appeals Tribunal.

7. The operation of the corresponding sections of the Taxation Administration Act were considered by Woodward J in T v Federal Commissioner of Taxation (1986) 86 ATC 4894. In that case, the Federal Court considered the operation of section 14Y(1) of that Act, which is in similar terms to section. 72T(1) of the Child Support (Registration and Collection) Act. His Honour held that the applicant in that case wanted –

   “to have the exercise of an administrative discretion reviewed, not on any legal grounds but on the basis that an unfair or inappropriate decision has been reached. The Administrative Appeals Tribunal may, of course, exercise all the powers and discretions that are conferred the Commissioner by section 14T and 14U. This Court may not.”[1]

   [1] At page 4895

8. In this case, I am satisfied that the Federal Magistrates Court does not have the jurisdiction to deal with the matters raised by the applicant relating to the departure prohibition order. If he wishes to obtain the return of the sum of $1,250.00 lodged as a security deposit, he will need to make an application to the Registrar. If that application is unsuccessful, he may have to see a review by the Administrative Appeals Tribunal, not by this Court.

9. It is for these reasons that I have dismissed that part of his application that seeks orders against the second respondent. No costs were sought.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 6 June 2003