Terim and Child Support Registrar (Child support)
[2018] AATA 354
•28 February 2018
Terim and Child Support Registrar (Child support) [2018] AATA 354 (28 February 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4476
Re:Michael Terim
APPLICANT
AndChild Support Registrar
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:28 February 2018
Place:Sydney
The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
CHILD SUPPORT – Departure Prohibition Order (“DPO”) – child support debt – whether satisfactory arrangement in place for debt to be wholly discharged – debt not irrecoverable – discretion to revoke or vary – no basis for revocation of DPO – decision under review affirmed
LEGISLATION
Child Support (Registration and Collection) Act 1988 (Cth) ss 3, 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
28 February 2018
The applicant, Mr Terim, is the father of two children in Australia. On 16 August 2002, the Department of Human Services (“the Department”), as a privately collectable case, accepted an application for a child support assessment. On 29 November 2006, the Department was asked to collect payments on the mother’s behalf.
As at 24 April 2017, the applicant had an outstanding child support debt of $9,878.04.
As a consequence of the applicant’s child support liability, the Child Support Registrar (“the Registrar”) issued a Departure Prohibition Order (“DPO”) on 1 May 2017 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 17 July 2017, a delegate of 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.
The Registrar contends that the applicant does not satisfy any of the circumstances that mandate the revocation of the DPO and the totality of the applicant’s circumstances do not make it desirable for the Tribunal’s discretion to be exercised.
RELEVANT LEGISLATIVE PROVISIONS
Section 3(1) of the Act provides that the principal objects of the 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; and
(c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
Pursuant to subsection 3(2) of the Act, it is the intention of the Parliament that the Act shall be construed and administered, to the greatest extent consistent with the attainment of its objects.
Section 72D of the Act authorises the Registrar to issue a DPO provided four conditions are met, namely: (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; 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 wholly discharging the child support liability; or making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
In Whittaker v Child Support Registrar (2010) 264 ALR 473, the nature and purpose of a DPO was discussed by Lindgren J at [291] and [292]:
[291] …Generally speaking, the terms of s 72D(1) show that a DPO is intended to “ensure” that a person does not depart from Australia without either wholly discharging his or her child support liability or making arrangements satisfactory to the Registrar for its discharge. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.
[292] It may be that the present submission is intended to distinguish between a purpose of preventing a particular imminent departure from Australia and a more general prevention of any departure from Australia. In my view even the latter is within para (b) of s 72D(1). That is to say, that paragraph is satisfied if the Registrar believes on reasonable grounds that it is “desirable” to make the DPO for the purpose of “ensuring” (a strong word: see Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at [20]) that the person does not depart at any time in the future from Australia for any foreign country without first discharging the child support liability or making arrangements satisfactory to the Registrar for its discharge. (Emphasis added)
Section 72I(1) of the Act prescribes the circumstances where the Registrar must revoke a DPO and provides:
(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.
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.
CONSIDERATION
Child 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 $14,517.65 in child-support debt and $1,401.62 in penalties. The debt remains unpaid as at 12 February 2018. 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 last payment of child support made by way of salary deduction was on 11 April 2016 in the sum of $1,102.33. The last voluntary payment made by the applicant was on 18 April 2017, in the sum of $1,500. On 18 August 2017 a tax refund payable to the applicant was intercepted. No other payments have been made since this time.
The applicant says that he tried to reach an agreement with the Registrar; however none of the payment arrangements discussed were acceptable to either the applicant or Registrar.
At hearing the applicant advised that he was willing to enter into a payment arrangement to wholly discharge the debt. Despite this and for the purpose of these proceedings, at the date of hearing, no satisfactory payment arrangement was in place. Accordingly, section 72I(1)(b) of the Act is not satisfied.
Is the liability completely irrecoverable?
In accordance with the Guide, a debt will be regarded as completely irrecoverable when there is no prospect that the debtor will be able to make any payment towards it. Deputy President Tamberlin stated in Naboush v Child Support Registrar [2014] AATA 930 at [15]:
The word ‘irrecoverable’ is a word of wide import, and this width is expanded by the use of the word ‘completely’. Whilst ever there is some reasonable prospect of recovering money from the applicant, the DPO should not be revoked.
There is no evidence before me of the applicant’s current financial capacity. I am however satisfied that the applicant has financial resources available to him. This is evidenced from the following:
(a)On 18 February 2016, the applicant paid his sister the amount of $1,399 for her children’s school fees;
(b)On 18 March 2016, the applicant paid his brother $428 for “school fee assist”;
(c)The applicant has regularly travelled internationally between Australia and Papua New Guinea. Most recently, in January, March and April 2017.
For these reasons, I am not satisfied that the debt is completely irrecoverable. Section 72I(1)(c) of the Act is not satisfied.
Is it otherwise desirable to revoke or vary the DPO?
The Guide states that the Registrar will exercise the discretion to revoke or vary a DPO under subsection 72I(3) in a way that supports the objects of the Act. The principle objects of the Act are to ensure that children receive a proper level of financial support from their parents and that such financial support is paid regularly and on time.
The applicant contends that the DPO should be revoked in his circumstances because he has elderly parents in Papua New Guinea and he needs to travel there frequently from Australia to visit them. He also stated at hearing that he would like to return to Australia so he can find work to discharge the debt. The applicant said that he cannot do that while the DPO is in place because he won’t be able to leave Australia again if he returns; even if he returns to Australia for a short time, for example, to attend a job interview. The applicant also claims that since the DPO was issued while he was in Papua New Guinea, it is impractical. He is of the view that his child support liability can be discharged without a DPO in place.
While I accept that the DPO impedes the applicant’s travel between Australia and Papua New Guinea, I am not satisfied that the applicant’s circumstances warrant the revocation of the DPO. He has made no voluntary contributions towards his child support liability since 18 April 2017, and there is no satisfactory payment arrangement plan in place to wholly discharge the liability. Having regard to the objects of the Act, I am satisfied that a DPO is necessary and should remain in place as an incentive for the applicant to pay his child support liability.
DECISION
The decision under review is affirmed.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
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Associate
Dated: 28 February 2018
Date(s) of hearing: 26 February 2018 Applicant: In person Solicitors for the Respondent: Ms S Sangha, Department of Human Services
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