Valve and Child Support Agency

[2009] AATA 927

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 927   

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2948

GENERAL ADMINISTRATIVE DIVISION        )

Re             Juhani (John) VALVE

Applicant

AndChild Support Agency

Respondent

DECISION

TribunalThe Hon B Tamberlin QC, Deputy President

Date1 December 2009

PlaceSydney

DecisionThe decision under review is affirmed.

................[sgd]................

The Hon B Tamberlin QC
  Deputy President

CATCHWORDS

CHILD SUPPORT – Departure Prohibition Order preventing Applicant from leaving Australia – whether Registrar must issue Departure Authorisation Certificate – whether Applicant likely to depart from and return to Australia in an appropriate period – whether DPO likely to be revoked – security – humanitarian grounds – “Australia’s interests” – decision affirmed.

Child Support (Registration and Collection) Act 1988: ss 72D, 72I, 72K, 72L, 72M

Child Support (Assessment) Act 1989: ss 80A – 90

REASONS FOR DECISION

1 December 2009 The Hon B Tamberlin QC, Deputy President

1. Mr Juhani (John) Valve has applied to the Tribunal for a review of a decision by the Child Support Registrar (the Registrar) to refuse his request to grant a departure authorisation certificate under s 72L of the Child Support (Registration and Collection) Act 1988 (the Act) to enable him to visit his aged siblings in Finland.

factual background

1. Mr Valve is liable to pay child support to Mrs Reena Wati for their two children.  The Child Support Assessment initially commenced on 13 June 1998, ended on 31 July 1999 and was subsequently restarted on 30 April 2004.  The calculation has been made in accordance with the provisions of the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Mr Valve did not make payments in a timely fashion and indeed no voluntary payments had been made by Mr Valve.  The child support that has been collected has been the result of administrative enforcement action taken between April 2005 and the present time,  including collections through Mr Valve’s employer, tax refund intercepts, and collection of Centrelink payments. Regular monthly account statements were sent to Mr Valve regarding his debt since the commencement of the case.  The Child Support Agency (the Agency) has made a number of attempts to negotiate payment of the substantial debt but these have been unsuccessful.

3. On 4 October 2007, a delegate of the Registrar approved the making of a departure prohibition order under s 72D of the Act. The order had the effect of preventing Mr Valve from leaving Australia until he had made satisfactory arrangements to pay his child support debt.

4. On two previous occasions Mr Valve has applied for a certificate authorising him to depart Australia. Both of these applications have failed. He has appealed to this Tribunal in 2008, unsuccessfully, for a review of the Registrar’s decision to refuse his first application for a departure authorisation certificate. The current appeal relates to his second application to the Registrar, dated 8 May 2009 and received by the Agency on 20 May 2009.

5. At the time of his second application, Mr Valve had accumulated a substantial amount of child support liability. The Agency had intercepted $2,697.31 on 27 March 2009 and a further $3,313.08 on 5 June 2009, from tax refund payments to Mr Valve. The Agency has also been intercepting the moneys from Centrelink payments to Mr Valve since 27 December 2008. The amount of intercepts was initially $16.20/fortnight, but has been increased to $40.95/fortnight since 25 June 2009. After these deductions, Mr Valve’s outstanding liability amounted to a total of about $14,000 in outstanding child support and over $10,000 in late payment penalties.

6. In his second application Mr Valve advised he was wiling to offer an amount of $3,000 by way of security bond.  The Agency contacted him on 2 June 2009 and inquired if he was able to pay that amount towards his debt as opposed to offering it as  security bond.  He asserted that he could not.  Mr Valve was also asked if he could offer a greater amount for security bond, such as $5,000.  He advised that he was unable to make a debt payment or offer a greater amount for security than $3,000.

7. On 5 June 2009, a delegate of the Registrar refused to issue a departure authorisation certificate because Mr Valve had not offered sufficient security. A letter was sent to Mr Valve advising him of the decision on 8 June 2009.  He was also informed of the decision by telephone.

previous tribunal decision

1. On 31 July 2008, Senior Member Isenberg of this Tribunal made a decision on an appeal from a previous decision of the Registrar’s delegate refusing Mr Valve’s first application for a departure authorisation certificate.  In that decision SM Isenberg sets out in detail the facts and background and legislation relevant to the application.  The reason advanced on the earlier application for grant of the certificate by Mr Valve was that:

   My sisters and brothers in Finland who are getting older and are requesting me to visit them, because we have not seen each other for a very long time … I have no intention of staying … overseas for a long time and I have no intention of leaving Australia because this is my home, my kids are here and I want to watch them grow up to support them for the rest of my life.

1. In the present application, the reasons advanced by Mr Valve are substantially identical.

summary of legislation

1. Under s 72D of the Act, the Registrar may make a departure prohibition order and where that order is in force, a child support debtor can apply for the issue of a departure authorisation certificate that allows the debtor to leave Australia. The Agency must issue a departure authorisation certification under s 72L(2) where all of the following grounds are satisfied:

   (a)a debtor is likely to return to Australia within an appropriate period; and

   (b)it is likely that the Agency will be obliged to revoke the order under a circumstance defined in s 72I of the Act; and

   (c)security is not necessary. 

2. The Registrar was not satisfied that any of these grounds had been made out.  The Registrar considered that because Mr Valve had made statements that he intended to retire permanently to the Philippines, the Registrar could not be satisfied that Mr Valve intended to return to Australia. 

3. Further, the Registrar considered that it was unlikely that the order would be revoked within an appropriate period. No circumstances had been shown to warrant revocation of the order.  Mr Valve has an ongoing liability that will continue until the 18^th birthday of his youngest child in June 2016. He has not made any satisfactory arrangement to discharge the child support debt, which at the present rate of payment would take in the order of 19 years to pay out.

4. Another basis on which to obtain a certificate requires that the Registrar must be satisfied that the liability is “completely irrecoverable” within the meaning of s 72I(1) of the Act.  Because monies are presently being received from Centrelink payments, the Registrar was not satisfied that this ground was made out.

5. Further, in the light of the circumstances above, the Registrar was not satisfied that no security was required from Mr Valve to ensure his return to Australia.

6. Accordingly, the Registrar concluded that the requirements of s 72L(2) had not been met and refused to issue Mr Valve a departure authorisation certificate.

7. A further ground on which the Registrar must issue a departure authorisation certificate under s 72L(3) is where a debtor has given appropriate security, or where the Registrar is satisfied that humanitarian grounds exist, or the grant of a certificate is in Australia’s interests.

8. Mr Valve has not offered any sufficient or satisfactory security under s 72M in order to ensure his return. The Registrar submitted before me that the security should not be substantially less than the amount of the debt owing, whereas Mr Valve has only offered an amount of $3,000 as security. This amount, which would be forfeited if he failed to return, is less than 12 percent of the overall debt including late payment penalties.  I accept this submission having regard to the long-standing refusal of Mr Valve to make regular voluntary payments to comply with his support obligations.

9. The reason advanced by Mr Valve to justify the present application for a certificate is that he wants to visit his elderly sisters in Finland.  He submits that, bearing in mind he and his sisters are of an advanced age, a refusal would be contrary to humanitarian considerations.  While I can appreciate Mr Valve’s desire to visit his family, I do not consider that this is sufficient to outweigh the powerful concerns based on the need for effective enforcement of child support obligations of a parent. In forming this view, I have taken into account especially the large sum of outstanding child support liability and the statements Mr Valve had made about his intention to retire to the Philippines, which indicates there is a real danger he may not return.

10. Nothing has been advanced in Mr Valve’s submissions to persuade me that grant of a departure authorisation certificate would in any way be in “Australia’s interests”.  In fact, failure to meet obligations towards children in Australia as imposed under Australian law, is contrary to Australia’s interests. It follows that authorising his departure would be detrimental to Australia’s interests, given the unlikelihood of Mr Valve returning to fulfil his outstanding obligations toward his children, particularly where the amount is so substantial and in the absence of a history of any “voluntary” payments.

the purported agreement

1. When the matter came on for hearing before me, Mr Valve appeared self-represented with the aid of a Finnish interpreter.  He produced a document that purported to be an “agreement” made between himself and Mrs Wati which stipulated, on its face, that payments would only be made at such times as he could afford to make them and that he should have authorisation to leave the country.  The purport of the agreement was to acknowledge that there was no longer any debt and that therefore there was no obstacle to the granting of a departure authorisation certificate.  The document appears to have been signed by Mrs Wati.  It does not appear to have been witnessed and there is no evidence that any legal advice was obtained by Mrs Wati before it was signed.  However, even assuming that the signature on the document was that of Mrs Wati, it could not operate to waive or diminish the debt or to form the basis for granting a departure authorisation certificate, having regard to the provisions of the Act.

2. There are provisions in the Assessment Act for parties to agree between themselves as to the amount of child support that is to be payable in respect of the child: see ss 80A – 90. However, the document presented to the Tribunal by Mr Valve does not satisfy the requirements of those provisions for the making of such agreements, due to the absence of any evidence of independent legal advice obtained by Mrs Wati before entering into the agreement as required by s 80C, and because the agreement has never been accepted by the Registrar as required by s 80E: see also ss 88 and 89. Moreover the “agreement” purports to have the effect that the child support provided for is less than the annual rate of child support payable under the Act: see s 80E(2)(b).

conclusion

1. Having regard to the documents, evidence, files and the chronology placed before me, I am not satisfied that any of the grounds for grant of the departure authorisation certificate has been made out by Mr Valve.  I agree with the decision of the Registrar’s delegate to refuse grant of the departure authorisation certificate sought. The decision under review is therefore affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon B Tamberlin QC, Deputy President

Signed:   ...............[sgd].........................................
               Eugenie Hwang, Associate

Date of Hearing:  28 October 2009
Date of Decision:  1 December 2009
Representative for the Applicant:     Self-represented
Representative for the Respondent: Ms Kate Wild, Child Support Agency