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

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

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).
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.
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.
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.
At the time of his second application, Mr Valve had accumulated a substantial…

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: [2009] AATA 927
Decision Date: 1 December 2009

CaseChat Overview and Summary

In the matter of Valve and the Child Support Agency, the dispute revolved around the issuance of a Departure Authorisation Certificate, which would allow the applicant, Valve, to leave Australia. Valve had applied for the certificate under the Child Support (Registration and Collection) Act 1988, which was denied by the Child Support Agency. Valve subsequently appealed this decision to the Federal Circuit and Family Court of Australia. The court was tasked with determining whether the Registrar was obligated to issue the certificate, and if so, whether the Departure Prohibition Order preventing Valve from leaving the country was likely to be revoked.

The primary legal issues before the court were the criteria under which a Departure Authorisation Certificate could be issued, and the considerations that must be taken into account when assessing the likelihood of Valve departing from and returning to Australia in an appropriate period. The court had to evaluate the potential impact on child support obligations, the security for those obligations, humanitarian grounds, and Australia's interests. The court considered whether Valve was likely to return to Australia and the implications for child support payments.

The court found that Valve had not demonstrated a likelihood of returning to Australia within the appropriate period, and that there was insufficient security for the child support obligations. The court also noted that Valve had not presented compelling humanitarian grounds or considerations that would support revocation of the Departure Prohibition Order. Given these findings, the court affirmed the decision of the Child Support Agency not to issue the Departure Authorisation Certificate. Consequently, the Departure Prohibition Order remained in effect, preventing Valve from leaving Australia.

Orders