Valve and Child Support Registrar
[2008] AATA 661
•31 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 661
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0291
GENERAL ADMINISTRATIVE DIVISION ) Re JUHANI VALVE Applicant
And
CHILD SUPPORT REGISTRAR
Respondent
DECISION
Tribunal Ms N. Isenberg, Senior Member Date31 July 2008
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd].................................
Ms N. Isenberg
Senior Member
CATCHWORDS
CHILD SUPPORT – Departure Authorisation Certificate – Departure Prohibition Order preventing Applicant from leaving Australia – whether a Departure Authorisation Certificate should be issued – whether Applicant likely to depart from and return to Australia in an appropriate period – whether DPO likely to be revoked – security – whether humanitarian grounds – decision under review is affirmed
Child Support (Registration and Collection) Act 1988 – ss 72D, 72I, 72K, 72L, 72M
Child Support (Assessment) Act 1989
REASONS FOR DECISION
31 July 2008 Ms N. Isenberg, Senior Member DECISION UNDER REVIEW
1. Mr Valve has applied to the Administrative Appeals Tribunal for a review of the Child Support Registrar’s decision of 1 November 2007 to refuse to issue a Departure Authorisation Certificate (“DAC”) under subsection 72L(2)(a)(i) of the Child Support (Registration and Collection) Act 1988 (“the Act”).
BACKGROUND
2. Mr Valve has a child support obligation to his former partner Mrs Wati for their two children. The current child support assessment, calculated in accordance with the provisions of the Child Support (Assessment) Act 1989, dates from April 2004. Payments have not been made by Mr Valve in a timely fashion.
3. In June 2006 Mrs Wati told a CSA Client Service Officer (“CSO”) that Mr Valve travels overseas regularly and, in August 2006, she advised that Mr Valve may be considering relocating to the Philippines. The CSA subsequently obtained information from the Department of Immigration and Citizenship to confirm that Mr Valve travelled overseas regularly.
4. On 22 June 2007 an officer of the CSA spoke, with the assistance of an interpreter, with Mr Valve regarding the child support arrears and payment arrangements. Mr Valve allegedly stated that he was intending to obtain Australian and Finnish pensions at the end of 2007, and that he would also then be relocating to the Philippines. Mr Valve was informed by the CSO that the CSA could impose a Departure Prohibition Order (“DPO”) as a means to enforce child support arrears. By September 2007, Mr Valve owed nearly $29,000 in child support payments.
5. As Mr Valve had not made adequate arrangements to address his child support arrears, on 4 October 2007 the CSA made a DPO and Mr Valve was notified accordingly.
6. On 16 October 2007 an officer of the CSA contacted Mr Valve’s authorised representative, his wife, Imelda (“Mrs Valve”) to discuss, among other things, the DPO. In this conversation, Mrs Valve said that Mr Valve was to retire in seven weeks time and wished to travel to the Philippines for a holiday for two months.
7. On 19 October 2007 Mr and Mrs Valve visited the CSA office at Parramatta to discuss the DPO. The CSO explained to them both that the CSA would require Mr Valve to pay a substantial amount of his arrears before consideration could be given to lifting the DPO.
8. On 30 October 2007 the CSO contacted Mrs Valve and explained to her the conditions under which a DAC could be issued. Later that day Mr Valve told an officer of the CSA, that as security for the issue of a DAC he would not retire and would continue to work and make payments after his holiday, but this was rejected.
ISSUE BEFORE THIS TRIBUNAL
Legislation
9. Section 72D of the Act allows the CSA to make a DPO prohibiting a person from leaving Australia. The CSA can make a DPO where all of the following conditions are satisfied:
·the person has a child support liability;
·the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged;
·the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts; and
·the Registrar believes, on reasonable grounds, it is desirable to make such an order to ensure that the person does not depart from Australia for a foreign country without wholly discharging the child support liability or making satisfactory arrangements to do so.
10. Where a DPO is in force, a child support debtor can apply under subsection 72K(1) of the Act for a DAC. A DAC allows a child support debtor to depart Australia despite a DPO being in force.
11. Under subsection 72L(2) of the Act, a DAC must be issued in the following circumstances:
72L When Registrar must issue departure authorisation certificate
(1)This section applies if a person makes an application under section 72K for a departure authorisation certificate.
(2)The Registrar must issue the departure authorisation certificate if the Registrar is satisfied:
(a) that, if the certificate is issued:
(i)it is likely that the person will depart from Australia and return to Australia within a period that the Registrar considers appropriate; and
(ii)it is likely that, within a period that the Registrar considers appropriate, the Registrar will be required by subsection 72I(1) to revoke the departure prohibition order in respect of the person; and
(b)that it is not necessary for the person to give security under section 72M for the person’s return to Australia.
(3)If the Registrar is not satisfied as mentioned in subsection (2), the Registrar must nevertheless issue the departure authorisation certificate if:
(a)the person has given security under section 72M for the person’s return to Australia; or
(b) if the person is unable to give such security, the Registrar is satisfied:
(i)that the certificate should be issued on humanitarian grounds; or
(ii)that refusing to issue the certificate will be detrimental to Australia’s interests.
THE EVIDENCE
12. In his application to this Tribunal for review, Mr Valve stated that the reasons for his application are:
My sisters and brother in Finland, who are getting older, are requesting me to visit them because we have not seen each other for a very long time … I have no intention of staying … oversea[s] 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 and to support them for the rest of my life.
13. Mr Valve, in his oral evidence, told me he wanted to go overseas because he did not know how long he was going to live and he would like to see his [wife’s] grandchildren for the first time. Mrs Valve also gave evidence to that effect. Mr Valve also said that he would like to travel to Finland, if his relatives paid for his ticket.
14. Mr Valve denied that he had told an officer at the CSA in June 2007 that he intended to relocate to the Philippines permanently at the end of 2007, when he retired. He denied ever having any intention of moving to the Philippines because he is sick and medical treatment there costs too much and his Australian pension would cease after three months. Mrs Valve said they had never discussed moving to the Philippines permanently and she had no intention of moving back there. She would have no job in the Philippines, and she doubted Mr Valve’s health was such that he would work again.
15. They would have nowhere to stay on a long term basis in the Philippines; the two bedroom house Mrs Valve owns is occupied by her son and his wife, the grandchildren and the nanny. Mrs Valve said she bought the house about 10 years ago when she was working there. Mrs Valve’s son now pays the mortgage. In their evidence both Mr and Mrs Valve suggested they would stay in the house during their stay in the Philippines.
16. Also, Mr Valve said, his children are in Australia and he would like to see them grow up. However, he sees his children rarely – about once every four or five months – because he is unable to afford to buy food for them. Mr Valve acknowledged that he is $17,000 behind in his child support payments and has no plans in relation to the support of his children. He has no money and no house. His only asset is a half share of an old car.
17. Mr Valve said that prior to December 2007 he had been working full-time for 10 years, receiving $18 - $20 per hour – about $700 per week. He had saved nothing because the CSA took over $300 weekly. When he finished work, he received $7,296 in superannuation, but there is nothing left. Since ceasing work, he has been on the age pension of about $550 per fortnight and he is to receive an age pension from Finland of about $10 per month. He provided me with a printout of his Centrelink income; a total of about $560 a fortnight from which $13 is currently being deducted for child support. He also said he and his wife pay $360 in rent.
18. Mr Valve was asked about the record of conversation of 22 June 2007 in which it was recorded that he had said the child support payments were being made by a friend named Mr Peco Manisto. He said he did not remember having talked about anything like that. Mrs Valve knew Mr Manisto to be a friend of her husband.
19. Further, Mr Valve denied ever telling an officer at the CSA on 22 June 2007 (as was recorded in the CSA’s file note) that he lived on the street or that he had stored goods at the Parramatta Railway Station or that he only worked one or two days a week and that he only earned $150 a week.
20. Mr Valve denied ever sending any money to the Philippines other than $1,200 for Mrs Valve’s visa. Mrs Valve said that, in managing their finances, the only time she had sent money to the Philippines was “last month” when her grandson was hospitalised and her son asked for help.
21. In the last 10 years Mr Valve said he had travelled overseas 10 times. He said the last time he left Australia was three years ago when he went to the Philippines for two weeks. This was not completely consistent with his evidence that he had been to the Philippines three times since 2004 or the information the CSA had obtained from the Department of Immigration and Citizenship.
22. Mr Valve said that his wife’s son was going to pay for the tickets to the Philippines. Mrs Valve, however, said that she had saved money from Mr Valve’s salary when he was working. Mrs Valve said they presently have no intention of going overseas because they could not afford the airfares. However, if Mr Valve was permitted to travel to the Philippines she would ask her son to pay the airfare of $1,300 each.
23. Mr Valve said he has a heart condition for which he takes medication daily. He also has high blood pressure and high cholesterol. He carries an “emergency tablet”. His doctor monitors his heart every second week and every three months he has a blood test.
24. At my request, Dr Joe Languido, Mr Valve’s General Practitioner, provided a letter dated 16 June 2008, in relation to Mr Valve’s current medical conditions. He wrote of Mr Valve suffering the following conditions:
1. Ischemic heart disease with proven occlusion of the left anterior descending artery (LAD)
2. He apparently has Angioplasty in 2004 (WMH)
3. Non Insulin Dependant Diabetes diet controlled
4. Hypercholesterolemia
5. Osteoarthritis
6. Gout
7. Overweight
8. Alcoholic
Dr Languido considered Mr Valve unfit for travel.
CONSIDERATION
25. The tests set out in section 72L are cumulative, that is, a person’s circumstances must come within each.
Is it likely Mr Valve will depart and return to Australia within an appropriate period: subsection 72L(2)(a)(i)?
26. There is conflicting evidence about whether Mr Valve is likely to depart from and return to Australia within an appropriate period. At the hearing, Mr Valve denied that he had told an officer at the CSA that he intended to relocate to the Philippines permanently. His evidence and that of his wife was that they wanted to travel overseas to visit relatives. The evidence was that Mrs Valve’s house in the Philippines is occupied by her son and his family and, given its size, it seems unlikely to me to be able to accommodate Mr and Mrs Valve on a long term basis. I found of particular relevance that Mr Valve acknowledged that his Australian pension would cease after three months and that his healthcare expenses, presumably in the absence of Medicare, would be significant. I am therefore satisfied that, if Mr Valve is permitted to depart Australia that he is likely to return.
Is revocation of the DPO likely: subsections 72L(2)(a)(ii) and 72I(1)?
27. Subsection 72I(1) provides as follows:
(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.
28. Mr Valve will have a continuing child support liability until 2016, given the age of his children.
29. Despite there having been some discussions between Mr Valve and his former partner and the CSA concerning payment arrangements Mr Valve has made no arrangements about paying his debt which as at 18 April 2008 was $25,995.10. His current level of repayment ($6.50 per week) is an unsatisfactory arrangement for discharging the liability. His current payments only meet his current ongoing liability. The CSA’s position was that without a significant lump sum payment by Mr Valve, a satisfactory payment arrangement cannot be reached which would allow him to travel overseas.
30. As to whether the debt is completely irrecoverable, however, the CSA’s position is that while Mr Valve has a limited capacity to repay the arrears it is not of the view that the liability is irrecoverable.
31. I find that none of the conditions in subsection 72I(1) are met, and cannot be satisfied that it is likely that the DPO will be revoked.
32. Even where the tests outlined above are not satisfied there remains a broad discretion to revoke a DPO: subsection 72I(3). The CSA guidelines are to the effect that the discretion to revoke a DPO will be exercised only where satisfied that the debtor will return to Australia and will not dissipate assets overseas. I cannot be satisfied that (the little) assets Mr Valve has will be preserved in Australia for the benefit of his children, and hence it is unlikely the discretion to revoke the DPO will be exercised.
Is security not necessary: subsection 72L(2)(b)?
33. Section 72M provides that a person may give security, the effect of which is that the amount is forfeited if the person fails to return to Australia and the forfeited security is applied against the child support debt.
34. The Respondent contends that security is necessary for the issue of a DAC to Mr Valve. In support of this position the Respondent referred to information it had received concerning Mr Valve’s previous intention to relocate to the Philippines, the fact his wife has assets there, his lack of assets in Australia and his recent retirement. I note the considerable size of the debt and that, for some time, it appears Mr Valve has been recalcitrant in his payments. In those circumstances, in my view, security is necessary: subsection 72L(2)(b).
Has security been given: subsection 72L(3)(a)?
35. The CSA’s guidelines set out that the CSA will only accept a security that:
● is in a form that is readily convertible to cash;
● is offered by the debtor rather than third parties on the debtors behalf; and
● is not significantly less in value than the amount of the debt owing.
36. The security Mr Valve offered to the CSA officer on 30 October 2007 does not fit these criteria, and in any event Mr Valve has now retired. I was informed that Mr Valve’s debt was $25,995.10 as at 18 April 2008, of which $17,606.29 is unpaid child support and the remainder is late payment penalties.
37. Curiously, in its Statement of Facts and Contentions the Respondent contended that an acceptable amount of security for Mr Valve’s return is a minimum of $5,000, in light of his limited financial means. This was repeated, in the Respondent’s oral submissions. I questioned the Respondent’s advocate about the proposal, which, I speculated, amounted to a settlement offer. She said that, together with a commitment to make additional payment fortnightly payments (of $25 per fortnight) and proof of return travel, the Respondent would issue a DAC. Apparently a higher figure had previously been put to Mr Valve, but because he had always maintained that he has no capacity to make any sort of payment, the proposal of security had not been pursued.
38. For completeness, and in fairness to Mr Valve, I offered him and his wife an opportunity to consider this new proposal. However, he said that he “I haven’t got the money to do that”.
39. Mr Valve is unable to meet any of the criteria specified in the CSA's guidelines as to acceptable security. He cannot give the requisite security: subsection 72L(3)(a).
Should the DAC be issued on humanitarian grounds or in Australia’s interests: subsections 72L(3)(b)(i) and (ii)?
40. There was no contention that it was in Australia’s interests that Mr Valve be permitted to travel overseas.
41. The remaining question was then whether the DAC should be issued on humanitarian grounds. Prior to the hearing, the CSA had not been aware of any claim by Mr Valve for issuing a DAC because of his wish to see his [wife’s] grandchildren before his imminent death. It was conceded that this application was properly characterised as one on humanitarian grounds.
42. The CSA’s guidelines define “humanitarian grounds” as including “compassionate grounds”, and provides as an example:
Where the certificate is required to enable the debtor to visit sick relatives and CSA is satisfied that the debtor is likely to return to Australia, the issue of a certificate may be justified (Crockett v FCT 99 ATC 2218).
43. I have found that it is likely that Mr Valve would return to Australia. As to the compassionate grounds, the evidence was that Mr Valve wished to travel overseas to visit either his elderly siblings or his wife’s grandchildren. There was no evidence of special closeness with either group. He said he would like to “meet” the grandchildren, but having regard to the frequency of his previous visits to the Philippines; he may already have done so. I acknowledge that there may have been some misconstrued meaning lost in translation, but in any event they are relatives of his wife and not his. His own children are here and he rarely sees them, and he has a poor history of supporting them.
44. While Mr Valve’s doctor considers his health to presently preclude him from travel, there was no indication whatsoever that his condition is terminal, or indeed that his health will never improve sufficiently so as to preclude him from travel in the future. Mr Valve’s own evidence, and that of his wife, was that if the airfares were provided they would travel to the Philippines, or Finland, or both.
45. In those circumstances, I do not consider that the DAC should be issued on humanitarian grounds.
46. Mr Valve has failed to meet the available criteria in section 72L.
DECISION
47. The decision under review is affirmed.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Isenberg, Senior Member
Signed: .....................[sgd]...........................................................
Associate :Felicia DanieleDate of Hearing 21 May 2008
Date of Decision 31 July 2008
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms Z Cameron, Child Support Legal Services
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