Van Haltren and Child Support Registrar (Child support second review)

[2016] AATA 649

Van Haltren and Child Support Registrar (Child support second review) [2016] AATA 649  

Division	GENERAL DIVISION
File Number(s)	2016/3539
Re	Harold Van Haltren
APPLICANT
And	Child Support Registrar
RESPONDENT

DECISION

Tribunal	Senior Member A Poljak
Date	29 August 2016
Place	Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

Catchwords

CHILD SUPPORT – Departure prohibition order (DPO) – child support debt – objects of the Child Support (Registration and Collection) Act 1988 (Cth) – no basis for revocation of DPO – no security offered by applicant – decision under review affirmed

Legislation

Child Support (Registration and Collection) Act 1988 (Cth), ss 3, 72D, 72I, 72K, 72L, 72M

Cases

Whittaker v Child Support Registrar (2010) 264 ALR 473

REASONS FOR DECISION

Senior Member A Poljak

29 August 2016

1. The Child Support Registrar (“the Registrar”) says Mr Van Haltren owes a significant amount in respect of child support payments. As a consequence, the Registrar issued a Departure Prohibition Order (“DPO”) on 30 April 2014 pursuant to s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”). As a consequence of the DPO, Mr Van Haltren cannot leave the country unless (a) the order is varied or revoked, or (b) the Registrar issues a Departure Authorisation Certificate (“DAC”).

2. The Registrar has not made a decision to vary or revoke the order, however, Mr Van Haltren applied for a DAC pursuant to s 72K of the Act on 1 June 2016.

3. On 16 June 2016, the Registrar made a decision to decline the issue of a DAC (“the decision”). This is the decision under review in these proceedings.

   RELEVANT LEGISLATIVE PROVISIONS

4. 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.

5. 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.

6. Section 72D of the Act authorises the Registrar to issue a DPO provided four conditions may be 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.

7. 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)

8. A person, who has been issued with a DPO, may apply for a DCA under s 72K of the Act.

9. Section 72L of the Act sets out the circumstances in which the Registrar must issue a DAC to a person who makes an application under s 72K. The relevant parts of the section provide:

   (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.

10. A person may give such security as the Registrar considers appropriate by bond, deposit or any other means, for the person’s return to Australia pursuant to section 72M.

    CONSIDERATION

11. Mr Van Haltren advised the Tribunal that the purpose of his application for a DAC was to “work on a fly in/fly out basis to Papua New Guinea” with Sierra Fleet Services. He states that he struggled to find work in Australia.

12. Sub-section 72L(2)(a)(i) refers to the likelihood of the applicant returning to Australia within a reasonable timeframe. The Registrar contends that Mr Van Haltren’s criminal history, including crimes of wilful dishonesty, weigh against his credibility. Additionally, the Registrar contends that the Engagement Letter dated 1 July 2016 between Mr Van Haltren and Sierra Fleet Services lacks credibility.

13. At hearing, Mr Van Haltren said that he drafted the engagement letter himself because Sierra Fleet Services lacked staff to complete the paperwork. There is no evidence before me to show that the document is an accurate reflection of the alleged agreement between the parties and the engagement letter is unsigned. I cannot be satisfied that the document is genuine. It follows that I do not give the document much weight.

14. Mr Van Haltren insists he is not a ‘flight risk’ and has every intention of returning to Australia within a reasonable time period. He says he regards Australia as his home and says most of his family reside in this country, including his three adult children, and he would not leave them behind.

15. Mr Van Haltren appears to retain a strong connection with family members, most obviously his three adult children, who all reside in Australia. I accept he does not have strong financial ties with this country. At hearing, Mr Van Haltren pointed out that he travelled overseas and returned without incident on previous occasions when the Registrar agreed to issue a DAC.

16. I am satisfied the applicant is likely to return to Australia within a reasonable timeframe.

17. However, this only takes Mr Van Haltren’s application so far. I must also be satisfied it is likely the Registrar will be required to revoke the DPO pursuant to s 72I(1) within a period that the Registrar considers appropriate. I am not so satisfied. Mr Van Haltren has a significant child support liability, and he was unable to explain how that liability would be discharged given his limited means. I am therefore not satisfied that the child support liability is completely irrecoverable.

18. Mr Van Haltren at hearing said that he intended to initially pay $2,000 a month, increasing to $4,000 a month, in an effort to pay off his debt. Indeed he has made a payment of $2,000 on 7 July 2016. He states that in order to keep up with the payments, he needs to go to Papua New Guinea to work and earn money. This may very well be the case; however it appears that he has defaulted on agreed payment plans in the past.

19. The Registrar submits that Mr Van Haltren has a history of defaulting on payment arrangements - many of which he disputes. The Registrar’s legal representative could not clarify if the default history contained in their Statement of Facts and Contentions was accurate. As a result, I am left with the evidence given at hearing by Mr Van Haltren.

20. He accepted that he made two successful previous applications for a DAC; one in June 2014 and one in August 2014. He agreed that on both occasion he entered into an agreement for security and a monthly payment plan. In June 2014, he made the goodwill payment prior to departure but ultimately defaulted on the agreed payment plan. In August 2014, he did not honour two goodwill payments (one on departure and one on return) and defaulted on the agreed payment plan. On the basis of this evidence I am satisfied that Mr Van Haltren has a default history.

21. It follows the applicant is unable to meet the requirements under s 72L(2). That then leaves the possibility that the applicant might be able to satisfy the requirements in s72L(3).

22. As at 11 August 2016, Mr Van Haltren’s child support liability currently amounts to a total of $179,120.09 pursuant to the subsection 116(2) Certificate. This amount is made up of a child support debt in the amount of $95,961.14 and penalties in the amount of $83,158.95 for the period 13 February 1998 to 10 August 2016. He says he is taking steps to challenge that assessment. Unless and until he successfully challenges the assessment, it must be accepted he continues to owe a significant amount, and that amount is growing.

23. Mr Van Haltren has not offered any money for security and states that he doesn’t have the means to provide anything unless he borrowed money from other people. There is no evidence before me to suggest that he has explored his options in this regard or that he is unable to provide security.

24. The Registrar contends, and I accept, there are no humanitarian or public interest reasons that would justify the issue of a certificate in the absence of appropriate security. In those circumstances, he is unable to meet the requirements of s 72L(3).

    CONCLUSION

25. For the reasons given above, I am not satisfied that it is appropriate to issue a Departure Authorisation Certificate. The decision under review is affirmed.

I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated 29 August 2016

Date of hearing	11 August 2016
Applicant	Self represented
Solicitors for the Respondent	Mills Oakley Lawyers