Wales and Falls and Anor (No.2)
[2010] FMCAfam 1132
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALES & FALLS & ANOR (No.2) | [2010] FMCAfam 1132 |
| CHILD SUPPORT – Departure Prohibition Order – where order revoked prior to final hearing – where Departure Authorisation Certificate issued – whether application should be dismissed – application for costs – application for compensation – no power to order compensation – where applicant incurred no legal costs or fees – no order as to costs – discontinuance – leave to discontinue. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 72I, 72K, 72Q, 72S Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 (Cth) |
| Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116 T & G & Child Support Registrar [2003] FMCAfam 197 not followed |
| Applicant: | MR WALES |
| First Respondent: | MS FALLS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 5408 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 October 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2010 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Applicant is given leave to discontinue the proceeding.
There be no order as to costs.
THE COURT NOTES that the Second Respondent revoked the Departure Prohibition Order the subject of the proceeding on 13 August 2010.
IT IS NOTED that publication of this judgment under the pseudonym Wales & Falls & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5408 of 2008
| MR WALES |
Applicant
And
| MS FALLS |
First Respondent
| CHILD SUPPRT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Application
This is a matter that has substantially been resolved, but not entirely to the applicant’s satisfaction. He applied to the Court to set aside a decision by the Child Support Agency to issue a Departure Prohibition Order under the provisions of s.72D of the Child Support (Registration and Collection) Act 1988, which had the effect of preventing him from leaving Australia in order to travel to the United Kingdom to see his children. The order has now been revoked.
The Solicitor for the Child Support Registrar sought that the applicant consent to Orders dismissing the application with no order as to costs. The applicant does not wish to do so, as he considers that the Child Support Agency made an error when it issued the Departure Prohibition Order, which caused him both trouble and expense to rectify.
Against this, Ms Rayment, who appeared for the Child Support Registrar, submitted that the hearing cannot proceed because the subject matter of the dispute no longer exists; the Departure Prohibition Order has already been revoked.
Background
The history of this matter is that the applicant appealed on 15th September 2008 against a decision of the Social Security Appeals Tribunal. The appeal was heard by Riethmuller FM on 16th November 2009. Judgment was reserved.
On 15th March 2010 an order was made until further order suspending payments of child support arising from the determination that was the subject of the appeal.
On 25th March 2010 Riethmuller FM handed down judgment[1] and made the following orders:
(1)That the decision of the Social Security Appeals Tribunal, appeal SC227546, be set aside.
(2)The matter be remitted to the Social Security Appeals Tribunal to hear and determine according to law.
[1] Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116
On 3rd June 2010 the Child Support Registrar issued a Departure Prohibition Order against the applicant. The reasons given in the accompanying letter from the Child Support Agency, dated 3 June 2010, were:
We are writing to advise that because you have persistently and without reasonable grounds failed to pay your overdue child support and you also have not made arrangements satisfactory to the Registrar for your child support liability to be discharged, the Child Support Registrar (CSR) has issued a Departure Prohibition Order (DPO) under section 72D of the Child Support (Registration and Collection) Act 1988.
The applicant then filed an Application in a Case, seeking that the decision to issue a Departure Prohibition Order be set aside. In his supporting affidavit, the applicant deposed that he had already booked flights to the United Kingdom. He annexed a copy of his itinerary issued by [omitted] Airlines, showing that he was due to leave Sydney for London on 31st July 2010 and to return to Sydney on 18th August 2010.
The applicant’s children live with their mother, the first respondent, in the United Kingdom. The applicant told the Court on the return date of the application, 6th July 2010, that the purpose of his travel was to see the children and it is his practice to return to the United Kingdom for that purpose.
After some communication between the applicant and the Child Support Registrar, a Departure Authorisation Certificate was issued to the applicant on 9th July 2010, permitting him to leave Australia between 31st July and 3rd August 2010 and requiring him to return to Australia no later than 18th August 2010. The Departure Prohibition Order remained in force.
The application came before the Court on 13th July 2010 and was listed for hearing on the afternoon of 5th October 2010.
On 13th August 2010 the Child Support Agency wrote to the applicant, advising him that the Departure Prohibition Order had been revoked. The letter gave these reasons for the revocation:
The DPO has been revoked because:
· The delegate considers it desirable to do so
· A copy of the notice revoking the DPO is enclosed.
Enclosed with the letter was a Notice of Revocation of a Departure Prohibition Order dated 13th July 2010.
On 18th August 2010 the solicitor for the Child Support Registrar wrote to the applicant, noting that the Departure Prohibition Order had been revoked on 13th August 2010 and inviting him to sign consent orders to finalise the litigation. The proposed orders stated that:
(1)The application be dismissed.
(2)There be no order as to costs
The applicant did not sign the Minute of Consent Orders.
The matter came before the Court on 5th October 2010. The second respondent sought that the application be dismissed with no order for costs, which was opposed by the applicant. The applicant produced to the Court a copy of a letter dated 17 September 2010 from the Child Support Agency, stating (inter alia):
Thank you for your email enquiry received by us on the
6 September 2010.
We are writing to apologise to you and we are re-issuing you with a new revocation certificate with the date being 13 August 2010 not 13 July 2010. This was a keying error.
Please note that the covering revocation letter that accompanied the notice previously sent to you did contain the correct date and information (Copy enclosed for your reference).
As per the letter sent to you on 27 August 2010, an explanation was provided to you when the Departure Authorisation (DAC) was issued to permit you to depart the country on 31 July 2010. This was in conjunction with your application for a DAC and further on the recommendation of FM Scarlett to be able to travel to visit your children.
As also stated in the letter sent you dated 27 August 2010, that whilst you were out of the country further consideration was made with respect to your case. A submission was prepared and forwarded to the delegate to revoke the DPO. The Delegate approved the revocation on 13 August 2010. The necessary paperwork was then immediately forwarded to you and the AFP.
Therefore you were permitted to depart Australia on a DAC as approved by the delegate at that time. The revocation decision was made at a later date.
We again apologise for the keying error and the confusion this may have caused you. We can assure you that the DPO has been lifted and that the DPO has been notified. You are currently able to depart Australia un-restricted.
Submissions
The applicant told the Court that he did not agree to his application being dismissed. He said that he was seeking compensation. He had undergone stress as a result of the imposition of the Departure Prohibition Order and had incurred costs as a result of what he described as a “fiasco of errors” by the Child Support Registrar.
The financial cost to him was a result of:
a)Having to pay a further 240 pounds (UK) for extra airfares because he could not make bookings until after the Departure Prohibition Order was lifted; and
b)Lost revenue.
He conceded that he had not incurred any legal costs either by way of court fees or any amount paid for legal advice or representation.
The applicant said that he wanted the Court to find that the Child Support Registrar had made a mistake in imposing the Departure Prohibition Order in the first place. He submitted that the DPO should not have been imposed because it would have had the effect of preventing him from travelling to see his children, which would not have been in their best interests.
The applicant said that it was important that the decision of the court should reflect the fact that an error had been made. He had read the reports of nine cases where applications had been made to a Court for removal of a Departure Prohibition Order; all had failed. His case was not in that category and should not be finalised as if it were.
The applicant submitted that Departure Prohibition Orders should not apply to stop fathers seeing their children.
Ms Rayment, who appeared for the Child Support Registrar, acknowledged that the Departure Prohibition Order had been revoked. She submitted, however, that there were no grounds for making any order for monetary compensation.
The letter dated 17 September 2010 acknowledged that there had been an error, but the error was confined to the fact that the original revocation certificate had the wrong date on it.
Ms Rayment further submitted that the revocation of the DPO was not based on an acknowledgment that there had been an error but on a reconsideration by the Child Support Registrar. The Court record should reflect the actual position.
Conclusions
Section 72Q Of the Child Support (Registration and Collection) Act provides that a person aggrieved by the making of a Departure Prohibition Order may appeal to the Federal Court of Australia or the Federal Magistrates Court against the making of the order. The Act was amended in 2006, by the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006, which commenced on 4th May 2006. This means that my earlier decision of T & G & Child Support Registrar[2], where I held that this Court did not have jurisdiction to entertain such an appeal, no longer represents the current law.
[2] [2003] FMCAfam 197
Under s.72S, the orders that the Court may make, in its discretion, are:
a)To make an order setting aside the departure prohibition order; or
b)Dismissing the appeal.
The Court has the power to make an order for costs, in its discretion.
The Court has no power to make an order for compensation in proceedings under this Act.
The applicant is not seeking an order for costs, nor is he entitled to one. He was not legally represented in these proceedings and he has made no claim for any court or service fees incurred.
What the applicant is seeking is effectively an order compensating him for:
a)Having to pay airfares at a higher rate, to the extent of some 240 UK pounds;
b)Stress; and
c)Loss of revenue.
The Court has no power to make an order for any compensation.
The applicant is aggrieved that the Child Support Registrar issued a Departure Prohibition Order in the first place and claims that the Child Support Registrar made an error in doing so. Had the Departure Prohibition Order still been in force at the time of the scheduled hearing, the applicant may have been able to argue that the Registrar may not have had reasonable grounds that it was desirable to make the order or that the Registrar failed to consider one or more of the matters referred to in s.72D(2).
However, that argument is academic, because at the time of the scheduled hearing on 5th October 2010, the Departure Prohibition Order was no longer in force. It had been revoked on 13th August 2010. Thus, the subject matter of the dispute no longer existed. The only matter that could have been argued was the question of costs, which in this case did not apply.
The applicant is adamant that his application should not be dismissed, because an order dismissing his application conveys the implication that he was unsuccessful in his claim.
The applicant was not unsuccessful. It is fair to say that it was as a result of his application to the Court, by way of an appeal, that led to:
a)The issue of a Departure Authorisation Certificate under s.72K of the Act on 9th July 2010; and
b)The reconsideration by the Delegate that led to the revocation of the Departure Prohibition Order under s.72I on 13th August 2010.
In my view, the proper way to finalise this matter in a way that reflects the reality of the situation is for the Court to note that the Departure Prohibition Order was revoked prior to the hearing and give the applicant leave to discontinue the application. There will be no order as to costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 October 2010
0
2
0