Wentworth and Child Support Registrar (Child support second review) - [2019] AATA 3319

Wentworth and Child Support Registrar (Child support second review) [2019] AATA 3319 (6 September 2019)
Division:General Division
File Number(s):2019/2020
Re:Clayton Wentworth
APPLICANT

Child Support RegistrarAnd
RESPONDENT

DECISION
Tribunal:Senior Member K Millar
Date:6 September 2019
Place:Adelaide

The decision under review is affirmed.
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Senior Member K Millar
CATCHWORDS
CHILD SUPPORT – application for review of refusal to issue departure authorisation certificate – application for dismissal – where departure prohibition order in force – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support Assessment Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Bettison and Child Support Registrar [2016] AATA 592
Mahmoud and Child Support Registrar (Child support) [2019] AATA 2709
Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188
Whittaker v Child Support Registrar (2010) 264 ALR 473
SECONDARY MATERIALS
Child Support Guide
REASONS FOR DECISION
Senior Member K Millar
6 September 2019
BACKGROUND

Mr Wentworth has a child support debt of $26,474.83 owed to the Commonwealth for child support together with penalties of $88,172.15 as at 12 July 2019. A Departure Prohibition Order (DPO) was issued on 20 March 2017 which prevents him travelling overseas.
Mr Wentworth applied for a Departure Authorisation Certificate (DAC) to travel overseas, and on 10 April 2019 his application for a DAC was refused. Mr Wentworth has sought a review of this decision.
INFORMATION BEFORE THE TRIBUNAL
Mr Wentworth has two children. They are now adults, and the child support case for his children ended in 1995. Mr Wentworth has not paid regular child support since 1989, with the exception of small amounts over a relatively short period in late 2010 to early 2011.
Mr Wentworth has not worked since 27 April 2017. He previously owned a truck, and worked with two companies carting grain and other materials in South Australia and Victoria. Following a series of actions from those companies, he was banned from the worksite in April 2017 and he has taken legal action against them. That legal action was not successful and Mr Wentworth has appealed to the Full Court of the Supreme Court. According to Mr Wentworth, the defendant companies have sought dismissal of these proceedings on the basis there is no reasonable prospect of success, or that Mr Wentworth provide security for costs. As he is unable to provide security for costs, this action is unlikely to proceed.
Mr Wentworth argues that if he had been approached by the Child Support Agency about his debt in 2014 when he turned old age pension age, he would have applied for a pension and would have qualified for payments because his income was low. He regards the requirement to pay $26,700 in child support as having to “pay twice” as he did not claim a pension, and if he had he could have paid the child support he owes.
Mr Wentworth states he is totally impecunious and has over $1M in debt, but also says there is nothing that would justifiably mean he would not leave Australia and return within two weeks.
Mr Wentworth wants to travel overseas to speak to “people in high places” about a job. On being asked what type of work he wants to do, he said it tends to be political and is to do with current affairs and political issues. He would not tell the Tribunal who he needed to speak to about a job, or provide further detail about this job. There is no other information before the Tribunal about the job he would seek, who he needs to speak to, or any further specific information about his need to travel overseas.
Mr Wentworth has a bank account in the United Kingdom with Barclays Bank, and there are significant transactions depositing money into this account, as shown by the AUSTRAC records.[1] Mr Wentworth said his parents died in a car accident and he used his inheritance to buy a truck in the United Kingdom, and transferred money to his bank account in the United Kingdom to pay for the truck. He said he currently has £53 in this account.
[1] Exhibit T, T Documents, T7, Folios 201 - 268.
The Registrar pointed out that the AUSTRAC records show he had transferred funds to the Barclays Bank account with the annotation “sustenance”. In response, Mr Wentworth said he has a mobile telephone in the United Kingdom and also has payments he needs to make for a web hosting service as he is chief researcher for “voiceoftheworld.com.”
Mr Wentworth said he had recently paid $2,000 for dental work in Australia and owes a further $1,000. He says he paid the $2,000 from the sale of a trailer. The trailer was subject to a charge, and he sold it despite knowing he should not due to the Personal Property Securities Act 1999 (PPSA).
Mr Wentworth said he is paying $50 per fortnight towards his child support liability which is deducted from his age pension of $926 per week. The Registrar submitted it was unaware he was receiving a pension, and provided a screenshot from its computer system which showed he last held a Newstart Allowance in January 2011.[2] Mr Wentworth accessed his bank account statement on his mobile phone and showed the Registrar there were deposits to his account marked “pension”. The Tribunal accepts he is being paid a pension.
[2] Exhibit R2.
Mr Wentworth says he is living in a caravan that is unfit for human habitation and his rent is more than seven months overdue so he could be evicted. He also later said that the owner of the caravan is a friend who cannot expect money from him, and the owner has also allowed him the use of his credit card. He said he now owes this friend $33,000.
It was put to Mr Wentworth by the Registrar that in the Supreme Court decision on Mr Wentworth’s action, Chief Justice Doyle stated Mr Wentworth had selectively edited recordings on which he relied at hearing, and in doing so attempted to mislead the Court.[3] Mr Wentworth said the judgment was a total farce and that he was prevented from putting evidence before the Court. He pressed at length before the Tribunal that he should be permitted to play what he said was a ten second extract of a conversation that would prove his point. He referred to a finding by Chief Justice Doyle that a particular word was not used in a recorded conversation and said he could prove this was wrong.
[3] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188 at [47].
The Tribunal declined to hear the recording. There was no information before it other than Mr Wentworth’s oral evidence as to the provenance of the recording, and it was an attempt to impugn a finding of the Supreme Court before which there was a great deal of evidence that is not before the Tribunal. The Tribunal did not consider that a hearing of a refusal of a DAC was an appropriate forum for Mr Wentworth to air his grievance with the findings of the Supreme Court. Mr Wentworth had considerable difficulty containing his frustration about not being able to lead evidence which he considered would establish that the findings of the Supreme Court were wrong. He argued that as his credibility had been put in issue by the Registrar, he should have an opportunity to establish that the finding of the Supreme Court as to his credibility was incorrect. This decision does not turn on Mr Wentworth’s credibility as determined by the Supreme Court and therefore the recording is not relevant.
Mr Wentworth said his health has deteriorated significantly over the last two years and his current stress levels are affecting his blood sugar levels, resulting in him being at risk of major organ failure. He considers the Registrar has not acted in good faith and should be required to show remorse for the actions of the Child Support Agency. In particular, he argues that if he had been told of his debt in 2014 he would have claimed the age pension. He considers the Registrar should be required to enter into an arrangement by which it is agreed he can pay $50 per fortnight towards his child support liability.
Mr Wentworth said his family are in Australia, and he has three brothers and two sisters. He has not seen his two children for 33 years. His son has cystic fibrosis and his niece died last year from cystic fibrosis.
APPLICATION TO DISMISS
The Registrar sought to have the application dismissed under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). This provision allows the Tribunal to dismiss an application if satisfied that the application is frivolous, vexatious, misconceived or lacking in substance.
The Registrar submits that as Mr Wentworth sought a DAC for the period 16 April 2019 until 18 June 2019, and that period has now passed, the Tribunal cannot make an order of any utility to Mr Wentworth.
This Tribunal has previously considered this issue in Mahmoud and Child Support Registrar.[4] In that decision, the Tribunal concluded that the decision under review was a decision to refuse to issue a DAC, and declined to dismiss the application. The Tribunal found that reviewing a decision to refuse a DAC under s 72L of the Registration and Collection Act is different to a decision under s 72N to issue the certificate, and that a decision of utility to the applicant can be made.
[4] [2019] AATA 2709.
For similar reasons, the Tribunal does not consider this application to be frivolous, vexatious, misconceived or lacking in substance because the date of the proposed travel has passed, and declines to dismiss the application under s 42B of the AAT Act.
LEGISLATION AND PRINCIPLES
A DPO is issued under s 72D of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), and prohibits a person travelling overseas. A DPO was made in regard to Mr Wentworth on 20 March 2017. Appeal from a decision to issue a DPO is to the Federal Circuit Court or Federal Court under s 72Q of the Registration and Collection Act.
A person who has a DPO in place can apply under s 72K for a DAC to allow them to leave Australia. The Registrar must issue a DAC in certain circumstances. In this case, the Registrar has refused to issue a DAC and this is the decision that is under review.
Mr Wentworth was issued with the DPO on 20 March 2017. The purpose of a DPO is to ensure that the 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.[5]
[5] Whittaker v Child Support Registrar (2010) 264 ALR 473 at [291] – [292].
A person who has a DPO in place can apply under s 72K for a DAC to allow them to leave Australia. Under s 72L of the Act, the Registrar must issue a DAC where the following circumstances are made out:
72L When Registrar must 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 is not 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 relevant policy to be considered is contained in Chapter 5.2.11 of the Child Support Guide (“the Guide”).
ISSUE TO BE DETERMINED
The issue before the Tribunal is whether a DAC is to be issued under s 72L of the Registration and Collection Act. As it applies to Mr Wentworth, this requires a consideration of the grounds in ss 72L(2) and (3).
IS IT APPROPRIATE TO ISSUE A DAC UNDER SECTION 72L(2) OF THE REGISTRATION AND COLLECTION ACT?
The ground in s 72L(2) requires three elements to be met. These are; that the person is likely to depart and return in within an period the Registrar considers appropriate (s 72L(2)(a)(i)), that it is likely within an appropriate period that the Registrar will be required to revoke the DPO (s 72L(2)(a)(ii)), and that it is not necessary the person give security (s 72L(2)(b)). These elements are cumulative, and each must be met for the Registrar to issue a DAC.
It is convenient to first look at whether the Registrar will be required to revoke the DPO within an appropriate period under s 72L(2)(a)(ii).
Is the Registrar likely to be required to revoke the DPO within an appropriate period?
The circumstances in which the Registrar must revoke a DPO in respect of a person are given in s 72I(1) of the Registration and Collection Act:
(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 or carer 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 or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.
In this case, Mr Wentworth has a child support liability that he concedes he is not able to discharge, and it could not be said he no longer has a child support liability. There are no arrangements satisfactory to the Registrar that have been made for the liability to be wholly discharged.
Mr Wentworth argues that the child support liability is wholly irrecoverable. However, he also states he receives a Centrelink pension from which money is withheld. The Tribunal is satisfied he receives a Centrelink payment and in these circumstances, the child support is not completely irrecoverable.
It follows that s 72l(2)(a)(ii) is not met. As each of the requirements in s 72L(2) must be met to issue the DAC, and one is not met, it is not necessary to consider the remaining requirements.
IS IT APPROPRIATE TO ISSUE A DAC UNDER SECTION 72L(3) OF THE REGISTRATION AND COLLECTION ACT?
Under s 72L(3) of the Registration and Collection Act, a DAC can be issued if Mr Wentworth has given appropriate security under s 72M for his return to Australia, or he is unable to give security and a DAC should be issued on humanitarian grounds, or refusing to issue the DAC would be contrary to Australia’s interests.
Mr Wentworth has not given or offered any security, and says he is unable to do so.
Is Mr Wentworth unable to provide security?
Mr Wentworth states he has no assets and cannot meet his expenses. As a result, he is unable to provide security.
Should a DAC be issued on humanitarian grounds?
The word “humanitarian” is defined in the Macquarie Dictionary as “having regard to interests of all humankind; broadly philanthropic” and by the Oxford English Dictionary as “concerned with humanity as a whole; seeking to promote human welfare as a primary or pre-eminent good; acting, or disposed to act, on this basis rather than for pragmatic or strategic reasons.”
Mr Wentworth wants to travel overseas to see a person about a job. He was not willing to specify the job or name the person he needs to see.
Mr Wentworth owes a significant amount of money in Australia at this point in time, with a costs order being made against him following his action in the Supreme Court. Mr Wentworth wants to appeal the decision, however he had not been granted leave to appeal at the date of the hearing, and the defendant companies are seeking security for costs which Mr Wentworth says he cannot provide. He owes a significant amount of money in child support and late payment penalties. He has failed to pay child support for a lengthy period of time. He had not made efforts to pay his child support while he had an income.
Mr Wentworth says his living conditions are poor, and provided a variety of photographs which he says shows his living conditions. He said this means he needs to travel to get a job to improve his living conditions. Mr Wentworth sees this travel as his last opportunity to obtain work as he is now 70 years of age and his health is deteriorating. In the absence of any specific information about a job, the Tribunal is not satisfied Mr Wentworth has reasonable prospects of obtaining a job if he travels overseas.
Mr Wentworth also raises his difficult life circumstances, with his former wife and his parents being killed in car accidents, his son having cystic fibrosis, the death of his niece from this condition, and his own deteriorating health. While Mr Wentworth has faced very difficult circumstances, the Tribunal is not satisfied that these circumstances show a DAC should be issued on humanitarian grounds.
The Tribunal has also considered whether other circumstances raised by Mr Wentworth could establish that there was a humanitarian reason he should be granted a DAC. These include the remaining cost of his dental treatment, the disposal of his last asset, the loss of payment for his airline ticket, the loss of his inheritance, his claim that he has foregone pension payment since he reached pension age, that he says he has travelled overseas and returned in the past, and his unsuccessful action in the Supreme Court. The Tribunal is not satisfied that any of these circumstances individually, or cumulatively with the other matters raised by Mr Wentworth, satisfy it that a certificate should be issued on humanitarian grounds.
There is nothing before the Tribunal that would establish that refusing the DAC would be contrary to Australia’s interests.
It follows that the Tribunal is not satisfied the circumstances in s 72L(3) of the Registration and Collection Act have been made out, and the decision under review is affirmed.
DECISION
The decision under review is affirmed.

45. I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

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Associate
Dated: 6 September 2019

Date of hearing: 15 July 2019

Applicant: In person

Advocate for the Respondent:

Solicitor for the Respondent:

Mr Christopher Tran, Counsel

Mr Christopher Bishop, Mills Oakley Lawyers