Wetzell and Child Support Registrar - [2005] AATA 607

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 607
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/143

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT CARL WETZELL

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member
Date3 June 2005
PlaceCanberra

Decision
1. For the reasons given orally at the hearing the decision of the respondent dated 17 May 2005 which refused to provide a Departure Authorisation Certificate is set aside.

2. In substitution it is decided that provided that the applicant has lodged with the respondent a cash security of $7000.00, on June 8 2005 the Registrar shall issue to the applicant a Departure Authorisation Certificate pursuant to Division 4 of the Child Support (Registration and Collection) Act 1988 (Cth) which:

(1) authorises the departure of the applicant from Australia commencing and including 9 June 2005 and for a period of 7 days thereafter;

(2) specifies that the applicant will return to Australia –

(a) no less than 3 clear days before such date as is set by the Federal Magistrates Court for the substantive hearing of the applicant’s application to that Court in relation to the applicant’s child support debt; or

(b) on or before the day on which the application to the Federal Magistrates Court is discontinued or dismissed,

whichever shall first occur.

..............................................

(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.

72M Security for person’s return to Australia
(1)       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 by such day as is agreed by the person and the Registrar and is specified in the departure authorisation certificate.
(2)       The Registrar may substitute a later day for the day mentioned in subsection (1), either on the Registrar’s own motion, or on application by the person in the approved form.
(3)       The Registrar may refuse an application by a person to substitute a later day if:
(a)       the person refuses to increase the value of the security already given to a level that the Registrar considers appropriate; or
(b)       the person refuses to give such further security as the Registrar considers appropriate; or
(c)       the Registrar considers that it would not be appropriate to substitute the later day.

9. Section 72L of the Child Support (Registration and Collection) Act (Cth) 1988 sets out the circumstances in which the Registrar must issue a departure authorisation certificate. I am not satisfied…

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: [2005] AATA 607
Decision Date: 3 June 2005

CaseChat Overview and Summary

The case involves the applicant, who is subject to a departure prohibition order preventing them from leaving Australia, seeking a departure authorisation certificate to travel to Samoa. The matter was before the Family Court. The applicant, who resides in Samoa, sought the certificate to attend to personal matters. The key legal issues were whether the certificate should be issued, if the debt could be enforced in Samoa, and the sufficiency of the security offered.

The court examined the statutory provisions and relevant case law, concluding that the Family Court order is enforceable in Samoa. It also found that the applicant’s offer of $7,000 in security, although loaned from his brother, was sufficient given the debt of approximately $50,000. The court set aside part of the decision refusing to issue the certificate, substituting it with a decision that the certificate would be issued upon the applicant lodging a cash security of $7,000. The certificate would authorise the applicant to leave Australia for seven days, with conditions regarding their return.

The court’s orders included setting aside the decision dated 17 May 2005, which had refused to issue a departure authorisation certificate. In its place, the Registrar was directed to issue the certificate provided the applicant lodged a cash security of $7,000 by 8 June 2005. The certificate would allow the applicant to depart Australia for seven days, with specific conditions regarding their return for a Federal Magistrates Court hearing or the discontinuation or dismissal of their application. Other matters were subject to an ongoing appeal before the Tribunal.

Orders

Orders of the court

1. For the reasons given orally at the hearing the decision of the respondent dated 17 May 2005 which refused to provide a Departure Authorisation Certificate is set aside.

2. In substitution it is decided that provided that the applicant has lodged with the respondent a cash security of $7000.00, on June 8 2005 the Registrar shall issue to the applicant a Departure Authorisation Certificate pursuant to Division 4 of the Child Support (Registration and Collection) Act 1988 (Cth) which:

(1) authorises the departure of the applicant from Australia commencing and including 9 June 2005 and for a period of 7 days thereafter;

(2) specifies that the applicant will return to Australia –

(a) no less than 3 clear days before such date as is set by the Federal Magistrates Court for the substantive hearing of the applicant’s application to that Court in relation to the applicant’s child support debt; or

(b) on or before the day on which the application to the Federal Magistrates Court is discontinued or dismissed,

whichever shall first occur.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT CARL WETZELL