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.

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

CATCHWORDS

CHILD SUPPORT – departure authorisation certificate – departure prohibition order currently preventing applicant from leaving Australia – whether departure authorisation certificate should be issued – applicant lives in Samoa – whether debt will be enforced in Samoa – applicant has Federal Magistrate matter in Australia – applicant offered $7,000.00 as security which has been loaned from his brother – whether applicant has to give security ‘personally’ – whether security offered is sufficient when compared to debt of approximately $50,000.00 – Family Court order enforceable in Samoa – part of reviewable decision refusing to issue departure authorisation certificate set aside – other matters subject to appeal continuing before Tribunal

Child Support (Registration and Collection) Act (Cth) 1988 – s 72L, 72M

Koueider and Commissioner of Taxation [2003] AATA 101

Nasrat Eid and Commissioner of Taxation (AAT 12610, 11 February 1998)

REASONS FOR DECISION

3 June 2005 Mr J.W. Constance, Senior Member

1.      Mr Wetzell has made 2 applications to the Tribunal for review of decisions made by the Child Support Registrar under the Child Support (Registration and Collection) Act (Cth) 1988. This decision of the Tribunal relates to the application lodged on 1 June 2005 insofar as it requests review of the decisions of the Registrar not to issue a departure authorisation certificate to Mr Wetzell, and to refuse the security offered by. Mr Wetzell has also applied to the Tribunal for review of the Registrar’s decision to issue a departure prohibition order.

FACTS

2.      Mr Wetzell was born in Samoa in 1961.  At the age of about two years, he travelled with his family to New Zealand and lived there.  In approximately 1974 Mr Wetzell returned to Samoa where he lived until 1979.  In 1979, he spent a short time in New Zealand and came to Australia in 1980.  He spent 15 years in Australia and became an Australian citizen in 1984.  His first child was born in 1989 and a second child in 1992.  In 1995, Mr Wetzell returned to Samoa and has lived there since.

3.      Mr Wetzell separated from his wife in 1996 and his wife and children returned from Samoa to live in Australia.  During the period between 1996 and 2001 Mr Wetzell voluntarily paid support for his two children at a rate between $1000 and $1500 a month.  On 14 November 2001, the Family Court of Australia made orders for child support to be paid by Mr Wetzell at a monthly rate of $500.00 per child.[1]  Mr Wetzell has not complied with these orders and, as a result, he has incurred a child support debt.  In April 2005 this debt amounted to $40,558.52, excluding penalties.[2] 

[1] Exhibit R2, document T3.

[2] Exhibit R2, document T21.

4.      I am not satisfied that Mr Wetzell made the effort that he should have to find out what that order was.  He was involved in the proceedings and he appears to have simply adopted an attitude that “no news is good news” in relation to finding out what his responsibility may have been as a result of those proceedings.

5.      In early April 2005 Mr Wetzell travelled to Australia due to an illness in his partner’s family.  On 14 April 2005, a departure prohibition order was made by the delegate of the Registrar of the Child Support Agency under subsection 72D preventing Mr Wetzell leaving Australia.[3]  On 13 May 2005, Mr Wetzell made an application to the Federal Magistrates Court to discharge the child support orders and to reduce the arrears to nil.  As of today, that application has not been heard.

[3] Exhibit R2, document T11.

6.      In Samoa Mr Wetzell is a director of a company which operates a food distribution business.  In reality, he and his partner run that business.  I am satisfied that funds are drawn from the company to cover Mr Wetzell's personal expenses.  The company has 11 employees and, in Mr Wetzell's enforced absence from the business, it is currently being managed in part by his sister and in part by his partner.  Mr Wenzell gave evidence that his partner has recently suffered quite a serious illness and remains unwell.

THE LAW AND ITS APPLICATION TO THE FACTS

7.      As noted above, the applicant has also applied to the Tribunal to review the decision to issue the departure prohibition order.  I am not dealing with that application in this interim decision.  The legal principles that the Tribunal would apply in reviewing an application to vary that order are quite different from the considerations which apply to review of a decision to refuse a departure authorisation certificate.

8.      The relevant sections of the Child Support (Registration and Collection) Act (Cth) 1988 for present purposes are 72L and 72M.

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.

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 that the provisions of subsection 72L(2) have been made out as I would need to be persuaded that it is likely that the Registrar will be required to revoke the departure prohibition order. I am not satisfied of this likelihood.

10.     However, subsection 72L(3) provides that if the Registrar is not satisfied as to the requirements of subsection 72L(2), the Registrar must nevertheless issue the departure authorisation certificate if a person has given security under section 72M, or if the person is unable to give security, if their departure should be authorised on humanitarian grounds or to avoid detriment to Australia’s interests.  In this case, Mr Wetzell has offered $7000.00 security.  I am not satisfied that the provisions relating to the issue of a certificate without security have been fulfilled.  

11.     Section 72M provides that a person may give by various means such security as the Registrar considers appropriate.  In my view, the real issue is whether the $7000.00 offered is appropriate security for Mr Wetzell’s return.  This requires an assessment of the likelihood, if a certificate is issued, that Mr Wetzell will return to Australia.

12.     I have taken into account the decisions to which Mr Vivekananda has referred me and I note the decision of Koueider and Commissioner of Taxation [2003] AATA 101. In that decision Deputy President Purvis was dealing with a very similar provision under the Taxation Administration Act (Cth) 1953 which provides for a similar type of certificate to allow a person who owes a tax debt to leave Australia.  In that matter the Tribunal indicated that there is an obligation on the applicant to establish that the decision under review should be set aside, and the Tribunal is to be satisfied as to each of the prerequisites contained in the legislation.  In Koueider the applicant had not sought to provide any cash security, but was offering the Commissioner retention of the passports of his defacto wife and children. 

13.     The other case to which I have been referred, which directly deals the evaluation of security, again under the Taxation provisions, is the decision of Nasrat Eid and Commissioner of Taxation (AAT 12610, 11 February 1998).This decision raised the same issue as that properly raised by the Registrar in the present proceedings, namely, whether the Mr Wetzell is proposing to give the security personally.

14.     On the facts before me, and I am satisfied that the $7000.00 offered as security, is a loan to Mr Wetzell from his brother.[4]  It has been argued on behalf of the Registrar that if Mr Wetzell is to provide that $7000.00 by way of security, he is not in fact giving the security as required by the Act.  I do not accept this argument.   It is my view that if Mr Wetzell borrows money from his brother and provides this money as security, he is in fact giving a security.  It would be no different if Mr Wetzell was to borrow the money from a bank, use an overdraft facility, or in some way raise that money by way of loan.

[4] See exhibit A4.

15.     The decision in Eid was that the applicant was not giving security when the security was provided by other’s in the form of security over their assets.  That is quite a different situation to Mr Wetzell’s in that, by way of charge or mortgage, other people in Eid were to give security over their own property.  Here, Mr Wetzell is proposing to borrow the money and therefore he does incur a liability to repay that money.  I accept the evidence that the $7000.00 is by way of loan and, in my mind, that is no different to his having borrowed it from a bank or other financial institution.

16.     It may be that a personal obligation to his brother may, and I am not saying that this would be the case in Mr Wetzell's situation, but it may, in the minds of some people, create a greater repayment obligation than money borrowed from a large financial institution.

17.     I accept what Mr Vivekananda has put to me that the $7000 is not a particularly large proportion of the debt which is owed.  It is my view that in evaluating that security, you do not simply look at the proportion of the security to the debt owed.  This view is supported by the Tribunal’s approach in Eid.  At paragraph 24, the Tribunal said:

“On the other hand, there is a good deal of evidence which would indicate that it is most unlikely that the applicant would return to Australia if the certificate were issued.  The fact that the security must be given “to the satisfaction of the Commissioner” indicates to me that it is relevant to take account of surrounding circumstances in evaluating the security and reaching a state of satisfaction.” [original emphasis]

18.     I stress that the Tribunal in Eid  referred to the surrounding circumstances in evaluating the security.  In the present case, had there been no other factors besides the $7000.00 security offered to indicate that Mr Wetzell would be likely to return to Australia, I would have had very serious doubts as to whether the security offered was adequate.  I take into account a number of other factors in evaluating the $7000.00 security and I am satisfied than in this case it is adequate/appropriate.

19.     Mr Wetzell operates a business in Samoa, he has operated that business for a number of years, and that he has family in Samoa.  I accept that he would have difficulty in borrowing the money if he was to remain in Australia under the present order.  I find it difficult to see a financial institution lending a substantial amount of money to a man who is detained in Australia and has a business which is in, on the evidence, at least some difficulty in Samoa, and being managed part time by his sister and part-time by his partner in the business, who is in ill health.

20.     As stated at paragraphs 15-16, I am satisfied that in this case Mr Wetzell would be giving the security and that he would incur a debt to his brother in raising that security.  I also take into account that he has indicated, although it is a number of years ago, a willingness to pay substantial child support for his children.  The other factor which I take into account, which I regard as of very considerable importance, is the fact that the order made by the Family Court of Australia is enforceable in Samoa.  Before the Tribunal is a letter on behalf of the Australian Attorney-General stating that there has been communication received from the Attorney General of Samoa indicating that the order would be enforced.[5] 

[5] Exhibit R1.

21.     In all those circumstances I am satisfied that the security offered is appropriate in this case.  Nothing I say in relation to this matter should be taken as any indication that the Tribunal would be likely in the future to accept simply an amount based on the proportion similar to the security offered by Mr Wetzell.

22.     I propose that Mr Wetzell have permission to leave Australia but that he return to Australia for the hearing of his matter at the Federal Magistrate’s Court, or, if for any reason he does not continue with that matter, he return to Australia.  Whether Mr Wetzell decides to attend the hearing in the Federal Magistrates Court is of course a matter for him, but he will need to return to Australia in accordance with  the departure authorisation certificate.

23.     The remaining matters in this application and also application A2005/125 shall be stood over pending further order.

DECISION

24.   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. 

25. 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.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Chelsey Bell (Associate)

Date/s of Hearing  2 June 2005
Date of Decision  3 June 2005
Date written reasons released       27 June 2005
Counsel for the Applicant              Ms A. Tonkin
Solicitor for the Applicant               Lessli Strong & Associates
Solicitor for the Respondent          Australian Government Solicitor