WILLIAM CULLETON and CHILD SUPPORT REGISTRAR - [2013] AATA 454

[2013] AATA 454

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/0116

Re

WILLIAM CULLETON

APPLICANT

And

CHILD SUPPORT REGISTRAR

RESPONDENT

DECISION

Tribunal
Dr P McDermott, RFD, Senior Member

Date 3 July 2013

Place Brisbane
The Tribunal affirms the decision under review.
........................[Sgd]................................................
Dr P McDermott, RFD, Senior Member
CATCHWORDS
CHILD SUPPORT – Departure prohibition order – Significant child support debt – Objects of the Act – No arrangements to repay debt – Debt not completely irrecoverable – Decision under review affirmed

LEGISLATION
Child Support (Assessment) Act 1989 (Cth) s 112

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

CASES
Kenyon and Child Support Registrar [2012] AATA 714
Re O’Neill and Child Support Registrar [2010] AATA 545
Whittaker v Child Support Registrar (2010) 264 ALR 473
REASONS FOR DECISION
Dr P McDermott, RFD, Senior Member
INTRODUCTION
1. Mr William Culleton (“the applicant”) has a substantial child support debt which arises from a registered maintenance liability for three children. On 16 April 2012, a delegate of the Child Support Registrar made a departure prohibition order against the applicant. The departure prohibition order was made under s 72D of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”). That order authorises officers of the Australian Federal Police and the Customs and Border Protection Service to prevent the applicant from leaving Australia.

On 7 November 2012, the applicant lodged a request with the Child Support Agency for the Registrar to revoke the departure prohibition order. In that request, the applicant stated that he had reached an agreement with the other parent pursuant to an order of the Federal Magistrates Court. On 19 November 2012, a delegate of the Child Support Registrar made a decision not to revoke the departure prohibition order. The applicant now seeks review of that decision by this Tribunal.
CONSIDERATION
The applicant, in his request to the Registrar, relies upon an agreement that has been made with the other parent and approved by the Federal Magistrates Court: however, the order of the Federal Magistrates Court that is in evidence before me does not assist the applicant as it does not ratify any such agreement.[1]
[1] Exhibit A, T-document 10, pp. 153-160.
It is fair to say that the applicant relies upon his allegation that in 2003 he was incorrectly assessed for his maintenance liability. In evidence before me is a certificate which certifies that the applicant has registered maintenance liabilities of a child support debt of $50,580.17 and penalties of $56,882.22. In determining this application it is not possible for me to now revisit whether the amount of child support debt and penalties is correct. The applicant is now out of time to seek an order for the amendment of the assessment that was made in 2003.[2]
[2] Child Support (Assessment) Act 1989 (Cth), s 112.
At the hearing of this application, the applicant was advised that a departure prohibition order can be revoked under s 72I of the Act. Under s 72I(1) of the…

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: [2013] AATA 454
Decision Date

CaseChat Overview and Summary

In the case of Culleton and Child Support Registrar, the applicant sought a review of the decision by the delegate of the Child Support Registrar not to revoke a departure prohibition order. The primary issue for the court was whether the Registrar had correctly exercised their discretion in declining to revoke the departure prohibition order. The applicant argued that the order should be revoked as he had reached an agreement with the other parent, approved by the Federal Magistrates Court. The court had to determine if the Registrar's decision was consistent with the objectives of the relevant sections of the Child Support (Assessment) Act 1989 (Cth). The court considered the evidence presented and whether the applicant's circumstances met the criteria outlined in s 72I(1) of the Act for revoking a departure prohibition order. The applicant argued that the Registrar should have revoked the order due to an alleged incorrect assessment in 2003 and his current employment status. However, the court found that the applicant still had a significant child support debt and had not made satisfactory arrangements for its discharge. The court also noted that the applicant had not sought assistance from Centrelink since 2003. The decision affirmed that the Registrar's decision not to revoke the departure prohibition order was consistent with the objectives of the Act.

The court's reasoning involved a detailed examination of the statutory provisions and the applicant's circumstances. It considered the specific criteria for revoking a departure prohibition order under s 72I(1) of the Act, which include the absence of a child support liability, the making of satisfactory arrangements for liability discharge, or the liability being completely irrecoverable. The court found that none of these conditions were met in the applicant's case. Additionally, the court highlighted the discretion granted to the Registrar under s 72I(3) of the Act to revoke or vary a departure prohibition order if deemed desirable. The applicant's evidence regarding an agreement with the other parent did not meet the statutory requirements, and the court concluded that the Registrar's decision to maintain the order was justified. The applicant's arguments regarding the alleged incorrect assessment and his employment status did not alter the conclusion that the Registrar's decision was appropriate. The court emphasized that the Registrar's decision was in line with the objectives of the Act and affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

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

The power of the Child Support Registrar to make a departure prohibition order is certainly “an extraordinary power”.[7] This power is only to be exercised where the registrar believes that there are reasonable grounds that it is desirable to make the order so that a person does not depart from Australia without wholly discharging the child support liability or making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged. I consider that the delegate of the Registrar was justified in making a departure prohibition order. There was evidence before the delegate that the applicant was intending to relocate to Ireland. There was also evidence that the applicant has been in a position that he has not received any support from Centrelink. The applicant, in giving evidence before the Tribunal, confirmed that at one time he intended to live in Ireland: however, he stated that this was before he obtained his present employment. In my opinion the departure prohibition order was properly made to prevent the recovery of the child support debt from being frustrated.[8] [7] Kenyon and Child Support Registrar [2012] AATA 714 at [12] per Hack DP.[8] Whittaker v Child Support Registrar (2010) 264 ALR 473 at 524 [291] per Lindgren J.DECISION I consider that the decision of the delegate to make a departure prohibition order and not to revoke the order is consistent with objectives of s 72D and s 72I of the Act. The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

On 7 November 2012, the applicant lodged a request with the Child Support Agency for the Registrar to revoke the departure prohibition order. In that request, the applicant stated that he had reached an agreement with the other parent pursuant to an order of the Federal Magistrates Court. On 19 November 2012, a delegate of the Child Support Registrar made a decision not to revoke the departure prohibition order. The applicant now seeks review of that decision by this Tribunal. CONSIDERATION The applicant, in his request to the Registrar, relies upon an agreement that has been made with the other parent and approved by the Federal Magistrates Court: however, the order of the Federal Magistrates Court that is in evidence before me does not assist the applicant as it does not ratify any such agreement.[1] [1] Exhibit A, T-document 10, pp. 153-160. It is fair to say that the applicant relies upon his allegation that in 2003 he was incorrectly assessed for his maintenance liability. In evidence before me is a certificate which certifies that the applicant has registered maintenance liabilities of a child support debt of $50,580.17 and penalties of $56,882.22. In determining this application it is not possible for me to now revisit whether the amount of child support debt and penalties is correct. The applicant is now out of time to seek an order for the amendment of the assessment that was made in 2003.[2] [2] Child Support (Assessment) Act 1989 (Cth), s 112. At the hearing of this application, the applicant was advised that a departure prohibition order can be revoked under s 72I of the Act. Under s 72I(1) of the Act, the Registrar is required to revoke a departure prohibition order in the following circumstances: … if:(a) the person no longer has a child support liability; or(b) the person has a child support 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, but the Registrar is satisfied that the liability is completely irrecoverable. I am satisfied that none of these circumstances that are mentioned in s 72I(1) of the Act exist. Paragraph (a) of s 72I(1) of the Act is not relevant as there is evidence before me that the applicant has a large child support debt.[3] Paragraph (b) of s 72I(1) of the Act is not relevant as there is no evidence that arrangements satisfactory to the Registrar have been made, although the applicant has certainly put forward some proposals for repayment of his liability. Paragraph (c) of s 72I(1) of the Act is not relevant as the applicant has given evidence that he has been in employment for some time. He is being paid a substantial salary and has stated that he does have some capacity to make payments in discharge of his liability. I also note that the applicant informed the Tribunal that he has never sought Centrelink assistance since 2003.[3] Exhibit B. I should also refer to s 72I(3) of the Act, which provides that the Registrar:may also, at the Registrar’s discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it desirable to do so.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0116
Re	WILLIAM CULLETON
APPLICANT
And	CHILD SUPPORT REGISTRAR
RESPONDENT

Tribunal	Dr P McDermott, RFD, Senior Member
Date	3 July 2013
Place	Brisbane