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.
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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 473REASONS 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 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.
I do not consider that it would be desirable to revoke the departure prohibition order under s 72I(3) of the Act. Certainly, the applicant, in his request of 31 October 2012 or in evidence before me, has not outlined any circumstances that would indicate that it would be desirable to revoke the departure prohibition order.
In considering this application I have had regard to the objects in s 3 of the Act, which are:
(1) The principal objects of this Act are to ensure:
(a) that children receive from their parents the financial support that the parents are liable to provide; and
(b) that periodic amounts payable by parents towards the maintenance of the children are paid on a regular and timely basis; and
(c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
I make the observation that the applicant has, for some time, been able to make regular payments of child support and has not done so. The applicant does not have a good record in making payments discharging his child support liability. The last occasion when he made a voluntary payment of child support was in 1998.[4]
[4] See Exhibit C.
I have considered s 72D(1) of the Act which enables the Registrar to make a departure prohibition order when, cumulative with other things:
(d) the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability; or
(ii) making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
In considering this application, I have been guided by the observations of Senior Member Bean (as she then was) in Re O’Neill and Child Support Registrar:[5]
Whilst on its face s 72I(3) appears to confer quite a wide discretion, I consider that it must nevertheless be construed in context, having regard to the whole of s 72D and s 72I. In my view, having regard to the terms of both provisions, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the person the subject of the DPO. In particular, the current amount of their child support liability, the arrangements the person has made for payment of their child support liability, the extent to which the liability has become irrecoverable, the nature and purpose of the proposed travel and the likely impact of that travel on the capacity of the Registrar to recover the debt.
This passage has received approval at the Presidential level of this Tribunal.[6]
[5] [2010] AATA 545 at [24].
[6] Kenyon and Child Support Registrar [2012] AATA 714 at [12] per Hack DP
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.
I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.
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Associate
Dated 3 July 2013
Date of hearing 20 June 2013 Applicant In person Solicitors for the Respondent Christopher Bishop, departmental advocate
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