XWGX and Child Support Registrar (Child support)
[2025] ARTA 544
•7 May 2025
XWGX and Child Support Registrar (Child support) [2025] ARTA 544 (7 May 2025)
Applicant/s: XWGX
Respondent: Child Support Registrar
Tribunal Number: 2023/9224
Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:7 May 2025
Decision:The decision to refuse to revoke the Departure Prohibition Order is affirmed.
Statement made on 07 May 2025 at 11:32am
Catchwords
Application to revoke Departure Prohibition Order – no arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – substantial liability - where arrangement once made but no payments for over 12months – meaning of ‘arrangements have been made’ – arrangement does not and cannot incorporate commitment to fetter to exercise statutory power in any particular way in the future – Departure Prohibition Order not revoked
Legislation
Child Support (Registration and Collection) Act 1988
Cases
Whittaker v Child Support Registrar (2010) 264 ALR 473
O'Neill and Child Support Registrar [2010] AATA 545
Naboush v Child Support Registrar [2014] AATA 930
Shahani and Child Support Registrar [2014] AATA 312Statement of Reasons
Mr XWGX is subject to a Departure Prohibition Order (DPO) issued on 21 April 2015 by a delegate of the Child Support Registrar. On 28 September 2023 Mr XWGX requested that the DPO be revoked. On 5 October 2023, a delegate of the Child Support Registrar refused to revoke the DPO.
The delegate of the DPO said that the decision to refuse to revoke the DPO was because Mr XWGX had a child support liability that had not been repaid in full, there were no satisfactory arrangements to pay the child support liability and the liability remained capable of being recovered.
Mr XWGX applied to the Administrative Appeals Tribunal (AAT) for review on 1 December 2023. The application was out of time but the AAT extended the time for lodging the application on 11 March 2024. The AAT conducted conferences on 24 April 2024 and 18 June 2024 before setting a timetable on 24 September 2024.
On 14 October 2024, the Administrative Appeals Tribunal was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
The matter was listed for hearing on 3 April 2025 to be heard on 2 May 2025. Mr XWGX gave evidence and made arguments. The Registrar was represented by a Departmental advocate.
Legislative Framework
Although the Tribunal does not have jurisdiction to review decisions to impose a DPO it is useful to observe, by way of background, that the Registrar may issue a DPO provided four conditions are met: section 72D of the Child Support (Registration and Collection) Act 1988 (the Act). They are:
(a) the person has a child support liability; and
(b) the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and
(c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay; and
(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 wholly discharging the child support liability; or making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.
The nature and purpose of a DPO was noted by the court in Whittaker v Child Support Registrar (2010) 264 ALR 473 at [291] and [292]:
[291] …Generally speaking, the terms of s 72D(1) show that a DPO is intended to “ensure” that a 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. While a DPO is not security in a proprietary sense, it is security in a broader sense of a procedure designed to prevent recovery being frustrated.
[292] It may be that the present submission is intended to distinguish between a purpose of preventing a particular imminent departure from Australia and a more general prevention of any departure from Australia. In my view even the latter is within para (b) of s 72D(1). That is to say, that paragraph is satisfied if the Registrar believes on reasonable grounds that it is “desirable” to make the DPO for the purpose of “ensuring” (a strong word: see Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at [20]) that the person does not depart at any time in the future from Australia for any foreign country without first discharging he child support liability or making arrangements satisfactory to the Registrar for its discharge.
Whittaker is also instructive in its facts as to the practical application of a DPO on an individual. In practice, the existence of a DPO is recorded on electronic systems operated by the Australian Border Force and Australian Federal Police, and alerts processing officers at immigration clearance points not to process an individual who is subject to a DPO, thus preventing international travel.
The Act provides for Departure Authorisation Certificates (DAC), that will permit departures during specific timeframes from Australia, typically issued subject to conditions and security. Mr XWGX was granted such a DAC on 11 May 2016.
Returning to the decision under review in this matter, the Act also provides for mandatory and discretionary revocation of DPOs at section 72I of the 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, 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.
…
(3) The Registrar may also, at the Registrar’s discretion, revoke or vary a DPO in respect of a person if the Registrar considers it desirable to do so.
The Tribunal has jurisdiction to review a decision to refuse to revoke a DPO: section 72T of the Act
Mr XWGX’s case is, essentially, that the DPO should be revoked because he has made an arrangement satisfactory to the Registrar for the liability to be wholly discharged. In this regard, Mr XWGX points to an arrangement by which payments demonstrably were regularly made by him from 17 June 2022 to 23 February 2024 of $125.00 each week. In this regard, Mr XWGX seeks to invoke paragraph 72I(1)(b) of the Act. The circumstances of that arrangement and the circumstances in which payments under that arrangement ceased will be discussed later in these reasons.
As to paragraph 72I(1)(a) of the Act, Mr XWGX accepts that he has a child support liability, or at least in the sense that the Child Support Registrar has recorded an existing liability of $26,878.33 on the Child Support Register.[1] For completeness, I record that Mr XWGX does not accept, in the sense of he does not agree, that the liability is accurate of his circumstances or fair. In this regard, part of the liability at least arises from a departure determination (change of assessment) decision put in place by the AAT in the Social Services and Child Support Division. That decision was made in Mr XWGX’ absence, and Mr XWGX is aggrieved by it and thinks it is inaccurate.
[1] There are also unpaid penalties of a further $23,619.83.
Mr XWGX has provided records and evidence regarding his involvement in Federal Circuit Court proceedings. As I understand it, Mr XWGX sought to invoke the court’s jurisdiction to make a departure determination itself, and did not seek judicial review of the decision of the AAT’s Social Services and Child Support Division. Mr XWGX’s application to the Federal Circuit Court was, according to Mr XWGX, dismissed by Judge Jarrett, but I do not have the orders or any reasons before me.
It would not appear to be the case that Mr XWGX’s options to challenge the correctness of the underlying assessment have therefore strictly been exhausted, if his proceedings in the Federal Circuit Court did not put in issue the legal correctness of the AAT’s Social Services and Child Support Division’s decision. Mr XWGX may wish to consider obtaining legal advice as to whether any further steps may be open to him in this regard.
Regardless of whether Mr XWGX is aggrieved by the underlying child support assessment, and regardless of whether or not strictly or practically he has exhausted the separate review rights that exist for review of the child support assessments, what is clear is that the present proceedings do not serve as a vehicle for re-visiting the underlying child support assessment. For my purposes, I am to identify whether or not Mr XWGX has a child support liability, and the certificate issued under section 116 of the Act is prima facie correct for my purposes, and there is no evidence to contradict the content of that certificate.
In O'Neill and Child Support Registrar [2010] AATA 545 (21 July 2010) the AAT held that it is not open to the AAT in the context of a review of a refusal to revoke a DPO to “look behind” the child support assessments which have been made. In this regard, the AAT recognised that section 72E of the Act defined the meaning of a ‘child support liability’ for the purpose of this Part of the Act, and that the purpose of section 72E was to avoid the need for any such inquiry to be made in the context of section 72I of the Act.
Indeed, the AAT observed that
[16]…The intention of s 72E is to “deem” a registrable maintenance liability which is a child support debt to be a “child support liability”, for the purposes of s 72D and s 72I. This in turn has the further effect that it is not open to a decision-maker, including this Tribunal, to “look behind” such an assessment in order to determine whether a person has a “child support liability” for the purposes of those provisions.
Having regard to the terms of s 72E and the matters to which a decision-maker is required to have regard in s 72D and s 72I, in my view the legislative framework also does not contemplate that a decision-maker will embark upon an investigation of the correctness of assessments which have been made under the Assessment Act for the purpose of determining the reliability of these in the context of considering whether it is desirable to revoke a DPO. Rather, the legislative framework contemplates that debt issues will be dealt with under the Assessment Act but that in the context of applying s 72D and s 72I, the currently applicable child support assessment will be regarded as “final” for the purpose of applying those provisions.
I respectfully adopt that approach for the reasons expressed in that decision, finding it equally applicable to review by the Tribunal and this matter.
In this way, while I acknowledge that Mr XWGX is dissatisfied with the assessment in place and indeed the procedure that resulted in the AAT making a decision on a departure application in his absence, it is not open to me to look behind the assessments and the liability for present purposes.
I find that Mr XWGX has a child support liability, and the mandatory ground for revoking the DPO provided for by 72I(1)(a) of the Act is not satisfied.
As to the mandatory ground for revoking a DPO provided for by paragraph 72I(1)(c) of the Act; namely, whether I can be satisfied that the liability is ‘completely unrecoverable’, Mr XWGX does not contend that it is. I will therefore deal with the ground briefly.
I note that in Naboush v Child Support Registrar [2014] AATA 930 at [15], Deputy President Tamberlin observed that the already wide import of the word ‘irrecoverable’ is expanded in width by the use of the word ‘completely’. His Honour found that whilst ever there is some reasonable prospect of recovering money from an applicant, the DPO should not be revoked [for that reason].
In the course of the proceedings, Mr XWGX gave evidence regarding his current financial circumstances. Although uncorroborated and somewhat vague, Mr XWGX gave evidence that he receives about $1000 each week as an employee from his son’s business, but sometimes has to meet expenses incurred in working from that money. He thought perhaps a figure of about $500 per week as net income would be accurate. Mr XWGX further gave evidence confirming he had recently held seasonal employment at a caravan park, and also has valuable underlying skills in avionics, although had found success in operating an avionics-related business in previous years, and had struggled to reacquire the underlying skills as an avionics technician. In light of this evidence, and in the absence of any evidence putting in question Mr XWGX’s inherent capacity to earn income, I am not satisfied it can be said that the liability is completely unrecoverable, and the ground for mandatory revocation of the DP provided for by paragraph 72I(1)(c) is not satisfied.
I turn then to paragraph 72I(1)(b), which requires the DPO to be revoked if the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged. Some further background is required to understand Mr XWGX’s position.
Child Support records demonstrate that from 6 June 2022 an arrangement was in place for Mr XWGX to pay $123 each week towards his child support liability. Mr XWGX’ statement of account further demonstrates that Mr XWGX in fact paid $125 in this regard until 23 February 2024.
Mr XWGX’s evidence in this regard is that the arrangement also incorporated what he understood to be an agreement to revoke the DPO after 12 months of consistent payment. Mr XWGX points out that the Child Support records and file notes before the Tribunal are either inaccurate or incomplete in this regard.
On 28 September 2023, Mr XWGX had made an application to have the DPO revoked. At this time, payments under the arrangement continued. Child Support records[2] include the preparation of a recommendation to a delegate recommending that the DPO not be revoked. That document records that Mr XWGX had been making regular payments, but the officer who prepared the document recorded that they considered Mr XWGX had refused to disclose information that may assist with a more timely discharge of the liability, and that Mr XWGX had refused to provide an address and phone number for contact. It was written in that record that Mr XWGX had a history of non-compliance, and the outstanding liability was significant. The document concluded with a recommendation that the DPO not be revoked, and that recommendation was obviously adopted by the delegate.
[2] Exhibit A (Section 37 AAT Act Tribunal papers) page 44 refer to this being the third such application.
Mr XWGX’s perspective on this situation is different. He maintains that the arrangement from 6 June 2022 incorporated a degree of commitment on the part of the Child Support Registrar to revoke the DPO, or perhaps at least to recommend that be done. Mr XWGX acknowledges there is no documentation supporting any such commitment being made in respect of that arrangement.
In this regard, Mr XWGX also points to more recent negotiations towards an arrangement, which he says similarly fails to ultimately record the extent of the terms he had understood had been settled upon. Exhibit B, page 51 is a letter recording (from the Child Support Registrar’s perspective) a payment arrangement for Mr XWGX to pay $100 per week. This correspondence is dated 6 September 2024, so after the decision to refuse to revoke the DPO, after the proceedings in the AAT were initiated and after two conferences had been held in the AAT. Subsequent correspondence from Mr XWGX to the Child Support Registrar and file notes record Mr XWGX expressing his view that the arrangement (referring to the letter) had not been what was discussed. Mr XWGX said that from his perspective the arrangement was also to include the revocation of the DPO and the remission of late payment penalties.
No payments have been made by Mr XWGX arising out of the correspondence of 6 September 2024 given his dissatisfaction with the recorded terms of the arrangement. I agree with Mr XWGX therefore that the discussions leading to and out of the correspondence of 6 September 2024 do not reflect any arrangement at all.
Returning to the earlier arrangement of 6 June 2022, Mr XWGX says it is this arrangement that I should decide is satisfactory within the meaning of paragraph 72I(1)(b) of the Act. The obvious barrier to be overcome in this regard is the fact, which Mr XWGX does not dispute, that no payments have been made reflecting that arrangements now for over twelve months.
Mr XWGX’s explanation in this regard reverts to his understanding that part of the arrangement involved either the revocation or at least positive recommendation to revoke the DPO after a period of 12 months. Mr XWGX says that he continued with the payments for much longer than this, and it was only when he felt the Child Support Registrar had not upheld its part of the arrangement did he cease paying. Indeed, I note the last payment was made at a time approximate to Mr XWGX lodging his review (out of time) with the AAT, and his grievance was also the subject of a complaint process which is documented before me.
I recount these matters in order to describe Mr XWGX’s case and to demonstrate my understanding of his grievance in this regard. In circumstances where both the revocation of a DPO and the remission of late payment penalties are the subject of separate statutory power to be exercised in practice by delegated decision-makers, I do not consider that it is open for the terms of an arrangement to bind the future exercise of such statutory powers in any particular way. Those powers are to be exercised by reference to the terms of the legislation, with regard had to applicable Departmental policy.
I consider therefore that the ‘arrangement’ Mr XWGX relies upon is potentially to be understood as an arrangement that he pay $123 each week. The arrangement did not incorporate an agreement to revoke the DPO or to remit late payment penalties, because such terms could not, generally speaking, form part of an arrangement having regard to the legislative framework. Indeed, and with respect to Mr XWGX, having regard to the purpose of the DPO, the overall statutory purpose of the child support scheme, the rights of parties to child support agreements to whom the liability is to be ultimately distributed and the extent of the liability in this particular case, the notions of quid pro quo and the expectation that the Child Support Registrar is obliged to offer inducement to encourage payment demonstrate that Mr XWGX may misunderstand his obligations under the child support law and his bargaining position more generally.
The other construction of the facts is that as no payments have been made under the arrangement for over twelve months, the arrangement has lapsed and in fact there is presently no arrangement in place at all that can be assessed. In this regard, in my review of this matter, I consider I am to take into account the circumstances as I find them at the time of my review and I would be in error to disregard that fact that no payments have been made at all for over twelve months, even if they were being made at the time of the primary decision.
Mr XWGX argues that the language of the provision can encompass the arrangement, because it speaks of arrangements satisfactory to the Registrar that ‘have been made’. Having regard to the use of the present perfect tense in the language of the provision (the text) and the purpose of the provision which fundamentally is directed towards recognising a situation where the purpose of the DPO in securing the payment of a liability is no longer required (the context), I consider that the provision is describing an arrangement that has started in the past and continues to the present. Furthermore, it would be unlikely in my view that any lapsed arrangement could operate as an arrangement that is satisfactory to the Registrar, given the requirement that the arrangement operate to ultimately wholly discharge the liability.
I find therefore that there is no arrangement that has been made to be assessed to decide if it is satisfactory to the Registrar for the liability to be wholly discharged. It follows that the third ground for mandatory revocation of the DPO provided for by paragraph 72I(1)(b) is not satisfied.
No grounds requiring the mandatory revocation of the DPO are satisfied.
I turn to consider subsection 72I(3) of the Act, which provides that, at the Registrar’s discretion, the Registrar may revoke or vary a DPO in respect of a person if the Registrar considers it desirable to do so.
Mr XWGX did not advance a case specifically in support of the exercise of discretion under subsection 72I(3) of the Act, but having regard to the discretionary nature of the provision and the breadth of concept used to describe the circumstances in which the discretion may be exercised (i.e. ‘if the Registrar considers it desirable to do so) I have considered all of the circumstances arising from Mr XWGX’s other contentions, and arising from the documentary records against the exercise of this discretion.
In Shahani and Child Support Registrar [2014] AATA 312, the AAT observed:
[14] In relation to s 72I(3), this is a provision requiring the exercise of a discretion as to whether it is ‘desirable’ to revoke or vary a DPO. It is a well-established principle of law that such a discretion is to be exercised not entirely at large, but taking account of the purpose and objects of the legislation… [citing other judicial and Tribunal authority]
As to that purpose and those objects, the Tribunal went on to observe the objects of the Act, set out at section 3, including that “children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis….”.
In this context therefore, in the course of submissions I queried what circumstances in the abstract might be considered desirable to revoke a DPO following a finding that the mandatory grounds in subsection 72I(1) had not been satisfied. The Child Support Registrar’s representative recounted some niche circumstances that she had encountered in her experience, for example circumstances involving international child support arrangements and a DPO serving as an impediment to a foreign national resuming remunerative work to meet the child support liability.
Having regard to the purpose and objects of the Act, the existence of a substantial child support liability and the absence of an arrangement to address that liability, I am not satisfied it is desirable to revoke the DPO and decline the exercise the discretion in subsection 72I(3) of the Act.
In reaching this view, I have not found it necessary to recount the evidence introduced regarding Mr XWGX’s financial circumstances, other than to restate my finding that I am not satisfied that the liability is completely irrecoverable on the basis of the evidence Mr XWGX gave about his financial circumstances. I also note that the documentary evidence includes Mr XWXG suggesting that he pay identified amounts each week towards the liability, but subject to commitments from the Child Support Registrar which I consider would not be open for the Registrar to accept, and also misunderstand Mr XWGX’s obligation to meet the child support liability and the Registrar’s duty, having regard to the purpose and objects of the Act, to see that he does so using the tools afforded by Parliament.
DECISION
The decision to refuse to revoke the Departure Prohibition Order is affirmed.
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