FEDERAL COURT OF AUSTRALIA

Jones v Child Support Registrar [2007] FCA 1732

IAN ROBERT DURSTON JONES v CHILD SUPPORT REGISTRAR

NSD2186 OF 2007

EMMETT J

6 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The matter be listed for directions at 9.30 am on Friday, 9 November 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant seeks a stay, under s 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) (the Act), of a departure prohibition order made by the respondent, the Child Support Registrar, on 31 October 2007. 

2                     Section 72D(1) of the Act authorises the Registrar to make a departure prohibition order prohibiting a person from departing from Australia for a foreign country, if, relevantly:

·        the person has a child support liability; and

·        the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and

·        the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts arising from a registrable maintenance liability; and

·        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.”

3                     Section 72Q(1) provides that a person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Magistrates Court against the making of the order.  Under s 72R, the jurisdiction of a Court under s 72Q must be exercised by a single judge or justice.  Under s 72S, a Court hearing an appeal under s 72Q against the making of a departure prohibition order may, in its discretion make an order setting aside the order or dismiss the appeal. 

4                     The applicant has commenced a proceeding under s 72Q.  Because the applicant was about to depart Australia for Thailand, he applied ex parte for an order setting aside the departure prohibition order.  I declined to make such an order ex parte.  After the application was served, the Registrar appeared, at which time the applicant indicated that he wished to move for a stay, rather than for an order on a final basis.  The stay was opposed by the Registrar. 

5                     In an appeal under s 72Q of the Act, the person aggrieved must establish that the order was wrongly made.  That may be done by satisfying the Court that any one of the essential elements of s 72D is absent.  However, the Registrar bears no onus of establishing the validity of the order. 

6                     An appeal may involve questions of fact or law or both.  An appeal would ordinarily involve the determination by the Court of at least three principal questions.  The first is whether the affected person has a child support liability.  The second is whether the Registrar was satisfied as to the matters, and had the belief, referred to in s 72D.  The third is whether reasonable grounds existed for the Registrar to be satisfied as to those matters and for the formation by the Registrar of the requisite belief. 

7                     The issue of whether a person has a relevant liability would be readily ascertainable.  That question is not in issue in the present proceeding.  In some cases, an appeal could involve the examination of the Registrar’s state of mind if there were a suggestion that the Registrar were not bona fide satisfied or that a belief was not held bona fide.  That may or may not be an issue in the present proceeding.  The question that is most likely to be involved in an appeal under s 72Q is whether reasonable grounds existed for the Registrar to be satisfied as to the relevant matters or for the holding of the requisite belief. 

8                     Ordinarily, the material before the Registrar would not be known to an applicant.  However, an applicant is entitled to have produced for his consideration the material on which the Registrar relied in making the order and any other material that was before the Registrar that bears on the reasonableness of the grounds for the Registrar’s belief or satisfaction.  It may be that an applicant would be entitled to have such material produced to the Court by the Registrar by means of subpoena or discovery.  Further, it may be that the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth)could be called in aid to require the Registrar to give reasons for the decision to make the relevant order. 

9                     For the applicant to succeed in the present appeal, it would be sufficient for him to demonstrate that one of the four prerequisites for the making of a departure prohibition order was not satisfied.  The first prerequisite is satisfied.  As I have said, the applicant accepts that he has a child support liability and he did not suggest that the amount of the liability was so small as to be negligible.  The difficulty with the other three prerequisites is that they depend upon the state of mind of the Registrar.  At present, the applicant has no access to the material upon which the Registrar acted in making the order. 

10                  It appears to me that, before a stay could be granted, I would have to be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting that the appeal might succeed.  Secondly, it would be necessary for the Court to have regard to the balance of convenience.  Section 111C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding.  That, I suspect, does not go much beyond the balance of convenience.  Clearly, it is very inconvenient for the applicant to be restrained from departing Australia.  He was intending to travel to Thailand for a vacation of some 10 days, a substantial part of which has now elapsed. 

11                  On the other hand, there is an interest in the person to whom the child support liability is owed, in ensuring that the applicant will return and will discharge that liability.  The applicant has sworn an affidavit, which has been read without objection, in which he asserts that he has the capacity to pay off the current debt and that he has every reason to return to Australia because that is his home and that is where he practices as a solicitor.  It may well be, therefore, that I would be satisfied as to the balance of convenience, that the risk of the applicant not returning to Australia is slight and the inconvenience to him in being restrained would be substantial. 

12                  However, the difficulty is that, on the material presently before me, I am not persuaded that there is any reasonable prospect of the appeal succeeding or that there is a serious question as to the prospect that the appeal might succeed.  As I have said, three of the prerequisites of s 72D depend upon the state of mind of the Registrar, but the applicant does not know and, a fortiori, the Court does not know, the nature of the material before the Registrar that may have justified a conclusion that the applicant has not made arrangements satisfactory to the Registrar, that the Registrar is satisfied that the applicant has persistently, without reasonable grounds, failed to pay child support debts and that the Registrar believed that it was desirable to make the order. 

13                  In all of the circumstances, I am not prepared today to make an order for a stay at this stage.  On the other hand, I would be prepared to list the matter for urgent interlocutory hearing, if the applicant wishes to press for a stay and if he can establish that there is, at least, a reasonably arguable case that the appeal might be upheld.  The appropriate course, therefore, seems to me to stand the matter over for several days to enable the parties to agree on a process for the further conduct of the proceeding, either on a final basis or on an interlocutory basis, if the applicant wishes to do so. 

Associate:

Dated:         19 November 2007