Federal Court of Australia

CDL19 v Child Support Registrar [2021] FCA 689

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

1    The appellant has a child support liability for the purposes of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act). At the time of the decision giving rise to this appeal, that liability exceeded $36,000.00. With the addition of late payment penalties, there is an unpaid debt exceeding $97,000.00.

2    The child support liability relates to a child (“S”) born in 1989. It arose by virtue of an order made in 1990 under the Family Law Act 1975 (Cth) in proceedings between the appellant and the child’s mother. The order gives rise to a right in the mother to be paid arrears in respect of the child’s financial support during his infancy. In 1994, the Family Court of Australia dismissed an application by the appellant to have the 1990 order discharged.

3    Part VA of the Collection Act is titled “Departure prohibition orders”. Section 72D empowers the Child Support Registrar to make a departure prohibition order (DPO) against a person, if (among other things) the person has a child support debt and the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay the liability. Broadly speaking, the effect of the order is to prevent a person from departing Australia in circumstances where the debt has not been discharged in full or no proper arrangements have been made for its payment.

4    On 17 September 2018, a delegate of the Registrar issued a DPO in relation to the appellant.

5    The appellant has exercised a number of review and appeal rights relating to the DPO. Relevantly, on 28 May 2019, he commenced an appeal in the Federal Circuit Court of Australia (FCCA) in which he sought to have the DPO set aside. The appellant maintains that the proceedings included both an appeal against the DPO under s 72Q of the Collection Act and an application for review of the decision to issue the DPO under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The primary judge characterised the proceedings as confined to an appeal against the DPO under s 72Q of the Collection Act and dismissed the appeal:  CDL19 v Child Support Registrar [2020] FCCA 385. This is an appeal from that judgment.

THE COLLECTION ACT

6    Section 72D of the Collection Act relevantly provides:

72D Registrar may make departure prohibition orders

(1)    The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:

  (a)    the person has a child support liability or carer liability; and

(b)    the person has not made arrangements satisfactory to the Registrar for the liability to be wholly discharged; and

(c)    the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:

(i)    child support debts arising from a registrable maintenance liability under section 17; or

…

(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 carer liability; or

(ii)    making arrangements satisfactory to the Registrar for the child support liability or carer liability to be wholly discharged.

(2)    For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:

  (a)    the capacity of the person concerned to pay the debt or debts;

(b)    the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;

(c)    if subparagraph (1)(c)(i) applies—the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;

(d)    if subparagraph (1)(c)(ii) or (iv) applies—the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;

(da)    if subparagraph  (1)(c)(iii) applies:

(i)    the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and

(ii)    the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;

(e)    such other matters as the Registrar considers appropriate.

…

7    For the purposes of Pt VA of the Collection Act, a person has a child support liability if the person has a registered maintenance liability of a kind mentioned in (relevantly) s 17: Collection Act, s 72E. Among other things, s 17 mentions a liability of a parent of a child to pay a periodic amount to a parent of the child for the child’s maintenance which arises under a court order (as is the case here):  Collection Act, s 17(1)(a)(i) and s 17(b)(i).

8    In Whittaker v Child Support Registrar [2010] FCA 43; 264 ALR 473, Lindgren J found that the rules of procedural fairness did not apply to the power conferred under s 72D of the Collection Act. His Honour said:

248    ….  It may be accepted, as pleaded, that a DPO would affect the liberty and legitimate interests of Mr Whittaker, so that in general terms one might expect such a duty to arise. However, the duty will not arise if the statutory context, by necessary implication, excludes it: see Kioa v West (1985) 159 CLR 550 at 563, 593, 594-5, 609-612 and 632; 62 ALR 321 at 330–1, 353–4, 354–5, 365–8 and 382–3; Annetts v McCann (1990) 170 CLR 596 at 598; 97 ALR 177 at 178–9.

249    In my opinion Pt VA of the Collection Act establishes a régime, both the general object and the detail of which are inconsistent with the existence of the duty.

250    It will be recalled that the principal objects of the Collection Act are, inter alia, to ensure 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: s 3(1)(a) and (b) of the Collection Act. The connection between a departure from Australia of the parent liable and discharge of his or her child support liability is obvious: enforcement of the obligation to pay is likely to be more difficult if the person liable is out of Australia. Yet notification to the person of a proposal to make a DPO in sufficient time to allow him or her to be heard in opposition to the proposal, will allow the person to defeat the object of the proposed DPO by departing from Australia immediately. That is to say, it would be antithetical to the object and purpose of a DPO to offer the person an opportunity to be heard in opposition.

9    The judgment in Whittaker was upheld by the Full Court:  Whittaker v Child Support Registrar [2010] FCAFC 112 at [53] and [60].

10    A person aggrieved by the making of a DPO may appeal to this Court or to the FCCA against the making of the order:  Collection Act 72Q(1). In Jones v Child Support Registrar [2007] FCA 1732, Emmett J said, of the nature of such an appeal:

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.

11    The Registrar may revoke a DPO in respect of a person if the person no longer has a child support liability or if arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged:  Collections Act, s 72I(1)(a) and (b). The Registrar may also revoke the DPO if satisfied that the liability is “completely irrecoverable”:  Collection Act, s 72I(1)(c).

GROUNDS OF APPEAL

12    The appellant is self-represented on this appeal as he was at first instance. The grounds of appeal and his submissions will be interpreted beneficially, having regard to the circumstance that he has not had the assistance of a lawyer in presenting his arguments. His grounds of appeal are expressed in the broadest of terms as follows:

1.    The judge failed to properly consider the evidence;

2.    The judge made a decision that was plainly wrong;

3.    The judge failed to accord procedural fairness;

4.    There was a denial of natural justice;

5.    The judge gave inadequate reasons for the decision.

13    The Registrar is the respondent on the appeal. She has not taken issue with the lack of particularity in the grounds.

14    It is convenient to deal with the grounds of appeal in reverse order.

GROUND 5

15    This ground is to the effect that the primary judge failed to provide adequate reasons for dismissing his appeal.

16    It may be accepted that failure of a judicial officer to give any or adequate reasons may constitute appealable error. The principles were summarised by the Full Court in Shaw v Yarranova Pty Ltd (2017) 252 FCR 267 at follows:

122    The provision of reasons for a judicial decision is a defining characteristic which marks a court apart from other decision-making bodies:  Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [67] (French CJ). See also Wainohu v New South Wales (2011) 243 CLR 181 at [55] (French CJ and Kiefel J); Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR 346 at [127] (North and Bromberg JJ).

123    A judge will be under an obligation to give reasons ‘where it is necessary to enable a matter to be properly considered on appeal’:  Public Service Board (NSW) v Osmond (1986) 159 CLR 656 (Osmond) at 666-667. The reasoning of a judge should be exposed in sufficient detail to enable a losing party to understand why they lost and to enable a matter to be considered on appeal:  Beale v Government Insurance Offıce (NSW) (1997) 48 NSWLR 430 at 441-442 (Meagher JA); Osmond at 666-667. The degree of detail should be commensurate with the degree of finality attending the decision, such that reasons for decisions finally determining the rights of the parties ought ordinarily to be expressed in more detail than those relating to interlocutory or evidentiary rulings:  Hunter v Transport Accident Commission (2005) 43 MVR 130 at [22].

124    It is, however, ‘plainly unnecessary for a judge to refer to all of the evidence led in the proceedings or to indicate which of it is accepted or rejected’:  Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels and Clarke JJA and Hope A-JA agreeing).

125.    The adequacy of reasons will depend upon the statutory context in which a decision is required to be made and the individual circumstances of the particular case, including the judicial context in which decisions are made:  BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 (BKL15) at [14]-[15] (Flick J).

17    This ground may be briefly disposed of. As will become apparent, the reasoning of the primary judge is fairly and comprehensively disclosed in the reasons for judgment, both as to the substantive result and as to the question of costs. Whilst the appellant may take issue with the correctness of the reasons, there is no proper basis to argue that the reasons of the primary judge for dismissing the appeal were not adequately disclosed.

GROUNDS 3 AND 4

18    These grounds each allege that the primary judge failed to afford the appellant an opportunity to present his case. No factual basis for that allegation is articulated on the notice of appeal.

19    In oral submissions the appellant submitted that he was disadvantaged in the proceedings below because of his status as a self-represented litigant. He alleged that there was a disparity of legal resources and knowledge between him and the respondent such that there was no “equality of arms”. He complained that the hearing below was too short, and that it had been interrupted by other proceedings requiring the urgent attention of the primary judge. He said that the disjointed nature of the hearing put him at a disadvantage because he could not put his thoughts in order.

20    Whether the appellant was afforded a fair opportunity to advance arguments and adduce evidence in the proceedings below is a question of fact. The appellant’s complaints about the conduct of the proceedings were advanced from the bar table. They do not find support in evidence concerning the length of the hearing before the primary judge, the manner in which the proceedings were conducted, and the opportunities that were given to make submissions whether orally or in writing. The circumstance that the appellant felt rushed in the presentation of his case does not of itself establish that procedural fairness was denied. Nor is procedural unfairness demonstrated by pointing to the disparity in financial resources between the parties per se.

21    It has not been shown that the appellant made his subjective difficulties known to the primary judge, whether for the purpose of seeking more time to make or file submissions, or for the purpose of seeking an adjournment or in any other way. The reasons of the primary judge demonstrate that the appellant raised many arguments and adduced voluminous evidence. The reasons demonstrate a degree of latitude and flexibility in comprehending the import of the appellant’s arguments. The appellant has not pointed to a failure by the primary judge to have regard to any particular item of evidence that might have materially affected the outcome. Rather, the nature of his complaint is that the primary judge did not draw conclusions of fact from the evidence that he had invited at first instance. The appellant also complains that his submissions as to the proper construction of the Collection Act (as repeated in this Court) were not accepted.

22    The appellant has been afforded the opportunity in this Court to point to any compelling arguments or evidence that he claims were ignored by the primary judge as a consequence of the manner in which the proceedings below were conducted. Having heard the submissions, I am reinforced in the view that the proceedings at first instance were not procedurally unfair insofar as the determination of the substantive issues is concerned.

23    The appellant further argues that the primary judge did not afford him procedural fairness in respect of the question of costs. From the bar table, he submitted that the primary judge had told the parties that the costs outcome would be the same as that in proceedings under the Family Law Act, namely that the parties would bear their own costs. When judgment was delivered, the primary judge ordered that the appellant pay the Registrar’s costs of the appeal. The appellant complains that if he had been notified that the primary judge might depart from the usual practice in family law proceedings, he would have made submissions urging him not to do so. When asked what submissions he would have made in that instance, the appellant said that he was not in a financial position to satisfy any adverse costs order.

24    This argument should be rejected principally because the appellant has not demonstrated whether by reference to a transcript, or by admissible evidence, that the primary judge proceeded in a way that constituted a failure to afford procedural fairness.

25    In the result, the primary judge noted that the relevant provisions of the Family Law Act required that he take into account the parties’ financial circumstances and proceeded on the basis that the appellant was “obviously not a wealthy person” (at [146]). The primary judge took into account the appellant’s self-represented status. Among other things, the primary judge noted that the appellant had required the attendance of the delegate at the hearing to be cross-examined and had been wholly unsuccessful in his attempt to attach any improper purpose to her actions.

26    I do not consider there to be a proper basis to set the costs order aside, whether because of any want of procedural fairness or for any other reason.

GROUNDs 1 and 2

27    There are multiple arguments subsumed in these two grounds. As I understand the arguments, it is alleged that the primary judge erred by failing to find that the delegate:

(1)    acted upon false or misleading information about his financial resources and his capacity to pay the debt;

(2)    wrongly concluded that the DPO could issue in circumstances where it had not been established that the appellant did not have the capacity to discharge the debt in full;

(3)    unlawfully utilised the power to issue the DPO for a punitive purpose;

(4)    acted contrary to policy expressed in an instrument titled “Child Support Guide”, which provides that the Registrar must not attempt to recover child support debts which are uneconomic to pursue or that are not legally recoverable; and

(5)    wrongly concluded that he was a person who had persistently and without reasonable grounds failed to pay the liability.

28    In addition, the appellant submitted that the primary judge was wrong to reject his submission that the delegate’s decision was reviewable under s 5 of the ADJR Act on the grounds that he had not been afforded natural justice. He also submitted that the child support liability is one that the child and the child’s mother do not seek to have repaid.

29    Before engaging with the arguments it is necessary to make some observations about the manner in which the appeal was conducted and to summarise the evidence adduced by both parties at first instance.

30    As Whittaker confirms, the appellant’s appeal under s 72Q of the Collection Act did not present an occasion for the primary judge to substitute his own view of any one of the three matters that turn on the satisfaction, belief or evaluation of the Registrar in s 72D(1)(b), (c) or (d). Rather, the role of the primary judge was to determine whether the subjective satisfaction of the delegate was lawfully formed on the material before her, with particular reference to the matters the Registrar was required to take into account in accordance with s 72D(2).

31    Neither party has submitted that the nature of the appeal before the primary judge was other than that described in the authorities, nor was it suggested that the primary judge misunderstood the nature of his task on the appeal. To the extent that errors of law are alleged by the appellant, they are confined to the proper construction of s 72D of the Collection Act, with particular regard to the purpose of the provision and the mandatory considerations to be taken into account.

32    As will be seen, the primary judge appears to have admitted into evidence a large volume of evidentiary material from the appellant concerning his financial affairs, being material that was not before the delegate at the time that her decision to issue the DPO was made. The purpose for admitting that material into evidence is unclear. It was not a topic upon which either party made submissions on this appeal. It appears however that the conduct of the appeal in that fashion may have given rise to an expectation in the appellant that the FCCA had the power to conduct a hearing in the nature of a full merits review. Plainly it does not.

33    Without the benefit of submissions on the question, it seems to me that the proper procedure for putting additional or contradictory material before the Registrar is on an application under s 72X of the Collection Act to have the DPO revoked. That procedure appears to be the intended means by which the person affected by a DPO may properly present evidence and make submissions to the Registrar in support of his or her position, given that the rules of procedural fairness have no application to the original decision to issue the DPO. The appellant in fact made an application for the revocation of the DPO in 2018, which was unsuccessful. This appeal does not concern the delegate’s later decision to refuse to revoke the DPO.

Evidence of the delegate’s decision

34    The appellant did not receive written reasons for the decision to issue the DPO at the time that the decision was made.

35    The delegate deposed to the reasons for the decision in an affidavit affirmed on 24 September 2019. She was cross-examined by the appellant.

36    The following narrative is drawn from the summary of the delegate’s evidence as related by the primary judge:  CDL19 at [48] – [83].

37    The delegate received a document titled “Submission to make a Departure Prohibition Order – under Child Support (Registration and Collection Act) 1988 Part VA, Section 72D” (the Submission), prepared by an administrative officer within the Child Support Agency’s “DPO Team”. The delegate deposed that upon considering the Submission and its attachments, she was satisfied that the DPO should be issued.

38    The delegate said that she was satisfied that the appellant owed a child support debt in the sum of $99,080.05. Proof of the fact of the debt was facilitated in the proceedings by a certificate issued under s 116 of the Collection Act.

39    The delegate was provided with a file note containing a summary of a telephone conversation which had taken place between the appellant and an officer of the Agency (hereafter, “officer A”) on 12 September 2018. A full transcript of the telephone conversation was also in evidence. The full transcript was not before the delegate at the time that the decision to issue the DPO was made.

40    On the basis of the summary of the conversation and document searches, the delegate deposed to having taken into account the following information in determining that the appellant had not made satisfactory arrangements for the liability to be wholly discharged:

a.    He does not spend his Centrelink Age Pension each fortnight, as he saves it up for more important bills when they arrive;

b.    He owes his cousin in the United Kingdom (UK) £164,000 and has his UK pension paid directly to his cousin;

c.    When he requires extra money, his cousin will let him withdraw from the loan;

d.    He did not pay child support between 1995 and 2015 because he did not believe he had to pay as he was in receipt of income support payments in the UK;

e.    If he could find a way to stop the department from taking child support from his Centrelink Age Pension he would.

41    The delegate also had regard to “the fact that the most recent payments were the result of the Registrar exercising her administrative enforcement powers to deduct an amount from the [Appellant’s] Age Pension and were not the result of any voluntary action by the [appellant]”.

42    The delegate said that the appellant’s significant accrued arrears of child support and late payment penalties demonstrated that he had consistently failed to pay the liability as it became due. The delegate said that in reaching that conclusion she had regard to the following:

a.    The [Appellant] last lodged an income tax return for the financial year ending 30 June 1991, when he declared a taxable income of $9,098;

b.    Department records showed the [Appellant] was in receipt of a Centrelink Age Pension since 17 November 2014 and that he was also in receipt of a UK pension in the amount of £121.90 per week;

c.    A search of the Australian Transaction Reports and Analysis Centre (AUSTRAC) records that revealed the [Appellant] transferred $49,717 to himself in Australia in nine transactions between 3 December 2014 and 30 January 2018. The search also revealed that on 26 April 2016 the [Appellant] transferred $9,862 to himself in England. …;

d.    A response to a notice issued under section 120 of the Collection Act (section 120 notice) from HSBC that revealed the [Appellant] had a balance of $3,976.95 as at 10 August 2018. …;

e.    A response to a section 120 notice from ANZ revealing that the [Appellant] holds two accounts:

i.    The [Appellant’s] Centrelink Age Pension was credited each fortnight to the Advantage Cheque account, with only a small amount of funds utilized each fortnight; and

ii.    The [Appellant] received $3,500 into the account, which was listed as ‘ANZ Share INV’.

...

43    The delegate said that it was desirable to make the order because records of the Department of Home Affairs showed that the appellant had a total of 16 overseas travel movements, with the most recent departure being in late 2017. The delegate said that the appellant was aware of his obligation to pay the liability, that he had failed to make satisfactory arrangements for its repayment and “there was no alternative enforcement options available”. The delegate said that the DPO would ensure that the appellant does not depart Australia without making arrangements to wholly discharge the liability and the DPO may provide the appellant with an incentive to make satisfactory arrangements to wholly discharge the debt. As paraphrased by the primary judge (at [80]), the delegate considered “whether the taking of a significant step vis a vis the [appellant’s] freedom of movement would act as an incentive to bring about the payment of the child support debt in question or lead to satisfactory arrangement for its payment”.

44    For the purposes of s 72D(2), the delegate deposed that on the basis of the information contained in the submissions, she had had regard to:

a.    The [Appellant’s] capacity to pay the liability;

b.    The failure of the [Appellant] to pay any child support for a period of twenty years, between 1995 and 2015 and that payment [sic] were currently being received as a result of administrative enforcement action taken by the Registrar; and

c.    The fact that alternative recovery actions were presently not available to the Registrar.

45    The primary judge characterised all of the above evidence as involving a conclusion on the delegate’s part that the appellant “had some capacity to pay the debt in question”.

The appellant’s evidence and submissions at first instance

46    The appellant advanced arguments based on disparities between the transcript of his telephone conversation with officer A, and the summary of that conversation prepared by officer A as it appeared in the file note provided to the delegate as an attachment to the Submission. He argued that the delegate had been misled by the file note because it did not accurately reflect what was said in the conversation.

47    The primary judge identified the uncontroversial portions of the file note as follows:

•    His wife’s family funded his annual travel to Myanmar to enable his wife to attend a Buddhist festival and to spend time with her family;

•    He will not ask his wife or her family to assist with his child support debt;

•    He does not currently spend all of his Aged Pension each fortnight, saving a portion of it to pay significant bills, when they arrive;

•    He did not pay child support between 1995 and 2015 because he was living in the UK and receiving income support. In these circumstances, he did not believe he was required to pay child support;

•    It was his expectation that the Agency would have taken him to court, prior to placing him under a DPO, so that he could establish he had no assets and it was capricious that it had not done so before considering imposing a DPO.

48    The areas of controversy concerned the appellant’s capacity to access his UK pension entitlements, his ability to access ANZ Bank shares held in his name and his prior level of asset backing.

49    In respect of the appellant’s ability to access his UK pension, the file note of the telephone conversation recorded:

I can see that you have been transferring funds to yourself from the UK. [The appellant] interjected and advised that these funds are from his cousin. He owes his cousin 164000 pounds and to repay this he pays his UK pension to his cousin, and every now and again, his cousin will let him have part of these funds. I advised [the appellant] that these funds are large amounts, sent from his account in the UK, to his account in AU.

50    The transcript records that the appellant was asked about his transferring to himself the sum of “3,194” (the transcript not recording the currency of that sum) from the UK. The appellant said:

Yeah I have a debt to my sister of £164,000.00. I mean, I have, you know, legal documents for that. And now and again she lets me say I told your colleague before, my – I am a pension (indistinct) in which Centrelink knows about. I told him about it. And I told them I get – I actually don’t get it. It goes to my sister. And now and then when I need money, she says, Yes, you can take some.  …  Which is not very often as you can see by my – you got my bank statement. You can see.

51    In respect of the appellant’s assets, the appellant took issue with the following statement contained in officer A’s summary of their conversation:

when his case first started he had a house in Australia, a house in the UK, and a yacht, however these assets are no longer his as he gave up his job when the case started and [the child’s mother] had considered placing [the child] into adoption

52    The transcript of the conversation on that topic reads as follows:

Cause I mean, you know, if you’ve got asset, that’s great. I mean, if I had his assets, I would pay – get you off my back. But I just don’t have anything anymore. You know, before [the child] was born, I had a house here, a house in London and a yacht. But I don’t have that anymore.

53    In respect of the ANZ shares, the file note states:

I asked about ANZ Shares, and asked if he still has his shares - [the appellant] advised that he holds $2000 in shares for his cousin.

54    The transcript states:

All I hold with ANZ at the moment, which it – which don’t – if they - doesn’t belong to me … it's about $2,000 I think is the only shares I've got now. …that's the only money I've got in ANZ shares. …which is not mine anyway.

55    Later in the conversation the appellant repeated that “[t]he only assets I have is - if you look at it objectively, shares, but they're not mine anyway”.

56    The reasons of the primary judge in connection with this evidence will be summarised in the course of considering the appellant’s arguments on this appeal.

Consideration

57    The first argument is that the primary judge erred in failing to find that the Registrar had acted on false or misleading information. That argument must be rejected.

58    The primary judge correctly encapsulated the parties’ positions as follows:

23.    It is the [appellant’s] position that it is axiomatically apparent that he can never pay the child maintenance debt currently standing against him and therefore the imposition of the DPO against him can only be regarded as an act of petty bureaucratic bastardry on the Registrar’s part. From his perspective, the DPO represents an infringement of his civil liberties and entitlement to travel where he pleases.

24.    The Registrar does not agree, submitting that there was a proper basis to impose the order in question, which was based on the [appellant’s] persistent failure to pay his child maintenance obligations and the lack of candour, on his part, regarding his financial arrangements with relatives in the United Kingdom, about which the Registrar remains dubious.

59    The passage at [24] represents a summary of the Registrar’s evidence and submissions, which the appellant did not suggest was inaccurate.

60    In relation to the appellant’s ability to access his UK pension, the primary judge said that it was clear that the Australian Transaction Reports and Analysis Centre records had played a significant role in the delegate’s considerations. His Honour noted that that the sums transferred to the appellant represented over half of the debt in question. The primary judge continued:

71    …  In this context, the [appellant] had conceded receiving some money from his sister in the UK, when he needed it, in the minuted telephone conversation of 12 September 2018.

72.    In my view, this was a consideration relevant to the satisfactoriness or otherwise of the [appellant’s] arrangement to pay the debt. It being the position that he had clearly made no voluntary attempts to clear the debts but potentially had funds subject to his control to do so.

61    It is otherwise unclear what point the appellant sought to make about any discrepancy between the file note and the transcript of his telephone conversation with officer A on this topic. In my view, the file note does not misrepresent what the appellant said in the conversation. The file note correctly records the appellant’s assertion that his UK pension was devoted entirely to paying off a loan owed to his sister in the UK. Plainly the delegate was entitled to have regard to the appellant’s access to considerable sums from his sister (whether via the loan agreement or otherwise) when assessing the extent to which the appellant could access his UK pension or what appeared to be a loan facility closely associated with it.

62    In respect of the appellant’s prior ownership of real estate and a yacht, the primary judge observed that the delegate had made no reference in her affidavit to the fact that the appellant had previously owned that property as a factor in reaching her decision. It is implicit in that conclusion that his Honour did not regard the timing of the disposal of those assets (and any discrepancy between the file note and the transcript on the topic) to have been a matter that bore on the exercise of the power to issue the DPO. To the extent that there existed discrepancies, it is apparent that the primary judge did not consider the timing of the disposal of the assets to have materially contributed to the delegate’s reasons. The appellant’s submissions on this appeal have not demonstrated error in the reasoning of the primary judge on that issue.

63    In respect of the ANZ shares, the primary judge acknowledged that the fact that the appellant held the shares was a matter the Registrar had taken into account. However, the delegate’s affidavit correctly recorded the appellant’s assertion that the shares were held by him on behalf of his cousin to whom he owed a debt.

64    The next arguments are that the primary judge erred by proceeding on the assumption that a DPO could be issued in circumstances where it was plain that the appellant did not have the capacity to discharge the debt in full and in failing to find that the DPO was issued for a punitive purpose. Those arguments must also be rejected.

65    As the primary judge found (at [69] – [70]) the Registrar proceeded on the basis that the appellant had available to him a financial resource that had resulted in transfers to him of sums totalling $59,579.00. It was on that basis that the primary judge considered the Registrar to be entitled to be dubious about the appellant’s assertion that he had no access to his UK pension of £121.90 per week. On the primary judge’s fair characterisation of the delegate’s reasons, the delegate took into account (as she was entitled to do) that the appellant had made no voluntary attempt to clear the debt but potentially had funds subject to his control to do so.

66    As to the asserted punitive purpose, the delegate was plainly required to have regard to the appellant’s capacity to pay the debt:  Collection Act, s 72D(2)(a). However, that requirement did not oblige the delegate to accept at face value the appellant’s claims about his financial resources. On the evidence before her at the time of the decision, the delegate was entitled to proceed on the basis that the appellant could access sums from his sister in the UK “when he needed it”. The primary judge said the proceedings before him centred on whether the delegate was “entitled to be satisfied that it was desirable to issue the DPO in question as a mechanism to bring about the possible satisfaction of the long outstanding debt” (at [107]). It was not necessary, his Honour said, for the delegate to be satisfied that issuing the DPO would bring about immediate payment (at [113]). Rather, his Honour said (at [114]):

… such a person must be satisfied that there is a debt; no satisfactory arrangements have been made to pay it; the debt itself has been consistently avoided; and it is desirable in the sense of having some possible utility to make the relevant order.

67    Later in his reasons the primary judge said that the legislative intent of a DPO is to “bring a recalcitrant debtor to the table in order to discuss an arrangement to pay the relevant debt” (at [118]). His Honour said that the provisions that provide for the making of a DPO form a part of a comprehensive scheme, the principal object of which is to ensure that children receive financial support from their parents and that parents do not avoid those obligations (at [121]) As such, his Honour said “the making of a DPO is not to be regarded as a punishment, rather it is an order directed towards public policy considerations, regarding the desirably of child support debts being paid” (at [121], citing Whittaker at [315]).

68    It was not inconsistent with the Collection Act to articulate the question in that way. The purpose of s 72D is not to prevent a person from leaving Australia without first discharging the debt in full. Rather, the purpose of the power is to ensure that the person does not leave Australia without first making arrangements satisfactory to the Registrar to discharge the debt. Such arrangements might provide for the reduction of the debt over time by way of periodic payments from available income.

69    As to the appellant’s financial capacity, the primary judge found:

123.    In this context, the fact that, at least on a prima facie basis, the [appellant] had a source of income in the UK and had had remitted to him various sums of money, which were approximately half of the debt in question, were relevant matters for [the delegate] to consider. As previously indicated, she was not required to achieve a state of absolute certainty that these monies could, in fact, be earmarked to pay the debt.

124.    More significantly, on the basis of the [appellant’s] conduct and attitude, particularly in the light of her suspicions attaching to the not insignificant sums remitted to the [appellant] from the UK, in my view, [the delegate] was also entitled to conclude that there was some utility, in terms of the collection of the debt, in making the DPO.

70    The appellant did not directly engage with that reasoning in his written or oral submissions. He has not demonstrated that the primary judge erred in construing the Collection Act, nor in identifying the purpose for which the DPO was issued on the particular facts of his case. On the facts as found by the delegate (as identified by the primary judge) the DPO was not issued for a purpose that was ultra vires the Act.

71    The primary judge expressed that utility elsewhere in his reasons as (to paraphrase the words of the delegate) providing an incentive for the appellant to engage in discussions with the Registrar regarding possible satisfaction of the debt (at [112]).

72    In was not a precondition to the power that the Registrar first be satisfied that the appellant has the capacity to immediately discharge the debt. Nor is it a precondition for the exercise of the power that the Registrar have in mind precisely what arrangements for the payment of the debt might be satisfactory and what may not. The arrangements that may or may not be satisfactory to the Registrar is an enquiry that may be undertaken after the DPO is issued. The coming into existence of a later arrangement for payment forms a basis for which the DPO may be revoked:  Collection Act, s 72I(1)(b). On the material before delegate it was open to conclude that there was some prospect of a satisfactory arrangement being reached by which the debt may be wholly discharged in the passage of time.

73    Relatedly, the appellant’s next argument was that the delegate acted contrary to policy expressed in an instrument titled “Child Support Guide”, which provides that the Registrar must not attempt to recover child support debts which are uneconomic to pursue or that are not legally recoverable. There are two difficulties with that submission. The first is that a departure from policy guiding the exercise of a discretion does not render the decision unlawful:  Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528. The second difficulty is that it presupposes that the reference to “enforcement” in the policy is necessarily a reference to enforcement of the debt by way of the execution of a judgment obtained in legal proceedings. The delegate was obligated to have regard to the number of occasions on which action had been taken to recover the debt and the outcome of the recovery action when considering whether to issue the DPO in accordance with s 72D(2)(b) of the Collection Act, and she did so: Collection Act, s 72D(2)(b). However, it was not a precondition to the exercise of the power that all other forms of recovery action have in fact been pursued and exhausted. A legal proceeding for recovery may be uneconomic in the sense that the expenses of pursuing a recalcitrant debtor in legal proceedings may exceed the amount of the debt. But that circumstance does not preclude a DPO order being made so as to provide an impetus for the debtor to make satisfactory arrangements for its payment outside of the context of a lawsuit.

74    It remains open to the appellant to engage in dialogue with the delegate by which process he may choose to answer questions that plainly arise on the material before the delegate at the time that the DPO was issued. The material before the delegate shows that the appellant is a party to financial arrangements whereby he has secured money well in excess of his Australian aged pension. He persists in the view that he may access money from his sister for some purposes, and yet not for the purpose of meeting his child support liability. In the absence of further information, the enforceability of the loan agreement with his sister (and any entitlement she has to regain the appellant’s UK pension) is a matter the delegate is entitled to question. In addition, a significant portion of his aged pension remains untouched, such that he cannot be regarded as barely subsisting on social welfare.

75    The appellant’s next submission is that he is a not a person who has persistently failed to pay the liability without reasonable excuse. He submits that the reasonable excuse was his incapacity to make any payments toward the debt.

76    On that topic, the delegate referred to a long history of transactions dating back to 1990 showing that the appellant had made 70 payments from 1990 to 1993 and a further five payments in 1995, and then made no payments at all until 2015, when the Registrar commenced deducting $40 each week from the appellant’s aged pension.

77    The appellant sought to categorise the deductions from his aged pension as occurring pursuant to an agreement with the Registrar. He later clarified that there was an “agreement” in the limited sense that he had not sought to challenge the decision to make the deductions by way of legal proceedings. The delegate was entitled to proceed on the basis that the deductions from the appellant’s aged pension were not made pursuant to any proactive or voluntary action on the appellant’s part.

78    The appellant then pointed to the circumstance that between 2003 and 2009 he was in prison in the United Kingdom and so could not repay the debt. The imprisonment does not account for the ten years of non-payment between 1993 and 2003, nor for the six years of non-payment between 2009 and 2015.

79    The transcript of the appellant’s telephone discussion with officer A shows that appellant’s imprisonment was not raised. Consequently it was not referred to in the file note created by officer A, nor in the Submission. The delegate also did not refer to the appellant’s imprisonment in her evidence. If that be a factual error it did not provide a legal basis to set the delegate’s decision aside.

80    The appellant’s next argument is that the intended recipient of the child support, S, was now grown and had communicated with the appellant that he did not care to receive the outstanding amount. The appellant said that the child’s mother had the same attitude to repayment. Those submissions cannot affect the outcome of the appeal. To the extent that the child or the child’s mother presently have a relaxed attitude to repayment, that may be a matter for the Registrar to take into account on an application for revocation for the DPO. In considering that question, the Registrar is entitled to proceed on the basis that the debt is owing to the Commonwealth. The Registrar may have regard to the extent to which the child’s mother has been the recipient of social welfare payments over the many years during which the appellant failed to discharge his obligations to maintain his child. The failure of a debtor under the Collection Act is not to be regarded as a purely private matter between the parents and the child, or between the child’s parents.

81    Finally, as I understand the submission, the appellant complained that the primary judge did not consider his arguments through the prism of the ADJR Act.

82    The reasons of the primary judge indicate that the appellant had invoked the grounds of review under the ADJR Act in support of his submission that the decision to issue the DPO was made without affording him natural justice. It is otherwise unclear whether the appellant sought to invoke the provisions of the ADJR Act for any other purpose.

83    The primary judge correctly observed that the originating application before him did not take the form of an application for review under the ADJR Act. The primary judge said that s 72Q of the Collection Act itself provided a specific mechanism by which the decision to issue the DPO could be challenged.

84    The appellant being self-represented, it would have been open to the primary judge to treat the application before him as an application under the ADJR Act (notwithstanding any defect of form) if that was the apparent intention of the appellant and if proceeding in that way was not prejudicial to another party. However, his Honour was not obliged to proceed in that way.

85    Even if his Honour had recognised the proceedings as including an application for relief of the ADJR Act, in my view the substantive outcome would not change. The ADJR Act cannot impose an obligation to act in accordance with the rules of procedural fairness if, on the proper construction of the statute conferring the power, there is no such obligation. The primary judge properly applied Whittaker in that regard.

86    Speaking for myself, I would not go so far as to say that the existence of an appeal right necessarily excludes the application of the ADJR Act in connection with a decision made under s 72D of the Collection Act. The ADJR Act may have had some utility in such proceedings, if it is properly invoked. It may, for example, provide a mechanism by which the decision-maker may be required to provide written reasons and so avoid the necessity for the reasons of the decision to become the subject of oral evidence in-chief as it did in the present case:  ADJR Act, s 13.

87    None of that is of any practical assistance to the appellant on this appeal. It is sufficient to find that the primary judge did not err in refusing to consider the decision to issue the DPO against the grounds of review available under the ADJR Act.

88    In the preceding passages I have addressed the appellant’s key arguments as I have understood them. I am not satisfied that the primary judge committed appealable error in any manner identified in the oral and written submissions. The extent that the appellant has invited the Court to scrutinise the reasons of the primary judge for error that has not been clearly articulated by him, I decline to do so.

89    The appeal should be dismissed. I will hear the parties as to costs.

Associate:

Dated:    28 June 2021