5.2.8: Departure prohibition orders

Context

CSA can make a departure prohibition order (DPO) preventing a child support debtor from leaving Australia.

Legislation

Sections 17, 17A, 30 and 72D to 72Y (Part VA) Child Support (Registration and Collection) Act 1988

Section 7 Crimes Act 1914

Explanation

Part VA of the Registration and Collection Act gives CSA the power to make a departure prohibition order (DPO). A DPO prevents a person from leaving the country. A DPO places significant restrictions on the normal liberties enjoyed by citizens and residents of Australia, and will not be made without consideration of all relevant circumstances.

Where a DPO is in force CSA can vary or revoke it, or can issue a departure authorisation certificate (DAC). Part VA also provides for appeal and review rights in relation to DPOs and DACs.

Making a DPO

The Registrar has delegated certain senior CSA officers to exercise his powers and functions under Part VA of the Registration and Collection Act. See chapter 6.1 for further information on those delegations.

CSA can make a DPO where all of 4 specified conditions are satisfied (section 72D). These conditions are:

the relevant person has a child support liability,
the relevant person has not made satisfactory arrangements to wholly discharge the liability,
CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts (as distinct from spousal maintenance debts),
CSA believes it is desirable to make such an order to ensure that the person does not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so.

CSA has a discretion to make a DPO when these conditions are satisfied.

Australia has entered reciprocal arrangements for the enforcement of child support liabilities with a range of foreign jurisdictions. However, the fact that a child support debtor's suspected destination is (or is not) a reciprocating jurisdiction is not a relevant factor for CSA to take into consideration when exercising the discretion to issue a DPO.

CSA will make every effort to ensure that a child support debtor receives a copy of the DPO as soon as possible after it is made. This will include trying to obtain a Facsimile number where the DPO can be faxed to the child support debtor, in advance of service by ordinary post.

Copies of DPOs and DACs will be provided to Australian Federal Police and also to Immigration Officers where the person is not an Australian citizen. These officers, or the Australian Customs Service, will prevent the departure of a person subject to a DPO.

The relevant person has a child support liability

A person has a child support liability if (section 72E):

they have a registrable maintenance liability of the following kind:
- a child support assessment (section 17(2));
- a liability to pay periodic child maintenance arising from a court order or court-registered maintenance agreement or a collection agency maintenance liability (section 17(1)); or
- a parentage overpayment order (section 17A) ;(but not a spousal maintenance liability).

AND

the liability is a debt due to the Commonwealth under section 30 of the Registration and Collection Act and at least part of the debt remains unpaid past the date it was due for payment.

The person has not made satisfactory arrangements

The CSA must consider whether the person has made a satisfactory arrangement to wholly discharge the debt.

What constitutes a satisfactory arrangement will depend on the facts of the case. If a satisfactory arrangement is in place, CSA will not make a DPO.

CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts

CSA will not make a DPO unless it is satisfied that the person's failure to pay their child support is both persistent and without reasonable grounds (sections 72D(1)(c)).

Persistence requires deliberate and repetitive or sustained action in the face of opposition. CSA must have regard to a number of factors when forming a view that the debtor's actions (or inaction) amount to persistent behaviour without reasonable grounds (section 72D(2)). The specific factors are:

the person's capacity to pay the debt or debts: If the person has no capacity to pay the debt, their failure to pay cannot be regarded as persistent and without reasonable grounds. CSA will take into account the debtor's statements about their financial position and any findings in relation to ability to pay, e.g. change of assessment decisions. CSA will expect a debtor to use all available options to ensure the liability is correct and appropriate to their circumstances before claiming inability to pay the debt.
the number of occasions on which action has been taken to recover such debts, and the outcome of the recovery action: If CSA has taken no action (legal or administrative) to recover the debt, persistence is not present. Unsuccessful action may suggest that the debtor does not have the ability to pay the debt, but this is not to be regarded as conclusive evidence.
the number of occasions a debt was not paid by the due date (if the outstanding debt is for period child support or child maintenance): Where a child support debtor has arrears of child support from one periodic payment that was not paid on time and there is no other significant history of late payment, persistence is not present.
Where a child support debtor has arrears of child support from one periodic payment that was not paid on time and there is a significant history of late payment, persistence may be present if the other relevant factors are satisfied.
Where a child support debtor has arrears of child support made up of a number of periodic payments which were not paid on time, persistence may be present if the other relevant factors are satisfied.
the length of time the debt has been unpaid after the due date (if the outstanding debt arises from a parentage overpayment order).

such other matters as CSA considers appropriate : These matters are not defined, and relate to the circumstances of the particular case. Officers making decisions on a DPO may consider other relevant factors, but must clearly document the factor, its relevance to the decision, and the impact it has on the decision.

CSA believes it is desirable to make a DPO

The purpose of a DPO is to secure payment of a child support debt. CSA will not make a DPO unless there are grounds for the reasonable belief that making the order will make payment of the debt more likely.

If a child support debtor is about to leave Australia (regardless of any plans to return) CSA will consider whether to make a DPO. CSA will generally make a DPO if satisfied on the balance of probability that the debtor has the ability to discharge their liability, and is either:

likely to fail to return to Australia without discharging his or her liability or making satisfactory arrangements to do so, or
discharge his or her liability or make satisfactory arrangements to do so if a DPO is made.

A DPO may be appropriate if the debtor:

is transferring assets offshore, either directly or indirectly, e.g. borrowing funds overseas by securing Australian assets,
has resources (whether financial or otherwise) that would enable them to live offshore, e.g. family, assets, employment or a business,
is likely to discharge the debt or make satisfactory arrangements for discharge of the debt if a DPO is made.

A DPO may be inappropriate if the debtor

retains significant assets in Australia,
retains a job in Australia,
retains family ties in Australia.

Revoking a DPO

Once a DPO is made, CSA must revoke it in certain circumstances and may revoke or vary it in other circumstances (section 72I). CSA can revoke or vary a DPO in response to representations made by the child support debtor or because of CSA becoming aware of new information.

When CSA must revoke a DPO

CSA must revoke a DPO when both of the following 2 tests are satisfied.

The first test has two alternative parts: either

the child support liability has been wholly discharged or that satisfactory arrangements have been made to discharge the debt.

CSA is satisfied that the child support liability is completely irrecoverable. If either of these conditions is present, the first test is satisfied.

AND

The second test applies to future child support liability. The second test also has two alternative parts: either

CSA is satisfied that any child support liability to which the person may become subject in respect of matters that have already occurred will be wholly discharged

or that satisfactory arrangements will be made to discharge those liabilities. The second part is that CSA is satisfied that any such child support liability will be completely irrecoverable. If either of these conditions is present, the second test is satisfied.

When CSA may revoke a DPO

Even where the tests outlined above are not satisfied CSA still has discretion to revoke a DPO. CSA will exercise the discretion to revoke a DPO only where satisfied that the debtor will return to Australia and will not dissipate assets overseas.

Varying a DPO

CSA also has discretion to vary a DPO. CSA will only vary a DPO to correct errors on the face of the order.

CSA will not use the discretion to vary a DPO to allow the departure from Australia of a child support debtor. Where CSA is satisfied that it is appropriate and necessary for a debtor to depart Australia, it will either revoke the DPO or issuing a DAC.

Issuing a DAC

Where a DPO is in force, a child support debtor can apply for the issue of a DAC. A DAC allows a child support debtor to depart Australia despite a DPO being in force.

CSA must issue a departure authorisation certificate in 3 situations where:

a debtor is likely to depart and return, revocation is likely, and security is not necessary
a DAC is issued on security
a DAC is issued on humanitarian grounds or in Australia's interests

There is no discretion to issue a DAC in other situations.

Date of issue of a DAC

A DAC authorises the departure of a child support debtor on or before the 7th day after a date specified on the notice. The date specified on the notice must be a day after the date the certificate issues, but cannot be more than 7 days after the day the certificate issues. To avoid possible confusion, CSA will specify the date on the DAC as the date the child support debtor nominates as the intended day of departure. This means the DAC can be issued no earlier than 7 days prior to the specified date. The DAC will authorise the debtor to depart during a period of up to 15 days from the date of issue of the notice (inclusive).

Example

F has satisfied CSA that he needs to depart Australia on humanitarian grounds. CSA is going to issue a DAC. F has nominated 7 September as the date he intends to depart. CSA issues the DAC on 31 August. If F's travel plans change, he can depart as early as 31 August or as late as 14 September without the need to apply for a new DAC.

DAC where debtor is likely to depart and return, revocation likely, and security not necessary

CSA is required to issue a DAC when satisfied that (section s72L(2)):

if the DAC issues, it is likely that the child support debtor will depart from Australia and return within an appropriate period; and
if the DAC issues, it is likely that CSA will be required by section 72I(1) to revoke the DPO; and
it is not necessary for the person to give security for their return to Australia.

DAC issued on security

CSA is required to issue a DAC when the child support debtor has given security, under section 72M, for their return to Australia (section 72L(3)(a)). Security can be given by a bond or a deposit or by other means. The effect of a security is that the amount of the security will be forfeited to CSA if the debtor does not return by the agreed date.

CSA will apply forfeited securities against the amount owing by the child support debtor. Any instruments prepared in relation to the giving of a security must include an acknowledgment by the debtor that any forfeited security will be applied against the child support debt.

CSA will only accept a security that:

is in a form that is readily convertible to cash,
is offered by the debtor rather than third parties on the debtors behalf,
is not significantly less in value than the amount of the debt owing.

The onus is on the child support debtor to satisfy CSA that it is appropriate to accept the security rather than require the debtor to realise the asset and discharge the debt. In cases where the debt is disputed and the debtor is taking action to resolve the dispute a security may be appropriate. Where there is no dispute, or where the debtor is not taking action to resolve a dispute, the use of the funds to discharge the debt would generally be more appropriate than their use as a security.

DAC issued on humanitarian grounds or in Australia's interests

CSA must also issue a DAC where satisfied that:

the certificate should be issued on humanitarian grounds, or
refusing to issue the certificate would be detrimental to Australia's interests.

Humanitarian grounds include compassionate grounds.

Example

Where the certificate is required to enable the debtor to visit sick relatives and CSA is satisfied that the debtor is likely to return to Australia, the issue of a certificate may be justified (Crockett v FCT 99ATC 2218).

Claims that refusing to issue a certificate would be detrimental to Australia's interests will be dealt with on their merits. The onus is on the child support debtor to satisfy CSA that refusing to grant a DAC would be detrimental to the national interest.

Appeal and review

Internal review mechanisms

There are no formal objection rights in relation to DPOs or DACs.

A child support debtor subject to a DPO may apply to CSA to have it revoked or varied. These applications are not an avenue for review of the original decision and are to be decided on the basis of facts in existence at the time the decision on the application is being made.

A child support debtor subject to a DPO may apply to CSA for the issue of a DAC. These applications are not an avenue for review of the original decision and are to be decided on the basis of facts in existence at the time the decision on the application is being made.

There is nothing to prevent a child support debtor making applications for revocation or variation of a DPO subsequent to an unsuccessful application. Each such application will be dealt with on its merits in the light of the facts prevailing at the time a decision is made.

Appeal to the Federal Magistrates Court or the Federal Court

A person aggrieved by the making of a DPO can appeal to the Federal Magistrates Court or the Federal Court against the making of the order (section 72Q). The court can either dismiss the application or set aside the DPO. The Court can determine whether an order is properly made, but cannot exercise the administrative decision-making powers granted to CSA (T v FCT 86 ATC 4894).

Review by AAT

Decisions made by CSA to revoke or vary a DPO (section 72I), to provide a DAC (section 72L) and to obtain security (section 72M) are subject to review by the AAT. The AAT can exercise discretions granted to CSA.

Offences

It is an offence for a person to depart from Australia for a foreign country:

knowing, or reckless as to whether, a DPO is in force, and
where the person knows the departure is not, or is reckless as to whether the departure is, authorised by a DAC (section 72F).

An attempt to commit any of these offences are punishable as though the actual offence had been committed (section 7 Crimes Act).

Any offences are likely to be detected by police, customs or immigration officers, rather than child support officers. CSA will provide whatever assistance is necessary for the successful prosecution of any offences detected.

Completely irrecoverable

A debt will be regarded as completely irrecoverable when there is no prospect that the debtor will be able to make any payment towards it.

Satisfactory arrangements

Those arrangements that lead CSA to be satisfied that the debt will be wholly discharged are satisfactory arrangements. A common sense approach will be required to determine whether arrangements are satisfactory in each case. Where a payment arrangement is in place, that effectively requires the presence of the debtor in Australia to function, this would not constitute a satisfactory arrangement. Where the debtor has sold property and needs to leave Australia before settlement occurs, a section 72A notice in relation to the known proceeds would be a satisfactory arrangement.

Wholly discharged

A debt is wholly discharged when no part of it remains owing. A child support can be wholly discharged either by payment or an administrative or judicial process that decreases the amount of the debt. Where either or both of these processes result in no part of the debt remaining payable, the debt is wholly discharged. A debt treated as uneconomic to pursue is not wholly discharged.

Version 1.3

Issued 1 January 2007

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