Departure Prohibition Order
The Child Support (Registration and Collection) Act (CSRC) Part VA gives the Registrar the power to make a Departure Prohibition Order (DPO).
A DPO prevents a person who has persistently failed to meet their child support commitments from leaving Australia without either discharging all debts or making satisfactory arrangements to do so (see Whittaker v Child Support Registrar[2010] FCA 43 at 291(link is external) for recent case law regarding the purpose of DPOs).
A DPO places significant restrictions on the freedom of movement of citizens and residents of Australia and visitors to Australia, and will not be made without consideration of all relevant circumstances. A DPO does not prohibit travel to Australia’s external territories (e.g. Christmas Island, Norfolk Island).
Where a DPO is in force, the Registrar can vary or revoke the DPO, 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 department officers to exercise powers and functions under CSRC Act Part VA. See 6.1.2 for further information on those delegations.
The Registrar 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,
- the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts (as distinct from spousal maintenance debts),
- the Registrar 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.
The Registrar has discretion to make a DPO when all of 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 the Registrar to take into consideration when exercising the discretion to issue 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 (3.1.2) (section 17A), or
- a registrable overseas maintenance liability (section 18A(1), 18A(3) or 18A(4)) (but not a spousal maintenance liability).
AND
- the liability is a debt due to the Commonwealth under section 30 of the CSRC 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 Registrar 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, the Registrar will not make a DPO.
The Registrar is satisfied that the person has persistently & without reasonable grounds failed to pay child support debts
The Registrar will not make a DPO unless the Registrar is satisfied that the person’s failure to pay their child support is both persistent and without reasonable grounds (sections 72D(1)(c)).
In considering the meaning of persistence in this context, the Registrar must be satisfied that a child support debtor has taken deliberate and repetitive or sustained action to avoid paying their child support debt. The Registrar 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. The Registrar 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. The Registrar 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 the Registrar 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 periodic 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 the Registrar 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.
The Registrar believes it is desirable to make a DPO
The purpose of a DPO is to secure payment of a child support debt.
The Registrar 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) the Registrar will consider whether to make a DPO. The Registrar 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
- likely to 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.