Departure Authorisation Certificate

Departure Authorisation Certificate

Departure from Australia when child support is in issue – the Registrar also has discretion to vary a DPO. The Registrar will only vary a DPO to correct errors on the face of the order.

The Registrar will not use the discretion to vary a DPO to allow the departure from Australia of a child support debtor. Where the Registrar is satisfied that it is appropriate and necessary for a debtor to undertake departure from Australia, for a defined period, the Registrar will either revoke the DPO or issue a DAC.

Notification of decisions to make, vary or revoke a DPO

Where the Registrar makes a DPO in respect of a person, the Registrar must notify (section 72G):

• the person to whom the order applies,
• the Australian Customs Service,
• the Australian Federal Police, and
• where the person is not an Australian citizen, the Department of Immigration and Border Protection

In light of the consequences to a person of a DPO, the Registrar 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 means that even where the Registrar is unable to be certain of the current contact details for the child support debtor, a copy of the DPO will be sent to the most recent address known to the Registrar.

Australian Customs Officers and members of the Australian Federal Police are authorised to prevent the overseas departure of a person subject to a DPO.

Where the Registrar makes a decision to vary or revoke a DPO, the person to whom the order applies and any other person to whom a copy of the order was provided must be notified (section 72J).

Issuing a DAC (Departure Authorisation Certificate)

Where a DPO is in force, a child support debtor can apply for the issue of a DAC (section 72K). A DAC allows a child support debtor to depart Australia, for a defined period, despite a DPO being in force.

The Registrar must issue a DAC in situations where:

• a debtor is likely to depart and return to Australia within a specified period, revocation of the DPO is likely, and security for the debtor’s return to Australia is not necessary (section 72L(2)), or
• a DAC is to be issued as the debtor has provided appropriate security for their return to Australia by a specified date (section 72L(3)(a)), or
• the debtor is unable to provide appropriate security for their return to Australia, however a DAC is to be issued on humanitarian grounds or in Australia’s interests (section 72L(3)(b)).

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

Where a DAC has been issued, a copy of that certificate must be provided for inspection, if requested by an authorised officer, when departing Australia (section 72W).

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

The Registrar 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 the Registrar 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 where security provided

If the Registrar is not satisfied that the 3 requirements above have been met, a DAC must still be issued when the child support debtor has given appropriate 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. If the debtor does not return by the agreed date, the security will be forfeited to the Commonwealth of Australia. It cannot be applied against the outstanding child support debt.

The Registrar will only accept a security that:

• is in a form that is readily convertible to cash e.g. bank cheque,
• is offered by the debtor rather than third parties on the debtor’s behalf,
• is generally not significantly less in value than the amount of the debt owing.

Note: security arising from a loan obtained by a child support debtor from a financial institution or a third party is not considered to be a payment from a third party.

If a child support debtor is able to give appropriate security, the use of those funds to reduce the child support debt is preferred to their use as a security. Wholly discharging the debt or making a satisfactory arrangement to discharge the debt and meet any ongoing child support liability will generally result in a DPO being revoked (section 72I). Where the debt is in dispute and a person is taking steps to resolve this dispute, offering security could be an appropriate alternative. Section 72M(2) allows the Registrar to change the day specified in the DAC to a later day where the DAC has been issued with security for a person’s return to Australia.

The date of return for a DAC may be extended by an application from the child support debtor or initiated by the Registrar. The application by the child support debtor can be made verbally or in writing.

An application to substitute a later date may be successful on the same security if the Registrar is satisfied with the current level of security.

The Registrar may refuse an application to substitute a later date for the persons return if:

• the person refuses to increase the value of security already given, or
• the person refuses to give such further security as the Registrar considers appropriate, or
• the Registrar considers that it would not be appropriate to substitute a later day for the person’s return to Australia.

DAC issued on humanitarian grounds or in Australia’s interests

The Registrar must also issue a DAC where satisfied that (section 72L(3)(b)):

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

AND

• The debtor is unable to provide security, under section 72M, for their return to Australia.

In considering the meaning of ‘unable’ in this context, the Registrar must be satisfied that the debtor could not, in the existing circumstances, provide appropriate security. It is not sufficient that the debtor is merely unwilling to provide security or unable to satisfy the Registrar as to the appropriateness of the security offered ([Lui and Commissioner of Taxation 2009 AATA 626(link is external)] at 21).

Humanitarian grounds include compassionate grounds.

Where a DAC is sought on humanitarian grounds, the debtor must supply evidence to support:

• the contention they are unable to give security to the satisfaction of the Registrar, and
• the humanitarian grounds relied upon in the application for the DAC.

Claims that a DAC should be issued on humanitarian grounds will be dealt with on their merits. The onus is on the child support debtor to satisfy the Registrar of the circumstances relevant to the application.

Where a DAC is sought on the basis that a refusal to issue the DAC would be detrimental to the interests of Australia, the debtor must supply evidence to support:

• the contention they are unable to give security to the satisfaction of the Registrar, and
• the reasons why a refusal to issue a DAC would be detrimental to the interests of Australia.

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 the Registrar that refusing to grant a DAC would be detrimental to the national interest.