5.2.11 Departure Prohibition Orders

Context

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

Act references

CSRC Act section 17, section 17A, section 18A, section 30, Part VA

Criminal Code Act 1995 section 11.1

On this page

Registrar may make a DPO

Part VA of the CSRC Act gives the Registrar the power to make a 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 for 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.

The Registrar has delegated certain senior department officers to exercise powers and functions under Part VA of the CSRC Act. See 6.1.2 for further information on those delegations.

Making a DPO

The Registrar has discretion to 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 relevant 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 relevant person does not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so.

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)(a) 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 relevant 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 relevant 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 Registrar is not restricted to considering the debtor's capacity to pay on the day that the DPO is to be issued as the Registrar is entitled to consider the capacity to pay the child support liability during the period of failure to pay,
  • 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.

Revoking a DPO

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

When the Registrar must revoke a DPO

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

The first test has 2 alternative parts. Either:

OR

(If either of these conditions is present, the first test is satisfied.)

The second test applies to any future child support liability and also has 2 alternative parts. Either:

  • the Registrar is satisfied that any child support liability to which the person may become subject in respect of, or arising out of, matters that have already occurred will be wholly discharged or that satisfactory arrangements will be made to discharge those liabilities,

OR

(If either of these conditions is present, the second test is satisfied.)

Wholly discharged

A debt is wholly discharged when no part of it remains owing. A child support debt can be wholly discharged either by payment of the debt or by 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.

Satisfactory arrangements

Those arrangements that lead the Registrar to be satisfied that the debt will be wholly discharged are satisfactory arrangements. A common sense approach is required to determine whether arrangements are satisfactory in each case. A payment arrangement that effectively requires the presence of the debtor in Australia to function is not a satisfactory arrangement. Where the debtor has sold property and needs to leave Australia before settlement occurs, a section 72A notice (5.2.9) in relation to the known proceeds would be a satisfactory arrangement.

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.

When the Registrar may revoke a DPO

Even where the tests outlined above are not satisfied, the Registrar has discretion to revoke a DPO where the Registrar considers it desirable to do so. The Registrar will exercise this discretion in a way that supports the objects of the Acts.

Varying a DPO

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 depart Australia, for a defined period, the Registrar will either revoke the DPO or issue a DAC.

Notification requirements relating to DPOs

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 Border Force,
  • 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

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 72L(2)):

  • if the DAC is issued, it is likely that the child support debtor will depart from Australia and return within an appropriate period, and
  • if the DAC is issued, 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.

Note: A charge over real estate is not considered appropriate within the meaning of section 72M(1).

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 person's 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 at 21). The onus is on the debtor to establish the inability to provide appropriate security.

Humanitarian grounds include compassionate grounds.

Example: Where the certificate is required to enable the debtor to visit sick relatives and the Registrar is satisfied that the debtor is unable to provide security, the issue of a certificate may be justified (Crockett and Commissioner of Taxation (1998) AATA 1033; 41 ATR 1164; 99 ATC 2218).

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.

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 certificate. The date specified on the certificate must be a day after the date the certificate is issued and cannot be more than 7 days after the day the certificate is issued (section 72N).

This means that a DAC can authorise the departure of a child support debtor no earlier than the day after the certificate is issued, and no later than 14 days after the certificate is issued.

The Registrar will usually specify the date on the DAC as the date the child support debtor nominates as the intended day of departure. This allows the DAC to be issued up to 7 days prior to the specified date, and authorises the debtor to depart during a period from the date specified up to 7 days after the date specified in the certificate. The Registrar will specify a date other than the intended day of departure - within the period outlined above - where it is appropriate to do so.

Example: F has satisfied the Registrar that they need to depart Australia on humanitarian grounds. A DAC is going to be issued. F has nominated 8 September as the date they intend to depart. The Registrar issues the DAC on 1 September specifying 8 September as the first day of authorised departure. If F's travel plans change, F can depart as early as 8 September or as late as 15 September without the need to apply for a new DAC.

Notification requirements relating to DACs

Where the Registrar issues a DAC in respect of a person, the Registrar must notify (section 72O):

  • the person to whom the DAC applies,
  • any other person to whom a copy of the DPO was provided.

Where the Registrar makes a decision to substitute a later day with respect to a DAC the Registrar must notify (section 72P):

  • the person to whom the DAC applies,
  • any other person to whom a copy of the DPO was provided.

If the Registrar refuses to issue a DAC or refuses to substitute a later day with respect to a DAC, the Registrar must notify the applicant (sections 72O and 72P respectively).

Appeal & review

Internal review mechanisms

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

A child support debtor subject to a DPO may apply to the department 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 the department 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 the revocation of or variation to 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 Circuit Court or the Federal Court

A person aggrieved by the making of a DPO can appeal to the Federal Circuit 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 the Registrar (T v Federal Commissioner of Taxation (1986) FCA 433).

There is no jurisdiction for the court to make an order staying the operation of a DPO under section 111C of the CSRC Act.

Review by AAT

The following decisions made by the Registrar are subject to review by the AAT (section 72T):

  • to refuse to revoke or vary a DPO (section 72I),
  • to vary a DPO (section 72I),
  • to issue or refuse to issue a DAC (section 72L),
  • the provision of security (section 72M), and
  • the substitution of later days on a DAC (section 72M).

The AAT will undertake an independent merits review of the decision. The AAT can exercise the discretions granted to the Registrar when reviewing decisions.

Offences

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

  • a DPO in respect of the person is in force, and the person knows, or is reckless as to whether, a DPO is in force, and
  • the person's departure is not authorised by a DAC, and the person knows, or is reckless as to whether the departure is authorised by a DAC (section 72F).

An attempt to commit any of these offences is punishable as though the actual offence had been committed (section 11.1 Criminal Code Act 1995).

Any offences are likely to be detected by members of the Australian Federal Police or Customs Officers, rather than DHS staff. The Registrar will give whatever assistance is necessary for the successful prosecution of any offences detected.

Last reviewed: 14 August 2017