5.2.11 Departure prohibition orders

Context

The Registrar can make a DPO preventing a person who has a child support debt or carer debt from leaving Australia. A person subject to a DPO can apply for a DAC. A DAC allows the person to depart Australia for a specified period.

On this page

• What is a DPO?
• Criteria for making a DPO
• Revoking a DPO
• Varying a DPO
• Notification requirements relating to DPOs
• DAC
• Notification requirements relating to DACs
• Appeal and review
• Offences

What is a DPO?

The Registrar has the power to make a DPO to prevent a person who has persistently failed to pay their child support liability or carer liability 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 (for example, Christmas Island and Norfolk Island).

Where a DPO is in force, the Registrar can vary or revoke the DPO, or can issue a DAC. The CSRC Act provides appeal and review rights in relation to DPOs and DACs.

The Registrar has delegated certain senior department officers to exercise powers and functions in relation to DPOs. See 6.1.2 for further information about delegations.

Criteria for making a DPO

The Registrar has discretion to make a DPO where all of 4 specified conditions are satisfied (CSRC Act section 72D).

These conditions are:

• the relevant person has a child support liability or carer liability (5.5.5)
• 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) or a carer liability
• the Registrar believes it is desirable to make such an order to ensure that the person does not leave Australia without wholly discharging the child support liability or carer liability, or making satisfactory arrangements to do so.

While Australia has reciprocal arrangements for the enforcement of child support liabilities with a range of foreign jurisdictions, a person's travel destination 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 or a carer liability

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

• they have a registrable maintenance liability of the following kind
  • a child support assessment (CSRC Act 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 (CSRC Act section 17(1))
  • a liability arising from a recovery order (3.1.2) (CSRC Act section 17A), or
  • a registrable overseas maintenance liability (CSRC Act section 18A(1), 18A(3)(a) or 18A(4)) (but not a spousal maintenance liability),

AND

• the liability is payable to the Registrar (that is, it is a debt due to the Commonwealth under CSRC Act section 30) and at least part of the debt remains unpaid past the date it was due for payment.

A person has a carer liability if they owe a carer debt (overpayment) under CSRC Act section 69B (5.5.5).

The relevant person has not made satisfactory arrangements

The Registrar must consider whether the person has made satisfactory arrangements 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 cannot make a DPO.

The Registrar is satisfied that the relevant person has persistently & without reasonable grounds failed to pay their debt

The Registrar will not make a DPO unless satisfied that the person's failure to pay their debt is both persistent and without reasonable grounds (CSRC Act section 72D(1)(c)).

In considering the meaning of persistence in this context, the Registrar must be satisfied that the person has taken deliberate and repetitive or sustained action to avoid paying their debt. The Registrar must have regard to a number of factors when forming a view that the person's actions (or inaction) amount to persistent behaviour without reasonable grounds (CSRC Act section 72D(2)). The specific factors are:

• the person's capacity to pay the debt or debts
  • If the person genuinely 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 person's statements and evidence about their financial position and any findings in relation to ability to pay.
  • The Registrar will expect a person 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 person's capacity to pay on the day that the DPO is to be issued. The Registrar is entitled to consider the person's capacity to pay the liability during the period they failed 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 person 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)
  • where the person has child support arrears from one periodic payment that was not paid on time, and
    • there is no other significant history of late payment, persistence is not present, or
    • there is a significant history of late payment, persistence may be present if the other relevant factors are satisfied
  • where the person has child support arrears from 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 recovery order or a carer liability)
• such other matters as the Registrar considers appropriate.
  • These matters are not defined, and relate to the circumstances of the particular case.
  • Officers considering whether to make 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 or a carer debt.

The Registrar will not make a DPO unless there are reasonable grounds to believe that making the order will make payment of the debt more likely.

If a person with a debt 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 probabilities that the person has the ability to discharge their liability, and is either:

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

A DPO may be appropriate if the person:

• is transferring assets offshore, either directly or indirectly, for example, borrowing funds overseas using Australian assets as security
• has resources (whether financial or otherwise) that would enable them to live offshore, for example, 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 (CSRC Act section 72I). The Registrar can revoke or vary a DPO in response to representations made by the person with the debt 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:

• the child support liability or carer liability has been wholly discharged or satisfactory arrangements have been made to discharge the debt,

OR

• the Registrar is satisfied that the child support liability or carer liability is completely irrecoverable.

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

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

• the Registrar is satisfied that any child support liability or carer 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

• the Registrar is satisfied that any such child support liability or carer liability will be completely irrecoverable.

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 or carer 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 to nil. Where either or both of these processes result in no part of the debt remaining payable, the debt is wholly discharged. A debt which is considered to be uneconomic to pursue is not wholly discharged.

Satisfactory arrangements

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 person to be present in Australia to function is not a satisfactory arrangement. Where the person has sold property and needs to leave Australia before settlement occurs, a section 72A of CSRC Act 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 person will be able to make any payment towards it.

A high threshold must be satisfied to prove that a debt is completely irrecoverable.

When the Registrar may revoke a DPO

Even where the tests outlined above are not satisfied, a DPO may be revoked where the Registrar considers it desirable to do so. The Registrar will exercise this discretion in a way that supports the objects of the CSRC Act.

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 person to depart Australia. Where the Registrar is satisfied that it is appropriate and necessary for the person to leave Australia for a specified 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 (CSRC Act 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 Home Affairs.

In light of the consequences to a person subject to a DPO, the Registrar will make every effort to ensure that the person 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 person, 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.

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

DAC

A person subject to a DPO can apply for a DAC which allows the person to depart Australia for a specified period (CSRC Act section 72K). The Registrar must issue a DAC in situations where:

• the person is likely to depart and return to Australia within a specified period, it is likely that the Registrar will be required to revoke the DPO within a period the Registrar considers appropriate (CSRC Act section 72I(1)), and security for the debtor's return to Australia is not necessary (CSRC Act section 72L(2))
• it is likely that the Registrar will be required to revoke the DPO within a period the Registrar considers appropriate, and the person has provided appropriate security for their return to Australia by a specified date (CSRC Act section 72L(3)(a)), or
• the Registrar is satisfied a DAC should be issued on humanitarian grounds or that refusing to issue a DAC will be detrimental to Australia's interests (CSRC Act 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 (CSRC Act section 72W).

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

The Registrar is required to issue a DAC when satisfied that (CSRC Act section 72L(2)):

• if the DAC is issued, it is likely that the person will depart from Australia and return within an appropriate period
• if the DAC is issued, it is likely that the Registrar will be required to revoke the DPO, and
• it is not necessary for the person to give security for their return to Australia.

DAC where revocation likely and security provided

If the Registrar is not satisfied that the 3 requirements above have been met, a DAC may still be issued if the Registrar would likely be required to revoke the DPO within a period that the Registrar considers appropriate, and the person has given appropriate security (CSRC Act section 72M), for their return to Australia (CSRC Act section 72L(3)(a)).

An appropriate period

The factors the Registrar must consider in determining what an appropriate period is include:

• the amount of the debt
• the person’s capacity to pay the debt (including the rate of repayment over time)
• any administrative or judicial decisions that may affect the amount of the debt, and
• any other factors the Registrar considers appropriate.

Security can be given by a bond or a deposit or by other means. If the person does not return by the agreed date, the security will be forfeited to the Commonwealth of Australia. It cannot be applied against the outstanding debt.

The Registrar will only accept a security that:

• is in a form that is readily convertible to cash, for example, 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 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 would not generally be considered to be an appropriate form of security.

The Registrar is not required to issue a DAC even if security is offered if the Registrar is not satisfied that the person has made satisfactory arrangements to wholly discharge the debt (and the debt is not completely irrecoverable).

If a person is able to give appropriate security, the use of those funds to reduce the 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 require the Registrar to revoke the DPO (CSRC Act 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. The Registrar may 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 (CSRC Act section 72M(2)).

The date of return for a DAC may be extended upon application or initiated by the Registrar. The application 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
• 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 issue a DAC where satisfied that (CSRC Act 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 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.

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 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 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 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 (CSRC Act section 72N).

This means that a DAC can authorise the departure of a 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 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.

Notification requirements relating to DACs

Where the Registrar issues a DAC in respect of a person, the Registrar must notify (CSRC Act 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 (CSRC Act 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 (CSRC Act sections 72O and 72P respectively).

Appeal & review

Internal review mechanisms

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

A debtor subject to a DPO may apply to Services Australia 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 debtor subject to a DPO may apply to Services Australia 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 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 and Family Court of Australia or the Federal Court of Australia

A person aggrieved by the making of a DPO can appeal to the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court of Australia against the making of the order (CSRC Act 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).

While the CSRC Act provides jurisdiction for the court to make certain stay orders (section 111C), these provisions to not permit the court to make an order staying the operation of a DPO.

Review by the ART

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

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

The ART will undertake an independent merits review of the decision. The ART 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 (CSRC Act section 72F).

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

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