8.3.3.10 Departure prohibition orders (DPO)

Context

The Registrar can make a DPO (1.1.D.50) preventing a person who has a child support debt (1.1.C.90) or carer debt (1.1.C.30) from leaving Australia. A person subject to a DPO can apply for a DAC (1.1.D.30) (8.3.3.20). 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
• 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 for case law regarding the purpose of DPOs).

A DPO places significant restrictions on the freedom of movement of citizens and residents of Australia (1.1.R.100) 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 11.1.2 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:

• the relevant person has a child support liability or carer 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) 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:

• they have a registrable maintenance liability of the following kind
• a child support assessment (1.1.C.70)
• a liability to pay periodic child maintenance arising from a court order or court registered maintenance agreement or a collection agency maintenance liability
• a liability arising from a recovery order (1.1.R.30) (8.4.7) or
• a registrable overseas maintenance liability (1.1.O.40) (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 (8.1.1).

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.

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. 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. 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 (8.3.2) 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:

• 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.

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.

See 8.3.3.20 for information on DACs.

An attempt to commit any of these offences is punishable as though the actual offence had been committed.

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.