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I was hoping that someone could advise me. I have lived in Australia for a long time, I'm British. I had 2 children with an Australian man and left him due to some mild domestic violence. I had the children in my care for 2 years and when the relcoation case failed, fell into depression and have suffered with anxiety and panic attacks since. It has only been in the last year that I've had counselling and started to work through my feelings. I see the children, but it is sporadic for many reasons. My relationship with my ex has never worked and I've always been distraught at not being able to go home.  Due to this breakdown, my child support payment is very high. All of my family are in England and I'd like to go back.

To make things worse, two years ago, I made an error on my tax and they've picked up on it and walloped me with a big bill for the change in assessment. So, I'm slightly in arrears but not for lack of payment if that makes sense? I pay every month on time, there's no issue with that. The issue is that I've just resigned from my job as I plan to do some temp work and hopefully go back to England for a while to be with my family.

Completely separately to all of this, but seemingly planned at the same time, I was informed by a telephone call from my ex last week that he has moved the kids up to NSW. He didn't ask my permission. Earlier in the year I initiated mediation, to attempt to get more regular access. We were issued with a court certificate the "they can't agree one". He didn't 'mention any of this to me at that time.

I'm unsure whether to ring the agency and tell them what's going on. But I'm worried that if I do, they could stop me from leaving. I have no intention of not paying for my children and planned to call when I got there, I just am being careful as I dont think I'd cope emotionally if they stopped me from being able to return home. What is the best thign to do? How likely are they to issue me with a DPO in these circumstances?
TwentySeven said
 What is the best thign to do?
Not the answer you are perhaps seeking but in my opinion the best thing to do would be to stay in Australia, and try to re-establish a contact regime, likely by going to court now that you have a certificate.

TwentySeven said
How likely are they to issue me with a DPO in these circumstances?

Obviously paying off the debt or having it removed would be a sure-fire way of avoiding a DPO.

The section from the CSA guide is detailed below. The 4 conditions, all of which MUST be met are highlighted. From what you say I do not believe that the CSA can justly apply all four conditions. However saying that the CSA have a published history of incorrectly obtaining DPO's. However the fact that the history has been published and the CSA's inappropriate actions, in regard to their over exuberance in obtaining DPO's, have been publicly admonished, then they should be less likely to act inappropriately. However the CSA also have a history of ignoring legislation and procedures in order to collect and transfer money. Basically unless you pay off the debt, or have the debt removed, then going abroad is a gamble. In my opinion, as the guidelines show that the CSA have a duty to inform of a DPO, I'd suggest, if you intend leaving Australia, contacting the CSA well in advance to see if they do issue a DPO. This would also give you the opportunity, if one is issued, of trying to have it removed.

CSA Guide - 5.2.10: Departure prohibition orders said
Making a DPO

The Registrar has delegated certain senior CSA officers to exercise his powers and functions under Part VA of the Registration and Collection Act. See Chapter 6.1 for further information on those delegations.

CSA 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;
    * CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts (as distinct from spousal maintenance debts);
    * CSA 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.


CSA has a 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 CSA to take into consideration when exercising the discretion to issue a DPO.

CSA 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 will include trying to obtain a facsimile number where the DPO can be faxed to the child support debtor in advance of service by ordinary post.

Copies of DPOs and DACs will be provided to Australian Federal Police and also to Immigration officers where the person is not an Australian citizen. 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 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:
          o a child support assessment (section 17(2));
          o 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
          o a parentage overpayment order (section 17A); or
          o 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 Registration and Collection Act and at least part of the debt remains unpaid past the date it was due for payment.

WA ex-nuptial cases and periods prior to 10 December 2008

The Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 amended section 72E to include overseas maintenance liabilities (except spousal maintenance debts) as a child support liability for which CSA may issue a DPO. This took effect from 10 December 2008 and applies to overseas maintenance liabilities arising before, on or after that date.

This amendment does not yet apply to WA ex-nuptial cases. In relation to WA ex-nuptial cases, CSA can not issue a DPO against an overseas maintenance liability. See Chapter 1.4.2 Application of the Registration and Collection Act to WA ex-nuptial cases for more information about how the legislation applies to WA ex-nuptial cases.

The person has not made satisfactory arrangements

The CSA 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, CSA will not make a DPO.

CSA is satisfied that the person has persistently and without reasonable grounds failed to pay child support debts

CSA will not make a DPO unless it is satisfied that the person's failure to pay their child support is both persistent and without reasonable grounds (sections 72D(1)©).

Persistence requires deliberate and repetitive or sustained action in the face of opposition. CSA 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. CSA 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. CSA 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 CSA 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 period 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 CSA 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.

CSA believes it is desirable to make a DPO

The purpose of a DPO is to secure payment of a child support debt.

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

When CSA must revoke a DPO

CSA must revoke a DPO when both of the following two tests are satisfied.

The first test has two alternative parts: either

    * the child support liability has been wholly discharged or that satisfactory arrangements have been made to discharge the debt

OR

    * CSA is satisfied that the child support liability is completely irrecoverable.

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

The second test applies to future child support liability and also has two alternative parts: either

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

OR

    * CSA is satisfied that any such child support liability will be completely irrecoverable.

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

When CSA may revoke a DPO

Even where the tests outlined above are not satisfied, CSA still has discretion to revoke a DPO. CSA will exercise the discretion to revoke a DPO only where satisfied that the debtor will return to Australia and will not dissipate assets overseas.

Varying a DPO

CSA also has discretion to vary a DPO. CSA will only vary a DPO to correct errors on the face of the order.

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

Issuing a DAC

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

CSA must issue a departure authorisation certificate in 3 situations where:

    * a debtor is likely to depart and return, revocation of the DPO is likely, and security is not necessary;
    * a DAC is to be issued on security;
    * a DAC is to be issued on humanitarian grounds or in Australia's interests.

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

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 notice. The date specified on the notice must be a day after the date the certificate issues, but cannot be more than 7 days after the day the certificate issues. To avoid possible confusion, CSA will specify the date on the DAC as the date the child support debtor nominates as the intended day of departure. This means the DAC can be issued no earlier than 7 days prior to the specified date. The DAC will authorise the debtor to depart during a period of up to 7 days from the date specified in the notice (inclusive).

Example

F has satisfied CSA that he needs to depart Australia on humanitarian grounds. CSA is going to issue a DAC. F has nominated 7 September as the date he/she intends to depart. CSA issues the DAC on 1 September specifying 7 September as the first day of authorised departure. If Fs travel plans change, he/she can depart as early as 7 September or as late as 13 September without the need to apply for a new DAC.

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

CSA 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 CSA 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 on security

CSA is required to issue a DAC when the child support debtor has given 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. The effect of a security is that the amount of the security will be forfeited to the Commonwealth of Australia if the debtor does not return by the agreed date. It can not be applied against the outstanding child support debt.

CSA will only accept a security that:

    * is in a form that is readily convertible to cash;
    * is offered by the debtor rather than third parties on the debtors behalf;
    * is not significantly less in value than the amount of the debt owing.

The onus is on the child support debtor to satisfy CSA that it is appropriate to accept the security rather than require the debtor to realise the asset and discharge the debt. In cases where the debt is disputed and the debtor is taking action to resolve the dispute, a security may be appropriate. Where there is no dispute, or where the debtor is not taking action to resolve a dispute, the use of the funds to discharge the debt would generally be more appropriate than their use as a security.

DAC issued on humanitarian grounds or in Australia's interests

CSA must also issue a DAC where satisfied that:

    * the certificate should be issued on humanitarian grounds; or
    * refusing to issue the certificate would be detrimental to Australia's interests.

Humanitarian grounds include compassionate grounds.

Example

Where the certificate is required to enable the debtor to visit sick relatives and CSA is satisfied that the debtor is likely to return to Australia, the issue of a certificate may be justified (Crockett v FCT 99ATC 2218).

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

Appeal and review

Internal review mechanisms

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

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

A person aggrieved by the making of a DPO can appeal to the Federal Magistrates 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 CSA (T v FCT 86 ATC 4894).

Review by AAT

Decisions made by CSA in relation to revocation or variation of a DPO (section 72I), the provision of a DAC (section 72L) and to obtain security (section 72M) are subject to review by the AAT. The AAT can exercise discretions granted to CSA.

Offences

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

    * knowing, or reckless as to whether, a DPO is in force; and
    * where the person knows the departure is not, or is reckless as to whether the departure is, authorised by a DAC (section 72F).

An attempt to commit any of these offences are 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 child support officers. CSA will provide whatever assistance is necessary for the successful prosecution of any offences detected.

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.

Satisfactory arrangements

Those arrangements that lead CSA 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 in relation to the known proceeds would be a satisfactory arrangement.

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.
Thanks Mike.
 
is it possible that there could be one in place and I wouldnt even know about it?
 
I suppose the best option is to pay it off and then it won't be an issue. Staying isn't a option. I've been here by myself for years and I want to go home.
TwentySeven said
is it possible that there could be one in place and I wouldnt even know about it?

According to the legislation No, according to historical events, Yes. I guess the only way to tell would be to contact the CSA or the Federal Police.
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