Picture this, you’re in the departure lounge of your favourite international airline waiting to travel on an overseas holiday. You hear the familiar sound of a boarding call over the loudspeaker, “All passengers travelling to Los Angeles on flight VA4350 please commence boarding except for Mr Smith, there are some nice gentlemen from the Australian Border Force who would like to make your acquaintance”.
Thankfully, your name is not Mr Smith. However, you observe Mr Smith looking rather sheepish as two gentlemen dressed in blue uniforms serve a document on Mr Smith and ask him to come with them.
You wonder what has happened. Is this is a warrant for Mr Smith’s arrest being executed? In all likelihood, it is a departure prohibition order being served and executed on Mr Smith.
Both the Department of Human Services – Child Support (DHS) and the Australian Taxation Office have powers under their relevant legislation to prohibit a person travelling outside Australia if they have either a child support or a taxation liability owing.
The Child Support Registrar is able to make an administrative order prohibiting someone from leaving Australia if they have an outstanding child support debt. Part 5A of the Child Support (Registration and Collection) Act 1988 (the Act) allows the Registrar to issue this order without needing to commence any Court proceedings.
The Act was changed in 2001 to enable the Child Support Registrar to have the same powers as a Deputy Commissioner of Taxation to prevent someone leaving Australia where they owe money to the Commonwealth.
Child support liabilities are considered to be debts due and owing to the Commonwealth and not to the relevant payee. Once the child support is collected by the DHS, it is passed on to the payee.
There has been increasing usage of departure prohibition orders in the last 5 years as they are seen to be an effective tool for enforcing child support liabilities.
The Child Support Registrar can make a departure prohibition order against a person who has arrears of child support if:
- the person has not made satisfactory arrangements with the Registrar to pay the liability;
- the Registrar believes it is desirable to make an order to prevent the person leaving Australia without making satisfactory arrangements to pay their child support; and
- the person has persistently and without reasonable grounds failed to pay child support debts on previous occasions.
The Registrar is required to consider whether a person has reasonable grounds for not making child support payments before taking any recovery action against them. This includes considering the person’s capacity to pay the debts, when those debts arose and what (if any) arrangements they have made in the past to satisfy and pay the debts. Like the Australian Taxation Office, the DHS has the power to levy interest on unpaid child support debts and can enter into payment arrangements to enable a person to pay down their overdue child support liabilities.
The DHS would prefer to have information about a child support debtor’s circumstances and put in place payment arrangements rather than using other collection strategies such as garnishing wages, garnishing bank accounts or taking enforcement action in the Federal Circuit Court to publically examine a child support debtor.
There have been a number of occasions where I have negotiated with the DHS for clients who have found themselves in the unfortunate position of having child support liabilities. Whilst generally the DHS is happy to entertain payment plans, a person usually gets one chance with the DHS and if there is any default, there will be an automatic escalation to the next level of enforcement.
In a number of cases, I have been successful in having DHS not enforce the payment of interest on child support liabilities where my client has made a clear commitment to paying their outstanding child support and has not defaulted.
The DHS take the view that if you have elected not to pay child support but you have decided to take an overseas trip, there may be an issue about how you have prioritised your finances and your obligations to those dependent upon you.
The provisions of the Act relating to departure prohibition orders are far reaching. The Act allows officers of the Australian Border Force to take necessary steps to prevent a person with outstanding child support from leaving Australia. These steps can include:
- preventing a person from boarding a vessel or an aircraft;
- entering an aircraft or vessel and removing that person prior to departure; and
- requiring a person to produce documents or answer questions.
It is a criminal offence for a person to refuse to answer an Australian Border Force officer when being questioned or to give a false or misleading answer. There are also offence provisions relating to refusing to produce documents. These offences carry penalties including fines of $6,300 per offence or 6 months’ imprisonment per offence.
If a departure prohibition order has been made, the subject of the order requires a departure authorisation certificate before they are able to leave the Commonwealth of Australia. This can be obtained by paying the outstanding child support at the point of departure or by providing security for a person’s return to Australia in a form acceptable to the Child Support Registrar.
Once this has occurred, a departure authorisation certificate will be issued and a person can then travel outside Australia. Departure prohibition orders can be appealed to a Federal Court and the Act does provide for some grounds such as compassionate or humanitarian reasons for not enforcing a departure prohibition order.
Although departure prohibition orders may seem to be a heavy handed way of enforcing child support liabilities, the reality is that public policy considerations, including having child support debtors meet their obligations, provides relief to tax payers and the social welfare system that we all can rely upon when needed.
In short, if a person has difficulty meeting their child support obligations, they cannot simply ignore the issue and refuse to pay. The DHS has a number of different avenues to object to or appeal against the assessment of child support and child support liabilities. There are also ways of making arrangements with the DHS to pay down liabilities over time.
The next time you are in a departure lounge and see someone pulled aside by the Australian Border Force you may need to think twice about whether they might be an international drug courier, or whether they are simply someone who hasn’t made proper arrangements to pay their child support.