HHG Legal Group’s Family & De Facto law team’s Managing Associate, Dr Steve Cohen and Associate Biljana Radulovic provide an insightful case study involving the Child Support Agency & a Departure Prohibition Order.
Quick question: Can the Child Support Agency (‘CSA’) stop you from travelling if you fail to pay child support?
If you answered “yes”, you are right. Sounds fair, doesn’t it? On the face of it, the policy behind stopping a malfeasant payer is a fair one, except when the payee is disputing the amount to be paid. Despite the objection, the CSA will not entertain the lifting of a Departure Prohibition Order (‘DPO’), even while an appeal runs. Suffice it to say, this can take years.
So what options does a person have when they have the misfortune of a DPO placed upon them?
Let us look at a hypothetical example: Assume the following:
- The father is a parent of two adult children;
- The father is employed overseas;
- The mother had the majority care of the children;
- The father was assessed to pay child support by the CSA;
- Over the years, the father disputed the assessment and engaged in a long battle with the CSA;
- The CSA placed a DPO on the father, meaning if he re-entered Australia, he would be unable to leave until the debt is paid;
- The father needed to return to Australia for work purposes.
Given the children are now adults, the father’s options are limited. For the most part, he can:
- take a commercial approach to try and settle the matter; or
- go to court.
Option 1 is risky. If the mother agrees to settle the matter commercially, the father will need to enter into some administrative acrobatics with the CSA. The first hurdle requires the father to hand over the money to the CSA, whereupon the mother has a 14-day cooling off period. This interval gives the mother time to change her mind, renege on the deal, keep whatever money was put on the table & claim the remaining amount owed. And the DPO will remain in place. Understandably, the CSA takes child support debts very seriously.
Even if the Gods were on the father’s side and he managed to find a way over the first hurdle, he must still get through the Registrar. Any agreement reached between the parties must be approved by the CSA Registrar. The CSA Registrar has the power of veto. This is in regard to both the debt owing and the DPO. If the Registrar considers it undesirable, the DPO will remain.
For clarity, the Registrar will only lift the DPO if:
- the debt is paid in full;
- repayment arrangements of the whole debt are in place;
- the debt is irrecoverable; or
- if it is desirable to lift the DPO for any other reason.
In our hypothetical case, we would need to convince the Registrar that it is desirable to lift the DPO in light of the parties coming to amicable terms.
For a fairly risk averse lawyer, this option would play havoc with my blood pressure. The approach is loaded with hazards. It relies heavily on the goodwill of the mother and the discretion of the Registrar. The mother has no reason to be benevolent. If she settled, she would settle for commercial reasons only. Further, I would worry that the Registrar may not take too kindly to an alleged non-payee.
The alternative approach is to file a Departure Application in the Family Court. The father would need to ask the Court to weigh in on the disputed child support and to lift the DPO. There are several downsides to this approach: the slow train that is the Family Court, the high cost of litigation, the further aggravation this would cause the parties, and the possible intervention of the Child Support Registrar.
If the father proceeds to negotiate with the mother, it is critical that her vulnerability and suffering be acknowledged, and that any agreement reached is by mutual understanding. This is difficult and requires the lawyers involved to discourage litigation and to come up with alternative methods to resolve the conflict. The Child Support Registrar must be on board.
In such complex and high-risk stakes, it is essential that the ducks are very neatly and carefully lined up. Luckily, our team have the resources, experience, and expertise to help you achieve the best possible outcome. At HHG Legal Group, we pride ourselves on being one of the most trusted WA family law firms; our clients know they can trust us with their most complex and difficult legal matters.
Get in touch