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Departure prohibition orders

Departure prohibition orders

The Child Support Registrar can make a departure prohibition order (DPO) preventing a child support debtor from leaving Australia.

Child support assessments are calculated pursuant to the Child Support (Assessment) Act 1989 (‘the Assessment Act’) and section 23 of the Assessment Act provides for an administrative assessment of child support.

The general scheme for collection of child support is set out in the Child Support (Registration and Collection) Act 1988 (‘the Collection Act’). Part VA of the Collection Act deals with Departure Prohibition Orders (DPO). DPO's are made under section 72D of the Collection Act.

Section 72K of the Collection Act provides that a person in respect of whom a DPO is in force may apply for a certificate authorising the person to depart from Australia for a foreign country (a “departure authorisation certificate” – DAC). Section 72L provides for the Registrar to issue a DAC in certain circumstances.

The Registrar must issue a DAC in situations where:

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

There are no 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.

A debtor 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

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

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

The AAT will undertake an independent merits review of the decision. The AAT can exercise the discretions granted to the Registrar when reviewing decisions.

Passengers intending to depart from Australia enter the departure hall at the airport. All being well, they will be permitted to go and board their flight. In the departure hall Customs officers check passports and other travel documents to identify amongst other things if a passenger is the subject of a DPO.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.