... must revoke a departure prohibition order in respect of a person if:

(a) the person no longer has a child support liability; or

(b) the person has a child support liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or

(c) the person has a child support liability, but the Registrar is satisfied that the liability is completely irrecoverable.

And, by virtue of s 72I(3) the Registrar,

... may also, at the Registrar's discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it desirable to do so.

1. Paragraphs (a) and (b) of s 72I(1) of the Act do not arise; Mr Kenyon accepts that he has a child support liability and that arrangements satisfactory to the Registrar have not been made for that liability to be wholly discharged. And I am not satisfied that the child support liability is completely irrecoverable; it is presently being recovered by way of fortnightly deductions of $44.04 from Mr Kenyon's old age pension. At that rate it will take in excess of 12 years for the child support liability to be recovered but it will ultimately be recovered.
2. Mr Kenyon bases his case on the discretion conferred by s 72I(3) of the Act. He is now aged 68 years. He will turn 70 in January 2014. His spouse, who suffers from arthritis, will soon turn 60. He wishes to travel overseas for the purposes of residing permanently in Indonesia. He can live there, he says, more cheaply than he can in Australia. He struggles to live on Centrelink payments in Australia. He has found it necessary to obtain advances from Centrelink to meet bills. Moreover, he says the deductions of $44.04 from his pension will continue to be made whether he is in Australia or in Indonesia. He is past the age where he is able to earn an income from employment and does not intend to do so whether in Australia or in Indonesia. No useful purpose, he contends, is served by keeping the departure prohibition order in place. It is desirable to revoke the departure prohibition order because to do so will improve his, and his spouse's, quality of life.
3. Ms Hamilton who appeared for the Secretary opposed revocation of the departure prohibition order. To do so, she submitted, would send a message that if those obliged to pay child support ignored their obligations for long enough they could ultimately avoid paying them. Revocation, she said, would reward Mr Kenyon's conduct in avoiding his obligations over a long time.
4. It is certainly the case that Mr Kenyon has an appalling history when it comes to the payment of his child support. He has made no voluntary payments since liability commenced in August 1988; in the whole of that period the only reduction in liability has come about from the statutory interception of tax refunds otherwise payable to him or from modest amounts deducted from Centrelink benefits. And it is certainly the case that at an earlier time in May 2009 Mr Kenyon offered to pay $150 per fortnight towards the maintenance liability provided the departure prohibition order was revoked. That offer was not accepted by the Registrar but the fact that the offer was made at least evidences a capacity to repay that was never given effect to.
5. Ms Hamilton's submissions make reference to the objects of the Act which are set out in in these terms:

(1) The principal objects of this Act are to ensure:

(a) that children receive from their parents the financial support that the parents are liable to provide; and

(b) that periodic amounts payable by parents towards the maintenance of the children are paid on a regular and timely basis; and

(c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.

So much may be accepted. But it is no object of the Act, nor could it be, to punish those who are delinquent in meeting their obligations. A departure prohibition order may be made in the circumstances set out in s72D of the Act. The discretion to make a departure prohibition order is enlivened where, amongst other things,

(d) the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:

(i) wholly discharging the child support liability; or

(ii) making arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.

The present arrangements whereby deductions of $44.04 per fortnight are made from Mr Kenyon's Centrelink payments may not be entirely satisfactory to the Registrar but there is no suggestion that any greater amount could be paid. It was not suggested that Mr Kenyon has any greater capacity to repay or that his departure overseas would impair the present arrangements in any way.

1. The Registrar's submissions made reference to the following passage from the decision of Senior Member Bean in Re O'Neill and Registrar, Child Support Agency[1]:

Whilst on its face s 72I(3) appears to confer quite a wide discretion, I consider that it must nevertheless be construed in context, having regard to the whole of s 72D and s 72I. In my view, having regard to the terms of both provisions, the considerations which are most relevant in determining whether a DPO should be revoked relate to the current circumstances of the person the subject of the DPO. In particular, the current amount of their child support liability, the arrangements the person has made for payment of their child support liability, the extent to which the liability has become irrecoverable, the nature and purpose of the proposed travel and the likely impact of that travel on the capacity of the Registrar to recover the debt.

1. I agree, with respect, with those observations. I would add only that the power to prevent a citizen from travelling overseas at will, a right generally taken for granted, is an extraordinary power. The power to impose, and to maintain, that restriction ought be considered with that firmly in mind.
2. Subject to ensuring that the amounts of repayments are not affected by Mr Kenyon's departure overseas, and having regard to such considerations, I consider it desirable that the departure prohibition order should be revoked. The evidence that Mr Kenyon presented made out his case that he and his spouse could enjoy a better lifestyle in Indonesia and repayments of the child support liability are being made, albeit slowly. Keeping Mr Kenyon in this country is not shown to be necessary to ensure that those repayments are made.
3. I have a concern about the potential consequences to Mr Kenyon's entitlements to Centrelink payments from a departure overseas. The original decision appears not to have considered this aspect of the matter and there was no clear evidence at the hearing about those consequences although it was assumed that Mr Kenyon's old age pension was portable. Because I consider that revocation is warranted only if Mr Kenyon's departure does not impact adversely upon the Registrar's ability to receive the present level of deductions from Mr Kenyon's Centrelink entitlements I propose to set aside the decision and remit the matter to the Registrar for reconsideration with a direction that, provided the Registrar is satisfied that Mr Kenyon's departure overseas will not affect the Registrar's ability to recover at least the present deductions from Mr Kenyon's pension entitlements, the departure prohibition order of 10 September 2007 be revoked. I assume that the Registrar can make the necessary enquiries of Centrelink.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.

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[1] [2010] AATA 545 at [24].