Montgomery v Child Support Registrar

Procedural history 5 The matter came on for final hearing in a somewhat peculiar way. 6 The applicant filed his originating application on 4 December 2014 and indicated that he sought relief on an urgent basis. A directions hearing was held on 9 December 2014, but the applicant indicated that he no longer wished to proceed urgently and the matter was adjourned until 26 February 2015 for directions. The parties then consented to a further adjournment of the directions hearing until 2 April 2015. 7 At the directions hearing on 2 April 2015, the respondent applied for the matter to be heard and determined immediately, having foreshadowed that application in correspondence sent to the applicant. The applicant, who is unrepresented, informed the Court that he had no objection to that course. This was apparently a tactical decision taken by the applicant because he had served a notice to admit facts upon the respondent and wished to rely upon what he claimed were deemed admissions. 8 In the course of the hearing, the respondent sought leave to rely upon an affidavit annexing an email from the delegate who had made the DPO. The affidavit was prepared after I had pointed to what I perceived to be a gap in the evidence. I informed the applicant that he may be able to object to that affidavit on the basis that it contained hearsay, but he declined to take any objection, apparently on the basis that he did not want the matter to be adjourned. 9 In circumstances where the matter had only been set down for a directions hearing, I was conscious of the necessity for the applicant to have a fair trial, including having an adequate opportunity to make submissions and to respond to the respondent's material. However, given that the applicant wished to proceed, I was satisfied that it was appropriate to proceed with a final hearing.

Background 10 The applicant is the father of a child born on 31 December 2004. He is liable to pay child support in respect of his child. In 2005, the child's mother asked the then Child Support Agency to calculate and collect outstanding child support payments. 11 The respondent placed into evidence a certificate which states that as at 8 December 2014 amounts totalling $46,596.87 were due and payable by the applicant to the Commonwealth and remained unpaid. The certificate states that the amount is a registerable maintenance liability under ss 30 and 67 of the Child Support Act. Pursuant to s 116(2) of the Child Support Act the certificate is prima facie evidence of the matters stated in it. 12 The material before the Court demonstrates a lengthy history of departmental officers attempting to contact the applicant, usually unsuccessfully, with a view to attempting to have him pay the outstanding child support debt. 13 On 18 March 2014, a document entitled "Submission to make a Departure Prohibition Order" was prepared. The submission noted that s 72D of the Child Support Act provides that a DPO may be made if four conditions are satisfied. It then proceeded to consider those conditions. 14 First, the submission considered whether the applicant had a child support liability. It set out the relevant history and concluded that he had an outstanding child support liability of $30,825.39 at that time. 15 Second, the submission considered whether the applicant had not made satisfactory arrangements to wholly discharge the liability. It noted that the applicant had last made a payment towards his child support liability on 3 March 2010 and had not entered into any payment arrangements to address his child support arrears. It concluded that there was no satisfactory arrangement in place to discharge the outstanding liability. 16 Third, the submission considered whether the applicant had persistently and without reasonable grounds failed to pay the outstanding child support. The submission noted that proceedings had been taken in the Federal Magistrates Court against the applicant and that on about 12 March 2008 the applicant had made a payment of $11,036.74 as well as $1,000 court costs. Although he was required to make monthly payments, he had only made eight payments since then. The submission stated that since arrears had started to accumulate, 29 attempts had been made to contact the applicant via telephone and email, but that he had failed to respond to any of those attempts and that he had failed to provide up to date contact details. The submission noted that the mother of the applicant's child had stated that the applicant had substantial assets and is a civil engineer and pilot. The submission concluded that it would be reasonable to consider that the applicant has access to financial resources that had not been disclosed. It concluded that the third condition had been met. 17 Fourth, the submission considered whether it was desirable to make a DPO to ensure that the applicant did not leave Australia without wholly discharging the liability or making satisfactory arrangements to do so. The applicant had engaged in 12 international travel movements between 2010 and 2013. The submission indicated that given the applicant's travel history and likelihood of future travel, in the absence of a satisfactory arrangement being in place or another administrative enforcement option being available, a DPO was considered desirable. The submission recommended that a DPO be made in respect of the applicant. 18 On 19 March 2014, the submission was provided to a delegate of the respondent. The delegate then made the following decision: I approve a DPO to be issued on PP pursuant to Section 72D of the Child Support (Registration & Collection) Act 1988 and that all four of the provisions are satisfied in accordance with that section. • has outstanding child support arrears • has no satisfactory payment arrangement • has persistently and without reasonable grounds failed to pay child support debts • is reasonably expected to leave Australia and has a history of international travel. as per submission, legislative conditions have been satisfied to place a DPO, it is desirable to place a DPO to encourage payment of CS. 19 The delegate made a DPO in the following terms: I, Stuart Brazendale, delegate of the Child Support Registrar, pursuant to section 72D of the Child Support (Registration & Collection) Act 1988, by this Order PROHIBIT the departure of David MONTGOMERY, date of birth 18 August 1973, from Australia for a foreign country. This Order commences on 19 March 2014. 20 On 20 March 2014, an officer of the respondent sent a letter to the applicant at the address 66 Heritage Drive, Clagiraba, Qld, 4211. The letter enclosed a copy of the DPO, explained the reasons why the DPO had been made, and informed the applicant that he could apply for a departure authorisation certificate and of his right to appeal. A copy of the letter was also sent to the applicant at a different address, 10 Jeremy Court, Worongary, Qld, 4213. 21 The applicant had not notified the respondent of his current address. The respondent obtained the Heritage Drive address from the Bendigo Bank on 19 February 2013. A letter sent to the applicant at that address at that time had been returned unclaimed. 22 The Jeremy Court address was added to the respondent's records on 17 February 2014, having been taken from an incoming passenger card completed and signed by the applicant on 7 December 2013. That had also been the address given by the applicant in incoming passenger cards he signed on 15 August 2006, 29 October 2008 and 26 February 2010. Later, on 11 April 2014, Westpac Banking Corporation confirmed the applicant's address as being the Jeremy Court address. 23 The applicant filed several affidavits. In an affidavit filed on 4 December 2014, the applicant deposed that he had not been notified that the DPO had been made, and that he was unaware of it until he was detained on 1 December 2014. He deposed that the Heritage Drive address was not his address for service or contact and that, in fact, no such address existed. He deposed that he had not received or been provided with any notification or communication from the "Child Support Agency" for a period of over three years. 24 In an affidavit filed on 8 December 2014, the applicant deposes to many matters which appear to be in the nature of submissions, rather than evidence. Those matters include that: His dealings with the Child Support Agency involved menaces, coercion and force on the part of the Child Support Agency. He has no debt, contract or agreement with the Child Support Agency. He has not consented or volunteered to do business with or be a customer of the Child Support Agency. The Child Support Agency had contravened s 270.3 of the Criminal Code (which is the schedule to the Criminal Code Act 1995 (Cth)) by engaging in slavery. The DPO was ultra vires, harsh, oppressive, unlawful and criminal. The Magna Carta is a part of Australian law and it declares that no free man shall be taken, imprisoned, dispossessed, outlawed or exiled or in any manner destroyed. 25 In a further affidavit filed on 2 April 2015, the applicant deposed that on 19 March 2015, he served the respondent with a notice to admit facts pursuant to r 22.01 of the Federal Court Rules 2011 (Cth), but that the respondent had not replied to the notice or denied the facts alleged. The affidavit also referred to a letter from the respondent's solicitors which indicated that they had been instructed not to respond to the notice. 26 The notice served by the applicant contains 81 separate statements which the applicant required the respondent to admit. The document is too lengthy to set out in full but the flavour of it can be discerned from the following extracts: 7. You admit the CSA has reduced the Plaintiff to a Slave. … 10. You admit the CSA is imposing it's forced control over the Plaintiff. 11. You admit CSA considers the Plaintiff to be its legal property, over who it exercises ownership direction and control and forces the involuntary labour, performance and servitude of. 12. You admit that CSA is demanding the forced extraction of Payments from the Plaintiff … 17. You admit that the Plaintiff doses not consent to freely volunteer their labour, services or other, such can only be extracted by use of force / coercion and threat. … 19. You admit that forced labour, services, servitude are verified Commonwealth and International Criminal Offences that include Crimes against Humanity. … 23. You admit that the DPO was forced on the Plaintiff as a result of a imposed debt 24. You admit powers attaching to the right of ownership over the Plaintiff were exercised by way of DPO and other to stop and deprive the plaintiff from travelling. 25. You admit it is Not possible to implement / enforce the DPO without engaging in criminal conduct of exercising ownership direction or control over the Plaintiff. 26. You admit It is Impossible for CSA to extract the Plaintiffs forced labour and performance without committing Criminal Offences of forced labour, servitude, debt bondage and other. … 34. You admit CSA is demanding property from the Plaintiff with menaces and by force with the intent to permanently deprive the Plaintiff of such. 35. You admit that CSA took and intends to take to Plaintiffs property without the Plaintiffs permission. … 47. You admit the Plaintiff is a reasonable person who is victim who does not consider himself to be free: to stop providing their labour and services to the CSA. … 57. You admit that Debt bondage is (also known as debt slavery or bonded labour) … 59. You admit CSA has not compensated or provided any consideration to and does not intend to compensate or provided any consideration to the Plaintiff for associated cost and labour forced upon and extracted from the Plaintiff to date. … 61. You admit Medical certificates confirm the conduct of CSA its, agents and employees acting in an official capacity has cause lasting medically diagnosed physical and mental pain and suffering to the Plaintiff that include but not limited to depression, stress and cancer. … 79. You admit the DPO including all demands imposed by CSA on the Plaintiff are invalid and void abinitio, and or imposed as a pretend law made in excess of power, and or in conflict with higher jurisdictional laws herein. 80. You admit CSA's imposed demands on the Plaintiff cannot be applied without CSA engaging in Criminal conduct and other offences that cause pain, harm, damages and loss to the Plaintiff as described and admitted herein. 81. You admit the Plaintiff is to be given an immediate permanent departure from CSA assessment, the DPO removed and the Plaintiff be compensated for all losses and damages. (as in the original.)

Consideration 27 The first three grounds set out in the originating application allege that the DPO is invalid because the respondent failed to notify the applicant that the DPO had been made, in contravention of s 72G(2) of the Child Support Act. It is necessary to consider s 72G in the context of the surrounding provisions. 28 Section 72D of the Child Support Act provides, relevantly: (1) The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if: (a) the person has a child support liability; and (b) the person has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged; and (c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay: (i) child support debts arising from a registrable maintenance liability under section 17; or … (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. (2) For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters: (a) the capacity of the person concerned to pay the debt or debts; (b) the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action; (c) if subparagraph (1)(c)(i) applies - the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable; … (e) such other matters as the Registrar considers appropriate. (3) A departure prohibition order must be in the approved form. 29 The expression "child support liability" is defined in s 72E. It requires, inter alia, that the person has a registrable maintenance liability of a kind mentioned in s 17. 30 Section 72F makes it an offence for a person to depart Australia for a foreign country if a DPO is in force in respect of the person, and the person knows that it is in force or is reckless as to whether it is in force, and if certain other requirements are met. 31 Section 72G provides, relevantly: (1) This section applies if the Registrar makes a departure prohibition order in respect of a person. (2) The Registrar must notify the person that the order has been made. (3) The notice must be in the approved form and must be given as soon as practicable after making the order. 32 Section 72H provides, relevantly: (1) A departure prohibition order comes into force when it is made, and continues in force until it is revoked, or until it is set aside by a court. 33 Contrary to the applicant's argument, any failure by the respondent to notify the person against whom a DPO is made does not affect the validity of the DPO. In Whittaker v Child Support Registrar (2010) 264 ALR 473; FCA 43, Lindgren J held at [265]: In my opinion, a failure to notify does not go to the validity of the DPO. Such a failure would be potentially relevant to other matters, such as the knowledge or recklessness of the person for the purposes of the offence created by s 72F… 34 On appeal, in Whittaker v Child Support Registrar [2010] FCAFC 112, the Full Court approved Lindgren J's analysis, holding at [59]: In any event, as his Honour observed, any problem with notification would not touch on the validity of the DPO. 35 Further, I consider that the respondent did comply with the obligation to notify the applicant that the DPO had been made. Regulation 14(1)(a)(iii) of the Child Support (Registration and Collection) Regulations 1988 (Cth) provides that any notice by or on behalf of the Registrar may be served upon a natural person by sending it by pre-paid post to the person's address for service. Regulation 15(1) provides that the address last notified by a person to the Registrar as the address for service of the person is that person's address for service. Regulation 15(2) provides that if no address for service has been notified to the Registrar, but the Registrar's records nevertheless contain an address attributed to the person, the last such address in any record held by the Registrar is the person's address for service. 36 Section 111(2) provides that if the payer of an enforceable maintenance liability changes his or her name or address, the payer must within 14 days of that change of address, notify the Registrar of the change. 37 The applicant claims that the Heritage Drive address was not his address. It appears to have been his address at some stage as that was the address he gave to the Bendigo Bank. He did not notify the respondent of any change of address. In any event, the Heritage Drive address was not relevant because the respondent's records contained a more recent record of an address attributed to the applicant. 38 The applicant's evidence is silent about whether the Jeremy Court address was his address. In circumstances where the applicant had not notified any address for service to the respondent, the respondent was entitled to give notice of the DPO to the applicant by sending it by pre-paid post to the last address attributed to the applicant in any record held by the respondent. The last such address in the respondent's records was the Jeremy Court address. That address had been obtained from the applicant's incoming passenger cards. If the Jeremy Court address had ceased to be the applicant's address, he was obliged to notify the respondent. There was no such notification. In these circumstances, the Registrar did comply with the obligation under s 72G(2) of the Child Support Act to notify the applicant of the DPO. 39 The fourth ground in the originating application is a general ground asserting that the DPO was improperly made and invalid. The applicant's evidence did not dispute the factual matters set out in the submission made to the respondent's delegate. The delegate based his decision upon the submission. The applicant has not advanced any argument that the requirements of s 72D were not met. In any event, having examined the evidence, I cannot identify any error in the decision to make the DPO. The requirements of s 72D were satisfied. 40 The main thrust of the applicant's submissions, as developed in his affidavits, his notice to admit and his oral submissions, seems to be as follows: The DPO is invalid because the respondent, by making the DPO, committed offences involving slavery, servitude and forced labour against the applicant in contravention of ss 270.3, 270.5 and 270.6A of the Criminal Code, and torture in contravention of s 274.2 of the Criminal Code. The DPO is invalid because the effect of it is to contravene several international treaties to which Australia is a party. The Magna Carta is a part of Australian law and the effect of a DPO is to infringe the Magna Carta and thereby infringe Australian law. 41 Division 270 of the Criminal Code is headed "Slavery and slavery-like conditions". The following provisions appear to be relevant: 270.1 Definition of slavery For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person. 270.3 Slavery offences (1) A person who, whether within or outside Australia, intentionally: (aa) reduces a person to slavery; or (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; or … is guilty of an offence. Penalty: Imprisonment for 25 years. 270.4 Definition of servitude (1) For the purposes of this Division, servitude is the condition of a person (the victim) who provides labour or services, if, because of the use of coercion, threat or deception: (a) a reasonable person in the position of the victim would not consider himself or herself to be free: (i) to cease providing the labour or services; or (ii) to leave the place or area where the victim provides the labour or services; and (b) the victim is significantly deprived of personal freedom in respect of aspects of his or her life other than the provision of the labour or services. 270.5 Servitude offences Causing a person to enter into or remain in servitude (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct causes another person to enter into or remain in servitude. Penalty: (a) in the case of an aggravated offence (see section 270.8)- imprisonment for 20 years; or (b) in any other case-imprisonment for 15 years. 270.6 Definition of forced labour (1) For the purposes of this Division, forced labour is the condition of a person (the victim) who provides labour or services if, because of the use of coercion, threat or deception, a reasonable person in the position of the victim would not consider himself or herself to be free: (a) to cease providing the labour or services; or (b) to leave the place or area where the victim provides the labour or services. (2) Subsection (1) applies whether the coercion, threat or deception is used against the victim or another person. 270.6A Forced labour offences Causing a person to enter into or remain in forced labour (1) A person commits an offence if: (a) the person engages in conduct; and (b) the conduct causes another person to enter into or remain in forced labour. Penalty: (a) in the case of an aggravated offence (see section 270.8)-imprisonment for 12 years; or (b) in any other case-imprisonment for 9 years. 42 It is difficult to understand precisely what the applicant's argument concerning slavery, servitude and forced labour offences is. As best as I can understand it, the argument is to the effect that by making the DPO, the respondent exercised ownership, direction and control over the applicant and coerced or forced the applicant into involuntary labour. 43 The applicant submits that his case is proved by admissions deemed to have been made by the respondent. As I have indicated, the applicant purported to serve a notice to admit facts pursuant to r 22.01 of the Federal Court Rules. Part 22 of the Federal Court Rules provides, relevantly: 22.01 Notice to admit facts or documents A party (the first party) may serve on another party (the second party) a notice, in accordance with Form 41 (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit. 22.02 Notice disputing facts or documents The second party may, within 14 days after service of the notice to admit, serve on the first party a notice of dispute, in accordance with Form 42, disputing the truth of any fact or the authenticity of any document specified in the notice to admit. … 22.04 Facts or documents taken to be admitted if not disputed If the second party does not serve a notice of dispute in accordance with rule 22.02, the second party will be taken to have admitted the truth of each fact or the authenticity of each document specified in the notice to admit. Note: The Court may dispense with compliance with this rule - see rule 1.34. … 22.07 Judgment on admissions If a party makes an admission, another party may apply to the Court for any judgment or order to which the party is entitled on the admission. 44 In Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602, Goldberg J held, in relation to the equivalent provisions under the former Federal Court Rules: 58 I do not consider that it was either reasonable or appropriate to require the respondents, under the pain of an order for costs pursuant to O18 r2 of the Federal Court Rules, to respond to a notice which substantially reproduced the allegations in the amended statement of claim in a rolled-up way and in a form which required the respondents to make admissions as to matters which were not clearly separated from other matters. Further, in a number of respects it was not possible to sever components of matters, the subject of the notices to admit, without having any consequential effect on other paragraphs in the notices to admit. 45 The difficulties identified by Goldberg J are, in large part, also evident in relation to the present notice. All of the statements made in the notice consist of matters of law or "rolled up" matters of fact and law. Rule 22.01 allows a party to serve a notice requiring a second party to "admit the truth of any fact…specified in the notice to admit." Rule 22.01 does not allow the first party to specify matters of law or mixed fact and law in the notice. In my opinion, the notice served by the applicant does not comply with r 22.01. 46 Rule 22.02 allows the second party to serve on the first party a notice of dispute, disputing the truth of any fact specified in the notice to admit. If the second party does not serve a notice of dispute, the second party is taken as having admitted the truth of each fact specified in the notice to admit under r 22.04. In my opinion, r 22.04 operates such that the second party is taken to have admitted the truth of "any fact…specified in the notice to admit", but not a statement of law or of mixed fact and law specified in the notice. 47 Each of the statements set out in the applicant's notice is a matter of law or a matter of mixed fact and law. Therefore r 22.04 does not operate such that the respondent is taken to admit the truth of any of those matters. 48 The respondent applied at the hearing for an order under r 1.34 of the Federal Court Rules dispensing with the need for the respondent to comply with r 22.02 on the basis that the notice represents an abuse of process. In view of the ruling I have made, it is unnecessary for me to deal with that application. If it were necessary to deal with that application, I would readily have acceded to it. 49 The applicant has not established the factual premises he relies on to demonstrate that the respondent engaged in offences under Division 270 of the Criminal Code. In any event, there are many other difficulties with the applicant's argument. It is impossible to understand, for example, how the respondent, by making the DPO, could be said to engage in coercion of the type required to establish the offences under ss 270.3 and 270.5 or how he was caused to enter into forced labour for the purposes of s 270.6A. The effect of the DPO is that the applicant may not depart Australia without obtaining a departure authorisation certificate. The DPO does not compel the applicant to pay money or perform work. Even if there were some conflict between the effect of a DPO and Division 270, s 10.5 provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law. The respondent is expressly authorised under s 72D of the Child Support Act to make a DPO. The respondent commits no offence by doing what he or she is authorised by law to do. 50 Division 274 of the Criminal Code provides, relevantly: 274.2 Torture (1) A person (the perpetrator) commits an offence if the perpetrator: (a) engages in conduct that inflicts severe physical or mental pain or suffering on a person (the victim); and (b) the conduct is engaged in: … (ii) for the purpose of punishing the victim for an act which the victim or a third person has committed or is suspected of having committed; or (iii) for the purpose of intimidating or coercing the victim or a third person; or … (c) the perpetrator engages in the conduct: (i) in the capacity of a public official; or (ii) acting in an official capacity; or … Penalty: Imprisonment for 20 years. 51 Again, the applicant has not established the factual basis for his allegation that the respondent breached s 274.2 by making the DPO. Further, it is impossible to see that the making of a DPO is for the purpose of punishing, intimidating or coercing the applicant. Rather, a DPO is made in pursuance of the objects of the Child Support Act, which include in s 3(1), ensuring that children receive from their parents the financial support that the parents are liable to provide. In any event, the respondent is protected from criminal liability under s 10.5. 52 To the extent that the applicant claims that the DPO is inconsistent with Australia's obligations under international treaties, that cannot affect the validity of the DPO. It is well established that international treaties do not form part of Australian law unless validly incorporated into municipal law by statute: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; HCA 20 at 286-287. 53 The applicant's argument that the Magna Carta is part of Australian law and the effect of a DPO is to infringe the Magna Carta and thereby infringe Australian law cannot succeed. In Skyring v ANZ Banking Group Ltd [1994] QCA 143, the Queensland Court of Appeal held: [I]t remains the case that an applicable enactment, whether Queensland, Commonwealth or Imperial is capable in law of repealing Magna Carta either completely or to the extent that it is inconsistent with that enactment. In Chia Gee v Martin (1905) 3 CLR 649; HCA 70, the High Court held at 653 that a contention that a law of the Commonwealth was invalid because it was not in conformity with the Magna Carta "is not one for serious refutation". Assuming that there is some inconsistency between the Magna Carta and the DPO, the Child Support Act prevails. 54 For these reasons, the applicant's appeal cannot succeed. The originating application must be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.