When should I obtain a DPO?
If you are entitled to receive child support where payments are in arrears and believe that the payer has plans to travel overseas, you or your lawyer can contact the Child Support Agency (CSA) with information regarding that person’s travel plans and specifically request that the Registrar consider making a DPO to prevent the person from leaving Australia without making satisfactory arrangements to discharge their child support debt.
How can a DPO be obtained?
A Register can make a DPO against a person if:
- The person owes arrears of child support where the payee has registered the child support assessment for collection by CSA;
- The person has the capacity to pay the debts and has not made satisfactory arrangements for payment of the whole liability (subsection 72D(2) of the Act);
- The person has persistently and without reasonable grounds failed to pay child support debts and so has child support arrears (subsection 72D(1) of the Act); and
- The Registrar believes it is desirable to prevent the person departing Australia without making satisfactory arrangements to discharge their child support arrears.
In order to determine whether the person has persistently failed to pay child support without reasonable grounds, the Registrar will consider:
- The number of overdue payments;
- The number of times that the CSA has taken recovery action;
- The outcome of any recovery action;
- The person’s capacity to pay the debts when they fell due; and
- Any other relevant matters to the case.
What constitutes ‘satisfactory arrangements’ will depend on the circumstances of each case. A DPO may be appropriate if the debtor:
- is transferring assets overseas (e.g. borrowing funds overseas by securing Australian assets);
- has resources that would enable them to live overseas (e.g. family, assets, employment, or a business);
- is likely to discharge the debt or make satisfactory arrangements if a DPO is made.
What might prevent a DPO from being made?
The Registrar must revoke a DPO when the person ceases to have child support arrears; when they make satisfactory arrangements to discharge their debt, or when the debt is completely irrecoverable (see leading case on DPOs, Whittaker v Child Support Registrar  FCA 43). A debt will be considered completely irrecoverable when there are no prospects that the debtor will make any payments towards it. If the person has no capacity to pay the debt, their failure cannot be considered to be persistent without reasonable grounds. The Registrar will consider the debtor’s statements about his/her financial position and any findings in relation to his/her ability to pay.
The Registrar can’t issue a DPO if the person entitled to child support has elected to collect the payments. In those cases, it is necessary for the payee to apply to a court for appropriate orders. The Registrar also cannot make a DPO in relation to a payer whose debt is only for unpaid spousal maintenance. A court order would also be necessary in those cases.
What happens when a DPO is made?
The Registrar is not involved in enforcing the DPO, but they must notify:
- The person to whom the order applies;
- The Australian Border Force;
- The Australian Federal Police; and
- Where the person is not an Australian citizen, the Department of Immigration and Border Protection
The Registrar has delegated these senior department officers to exercise powers and functions under the Act with authority to prevent and/or remove a person subject to a DPO from boarding a ship or aircraft. They can require a person to answer questions or produce documents to establish whether a DPO is in force. If the person is not adequately notified, he/she can apply for an appeal or review of the decision.
It is therefore recommended that you seek legal advice and your lawyer assists you with the process to ensure that you obtain the best possible outcome.
Contact our experienced family law team at LGM Family Law for assistance in obtaining a DPO or with any other family law issues that you may have. We will be happy to assist in resolving your family law issues.
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We prefer to meet you in person but are happy to have a telephone consultation if this suits you. At an initial consultation, we will take some particulars from you so that we can provide you with advice about the likely outcome at family law for your particular circumstances and estimated costs if you wish to proceed further.