Hurbartt and Hurbartt (Child Support)
[2025] ARTA 2302
•23 July 2025
Hurbartt and Hurbartt (Child Support) [2025] ARTA 2302 (23 July 2025)
Applicant/s: Mr Hurbartt
Respondent: Child Support Registrar
Other Parties: Ms Hurbartt
Tribunal Number: 2025/SC029341
Tribunal: General Member A Ryding
Place:Sydney
Date:23 July 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that there were no arrears of unpaid child support for collection as at 24 August 2023.
CATCHWORDS
CHILD SUPPORT – opt-in arrears – amount of arrears at application – arrears have actually not been paid – offset against previous overpayment – no arrears – decision under review set aside and substituted
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
This is an application for review of a decision of Services Australia – Child Support (Child Support) dated 22 January 2025 to accept one parent’s application for collection of arrears of child support. What is in dispute is not the collection of arrears in principle, but the amount of those arrears.
The applicant, Mr Hurbartt, and one of the other parties to this application, Ms Hurbartt, are the parents of [the named children]. According to Child Support’s records, a child support assessment has been in place for the children since 3 February 2020[1], with Mr Hurbartt as the paying party.
[1] Taken from the Objection Decision.
On 29 August 2023, Ms Hurbartt made an application to Child Support to collect child support payable and sought collection of three months of arrears, totalling $1,973.19 (folio 68).
On 17 October 2023, Child Support decided to accept Mr Hurbartt’s application for collection, with payments due to Child Support from 24 August 2023. Child Support determined the three months’ arrears totalled $680.15, as Mr Hurbartt had apparently paid $1,327.27. Mr and Ms Hurbartt were informed of this by letters dated 17 October 2023 (folios 93 and 95).
On 28 October 2023, Ms Hurbartt contacted Child Support objecting to the decision to collect arrears of $680.15 (folio 125). Ms Hurbartt told Child Support that Mr Hurbartt had not paid her $1,327.27 and had only paid her $299.66.
On 22 January 2025, Child Support provided its decision on Ms Hurbartt’s objection (Objection Decision) (folio 17). Child Support allowed in part Ms Hurbartt’s objection and decided to record arrears for unpaid child support of $1,023.61.
On 18 February 2025, Mr Hurbartt applied to the Administrative Review Tribunal (the Tribunal) for review of the Objection Decision. On 10 July 2025, the Tribunal conducted a hearing in this matter. Mr Hurbartt participated by MS Teams video conference and Ms Hurbartt by MS Teams audio and each gave evidence. Child Support did not participate and instead relied upon its documents. Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 150 (the hearing papers).
After the hearing, and at the Tribunal’s invitation, the parties each provided documents, which were marked A1 and B1 to B12. The Tribunal has had regard to all of the evidence and documents provided to it. Reference below is made only to the documents and evidence relevant to this decision.
ISSUES
How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The Registration and Collection Act deals with collection of child support.
The issue for consideration in this application is the amount of arrears that should be collected by Child Support.
CONSIDERATION
When Child Support makes a child support assessment under which a “registerable maintenance liability” arises, Child Support must register the liability in its Child Support Register.[2] Pursuant to section 30 of the Registration and Collection Act, once a registerable maintenance liability is registered, any amount due to be paid in respect of that liability is a debt due to the Commonwealth and must be paid by the paying party to Child Support, not to the receiving party.
[2] Subsection 24A(1) of the Registration and Collection Act.
Once a child support assessment is made, the receiving party can elect to collect privately. The party receiving child support may later apply for the registration of the liability to pay child support to be collected by Child Support pursuant to section 25 of the Registration and Collection Act. This is sometimes referred to as an application to opt in to the collection of child support payments. If an “opt in” application is made in the correct form, Child Support must accept it.
A party who applies for collection can also apply for Child Support to collect arrears for them.[3] If Child Support accepts the party’s election for collection and the arrears period does not exceed three months, it must also accept their application for collection of arrears.[4] If Child Support grants the application for arrears, the unpaid amounts become a child support debt owed to the Commonwealth.
[3] Subsection 39A(4) of the Registration and Collection Act.
[4] Subsection 39A(5) of the Registration and Collection Act.
Child Support (and therefore the Tribunal in this application) needs to be satisfied that the amounts in arrears have actually not been paid.
The facts
In Ms Hurbartt’s application for collection, she sought by way of arrears, $1,323.27 for the period 29 May 2023 to 26 July 2023 and $649.92 for the period 27 July 2023 to 31 May 2024 (that latter date appears to the Tribunal to be an error). That would make total arrears of $1,973.19.
On 7 September 2023, Ms Hurbartt called Child Support and apparently reported that Mr Hurbartt had paid $1,323.27 for the period 29 May 2023 to 26 July 2023 (folio 74). The payment was also discussed in a call by Child Support with Mr Hurbartt on 13 October 2023 with payment said to have been made on 22 May 2023 (folio 77). That appears to leave $649.92 outstanding.
Child Support then determined to set arrears at $680.15 (folio 80) and (according to its records) apparently confirmed this figure with Mr Hurbartt on 17 October 2023 (folio 90).
In a call with Child Support on 25 October 2023, Ms Hurbartt said she had not in fact received the payment of $1,323.27 (folio 123) and repeated this in her objection lodged on 28 October 2023, saying that he had only paid her $299.66 (folio 125). Ms Hurbartt provided a list of transactions that show a transfer to her on 22 May 2023 of $299.66 (folio 129).
Child Support’s Objection Decision subtracts the $299.66 Ms Hurbartt says she received from the first period tranche of arrears she sought ($1,323.27 - $299.60 = $1,1023.61). It appears to recognise that Mr Hurbartt paid $680.15 on 7 November 2023.
Mr Hurbartt says that, as a consequence of a fresh child support assessment made on 26 May 2023, he had in fact overpaid Ms Hurbartt for the period 1 March 2023 to 25 May 2023 in the amount of $1,482.62 (refer the letters to the parties and accompanying child support assessment dated 26 May 2023, folios 62 and 66). Rather than requesting Ms Hurbartt to repay that amount to him, he decided to offset it against his child support liability to Ms Hurbartt from 26 May 2023 (of $147.03 a week to 26 July 2023 and $162.48 a week from 27 July 2023[5]). He did not discuss his intention to offset his liability in this way with Ms Hurbartt.
[5] Refer the child support assessments at folios 64 and 65.
He said that he kept an Excel spreadsheet record at the time of the impact of this offset on his child support liability, but no longer retains a copy of the spreadsheet. He told the Tribunal that he used the same methodology to prepare the table at folios 13 and 14. This table suggests that, by 23 August 2023, he had in fact no arrears to pay and was $66.81 in credit.
Ms Hurbartt told the Tribunal that she was aware that, as a consequence of the new child support assessment made on 26 May 2023, she had been overpaid child support in the amount of $1,482.62 but does not appear to have turned her mind at the time as to how that overpayment would be dealt with. Nor could Ms Hurbartt tell the Tribunal how she came to the figures for the arrears in her application for collection by Child Support on 29 August 2023 (folio 68).
There appeared to be an issue as regards a payment of $299.66 that may or may not have been made by Mr Hurbartt of child support on 22 May 2023. The documents provided after the hearing were bank statements evidencing payment and receipt. On review of the matter, however, that payment appears to the Tribunal to be irrelevant.
What is relevant is that Mr Hurbartt was informed by Child Support on 26 May 2023 that, as a consequence of an assessment of child support payable following Ms Hurbartt lodging her tax return for the 2021–22 financial year, he had overpaid child support in the amount of $1,482.62. It was open to Mr Hurbartt to address this overpayment by offsetting it against his liability going forward, notwithstanding that it would have been preferable for Mr Hurbartt to inform Ms Hurbartt of this. After review of the matter and the Tribunal’s analysis of the figures contained in Mr Hurbartt's table beginning at folio 14, the Tribunal finds that, in the three months prior to the start of collection of child support on 24 August 2023, there were no unpaid child support arrears to be collected.
The Tribunal finds accordingly.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that there were no arrears of unpaid child support for collection as at 24 August 2023.
| Date of hearing: | Thursday, 10 July 2025 |
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