Rusbrooke and Rusbrooke (Child support) - [2025] ARTA 954

Rusbrooke and Rusbrooke (Child support) [2025] ARTA 954 (7 May 2025)

Applicant/s: Mr Rusbrooke

Respondent: Child Support Registrar

Other Parties: Ms Rusbrooke

Tribunal Number: 2025/SC029109
Tribunal: Senior Member A Suthers
Place:Perth
Date:7 May 2025
Decision:The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – registration of maintenance liability – first application must be accepted but acceptance of re-application after opt-out discretional – mother’s previous registration application withdrawn – discretion engaged by prior registration and cancellation, not by prior application – father’s payments not in compliance with obligations – explanation not satisfactory and default not remedied – decision under review affirmed

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

SUMMARY

The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (‘Child Support’) to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the ‘Child Support Guide’ (the Guide) published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
A payee under a child support assessment can elect not to have a liability which arises from the assessment enforceable by Child Support: subsection 24A(2) of the Child Support (Registration and Collection) Act 1988 (the R&C Act). In other words, the child support liability is to be collected privately between the parties to the assessment.
Section 25 of the Act states that if a payee who made an election under subsection 24A(2) applies at a later time to have the liability enforced by Child Support then the application must be accepted, and the maintenance liability must be registered by Child Support within 28 days.
Once the maintenance liability is registered and being collected by Child Support, the payee can again ‘opt out’ of having Child Support collect their payments and revert to a private collection arrangement: subsection 38A(1) of the R&C Act.
The payee can later apply opt to back in to having Child Support collect their payments, but Child Support is not obliged to accept a subsequent application of that nature in certain circumstances: subsection 39(5) of the R&C Act. Relevant to that decision is whether the payer has been complying with their child support obligations, including by paying their maintenance liability, or has satisfactorily explained and rectified any failure to do so. Also relevant is whether there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application: paragraphs 39(5)(a), (b) & (c) of the R&C Act. Child Support also considers whether at least 70% of the maintenance liability had been paid on time: The Guide, now at 7.4.1.10.
A child support assessment has been registered between Mr and Ms Rusbrooke…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rusbrooke and Rusbrooke (Child support)

Details

AGLC: Rusbrooke and Rusbrooke (Child support) [2025] ARTA 954
Case: [2025] ARTA 954
Decision Date: 7 May 2025

CaseChat Overview and Summary

The tribunal was asked to review a decision by the Child Support Registrar, following an objection by Mr Rusbrooke. The objection was in relation to a decision to accept an application by Ms Rusbrooke to have the Child Support Registrar take over collection of child support payments. Ms Rusbrooke had previously made an application which she withdrew, and this was followed by a second application which was accepted by the Registrar. The tribunal had to decide whether the Registrar was correct to accept the second application. The central legal issue was whether section 25 or section 39 of the Child Support (Registration and Collection) Act 1988 applied to the second application, and if section 39 applied, whether it should have been accepted in the circumstances of this case. The tribunal found that the Registrar was correct to accept the second application because section 39 of the Act did not apply. Section 39 only applies once the maintenance liability has been registered and then the Registrar has cancelled enforcement of the liability. Because the first application had been withdrawn, the liability had not been registered, and so section 39 did not apply. The tribunal also found that even if section 39 did apply, the Registrar was correct to accept the second application. The evidence showed that Mr Rusbrooke had not paid the increased liability which arose from a previous reconciliation. His explanation for the failure to pay was not satisfactory, and the default had not been remedied. The tribunal therefore affirmed the decision under review.

Orders