Rusbrooke and Rusbrooke (Child support)
[2025] ARTA 954
•7 May 2025
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be accepted but acceptance of re-application after opt-out discretional – mother’s previous registration application withdrawn – discretion engaged by prior registration and cancellation, not by prior application – father’s payments not in compliance with obligations – explanation not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 (‘the parties’) for their three children since 2016. Any liability arising from the assessment was initially to be collected privately. The assessment ended for the two older children once they each finished secondary schooling.
On 28 August 2024, Ms Rusbrooke applied to Child Support to register the maintenance liability and take over collection of her child support under section 25 of the R&C Act.
However, Ms Rusbrooke later withdrew her application before a decision was made in respect of it, and the assessment remained for private collection. Child Support advised Mr Rusbrooke that the application had been withdrawn.
On 10 October 2024, Ms Rusbrooke again applied to Child Support to register the maintenance liability. It did so, by a decision on 14 October 2024 (the original decision).
On 24 October 2024, Mr Rusbrooke objected to the original decision on the basis that this was a second application for registration of the maintenance liability, and he had been making his payments as assessed.
Mr Rusbrooke relied upon the information on the topic contained in the Guide, which at the time provided at section 5.6.3 (now contained at section 7.4.1.10), relevantly:
5.6.3 Reapplying for collection
Complying with child support obligations
A payer has complied with their child support obligations if they pay the maintenance liability when it is due (section 39(5)(a)). In determining whether compliance has been met, the Registrar will examine the evidence provided by both parties such as bank statements, automatic transfer of payments, cheque butts and written statements.
A child support obligation is considered to have been complied with if the payer has made a payment of a kind prescribed in section 19 of the CSRC Regs, that would be credited against the ongoing liability if the case was registered for collection and the payment was sufficient to meet the liability (section 39A(8)). The payer must have also paid 70% of the ongoing liability directly to the payee by the date it was due. The Registrar will give both parties the opportunity to make statements and provide evidence about whether the payments have been made.
Application for the Registrar to again collect the liability
If the Registrar ends collection (5.6.2) because the payer had a satisfactory payment record, or because the payee (or payee and payer jointly) elected to end collection, the payee can later reapply for collection to resume (section 39).
…
Unlike a first election for collection, the Registrar is not obliged to accept the payee's application for collection to resume. The Registrar can grant or refuse the payee's application and must do so within 28 days of receiving it (section 39(4)), or within 90 days if either the payer or payee is a resident of an overseas jurisdiction (section 39(4A)).
By a decision of an objections officer dated 6 January 2024, Child Support affirmed the original decision (the objection decision). Mr Rusbrooke then applied to the Tribunal for review of the objection decision, and that is the application before me.
The hearing and the evidence
I heard the matter on 30 March 2024 and took evidence and submissions from Mr Rusbrooke and Ms Rusbrooke. Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:
(1)100 numbered pages lodged by Child Support; and
(2)18 numbered pages lodged separately by Mr Rusbrooke.
In brief, the parties’ respective positions are that:
(a) Mr Rusbrooke says that Ms Rusbrooke’s application should not have been accepted, because it was a subsequent application and he has complied with his child support obligations, such that the application should have been refused under subsection 39(5) of the R&C Act; however
(b) Ms Rusbrooke says that Child Support was correct to conclude that acceptance of her application was mandatory under section 25 of the R&C Act.
For the reasons that follow I am satisfied that the objection decision is correct and should be affirmed.
OVERVIEW OF LEGISLATIVE AND POLICY FRAMEWORK
I have jurisdiction and power to conduct this review due to the combined effect of sections 80, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
Section 25 of the R&C Act, provides, relevantly, at subsections (1) and (2) that:
25 Application for registration of registrable maintenance liability
(1) The payee of a registrable maintenance liability that is not registered under this Act may apply to the Registrar, in the manner specified by the Registrar, for the registration of the liability under this Act.
(2) … if the Registrar receives an application from the payee or payer the Registrar must, within 28 days after receiving the application, register the liability under this Act by entering particulars of the liability in the Child Support Register.
Section 39 of the R&C Act provides, relevantly, at subsections (1) & (5) that:
(1) If a registered maintenance liability is not enforceable under this Act because of an election made under section 38A or a decision by the Registrar under section 38B, the payee may apply to the Registrar for the liability to again become enforceable under this Act.
…
(5) The Registrar must grant the application unless the Registrar is
satisfied that:
(a) the payer of the liability has been complying with his or her child support obligations in relation to the payee; or
(b) the payer of the liability has satisfactorily explained and rectified a failure to comply with his or her child support obligations in relation to a payee; or
(c) there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.
In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57] – [62]. I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
I ‘stand in the shoes’ of the original decision maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision maker for the purpose of making the original decision: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671 per Smithers J. However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, and the original decision maker. The Tribunal is also subject to the same constraints as the original decision maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975. There is no presumption that the objection decision is correct: McDonald v Director General of Social Security [1984] FCA 57.
ISSUES
The issues which arise, or potentially arise, in this case are:
(1)Did section 25 or section 39 of the R&C Act apply to Ms Rusbrooke’s subsequent application for collection of child support? and
(2) If section 39 applied, should the application be accepted or rejected in the circumstances of this case?
CONSIDERATION
The relevant headings in the Guide, which refer to ‘[r]eapplying for collection’ and an ‘[a]pplication for the Registrar to again collect the liability’ are apt to mislead.
As section 39 of the R&C Act makes plain, it applies only once the maintenance liability has been first registered under section 25, and the Register has been subsequently varied to record that the maintenance liability is no longer to be enforced under subsections 38A or 38B of the R&C Act. It is, therefore, the act of prior registration and then cancellation of the collection by Child Support that engages the discretion contained in subsection 39(5) of the R&C Act, and not whether there had been a prior application for registration.
As the maintenance liability had not previously been registered under section 25 of the R&C Act, section 39 had no application, and registration was mandatory under section 25. The objection decision was that which was correct or preferable.
I should record, for completeness, however, that Mr Rusbrooke’s basal contention that he had complied with his child support obligations was incorrect in any event. The evidence reveals that, after various reconciliations that increased his liability, Mr Rusbrooke did not pay to Ms Rusbrooke the retrospectively increased liability. His explanation, which was that Ms Rusbrooke did not demand the monies from him, is not a satisfactory explanation, and nor has the default been remedied. A child support liability is a debt that is ‘due and payable’ (section 66 of the R&C Act) It does not require a demand for payment.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Monday, 31 March 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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