Wilanski and Horacek (Child support) - [2025] ARTA 933

Wilanski and Horacek (Child support) [2025] ARTA 933 (22 May 2025)

Applicant/s: Mr Wilanski

Respondent: Child Support Registrar

Other Parties: Ms Horacek

Tribunal Number: 2024/HC028911
Tribunal: Senior Member A Suthers
Place:Perth
Date:22 May 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that a terminating event occurred on 25 October 2023.

CATCHWORDS

CHILD SUPPORT – departure determination – terminating event – father moved to work in another country, with current partner and their child – residence status – other country not a reciprocating country – long-term contract and intention to stay permanently – visa type allows long-term residence, change of employer and other benefits – financial and domestic arrangements – no real property, income or tax paid in Australia – 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

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.
Mr Wilanski and Ms Horacek (the parties) are the parents of [the child], aged 7.
A child support case was registered between the parties on 6 August 2018. Mr Wilanski is the parent liable to pay child support.
Mr Wilanski subsequently left Australia to work in [Country 1] [in] October 2023. His current partner and child of that relationship subsequently moved to [Country 1] to live with him.
The Act provides that the child support assessment can remain in effect in those circumstances, so long as the party who moves overseas remains a resident of Australia, in a defined sense, or is resident in a reciprocating jurisdiction. That is, one which has agreed to assist in the administration of Australia’s child support legislation in respect of its residents. A list of the prescribed reciprocating jurisdictions is contained in the Child Support (Registration and Collection) Regulations 2018, at Schedule 2. [Country 1] is not a reciprocating country.
On 6 June 2024, Mr Wilanski advised Child Support that he was no longer resident in Australia but was a resident of [Country 1].
By a decision dated 3 July 2024, Child Support rejected that assertion.
Mr Wilanski objected to that decision, but it was disallowed by an objections officer of Child Support on 23 August 2024. Child Support recorded that:
Where a person who was an Australian resident leaves Australia, the Registrar will consider whether the person continues to be a resident of Australia according to:
the ordinary meaning of ‘resident’, or…

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 Wilanski and Horacek (Child support)

Details

AGLC: Wilanski and Horacek (Child support) [2025] ARTA 933
Case: [2025] ARTA 933
Decision Date: 22 May 2025

CaseChat Overview and Summary

Mr Wilanski appealed to the Administrative Review Tribunal (ART) against the Registrar's decision that he remained a resident of Australia for child support purposes. The Tribunal was required to determine whether Mr Wilanski had ceased to be a resident of Australia, if so, whether this constituted a terminating event for child support purposes, and if there had been such an event, what its operative date was.

The Tribunal considered the evidence presented by Mr Wilanski, including his long-term contract in [Country 1], his intention to remain there permanently, and his severing of ties with Australia. The Tribunal also considered the statutory tests for residency and the policy guidelines provided in the Child Support Guide. The Tribunal concluded that Mr Wilanski had ceased to be a resident of Australia when he moved to [Country 1] to live and work there on a permanent basis. As [Country 1] is not a reciprocating jurisdiction, a terminating event had occurred pursuant to subsection 12(3) of the Act. The Tribunal decided that the terminating event occurred on 25 October 2023, the date Mr Wilanski arrived in [Country 1] to take up his employment there.

The Tribunal set aside the Registrar's decision and substituted its own decision that a terminating event occurred on 25 October 2023. The child support assessment was terminated as a result.

Orders