(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.

1. 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

(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.

1. 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.
2. 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] FCA 85; (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.

1. 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?

1. 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.
2. 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.
3. 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.
4. 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.