A Bill for an Act to amend the law relating to child support,
and for related purposes
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Child
Support Legislation Amendment (Reform of the Child Support Scheme—New Formula
and Other Measures) Act 2006.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 6 and
anything in this Act not elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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2. Schedule 1
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1 July 2008.
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1 July 2008
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3. Schedule 2, items 1 to 117
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1 July 2008.
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1 July 2008
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4. Schedule 2, item 118
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The day on which this Act receives the Royal Assent.
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5. Schedule 3
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1 January 2007.
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1 January 2007
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6. Schedule 4
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Immediately after the commencement of Schedule 3 to
this Act.
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1 January 2007
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7. Schedule 5, Part 1, Division 1
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1 July 2008.
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1 July 2008
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8. Schedule 5, Part 1, Division 2
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Immediately after the commencement of Schedule 1 to
this Act.
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1 July 2008
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9. Schedule 5, Part 1, Division 3
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Immediately after the commencement of Division 2 of
Part 1 of Schedule 5 to this Act.
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1 July 2008
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10. Schedule 5, Part 2
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The day on which this Act receives the Royal Assent.
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11. Schedule 5, Part 3
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1 July 2008.
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1 July 2008
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12. Schedules 6 and 7
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1 July 2008.
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1 July 2008
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13. Schedule 8, items 1 to 5
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1 July 2008.
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1 July 2008
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14. Schedule 8, item 6
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The day on which this Act receives the Royal Assent.
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15. Schedule 8, items 7 to 13
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1 July 2008.
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1 July 2008
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16. Schedule 8, item 14
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The day on which this Act receives the Royal Assent.
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17. Schedule 8, items 15 to 19
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1 July 2008.
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1 July 2008
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18. Schedule 8, item 20
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The day on which this Act receives the Royal Assent.
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19. Schedule 8, items 21 to 157
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1 July 2008.
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1 July 2008
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Note: This table
relates only to the provisions of this Act as originally passed by both Houses
of the Parliament and assented to. It will not be expanded to deal with
provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
4
Obtaining information
(1) The Registrar may, where it is reasonably
necessary for the purposes of this Act, by written notice, require a person:
(a) to give to the Registrar, within a
reasonable period (being a period of not less than 7 days), and in a reasonable
manner, specified in the notice, such information as the Registrar requires;
and
(b) to attend before the Registrar, or
before an officer authorised by the Registrar for the purpose, at a reasonable
time and place specified in the notice, and then and there answer questions;
and
(c) to produce to the Registrar, at a
reasonable time and place specified in the notice, any documents in the custody
or under the control of the person.
(2) The regulations must prescribe scales of
expenses to be allowed to persons required to attend under this section.
5
Definitions
In this Act:
Assessment Act means the Child Support
(Assessment) Act 1989.
Registration and Collection Act means the Child
Support (Registration and Collection) Act 1988.
6 Regulations
The Governor‑General may make regulations prescribing
matters of a transitional nature (including prescribing any saving or
application provisions) relating to the amendments or repeals made by this Act.
Schedule 1—The formulas (commencing on 1 July 2008)
Child Support (Assessment) Act 1989
1 Part 5
Repeal the Part, substitute:
Part 5—Administrative assessment of child support
Division 1—Preliminary
35A
Simplified outline
The following is a simplified outline of
this Part:
• This Part includes the
formulas used for assessing the annual rate of child support payable by a
parent for a child for a day in a child support period (other than in cases
where that rate is worked out in accordance with a child support agreement, a
Registrar’s determination under Part 6A or a court order).
• The Costs of the Children
Table published by the Secretary each year (based on the table in
Schedule 1 to this Act) sets out the costs to parents of raising children
in various age ranges.
• Those costs are to be met
by both parents (by paying child support or by caring for their children)
according to each parent’s capacity to meet the costs.
• To determine each parent’s
capacity to meet those costs, the parents are assessed in respect of the costs
of the child.
• Generally, both parents’
income is taken into account in determining each parent’s capacity to meet the
costs of their children.
• The formulas also allow
child support payable to non‑parent carers of children to be worked out.
Division 2—The formulas
Subdivision A—Preliminary
35B
Simplified outline
The following is a simplified outline of
this Division:
• The Costs of the Children
Table published by the Secretary each year (based on the table in
Schedule 1 to this Act) sets out the costs to parents of raising children
in various age ranges.
• These costs are to be met
by both parents (by paying child support or by caring for their children)
according to each parent’s capacity to meet the costs.
• To determine each parent’s
capacity to meet the costs, the parents are assessed in respect of the costs of
the child.
• Formulas 1 and 2 apply if
both parents’ incomes are taken into account in determining each parent’s
capacity to meet the costs of their children, and each parent only has one
child support case.
• Formulas 3 and 4 apply if
both parents’ incomes are taken into account in determining each parent’s
capacity to meet the costs of their children, and at least one of the parents
has multiple child support cases.
• Formulas 5 and 6 apply if
only one parent’s income is taken into account in determining the parent’s
capacity to meet the costs of his or her children (such as because the other
parent is not a resident of Australia).
• Formulas 2, 4, 5 and 6 also
allow child support payable to non‑parent carers of children to be worked
out.
• In some cases, the annual
rate of child support payable by a parent is assessed under Subdivision B of
Division 8 (low income parents and minimum annual rates of child support).
35C
Application of Part to determine annual rate of child support
This Part applies in relation to the
assessment of child support payable by a parent for a child, subject to:
(a) any determination made by the
Registrar under Part 6A (departure determinations); and
(b) any order made by a court under
Division 4 of Part 7 (departure orders); and
(c) any provisions of a child support
agreement that have effect, for the purposes of this Part, as if they were such
an order made by consent.
Subdivision B—Working out annual rates of child support using incomes of
both parents in single child support case
35D
Application of Subdivision
The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if:
(a) both parents of the child are to
be assessed in respect of the costs of the child; and
(b) both parents are to be assessed
only in respect of the costs of:
(i) that child; and
(ii) any other child in the
child support case that relates to that child.
35
Formula 1: Method statement using incomes of both parents in single child
support case with no non‑parent carer
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if no
non‑parent carer has a percentage of care for the child for the day.
Method statement
Step 1. Work out each
parent’s child support income for the child for the day (see section 41).
Step 2. Work out the
parents’ combined child support income for the child for the day (see
section 42).
Step 3. Work out each
parent’s income percentage for the child for the day (see
section 55B).
Step 4. Work out each
parent’s percentage of care for the child for the day (see section 48).
Step 5. Work out each
parent’s cost percentage for the child for the day (see section 55C).
Step 6. Work out each
parent’s child support percentage for the child for the day (see
section 55D).
Step 7. Work out the
costs of the child for the day (see sections 55G and 55H).
Step 8. If a parent has a
positive child support percentage under step 6, the annual rate of child
support payable by the parent for the child for the day is worked out
using the formula:
Note: If a parent’s percentage of care for a child
is more than 65%, the parent’s annual rate of child support for the child is nil
(see section 40C).
36
Formula 2: Working out annual rates of child support using incomes of both
parents in single child support case with a non‑parent carer
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if one
or more non‑parent carers have a percentage of care for the child for the
day.
(2) Follow steps 1 to 8 of the method
statement in section 35 for each parent (disregarding subsection 55D(2)
(negative child support percentages)).
Annual rate payable by parent
(3) If a parent’s (the first parent’s)
child support percentage under step 6 of the method statement in
section 35 is positive, then the annual rate of child support payable
by the first parent for the child for the day is the annual rate of child
support for the child worked out under step 8 of the method statement.
Annual rate payable only to non‑parent carers
(4) If:
(a) the second parent’s child support
percentage is also positive; or
(b) the second parent’s child support
percentage is nil or negative, and the second parent does not have at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (3) to the non‑parent carer or carers in
accordance with section 40A.
Note 1: If both parents have a positive child support
percentage, then the non‑parent carer or carers are entitled to be paid
the total of the 2 annual rates of child support that are payable by the
parents for the child.
Note 2: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
Annual rate payable to parent and non‑parent
carer
(5) If the second parent’s child support
percentage is negative, and the second parent has at least shared care of the
child during the relevant care period, then:
(a) the first parent must pay to the
second parent the annual rate of child support for the child worked out under
step 8 of the method statement using the second parent’s negative child support
percentage (expressed as a positive); and
(b) subject to section 40B, the
first parent must pay to the non‑parent carer an annual rate of child
support for the child that is the difference between:
(i) the annual rate of
child support payable by the first parent for the child under
subsection (3); and
(ii) the rate referred to
in paragraph (a) of this subsection.
Subdivision C—Working out annual rates of child support using incomes of
both parents in multiple child support cases
36A
Application of Subdivision
The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if:
(a) both parents of the child are to
be assessed in respect of the costs of that child; and
(b) at least one of the parents of the
child is to be assessed in respect of the costs of another child in another
child support case.
37
Formula 3: Method statement using incomes of both parents in multiple child
support cases with no non‑parent carer
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if no
non‑parent carer has a percentage of care for the child for the day.
Method statement
Step 1. Follow steps 1 to
8 in the method statement in section 35 for each parent.
Step 2. Work out each
parent’s multi‑case cap (if any) for the child for the day (see
section 55E).
Step 3. If a parent has a
positive child support percentage under step 6 of the method statement in
section 35, the annual rate of child support payable by the
parent for the child for the day is the lower of:
(a) the annual
rate of child support for the child worked out under step 8 of the method
statement; and
(b) the parent’s
multi‑case cap (if any) for the child for the day.
Note: If a parent’s percentage of care for a child
is more than 65%, the parent’s annual rate of child support for the child is
nil (see section 40C).
38
Formula 4: Working out annual rates of child support using incomes of both
parents in multiple child support cases with a non‑parent carer
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if one
or more non‑parent carers have a percentage of care for the child for the
day.
(2) Follow steps 1 to 8 of the method
statement in section 35 for each parent (disregarding subsection 55D(2)
(negative child support percentages)).
(3) Work out each parent’s multi‑case
cap (if any) for the child for the day (see section 55E).
Annual rate payable by parent
(4) If a parent’s (the first parent’s)
child support percentage under step 6 of the method statement in
section 35 is positive, then the annual rate of child support payable
by the first parent for the child for the day is the lower of:
(a) the annual rate of child support
for the child worked out under step 8 of the method statement; and
(b) the first parent’s multi‑case
cap (if any) for the child for the day.
Annual rate payable only to non‑parent carers
(5) If:
(a) the second parent’s child support
percentage is also positive; or
(b) the second parent’s child support
percentage is nil or negative, and the second parent does not have at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (4) to the non‑parent carer or carers in
accordance with section 40A.
Note 1: If both parents have a positive child support
percentage, then the non‑parent carer or carers are entitled to be paid
the total of the 2 annual rates of child support that are payable by the
parents for the child.
Note 2: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
Annual rate payable to parent and non‑parent
carer
(6) If:
(a) the second parent’s child support
percentage is negative; and
(b) the second parent has at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (4) to the second parent and the non‑parent
carer in accordance with section 40A.
Subdivision D—Working out annual rates of child support using income of
one parent
38A
Application of Subdivision
The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if only one parent of the child is to be assessed in respect of the
costs of the child.
39
Formula 5: Method statement using income of one parent where other parent not a
resident of Australia or in special circumstances
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if a
non‑parent carer of the child has applied for a parent of the child to be
assessed in respect of the costs of the child because of subparagraph
25A(b)(ii) or (iii) (non‑resident of Australia or special circumstances).
Method statement
Step 1. Work out the
parent’s child support income for the day (see section 41) and double that
income.
Step 2. Work out the
parent’s percentage of care for the child for the day (see section 48).
Step 3. Work out the
parent’s cost percentage for the child for the day (see section 55C).
Step 4. Work out the
costs of the child for the day (see sections 55G and 55H), assuming, in
applying section 55G and Schedule 1, that the reference to the child
support income of the parent in the Costs of the Children Table is a reference
to the amount worked out under step 1.
Step 5. Work out the
following rate:
Step 6. If the parent is
not assessed in respect of the costs of another child who is in another child
support case, the annual rate of child support payable by the
parent for the child for the day is the rate worked out under step 5.
Step 7. If the parent is
assessed in respect of the costs of another child who is in another child
support case, work out the parent’s multi‑case cap for the child for the
day (see section 55E).
Step 8. The annual
rate of child support payable by the parent for the child for the day
is the lower of:
(a) the rate
worked out under step 5; and
(b) the parent’s
multi‑case cap for the child for the day.
Step 9. If there is only
one non‑parent carer who has a percentage of care for the child for the
day, the parent must pay the annual rate of child support that is payable for
the child under step 5 or 8 to the non‑parent carer. If there are 2 non‑parent
carers who have a percentage of care for the child for the day, then, subject
to section 40B, the parent must pay the annual rate of child support that
is payable for the child under step 5 or 8 to the non‑parent carers in
accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
40
Formula 6: Method statement using income of one parent where other parent
deceased
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if a
non‑parent carer of the child has applied for a parent of the child to be
assessed in respect of the costs of the child because of subparagraph
25A(b)(iv) (deceased parent).
Method statement
Step 1. Work out the
parent’s child support income for the day (see section 41).
Step 2. Work out the
parent’s percentage of care for the child for the day (see section 48).
Step 3. Work out the
parent’s cost percentage for the child for the day (see section 55C).
Step 4. Work out the
costs of the child for the day (see sections 55G and 55H).
Step 5. Work out the
following rate:
Step 6. If the parent is
not assessed in respect of the costs of another child who is in another child
support case, the annual rate of child support payable by the
parent for the child for the day is the rate worked out under step 5.
Step 7. If the parent is
assessed in respect of the costs of another child who is in another child
support case, work out the parent’s multi‑case cap for the child for the
day (see section 55E).
Step 8. The annual
rate of child support payable by the parent for the child for the day
is the lower of:
(a) the rate
worked out under step 5; and
(b) the parent’s
multi‑case cap for the child for the day.
Step 9. If there is only
one non‑parent carer who has a percentage of care for the child for the
day, the parent must pay the annual rate of child support that is payable for
the child under step 5 or 8 to the non‑parent carer. If there are 2 non‑parent
carers who have a percentage of care for the child for the day, then, subject
to section 40B, the parent must pay the annual rate of child support that
is payable for the child under step 5 or 8 to the non‑parent carers in
accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
Subdivision E—General provisions
40A
Cases where there is more than one person entitled to child support
(1) If, in applying:
(a) subsection 36(4) or 38(5) or (6);
or
(b) step 9 in the method statement in
section 39 or 40; or
(c) subsection 65A(5);
child support is payable to:
(d) a parent and a non‑parent
carer of a child; or
(e) 2 non‑parent carers of a
child;
then, the annual rate of child support for the child for a
day in the child support period that each parent or non‑parent carer (as
the case requires) is, subject to section 40B, entitled to be paid is:
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
(2) In applying subsection (1), even if
a non‑parent carer is not entitled to be paid an annual rate of child
support because of section 40B, the non‑parent carer’s cost
percentage is taken into account.
40B
Non‑parent carer must have applied for child support
(1) A non‑parent carer of a child is
not, under section 36, 38, 39, 40, 65A or 66, entitled to be paid an
annual rate of child support for the child for a day in a child support period
unless the non‑parent carer has made an application under
section 25A in relation to the child.
(2) If a non‑parent carer is not
entitled to be paid child support for a child for a day in a child support
period under subsection (1), the annual rate of child support payable
by the parent for the child for the day is reduced by the amount that is not
payable because of subsection (1).
(3) If:
(a) a non‑parent carer of a
child has not so applied at the time the administrative assessment of child
support for the child for the child support period is made; but
(b) the non‑parent carer does so
during the child support period;
then:
(c) the non‑parent carer is
entitled to be paid an annual rate of child support for the child worked out
under this Part from the day on which the non‑parent carer makes the
application under section 25A; and
(d) despite paragraph 7A(2)(a), a new
child support period is not started by that application.
40C
Parents with more than 65% care
The annual rate of child support payable
by a parent for a child for a day in a child support period is nil if:
(a) the parent’s annual rate of child
support for the child is worked out under section 35 or 37 (income of both
parents, no non‑parent carer); and
(b) the parent’s percentage of care
determined for the purposes of the administrative assessment of child support
for the child is more than 65%.
40D
Parents with nil child support percentage
The annual rate of child support payable
by a parent for a child for a day in a child support period is nil if the
parent’s child support percentage for the child for the day is nil.
Division 3—Child support income
Subdivision A—Preliminary
40E
Simplified outline
The following is a simplified outline of
this Division:
• The income used in
determining a parent’s capacity to meet the costs of his or her children might
be reduced by the following amounts:
(a) the self‑support
amount (to take account of the parent’s need to support himself or herself);
(b) a relevant
dependent child amount (if the parent cares for a relevant dependent child or
step‑child of the parent);
(c) a multi‑case
allowance (if the parent has multiple child support cases).
• The relevant dependent
child amount and the multi‑case allowance take account of the costs of
relevant dependent children, and children in other child support cases, in a
similar way to the way in which the costs of the children are worked out for
children in a child support case.
• A parent’s adjusted taxable
income for a year of income can be reduced under section 44 in respect of
a particular child if the parent earns additional income during the first 3
years after separating from the other parent of the child.
Subdivision B—Child support income and combined child support income
41
Working out parent’s child support income
Single child support case—no relevant dependent
children
(1) If:
(a) a parent is to be assessed in
respect of the costs of a child in only one child support case; and
(b) the parent does not have a
relevant dependent child;
the parent’s child support income for the
child for a day in a child support period is the amount worked out using the
formula:
Single child support case—relevant dependent children
(2) If:
(a) a parent is to be assessed in
respect of the costs of a child (the particular child) in only
one child support case; and
(b) the parent has at least one
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Multiple child support cases—no relevant dependent
children
(3) If:
(a) a parent is to be assessed in
respect of the costs of a child (the particular child); and
(b) the parent is also to be assessed
in respect of the costs of another child in another child support case; and
(c) the parent does not have a
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Multiple child support cases—relevant dependent
children
(4) If:
(a) a parent is to be assessed in respect
of the costs of a child (the particular child); and
(b) the parent is also to be assessed
in respect of the costs of another child in another child support case; and
(c) the parent has at least one
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Negative result taken to be
nil
(5) A parent’s child support income
for a day in a child support period is taken to be nil if the amount worked out
using a formula in this section is negative.
42
Working out parents’ combined child support income
Work out the parents’ combined
child support income for a child for a day in a child support period by
adding together each parent’s child support income for the child for the day.
Subdivision C—Working out the components of child support income
43
Working out parent’s adjusted taxable income
(1) Subject to subsection (2), a
parent’s adjusted taxable income for a child for a day in a child
support period is the total of the following components:
(a) the parent’s taxable income for
the last relevant year of income in relation to the child support period;
(b) the parent’s reportable fringe
benefits total for that year of income;
(c) the parent’s target foreign income
for that year of income;
(d) the parent’s net rental property
loss for that year of income;
(e) the total of the tax free pensions
or benefits received by that parent in that year of income.
Note 1: Other provisions that relate to a person’s
adjusted taxable income are section 34A and Subdivisions B and C of
Division 7.
Note 2: The components of the definition of adjusted
taxable income are defined in section 5.
(2) If the Registrar amends an assessment
under section 44, then for the purposes of the assessment, the person’s adjusted
taxable income for a child to whom the assessment relates, for a day in
the child support period, is the amount determined by the
Registrar.
44
Post‑separation costs
Application for post‑separation income to be
excluded
(1) A parent (the applicant) of
a child may apply to the Registrar to amend an administrative assessment of
child support payable by or to the parent for the child for part of a child
support period if:
(a) the applicant and the other parent
of the child lived together on a genuine domestic basis for at least 6 months;
and
(b) the last separation of the
applicant from the other parent before the application for administrative
assessment of child support for the child was made under section 25 or 25A
occurred within the last 3 years; and
(c) at the time of the application
under this section, the applicant and the other parent remain separated; and
(d) in the last relevant year of
income the applicant earned, derived or received income:
(i) in accordance with a
pattern of earnings, derivation or receipt that was established after the
applicant and the other parent first separated; and
(ii) that is of a kind that
it is reasonable to expect would not have been earned, derived or received in
the ordinary course of events.
(2) If the applicant makes an application
under this section, the Registrar may determine that the applicant’s adjusted
taxable income for the child for a day in the child support period is a
specified amount that excludes the income referred to in paragraph (1)(d).
(3) However, the Registrar may make a
determination under subsection (2) only if the determination:
(a) reduces the applicant’s adjusted
taxable income for the child for a day in the child support period by 30% or
less; and
(b) applies in respect of a day in the
child support period, being a day that is less than 3 years after the last
separation referred to in paragraph (1)(b).
Registrar to implement determinations
(4) The Registrar is to take such action as
is necessary to give effect to the determination by amending any administrative
assessment that has been made in relation to the child support period.
Notice to be served if Registrar refuses application
(5) If the Registrar refuses to make a
determination under subsection (2), the Registrar must serve written
notice of the decision on the applicant.
(6) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the applicant may, subject to
the Registration and Collection Act, object to the particulars of the assessment
in relation to which the applicant sought to make the application; and
(b) that if the applicant is aggrieved
by the decision on the objection, he or she may, subject to that Act, apply to
the SSAT for review of the decision.
(7) This section does not prevent the
Registrar from making a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
45
Working out the self‑support amount
A parent’s self‑support
amount for a day in a child support period is:
Note: A parent’s self‑support amount can be
varied by a determination or order under section 98S or 118.
46
Working out parent’s relevant dependent child amount
A parent’s relevant dependent
child amount for a day in a child support period is the total of
the amounts worked out for each relevant dependent child of the parent using
this method statement.
Method statement
Step 1. Work out the
difference between the parent’s adjusted taxable income for the child for the
day and the parent’s self‑support amount for the day (see
sections 43 and 45).
Step 2. Work out the
parent’s percentage of care for the child for the day (see section 48).
Step 3. Work out the
parent’s cost percentage for the child for the day (see section 55C).
Step 4. Work out the
costs of the child for the day (see sections 55G and 55H) as if:
(a) the parent’s
annual rate of child support were assessed under Subdivision D of
Division 2; and
(b) the
reference in subsection 55G(2) to the parent’s child support income were a
reference to the amount worked out under step 1; and
(c) references
in sections 55G and 55H to children in the child support case that relates
to the child were references to all of the parent’s relevant dependent
children.
Step 5. Work out the
following amount for the child for a day in the child support period:
Note: Section 73A deals with the Registrar
discovering, after making an administrative assessment, that a parent has a
relevant dependent child.
47
Working out multi‑case allowances
A parent’s multi‑case
allowance for a child (the particular child) for a day in
a child support period is worked out using this method statement.
Method statement
Step 1. Work out the
following amount:
Step 2. If the parent has
a relevant dependent child, take the parent’s relevant dependent child amount
(see section 46) for the day from the amount worked out under step 1.
Step 3. Work out the
costs of the children for the day for all children (the multi‑case
children) for whom the parent is assessed in respect of the costs of the
child, as if:
(a) the parent’s
annual rate of child support were assessed under Subdivision D of
Division 2; and
(b) the
reference in subsection 55G(2) to the parent’s child support income were a
reference to the amount worked out under step 1 or 2 (as the case requires);
and
(c) references
in section 55G to children in the child support case that relates to the
child were references to all of the parent’s multi‑case children.
Step 4. Work out the
parent’s multi‑case child costs for the particular child
for the day using the formula:
Step 5. The parent’s multi‑case
allowance for the particular child for the day is the following amount:
Division 4—Percentage of care
Subdivision A—Preliminary
47A
Simplified outline
The following is a simplified outline of
this Division:
• A person’s (whether the
person is a parent or a non‑parent carer of a child) percentage of care
for the child for a day in a child support period is the percentage of care of
the child that the person is likely to have during a 12 month period.
• A percentage of care for a
child is as determined by an oral agreement or a parenting plan made by the
parents of the child (or a parent and a non‑parent carer), or as
determined by a court order.
• The Registrar can make a determination
of a person’s percentage of care for a child in certain cases (such as if there
is no such agreement, plan or order, or if care of the child changes).
• A parent’s percentage of
care for a child is used in section 55C to work out the parent’s cost
percentage for the child.
• A non‑parent carer’s
percentage of care is used in section 40A to work out how much child
support the non‑parent carer is entitled to be paid for the child.
47B
Meaning of court order
In this Division:
court order means:
(a) a family violence order within the
meaning of section 4 of the Family Law Act 1975; or
(b) a parenting order within the
meaning of section 64B of the Family Law Act 1975; or
(c) a State child order registered in
accordance with section 70D of the Family Law Act 1975; or
(d) an overseas child order registered
in accordance with section 70G of the Family Law Act 1975.
Subdivision B—Determining percentages of care
48
Working out percentage of care
(1) A person’s percentage of care for
a child for a day in a child support period is the percentage of care of the
child that the person is likely to have during the period (the care period)
of 12 months from:
(a) the day on which an application is
made under section 25 or 25A for a parent to be assessed in respect of the
costs of the child; or
(b) the day on which the Registrar
becomes aware of the following:
(i) a change of at least 7.1%
in the percentage of care of the child that the person has;
(ii) that the person’s
percentage of care for the child has fallen below 14%;
(iii) that the person’s
percentage of care for the child has increased to 14%, or above 14%.
Note: The Registrar is not entitled to amend an
administrative assessment in respect of a person’s percentage of care unless
the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see
subsection 75(2)).
(2) The percentage of care is to be worked
out in accordance with this Subdivision.
Note: Generally, a person’s percentage of care for a
child is worked out based on the number of nights that the child is likely to
be in the care of the person during the care period.
(3) If a person’s percentage of care worked
out in accordance with this Subdivision is not a whole percentage:
(a) if the percentage is greater than
50%—the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than
50%—the percentage is rounded down to the nearest whole percentage.
49
Agreements, parenting plans and court orders may determine percentage of care
The percentage (if any) of care of a
child that a parent or non‑parent carer is likely to have during a care
period is determined in accordance with the following agreement, plan or order
if the Registrar is satisfied that the agreement, plan or order allows such a
percentage to be determined:
(a) if the relevant application for
administrative assessment for child support for the child is made under
subparagraphs 25A(b)(ii) to (iv) (application by non‑parent carer in
relation to one parent):
(i) an oral or written
agreement, or parenting plan, between the parent and a non‑parent carer
of the child that the Registrar is satisfied has been made; or
(ii) a court order that
relates to the parent and a non‑parent carer of the child, or that
relates to the child;
(b) otherwise:
(i) an oral agreement
between the parents of the child that the Registrar is satisfied has been made;
or
(ii) a parenting plan for
the child that has been entered into by the parents; or
(iii) a court order that
relates to the parents, or that relates to the child.
50
Registrar determinations where no agreement, plan or order
(1) The Registrar must determine the
percentage (if any) of care of a child that a parent or non‑parent carer
of the child is likely to have during the relevant care period if there is no
agreement, plan or order that allows such a percentage to be determined under
section 49.
(2) In making the determination, the
Registrar must take into account such period as is required in order for the
Registrar to be satisfied that there is, has been, or will be, a pattern of
care for the child.
(3) The Registrar may revoke or vary a
determination made under this section.
Subdivision C—Changes to percentages of care
51
Person no longer agrees with oral agreement
If:
(a) an oral agreement determines,
under section 49, a percentage of care of a child that a parent or non‑parent
carer is likely to have during a care period; and
(b) the Registrar becomes aware that a
parent or non‑parent carer of the child no longer agrees with that
percentage of care; and
(c) immediately before the oral
agreement was made, a parenting plan or court order determined the
percentage of care of the child that each parent or non‑parent carer would
have during the care period;
the percentage of care of the child that a parent or non‑parent
carer is likely to have during the care period is as determined in accordance
with the parenting plan or court order.
52
Interim Registrar determinations where parent or non‑parent carer does
not agree with percentages of care
(1) The Registrar may determine the
percentage (if any) of care of a child that a parent or non‑parent carer
of the child is likely to have during the relevant care period if:
(a) there is an agreement, plan or
order that allows such a percentage to be determined under section 49; and
(b) a parent or non‑parent carer
of the child does not agree that the care of the child that is actually taking
place is in accordance with the percentage so determined; and
(c) in the circumstances of the case,
the percentage so determined would result in an unjust and inequitable
determination of the level of financial support to be provided by a parent for
the child; and
(d) a parent or non‑parent carer
of the child has taken reasonable action:
(i) to seek to reach
agreement; or
(ii) to seek a court order;
or
(iii) to enforce a court
order;
about the care of the child; and
(e) a parent or non‑parent carer
of the child applies for the determination.
Note: If the Registrar refuses to make a
determination under this section, the Registrar must give the applicant a
notice under section 54.
(2) In making the determination, the
Registrar must take into account such period as is required in order for the
Registrar to be satisfied that there is, has been, or will be, a pattern of
care for the child.
(3) The Registrar may revoke or vary a
determination made under this section.
(4) Before the end of 6 months after a
determination is made under this section, the Registrar:
(a) must review the determination; and
(b) may make another determination
under this section.
53
Registrar determination where parent’s care falls below 14%
Making a determination
(1) The Registrar may determine the
percentage (if any) of care of a child that a parent or non‑parent carer
is likely to have during a care period if:
(a) a parent (the first parent)
was to have at least regular care of the child during the relevant care period
under an oral agreement, parenting plan or court order; and
(b) the first parent has no care, or
has a pattern of care that is less than regular care, of the child despite the
other parent or a non‑parent carer making the child available to the
first parent; and
(c) the other parent or a non‑parent
carer of the child applies for the determination.
Note: If the Registrar refuses to make a
determination under this section, the Registrar must give the applicant a
notice under section 54.
Day on which determination commences
(2) The determination must specify, in
accordance with subsections (4) and (5), the first day in the child
support period to which the determination is to apply.
(3) The determination applies to the day
specified, and later days in the child support period.
(4) If the Registrar is satisfied that the
other parent or the non‑parent carer who applied for the determination
failed, within a reasonable period, to notify the Registrar that the first
parent had no care, or less than regular care, of the child during the relevant
care period, the day specified must be the day on which the determination is
made.
(5) Otherwise, the day specified must be:
(a) if the first parent never
established a pattern of care in accordance with the oral agreement, parenting
plan or court order—the day on which the plan or court order was entered into
or made; or
(b) if the first parent established a
pattern of care in accordance with the oral agreement, parenting plan or court
order, but later ceased the established pattern of care—the day on which the
parent ceased the previously established pattern.
(6) To avoid doubt, a parent never
establishes a pattern of care if:
(a) the parent could not have established
the pattern of care until a particular period that occurs later in the child
support period; and
(b) the parent does not establish that
pattern during that particular period.
(7) The Registrar may revoke or vary a
determination made under this section.
Registrar to make determination under this section (and
not interim determination)
(8) If the Registrar could make a
determination under section 52 and this section in respect of the
percentage of care for a child, the Registrar must make a determination under
this section and not section 52.
54
Notice to be served if Registrar refuses application
(1) If the Registrar refuses to make a
determination under section 52 or 53, the Registrar must serve written
notice of the decision on the person who made the application.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the person sought to make the application; and
(b) that if the person is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
Subdivision D—Where there is more than one agreement, plan, order or
determination
55
Where there is more than one agreement, plan, order or determination
(1) If more than one agreement, plan, order
or determination applies, under section 49, 50, 52 or 53, to a day in a
child support period, then the percentage of care of a child that a parent or
non‑parent carer is likely to have during the care period is as
determined by the most recent agreement, plan, order or determination.
(2) However, the most recent agreement, plan
or determination is subject to any court order made in respect of the
percentage of care of a child that specifies that the order cannot be altered
by agreement between the persons in respect of whom the order is made.
Division 5—Working out other elements for the formulas
Subdivision A—Preliminary
55A
Simplified outline
The following is a simplified outline of
this Division:
• A parent’s income
percentage represents the parent’s capacity to meet the costs of the child.
• A parent’s cost percentage
represents the extent to which the parent is taken to have met the costs of the
child through care.
• A parent’s child support
percentage is the difference between the parent’s income percentage and his or
her cost percentage. Generally, if the parent has a positive child support
percentage, the annual rate of child support payable by the parent is that
percentage of the costs of the child.
• If a parent has multiple
child support cases, the annual rate of child support payable by the parent for
a child is capped by the parent’s multi‑case cap for the child.
Subdivision B—Working out other elements for the formulas
55B
Working out income percentages
Work out each parent’s income
percentage for a child for a day in a child support period using the
formula (worked out to 2 decimal places, rounding up if the third decimal place
is 5 or more):
55C
Working out cost percentages
A parent’s or non‑parent carer’s cost
percentage for a child for a day in a child support period is the
percentage worked out using the table based on the parent’s or non‑parent
carer’s (as the case requires) percentage of care for the child for the day.
|
Cost percentages
|
|
Item
|
Column 1
Percentage of care
|
Column 2
Cost percentage
|
|
1
|
0 to less than 14%
|
Nil
|
|
2
|
14% to less than 35%
|
24%
|
|
3
|
35% to less than 48%
|
25% plus 2% for each percentage point over 35%
|
|
4
|
48% to 52%
|
50%
|
|
5
|
more than 52% to 65%
|
51% plus 2% for each percentage point over 53%
|
|
6
|
more than 65% to 86%
|
76%
|
|
7
|
more than 86% to 100%
|
100%
|
55D
Working out child support percentages
(1) Work out each parent’s child
support percentage for a child for a day in the child support period
using the formula:
(2) A parent’s child support percentage
for a day in a child support period is taken to be nil if the amount
worked out using the formula is negative.
55E
Working out the multi‑case cap
(1) Work out a parent’s multi‑case cap
for a child (the particular child) for a day in a child support
period in accordance with subsection (2) if:
(a) the parent’s annual rate of child
support for the particular child is assessed for the day under section 37,
38, 39 or 40; and
(b) if section 37 or 38
applies—the parent has a positive child support percentage for the particular
child under step 6 of the method statement in section 35; and
(c) in any case—the parent is assessed
for the day in respect of the costs of another child who is in another child
support case.
(2) The parent’s multi‑case cap
for the particular child for the day is worked out using the formula:
Division 6—The costs of the child
Subdivision A—Preliminary
55F
Simplified outline
The following is a simplified outline of
this Division:
• The costs of the children
are worked out using the rules in this Division and the Costs of the Children
Table in Schedule 1.
• The costs of the children
are based on the number of children in a child support case and the ages of
those children.
• The costs of the child are
the costs of the children divided by the number of children in the child
support case.
• The Costs of the Children
Table is updated every year to reflect changes to the annualised MTAWE figure.
Subdivision B—The costs of the child
55G
Working out the costs of the children
(1) If an annual rate of child support for a
day in a child support period is assessed for a child under section 35,
36, 37 or 38 (Formulas 1 to 4), identify the column in the Costs of the
Children Table for that child support period that covers the combined child
support income of the parents of the child.
Note: The Secretary publishes the updated Costs of
the Children Table in the Gazette each year for child support periods
that begin in the next year (see section 155).
(2) If an annual rate of child support for a
day in a child support period is assessed for a child under Subdivision D of
Division 2 (Formulas 5 and 6), identify the column in the Costs of the
Children Table for that child support period that covers the child support
income of the parent of the child.
Note: This subsection also applies in working out
the relevant dependent child amount and the multi‑case allowance (see
step 4 of the method statement in section 46 and step 3 of the method
statement in section 47).
(3) Identify the number of children (the child
support children) in the child support case that relates to the child.
(4) Identify the ages of the child support
children at the time the administrative assessment is made. If there are more
than 3 child support children, use the ages of the 3 oldest children.
(5) Identify the item in the relevant column
in the Costs of the Children Table that covers that number of child support children
of those ages.
(6) The amount worked out for the item in
accordance with Schedule 1 to this Act is the costs of the children.
55H
Working out the costs of the child
The costs of a child for a
day in a child support period is:
(a) if there is only one child support
child—the costs of the children; and
(b) otherwise—the costs of the
children divided by the number of child support children.
Division 7—Assessments and estimates of adjusted taxable income
Subdivision A—Preliminary
55J
Simplified outline
The following is a simplified outline of
this Division:
• A parent’s taxable income
is generally the amount of taxable income that is assessed under an Income Tax
Assessment Act.
• The Registrar might make a
determination of a parent’s adjusted taxable income if the parent has not
lodged a tax return.
• There are limits on the
Registrar’s ability to amend an assessment for past periods if the parent later
lodges his or her tax return.
• A parent can estimate the
amount of his or her adjusted taxable income for days in a child support
period.
Subdivision B—Adjusted taxable income determined by reference to taxable
income for last relevant year of income
56
Taxable income is as assessed under Income Tax Assessment Act
Meaning of taxable income
(1) For the purposes of assessing a parent in
respect of the costs of a child in relation to a child support period, if the
parent’s taxable income has been assessed under an Income Tax Assessment Act
for the last relevant year of income in relation to the child support period, the
parent’s taxable income for that year is the amount as so
assessed.
Note: Sections 34A and 57 are also relevant to
a person’s taxable income.
When amended tax assessment may be taken into account
(2) If, after an administrative assessment of
child support is made, the assessment (the tax assessment) of a
parent’s taxable income is amended (whether or not because of an objection,
appeal or review), the Registrar must not amend the administrative assessment
to take account of the amendment to the tax assessment unless one of the
following applies:
(a) the amendment to the tax
assessment is made under item 5 of the table in subsection 170(1) of the
Income Tax Assessment Act 1936 (amendment due to fraud or evasion);
(b) the amendment to the tax
assessment is made under provisions of an Income Tax Assessment Act that are
prescribed by the regulations for the purposes of this paragraph;
(c) the amendment is made in
circumstances prescribed for the purposes of this paragraph;
(d) the amendment is made solely for
the purposes of working out the parent’s adjusted taxable income for the last
relevant year of income for the purposes of subsection 60(3) of this Act (first
estimate must be lower than adjusted taxable income).
Date of assessment of a parent’s taxable income taken
to be date of notice of the assessment
(3) For the purposes of this section, if:
(a) notice of an assessment (including
an amended assessment) of a parent’s taxable income under an Income Tax
Assessment Act has been served on the parent under the Income Tax Assessment
Act 1936; and
(b) the notice is dated;
then the assessment is taken to have been made on the date
of the notice.
Section not to affect determinations, court orders or
consent orders
(4) This section does not prevent:
(a) the Registrar from making any
determination under Part 6A (departure determinations); or
(b) a court from making any order
under Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
57
Taxable income for child support purposes where taxable income determined to be
nil under Income Tax Assessment Act
(1) This section does not apply to a parent
for a year of income if the parent has a component of adjusted taxable income
mentioned in paragraphs 43(1)(b) to (e) for the year of income.
Determinations that taxable income nil or no tax
payable
(2) A parent’s taxable income for
a year of income is nil if the parent’s taxable income for that year has been
determined to be nil under an Income Tax Assessment Act.
(3) A parent’s taxable income for
a year of income is also nil if:
(a) the Commissioner has determined
under an Income Tax Assessment Act that no tax was payable (before the
allowance of any rebate or credit) under that Act on the parent’s taxable
income for the year of income; and
(b) either of the following
subparagraphs applies in relation to the person:
(i) Part 1 of
Schedule 7 to the Income Tax Rates Act 1986 (or any other law
prescribed by the regulations for the purposes of this paragraph in relation to
the year of income) applied in relation to the parent for the year of income;
(ii) no
tax would have been payable (before the allowance of any rebate or credit)
under that Act by the person on his or her taxable income if Part 1 of
Schedule 7 to the Income Tax Rates Act 1986 (or any other law
prescribed by the regulations for the purposes of this paragraph in relation to
the year of income) had applied in relation to the parent for the year of
income.
(4) Subsections (2) and (3) do not apply
in relation to an administrative assessment made in relation to a parent if:
(a) before the administrative
assessment is made; but
(b) after the most relevant notice
mentioned in subsection (5) or (6) is made;
an assessment is issued under the Income Tax Assessment
Act 1936 of the person’s taxable income for the year of income under an
Income Tax Assessment Act.
Notices issued under the Income Tax Assessment Act 1936
(5) If a parent has been served a notice
under the Income Tax Assessment Act 1936 to the effect that the taxable
income of the parent under an Income Tax Assessment Act for a year of income is
nil, then:
(a) the parent’s taxable income for
that year is taken to have been determined to be nil under an Income Tax
Assessment Act; and
(b) if the notice was dated—the
determination is taken to have been made on the date of the notice.
(6) If a parent has been served a notice
under the Income Tax Assessment Act 1936 to the effect that no tax is
payable (before the allowance of any rebate or credit) under an Income Tax
Assessment Act on the taxable income of the parent for a year of income, then:
(a) the Commissioner is taken to have
determined under the Income Tax Assessment Act that no tax was payable (before
the allowance of any rebate or credit) under that Act on the parent’s taxable
income for the year of income; and
(b) if the notice was dated—the
determination is taken to have been made on the date of the notice.
When amended tax assessment may be taken into account
(7) If, after an administrative assessment of
child support is made, the assessment (the tax assessment) of the
parent’s taxable income is amended (whether or not because of an objection,
appeal or review), the Registrar must not amend the administrative assessment
to take account of the amendment to the tax assessment unless either of the
following applies:
(a) the subsequent assessment was made
because the parent had not made to the Commissioner a full and true disclosure
of all the material facts necessary for the Commissioner’s assessment, or in
other circumstances prescribed for the purposes of this subsection;
(b) the amendment is made solely for
the purposes of working out the parent’s adjusted taxable income for the last
relevant year of income for the purposes of subsection 60(3) (first estimate
must be lower than adjusted taxable income).
Date of assessment of a parent’s taxable income taken
to be date of notice of the assessment
(8) For the purposes of this section, if:
(a) notice of an assessment (including
an amended assessment) of a parent’s taxable income under an Income Tax
Assessment Act has been served on the parent under the Income Tax Assessment
Act 1936; and
(b) the notice is dated;
then the assessment is taken to have been made on the date
of the notice.
Section not to affect determinations, court orders or
consent orders
(9) This section does not prevent:
(a) the Registrar from making any
determination under Part 6A (departure determinations); or
(b) a court from making any order
under Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
58
Registrar determination of adjusted taxable income
(1) For the purposes of assessing a parent in
respect of the costs of a child in relation to a child support period, the
Registrar may determine, in accordance with this section, that an amount that
he or she considers appropriate is the parent’s adjusted taxable income for a
year of income.
Note: The Registrar is required to amend an
administrative assessment made on the basis of such a determination if the
parent’s adjusted taxable income is subsequently ascertained or the Registrar
makes a later determination under this section (see section 58A).
Determinations where parent fails to comply with
requirement
(2) The Registrar may make a determination
if:
(a) a parent has not, under an Income
Tax Assessment Act, lodged a tax return for the year of income; and
(b) the Registrar or the Commissioner
of Taxation is unable to readily ascertain the parent’s adjusted taxable income
for the year of income on the basis of the documents and information in his or
her possession; and
(c) the Registrar or the Commissioner
has, for the purposes of ascertaining that adjusted taxable income, required
the parent:
(i) to give a return; or
(ii) to give information
(whether orally or in writing); or
(iii) to produce a document;
and
(d) the parent has refused or failed
to comply with the requirement.
(3) If the parent also has not lodged a tax
return for the year of income before the year of income referred to in
subsection (1), the amount determined for the parent’s adjusted taxable
income for the year of income must be determined to be two‑thirds of the
annualised MTAWE figure for the relevant September quarter.
Determination if Registrar given taxable income or
total
(4) The Registrar may make a determination if:
(a) a parent has not, under an Income
Tax Assessment Act, lodged a tax return for the year of income; and
(b) the Registrar or the Commissioner
is unable to readily ascertain the parent’s adjusted taxable income for the
year of income on the basis of the documents and information in his or her
possession; and
(c) the Registrar or the Commissioner
has, for the purposes of ascertaining that adjusted taxable income, been given:
(i) information (whether
orally or in writing); or
(ii) a document; and
(d) either:
(i) an amount was
specified in that information or document as the parent’s adjusted taxable
income for the last relevant year of income; or
(ii) that information or
document allowed the parent’s adjusted taxable income for the last relevant year
of income to be worked out; and
(e) the amount determined by the
Registrar under subsection (1) was the amount specified or worked out
under paragraph (d) of this subsection.
58A
Subsequently ascertaining components of a parent’s adjusted taxable income
(1) The Registrar must immediately amend an
administrative assessment of child support payable by or to a parent in
relation to a child support period if:
(a) the assessment was made on the
basis of a determination under section 58; and
(b) either:
(i) the Registrar
subsequently ascertains the amount of the parent’s adjusted taxable income for
the last relevant year of income; or
(ii) the Registrar makes a
later determination under section 58; and
(c) either:
(i) if subparagraph (b)(i)
applies—the amount that was subsequently ascertained is different from the
amount that was determined under section 58; or
(ii) if
subparagraph (b)(ii) applies—the later amount that the Registrar
determines is different from the earlier amount determined under
section 58.
Retrospective determinations
(2) If:
(a) at the time the Registrar is to
amend the administrative assessment under this section, the parent could lodge
his or her tax return by the date required under Part IV of the Income
Tax Assessment Act 1936 (taking into account any deferral under
section 388‑55 in Schedule 1 to the Taxation Administration
Act 1953); or
(b) paragraph (a) of this
subsection does not apply and:
(i) the amount
subsequently ascertained, as mentioned in subparagraph (1)(b)(i), is
higher than the amount that was determined under section 58; or
(ii) the later amount that
the Registrar determines, as mentioned in subparagraph (1)(b)(ii), is
higher than the earlier amount determined under section 58;
then the Registrar must immediately amend the
administrative assessment for the child support period on the basis that the
parent’s adjusted taxable income for that year of income is, and has always
been, the amount that was subsequently ascertained or later determined (as the
case requires).
Prospective determinations
(3) If subsection (2) does not apply,
then the Registrar must immediately amend the administrative assessment for the
child support period on the basis that for each later day in the period the
parent’s adjusted taxable income for that year of income is the amount that was
subsequently ascertained or later determined (as the case requires).
No taxation assessment required
(4) This section applies whether or not the
Commissioner of Taxation has made an assessment under an Income Tax Assessment
Act of the parent’s taxable income for that year of income.
Subdivision C—Child support income determined by reference to estimate of
adjusted taxable income for rest of current child support period
60
Choosing adjusted taxable income for remainder of child support period
Election that adjusted taxable income is estimated
amount
(1) Before or during a child support period,
a parent may elect that the parent’s adjusted taxable income for assessing the
parent in respect of the costs of a child of the parent for the remaining days
in a child support period is to be the amount the parent works out using the
method in subsection (5) (with the modification in subsection (6), if
appropriate).
Election prohibited if income amount order in force
(2) However, a parent may not make an
election relating to a child support period if an income amount order is in
force in relation to the parent and any part of the period.
First election must be for amount less than adjusted
taxable income for last relevant year of income
(3) The parent may make a first election
relating to a child support period only if the amount that he or she works out
under this section is not more than 85% of the total of the parent’s adjusted
taxable income for the last relevant year of income for the child support
period.
Other elections may be made at intervals of at least 2
months
(4) The parent may make one or more later
elections relating to the child support period at intervals of at least 2
months if:
(a) the parent revokes the immediately
preceding election under section 62 when making each later election; and
(b) the amount worked out under this
section for each later election is greater or less than the amount of the first
election relating to the period.
Method of estimation of adjusted taxable income
(5) The method is as follows:
Method statement
Step 1. Work out the
length of the period (the remaining period):
(a) starting on
the day the parent makes the estimate or the day the child support period
starts, whichever is later (or either day if they are the same); and
(b) ending 15
months after the start of the child support period.
Step 2. Estimate the
amount that would be the parent’s adjusted taxable income for the remaining
period if that period were a year of income.
Step 3. If the remaining
period is shorter or longer than 12 months:
(a) divide the
total from step 2 by the number of days in the remaining period; and
(b) multiply the
quotient by 365.
Parent may treat remaining period as 12 months even if
it is longer
(6) If the remaining period is more than 12
months, the parent may apply the method in subsection (5) as if the
remaining period were exactly 12 months, starting on the day worked out under
paragraph (a) of step 1 of the method statement in subsection (5).
How election is made
(7) The parent makes the election by giving
notice of it to the Registrar in the manner specified by the Registrar. The notice
must specify:
(a) the amount that the parent elects
is to be his or her adjusted taxable income; and
(b) the amount the parent estimated at
step 2 of the method statement in subsection (5); and
(c) that the remaining period was
treated as being 12 months, if the parent chose to do so under
subsection (6).
60A
Registrar may refuse to accept election
(1) The Registrar may refuse to accept the
parent’s election if the Registrar is satisfied that the amount the parent
estimated at step 2 of the method statement in subsection 60(5) is likely to be
less than the actual amount that would be the parent’s adjusted taxable income
for the remaining period if that period were a year of income.
(2) In making the decision as to whether to
refuse the election, the Registrar:
(a) may act on the basis of
information that the Registrar has received or obtained as to the financial
circumstances of the parent; and
(b) may, but is not required to,
conduct an inquiry into the matter.
(3) Except for the purposes of Parts VII,
VIIA and VIII of the Registration and Collection Act (dealing with objections
and appeals), if the Registrar refuses to accept an election, the election is
taken never to have been made.
60B
Notice to be given if Registrar refuses to accept election
(1) If the Registrar refuses to accept an
election under section 60A, the Registrar must serve written notice of the
decision on the parent who sought to make the election.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the parent sought to make the election; and
(b) that if the parent is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
61
Effect of election
(1) If a parent makes an election under
section 60 relating to a child support period, then for the purposes of
assessing the parent in respect of the costs of a child of the parent for each
later day in the child support period, the parent’s adjusted taxable income is
the amount the parent elected.
(2) Subsection (1) has effect subject to
an income amount order that is made after the making of the election that
applies in relation to the parent and any part of the child support period.
(3) The Registrar must immediately take such
action as is necessary to give effect to subsection (1) in relation to any
administrative assessment that has been made in relation to the parent and the
child support period (whether by amending the assessment or otherwise).
(4) Subject to section 63, in
subsequently making any administrative assessment in relation to the parent and
the child support period, the Registrar must act in accordance with this
section.
(5) This section does not prevent:
(a) the Registrar making any
determination under Part 6A (departure determinations); or
(b) a court making any order under
Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
62
Revocation of election
(1) Subject to subsection (3), a parent
who has made an election under section 60 in relation to a child support
period may, by notice given to the Registrar, revoke the election, but the
revocation has no effect unless, at the same time, the parent substitutes a new
election for that period under section 60.
(2) The notice must be given in the manner
specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
(3) The parent may not revoke the election if
an income amount order made after the making of the election is in force in
relation to the parent and the child support period.
63
Effect of revocation
(1) If:
(a) a parent makes an election under
section 60 relating to a child support period; and
(b) the parent revokes the election
and substitutes a new election;
then for the purposes of assessing the parent in respect
of the costs of a child of the parent for each later day in the child support
period, the parent’s adjusted taxable income is the amount the parent elected
in the new election.
(2) Subsection (1) does not apply in
relation to any day in the child support period in relation to which an income
amount order made after the making, but before the revocation, of the election
applies in relation to the parent.
(3) The Registrar must immediately take such
action as is necessary to give effect to subsection (1) in relation to any
administrative assessment that has been made in relation to the parent and any
part of the child support period (whether by amending the assessment or otherwise).
(4) Subject to any further election made
under section 60, in subsequently making any administrative assessment in
relation to the parent and the child support period, the Registrar must act in
accordance with subsection (1).
(5) This section does not prevent:
(a) the Registrar making any
determination under Part 6A (departure determinations); or
(b) a court making any order under
Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
63A
Amendment of assessment based on election if event affecting accuracy of
estimate occurs
(1) This section allows the Registrar to
amend an assessment of child support payable by or to a parent for some days in
a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the Registrar has given the parent
a notice under section 160 requiring the parent to notify the Registrar of
the occurrence of an event that may affect the accuracy of an estimate on which
the election is based.
(2) If the parent gives notice of the event
as required by section 160, the Registrar may amend the assessment to
affect the annual rate of child support payable by or to the parent for the
days in the child support period on or after the day the parent gives notice.
(3) If the parent does not give notice of the
event as required by section 160, the Registrar may amend the assessment
to affect the annual rate of child support payable by or to the parent for the
days in the child support period on or after the day the event occurred.
(4) This section does not:
(a) affect the operation of
section 160; or
(b) prevent the Registrar from making
a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
63B
Amendment of assessment based on election if Registrar asks for information
supporting estimate
(1) This section allows the Registrar to
amend an assessment of child support payable by or to a parent for some days in
a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the Registrar has given the parent
a notice under section 161 requiring the parent to:
(i) give the Registrar
information; or
(ii) attend before a person
and answer questions; or
(iii) produce documents
containing information;
relevant to determining the
accuracy of an estimate on which the election is based.
(2) If the parent complies with
section 161 (in relation to the notice), the Registrar may amend the
assessment to affect the annual rate of child support payable by or to the
parent for the days in the child support period on or after the day the parent
complies.
(3) If the parent does not comply with
section 161 (in relation to the notice), the Registrar may amend the
assessment to affect the annual rate of child support payable by or to the
parent for the days in the child support period on or after:
(a) the day the election was made; or
(b) if:
(i) before the Registrar
gave the notice but after the election was made, the Registrar had given the
parent another notice (the earlier notice) of the kind described
in paragraph (1)(b); and
(ii) the parent complied
with section 161 in relation to the earlier notice;
the day on which the parent
complied with section 161 in relation to the earlier notice.
(4) This section does not:
(a) affect the operation of
section 161; or
(b) prevent the Registrar from making
a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
63C
Amendment of assessment in minimum rate cases
(1) This section allows the Registrar to
amend an assessment of child support payable by a parent for all the children
in a child support case for some days in a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the period has ended; and
(c) the annual rate of child support
payable by the parent for all the children in the child support case for
the days in the period was the minimum annual rate for the period or lower.
(2) The Registrar may amend the assessment to
affect the annual rate of child support payable by the parent for the days in
the child support period.
(3) This section does not prevent the
Registrar from making a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
64
Reconciliation of estimated and actual adjusted taxable income after end of
child support period
(1) This
section applies if:
(a) an election made by a parent under
section 60 in relation to a child support period has not been revoked at
the end of the period; and
(b) the parent’s real remaining period
adjusted taxable income is more than the amount the parent estimated at step 2
of the method statement in subsection 60(5) for the purposes of making the
election; and
(c) the annual rate of child support
payable by the parent for all the children in a child support case for a
day in the child support period is greater than the minimum annual rate for the
period.
(2) For the purposes of assessing the parent
in respect of the costs of a child of the parent for days on or after the
election was made but before the end of the child support period, the parent’s
adjusted taxable income is taken to be (and always to have been):
(a) if the remaining period was 12
months—the parent’s real remaining period adjusted taxable income; and
(b) otherwise, the amount worked out
by:
(i) dividing the parent’s
remaining period adjusted taxable income by the number of days in the remaining
period; and
(ii) multiplying the
quotient by 365.
(3) Subsection (2) does not apply in
relation to any day in the child support period in relation to which an income
amount order made before the making of the election applies in relation to the
parent.
(4) Where an income amount order made after
the making of the election applies in relation to the parent and any part of
the child support period, subsection (2) has effect subject to the order.
(5) The Registrar is to take such action as
is necessary to give effect to this section in relation to the parent (whether
by amending any administrative assessment that has been made in relation to the
child support period or otherwise).
(6) In this section:
real remaining period adjusted taxable income of
a parent who made an election under section 60 is the amount that would
have been the parent’s adjusted taxable income for the remaining period had the
remaining period been a year of income.
64A
Penalty for underestimating adjusted taxable income
(1) A parent is liable to pay the Registrar a
penalty of the amount worked out under subsection (2) if:
(a) the parent made an election under
section 60 relating to a child support period; and
(b) the total of the parent’s real
remaining period adjusted taxable income is at least 110% of the amount the
parent estimated at step 2 of the method statement in subsection 60(5) for the
purposes of making the election.
(2) The amount of the penalty is 10% of the
difference between:
(a) the administrative assessment of
child support that would have been made if it were based entirely on the amount
of adjusted taxable income in the election; and
(b) the administrative assessment of
child support made under section 64.
(3) The penalty is due and payable upon the
issue of the administrative assessment under section 64 and is a debt due
to the Commonwealth.
(4) The Registrar may remit the whole or a
part of the penalty if:
(a) paragraph (1)(b) applies
because of an amendment of an Income Tax Assessment Act, or because of a ruling
or determination under an Income Tax Assessment Act; or
(b) paragraph (1)(b)
applies for some other reason, and the Registrar is satisfied that it would be
fair and reasonable in the circumstances to remit the whole or that part of the
penalty.
(5) If the Registrar makes a decision to
remit only part of a penalty payable under this section, or not to remit any
part of the penalty, the Registrar must serve written notice of the decision on
the parent by whom the penalty is, or but for the remission would be, payable.
(6) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the parent is aggrieved by
a later decision on an objection to the original decision, he or she may,
subject to that Act, apply to the SSAT for review of the later decision.
(7) A contravention of subsection (6) in
relation to a decision does not affect the validity of the decision.
(8) In this
section:
real remaining period adjusted taxable income of
a parent who made an election under section 60 has the meaning given by
subsection 64(6).
Division 8—Provisions relating to the making of assessments
Subdivision A—Preliminary
64B
Simplified outline
The following is a simplified outline of
this Division:
• In making an administrative
assessment, the Registrar may act on the basis of the documents and information
in his or her possession.
• In some cases, the
Registrar may assess, under this Division, the annual rate of child support for
a child that is payable by a parent who is not receiving an income support
payment.
• The Registrar may also
assess, under this Division, the annual rate of child support payable by a
parent for all the children in a child support case as the minimum annual rate
of child support.
• Subdivision C contains
rules relating to making administrative assessments (such as when the Registrar
can amend an administrative assessment and when the Registrar needs to give a
notice of assessment).
Subdivision B—Annual rates of child support for low income parents and
minimum annual rates of child support
65A
Annual rate of child support for low income parents not on income support
Assessment of annual rate
(1) The Registrar must assess an annual rate
of child support payable by a parent for a child for a day in a child support
period as the rate specified in subsection (2) if:
(a) the parent did not receive an
income support payment during the last relevant year of income; and
(b) the following amount is less than
the pension PP (single) maximum basic amount:
(i) the parent’s adjusted
taxable income for the last relevant year of income;
(ii) if an election by the
parent under section 60 is in force for the day—the amount worked out for
the parent under step 2 of the method statement in subsection 60(5) using the
parent’s estimate; and
(c) the parent does not have at least
shared care of the child during the relevant care period.
How much is the annual rate
(2) The annual rate of child support payable
is $1060.
Note: The annual rate of child support specified in
subsection (2) is indexed under section 153A.
(3) The Registrar must not assess the total
annual rate of child support payable by a parent under subsection (1)
(including any child support that is not actually payable because of subsection
40B(1)) for a day in a child support period as more than 3 times the rate
specified in subsection (2).
(4) If an annual rate of child support is
payable by a parent under subsection (1) (including any child support that
is not actually payable because of subsection 40B(1)) for more than 3 children
for a day in a child support period, then the annual rate of child support
payable by the parent for each child for a day in the child support period is:
Paying the annual rate to more than one person
(5) If, (disregarding section 40B) the
rate under subsection (2) or (4) would be payable for a child to:
(a) a parent and a non‑parent
carer of the child; or
(b) 2 non‑parent carers of the
child;
then, subject to section 40B, the annual rate of
child support for the child worked out under this section is payable in
accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
65B
Application for section 65A not to apply
(1) If the Registrar makes an assessment of
an annual rate of child support payable by a parent for a day in a child
support period under section 65A:
(a) the parent may apply to the
Registrar for the section not to apply; or
(b) the parent is taken to have applied
to the Registrar for the section not to apply if, immediately before the end of
the previous child support period, the section did not apply because of a
determination under this section.
(2) If the parent makes an application, the
Registrar may determine in writing that the section not apply to the parent if
the parent’s current income (within the meaning of subsection 66A(4)) is less
than the pension PP (single) maximum basic amount.
Note: If the Registrar refuses to grant an
application under this section, the Registrar must serve a notice on the
applicant under section 66C.
(3) The Registrar must specify the day in the
child support period on which the section ceases to apply to the parent. The
day may be any day from the first day of the child support period on which an
annual rate of child support under section 65A became payable by the
parent.
66
Minimum annual rate of child support
Assessment of annual rate
(1) The Registrar must assess the total of
the annual rates of child support payable by a parent for all the children in a
child support case for a day in a child support period as the minimum annual
rate of child support for the child support period if:
(a) the parent does not have at least
regular care of at least one of the children in the child support case for the
day; and
(b) either of the following applies:
(i) the parent receives an
income support payment at the maximum basic rate during the child support
period;
(ii) if
subparagraph (i) does not apply—the total payable by the parent for all
the children in the child support case would (apart from this section) be
assessed as less than the minimum annual rate of child support for the child
support period.
Note: The Registrar must not make an assessment under
this subsection in certain cases (see subsections (2) and (8)).
(2) To avoid doubt, the Registrar must not
make an assessment in respect of a parent whose annual rate of child support
could be assessed under section 65A (low income parents not on income
support) unless the Registrar has determined under section 65B that
section 65A does not apply.
When assessment applies
(3) An assessment in respect of a parent
covered by subparagraph (1)(b)(i) applies to each day in the period:
(a) beginning on the first day in the
child support period on which the parent receives the income support payment at
the maximum basic rate; and
(b) ending:
(i) if the parent
continues to receive the income support payment at the maximum basic rate until
the end of the child support period—at the end of the child support period; or
(ii) if the parent ceases
to receive the income support payment at the maximum basic rate before the end
of the child support period—28 days after the day on which the parent ceases to
receive the payment at that rate (even if that day is after the end of the
child support period).
(4) An assessment in respect of a parent
covered by subparagraph (1)(b)(ii) applies to each day in the period:
(a) beginning on the first day in the
child support period on which the total payable by the parent in respect of the
child support case would (apart from this section) be assessed as less than the
minimum annual rate of child support for the child support period; and
(b) ending:
(i) if the parent would be
so assessed until the end of the child support period—at the end of the child
support period; or
(ii) otherwise—28 days
after the day on which the person would cease to be so assessed (even if that
day is after the end of the child support period).
How much is the minimum annual rate
(5) The minimum annual rate of
child support is $320.
Note: The minimum annual rate of child support
specified in subsection (5) is indexed under section 153A.
(6) If:
(a) the Registrar makes an assessment
in respect of a parent under subsection (1); and
(b) the parent is assessed (whether
under subsection (1) or otherwise) for a day in a child support period in
respect of the costs of children in more than 3 child support cases;
then the annual rate of child support payable
by the parent for a day in the child support period for a particular child
support case is:
Paying the minimum annual rate to more than one person
for a single child support case
(7) If the rate worked out under
subsection (5) or (6) is payable by a parent for a child support case to:
(a) the parent of the children to whom
the case relates and to one or more non‑parent carers of those children;
or
(b) 2 or more non‑parent carers
of those children;
then:
(c) if 2 or more persons have equal
percentages of care of the children, and those percentages are the highest
percentages—each of those persons is entitled to be paid an equal proportion of
the annual rate of child support that is payable by the parent; and
(d) otherwise—only the person who has
the highest percentage of care of the children is entitled to be paid the
annual rate of child support that is payable by the parent.
Registrar not to make minimum rate assessment in
certain cases
(8) The Registrar must not make an assessment
under subsection (1) in relation to the child support payable by a parent:
(a) in accordance with a determination
made under Part 6A (departure determinations); or
(b) in accordance with an order made
under Division 4 of Part 7 (departure orders); or
(c) in accordance with provisions of a
child support agreement that have effect, for the purposes of this Part, as if
they were such an order made by consent.
Definition of income support payment
(9) In this Act:
income support payment:
(a) has the meaning given by
subsection 23(1) of the Social Security Act 1991; and
(b) includes a payment under the
ABSTUDY scheme that includes an amount identified as living allowance, being an
allowance that is paid at the maximum basic rate.
66A
Registrar may reduce an assessment to nil in certain cases
(1) If the Registrar has made an assessment
under section 66 in respect of the annual rate of child support payable by
a parent for all the children in a child support case, the Registrar may, on
application made by the parent in accordance with the regulations, reduce the
annual rate of child support payable by the parent for those children for a day
in the child support period to nil.
Note: If the Registrar refuses to grant an
application under this section, the Registrar must serve a notice on the
applicant under section 66C.
(2) The Registrar must not grant an application
under subsection (1) unless the Registrar is satisfied that the parent’s
income (as defined in subsection (4)) for the 12 month period starting on
the day on which the parent applies is less than the total of the number of the
parent’s child support cases multiplied by the minimum annual rate of child
support for the child support period.
(3) An assessment in respect of a parent
under this section applies to each day in the period to which the assessment
under section 66 would have applied (see subsections 66(3) and (4)).
(4) In this section:
income, in relation to a person, means:
(a) any money earned, derived or
received by the parent for his or her own use or benefit, other than money
earned, derived or received in a manner, or from a source, prescribed by the
regulations for the purposes of this paragraph; or
(b) a periodical payment by way of a
gift or allowance, other than a payment of a kind prescribed by the regulations
for the purposes of this paragraph.
66C
Notice to be given to unsuccessful applicant
(1) If the Registrar refuses to grant an
application under section 65B or 66A, the Registrar must serve written
notice of the decision on the parent.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the unsuccessful application was made; and
(b) that if the parent is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
Subdivision C—Making administrative assessments
66D
How assessment is to be made
In making an administrative assessment,
the Registrar may act on the basis of the documents and information in his or
her possession, and is not required to conduct any inquiries or investigations
into the matter or to require (whether under this Act or otherwise) the
giving of any information or the production of any document.
67
Assessment to relate to all children for whom child support is payable by
parent
(1) If child support is payable by a parent
to a person for 2 or more children for a day in a child support period, any
administrative assessment of the child support payable by the parent in
relation to the day is to relate to all of the children and not to any of the
children separately.
(2) Subsection (1) applies whether or
not the child support is payable because of:
(a) the acceptance by the Registrar of
2 or more separate applications for administrative assessment made otherwise
than in the same form; or
(b) the acceptance by the Registrar of
2 or more child support agreements made otherwise than in the same document; or
(c) the acceptance by the Registrar of
an application for administrative assessment and of an application for
acceptance of a child support agreement.
(3) Subsection (1) does not require a
single administrative assessment to be made of the child support payable by a
parent to 2 or more other persons.
67A
Offsetting of child support liabilities
The annual rate of child support that
would, apart from this section, be payable for a child or children in a child support
case, for a day in a child support period, by one parent to the other parent is
to be reduced (but not below nil) by the annual rate of child support that
would, apart from this section, be payable to that parent in relation to that
day by the other parent for the child or the children in the child support
case.
68
Assessment to relate to whole or part of single child support period
(1) An administrative assessment of child
support is to relate to all the days, or some of the days, of a single child
support period.
(2) Subsection (1) does not prevent a
single notice of assessment under section 76 dealing with more than one
administrative assessment.
69
Conversion of annual rates into daily rates of payment
If the Registrar assesses the annual
rate of child support payable by a parent for a child or children in a child
support case, for a day in a child support period, the Registrar must, in
accordance with the regulations, convert that annual rate into a daily rate and
specify both the annual and daily rates in the notice of assessment given under
section 76 in relation to the assessment.
70
Evidence relating to assessments
(1) The production of a notice of administrative
assessment, or of a document signed by the Registrar that appears to be a copy
of a notice of administrative assessment, is prima facie evidence of:
(a) the proper making of the
assessment; and
(b) except in proceedings under
Part VIIA, or under Subdivision B of Division 3 of Part VIII, of
the Registration and Collection Act on an appeal relating to the assessment,
that all the particulars of the notice of assessment are correct.
(2) The production of a document signed by
the Registrar that appears to be a copy of, or an extract from, any return or
notice of administrative assessment is evidence of the matters in the document
to the same extent as the original would be if it were produced.
71
Assessment for part of a child support period
In making an administrative assessment
of the annual rate of child support payable for days in a period (the part
period) that is not a whole child support period, the Registrar may
apply this Act as if the beginning and end of the part period were the
beginning and end respectively of a child support period.
72
Validity of assessments
Except in an appeal under
Part VIIA, or under Subdivision B of Division 3 of Part VIII, of
the Registration and Collection Act, the validity of an assessment is not
affected because any of the provisions of this Act have not been complied with.
73
Assumptions as to future events
In assessing the annual rate at which
child support is payable for a day in the future, the Registrar may act on the
assumption that the state of affairs known to the Registrar at the time the
assessment is made will remain unchanged on that day.
73A
Registrar becoming aware of relevant dependent child
If:
(a) an administrative assessment of
child support is in force in relation to a parent; and
(b) the Registrar is later notified,
or otherwise becomes aware, of the fact that the parent has a relevant
dependent child who was not taken into account for the purposes of making the
assessment;
then, for the purposes of working out the parent’s
relevant dependent child amount under section 46, the parent is taken to
have the relevant dependent child:
(c) if the Registrar was notified, or
otherwise became aware, of the fact that the child is a relevant dependent
child of the parent within 28 days after the day on which the child became such
a child—on and from the day the child became such a child; or
(d) if the Registrar was notified, or
otherwise became aware, of the fact within 28 days after the notice of the
assessment was given—on and from the day the notice was given; or
(e) if neither paragraph (c) nor
(d) applies—on and from the day the Registrar was notified, or otherwise became
aware, of the fact that the child is a relevant dependent child of the parent.
74
Registrar to give effect to happening of child support terminating events etc.
(1) If:
(a) child support is payable for a
child; and
(b) the Registrar is notified of, or
otherwise becomes aware of:
(i) the happening of a
child support terminating event in relation to the child, a liable parent, or a
carer entitled to child support, or all 3; or
(ii) the
happening of an event or change of circumstances that affects the annual rate
at which the child support is payable under this Act;
the Registrar must immediately take such action as is
necessary to take account of the happening of the event or change of circumstances
(whether by amending any administrative assessment or otherwise).
(2) Nothing in subsection (1) is to be
taken to prevent the Registrar from taking such action as the Registrar
considers appropriate to take account of the likely happening of an event or
change of circumstances of which the Registrar is notified or otherwise becomes
aware (whether by amending any administrative assessment or otherwise).
74A
Date of effect of change in care
If:
(a) child support is payable for a
child; and
(b) the Registrar is notified, or
otherwise becomes aware, that:
(i) a person’s percentage
of care for the child has changed by at least 7.1%; or
(ii) a person’s percentage
of care for the child has fallen below 14%; or
(iii) a person’s percentage
of care for the child has increased to 14%, or above 14%; and
(c) as a result, the Registrar amends
an administrative assessment under section 75 to alter the annual rate at
which the child support is payable for the child;
the altered annual rate is to apply on and from the day
the Registrar was notified, or otherwise became aware, of the change of
percentage referred to in paragraph (b).
Note: 7.1% is one night per fortnight.
75
Amendment of assessments
(1) The Registrar may, at any time, amend any
administrative assessment by making such alterations and additions as the
Registrar considers necessary to give effect to this Act.
(2) However, if the amendment relates to a
person’s percentage of care for a child, the Registrar must not amend an
administrative assessment unless:
(a) the change to the person’s
percentage of care is at least 7.1%; or
(b) the person’s percentage of care
falls below 14%; or
(c) the person’s percentage of care
increases to 14%, or above 14%.
Note: 7.1% is one night per fortnight.
(3) Subsection (1) has effect despite
the fact that:
(a) child support has been paid under
the administrative assessment; or
(b) the child support period, or the
part of the child support period, to which the administrative assessment
relates has ended; or
(c) proceedings are pending in a court
having jurisdiction under this Act against or in relation to the administrative
assessment.
(4) Without limiting subsection (1), the
Registrar may amend any administrative assessment for the purpose of:
(a) correcting any error or mistake
(whether or not made by the Registrar); or
(b) correcting the effect of any false
or misleading statement made to the Registrar; or
(c) giving effect to the happening of
a child support terminating event in relation to a child, the liable parent,
the carer entitled to child support, or all 3; or
(d) giving effect to the happening of
an event or change of circumstances that, under this Act, affects the annual
rate at which child support is or was payable; or
(e) giving effect to the acceptance of
a child support agreement by the Registrar; or
(f) giving effect to a decision or
order of a court having jurisdiction under this Act.
(5) Where a provision of this Act expressly
authorises the Registrar to amend an administrative assessment, that provision
does not by implication limit the power of the Registrar (whether under this
section or otherwise) to amend the assessment.
(6) Except as otherwise expressly provided in
this Act, every amended administrative assessment is to be taken to be an
administrative assessment for all the purposes of this Act.
76
Notice of assessment to be given
(1) When the Registrar makes an
administrative assessment, the Registrar must immediately give written notice
of the assessment to the liable parent and the carer entitled to child support.
(2) The notice must (in addition to
specifying the matters that section 69 (daily rate conversion) requires to
be specified in the notice) specify at least the following matters:
(a) the adjusted taxable income, and
child support income, of any parent (the assessed parent) who was
assessed in respect of the costs of the children in the child support case to
which the assessment relates;
(b) the names and dates of birth of
those children;
(c) the age ranges of any relevant
dependent children of an assessed parent;
(d) the age ranges of any other
children in other child support cases of an assessed parent;
(e) an assessed parent’s, and non‑parent
carer’s, percentage of care for each child in the child support case to which
the assessment relates;
(f) whether a carer entitled to child
support was in receipt of an income tested pension, allowance or benefit when
the assessment was made;
(g) the costs of each child in the
child support case to which the assessment relates;
(h) such other matters as are
prescribed.
(3) The notice
must also include, or be accompanied by, statements of the following kinds:
(a) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right:
(i) to object, subject to
the Registration and Collection Act, to particulars of the assessment; and
(ii) if aggrieved by the
decision on an objection to particulars of the assessment (no matter who lodges
the objection but subject to that Act), to apply to the SSAT for review of the
decision;
(b) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right, if aggrieved by a decision of the SSAT in relation to the
percentage of care of the liable parent or the carer entitled to child support,
to apply to the AAT for review of the decision;
(c) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right to apply to the Registrar for a determination under
Part 6A having the effect that the provisions of this Act relating to
administrative assessment of child support will be departed from in relation to
a child in the special circumstances of the case;
(d) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right, subject to the Family Law Act 1975, to apply to a
court having jurisdiction under this Act for an order under section 124
that a parent provide child support for the child otherwise than in the form of
periodic amounts.
Division 9—Liability to pay child support as assessed
76A
Simplified outline
The following is a simplified outline of
this Division:
• The amount of child support
payable for a child or children for a day in a child support period is the
daily rate specified in the notice of assessment.
77
Effect of assessment
(1) This section applies if the Registrar:
(a) assesses the annual rate of child
support payable for a child or children in a child support case, for a day in a
child support period, by a liable parent to a carer entitled to child support;
and
(b) converts
the annual rate into a daily rate and specifies both rates in a notice of
assessment given under section 76 in relation to the assessment.
(2) Child support is payable for the child or
children by the liable parent to the carer entitled to child support for
each day in the child support period.
(3) The amount of child support payable for
the child or children for the day by the liable parent to the carer entitled to
child support is the amount of the daily rate specified in the notice of
assessment.
78
When amounts of child support due and payable
An amount of child support payable by a
liable parent in relation to a day in any month is due and payable on the later
of the following days:
(a) the seventh day of the following
month;
(b) the
30th day after the liable parent was given a notice of assessment under
section 76 specifying the annual and daily rates of child support in
relation to that day.
Note: Section 66 of the Registration and
Collection Act deals with when child support debts become due and payable.
79
Recovery of amounts of child support
An amount of child support due and
payable by a liable parent to a carer entitled to child support is a debt due
and payable by the liable parent to the carer, and may be sued for and
recovered in:
(a) a court having jurisdiction for
the recovery of debts up to the amount of the child support; or
(b) a court having jurisdiction under
this Act.
Note: Amounts covered by section 30 of the
Registration and Collection Act are debts due to the Commonwealth.
2 At the end of the Act
Add:
Schedule 1—The Costs of
the Children Table
Note: See section 55G.
1 The
Costs of the Children Table
The Costs of the Children Table has
effect.
|
Costs of the Children
Table
|
|
Parents’ combined child
support income or parent’s child support income
|
|
Fraction of MTAWE
|
0 to 0.5
|
0.5 to 1
|
1 to 1.5
|
1.5 to 2
|
2 to 2.5
|
Over 2.5
|
|
Child support
children
|
|
|
Costs of the children
|
|
All children aged 0‑12 years
|
|
1 child
|
17%
|
15%
|
12%
|
10%
|
7%
|
|
|
2 children
|
24%
|
23%
|
20%
|
18%
|
10%
|
|
|
3 children
|
27%
|
26%
|
25%
|
24%
|
18%
|
|
|
All children aged 13+ years
|
|
1 child
|
23%
|
22%
|
12%
|
10%
|
9%
|
|
|
2 children
|
29%
|
28%
|
25%
|
20%
|
13%
|
|
|
3 children
|
32%
|
31%
|
30%
|
29%
|
20%
|
|
|
At least one child aged 0‑12 years and one child
aged 13+ years
|
|
2 children
|
26.5%
|
25.5%
|
22.5%
|
19%
|
11.5%
|
|
|
3 children
|
29.5%
|
28.5%
|
27.5%
|
26.5%
|
19%
|
|
|
|
|
|
|
|
|
|
2
Child support income ranges—fraction of MTAWE row
(1) In each column of the Fraction of MTAWE
row are specified 2 amounts. These amounts refer to:
(a) the parents’ combined child
support income; or
(b) if only one parent’s income is to
be used—the parent’s child support income.
(2) To work out the first dollar amount in
each column (other than the first column), take the second amount in the
previous column (worked under subclause (3)) and add one dollar.
Note: The first dollar amount in each column is the
lowest combined child support income, or child support income, covered by that
column.
(3) To work out the second dollar amount in
each column (other than the last column), multiply the second fraction
specified in that column by the annualised MTAWE figure for the relevant
September quarter.
Note: The second dollar amount in each column is the
highest combined child support income, or child support income, covered by that
column.
3
Costs of the children
(1) Each item in the Costs of the Children
Table sets out a method of working out the costs of the children.
(2) If, under section 55G, an item is
identified in the first column of the table, the costs of the children is
the amount that is the percentage specified in that item of the parents’
combined child support income, or the parent’s child support income, (as the
case requires).
(3) If, under section 55G, an item (the relevant
item) is identified in a row in the second, third, fourth or fifth
column (the relevant column), the costs of the children is
the total of the following amounts:
(a) the total of the amounts worked
out for each item in that row in each of the previous columns by multiplying
the percentage specified in that item by the highest combined child support
income, or child support income, covered by that column;
(b) the amount worked out by
multiplying the percentage specified in the relevant item by the difference
between:
(i) the parents’ combined
child support income, or the parent’s child support income, (as the case
requires); and
(ii) the highest combined
child support income or child support income in the previous column.
(4) If, under section 55G, an item is
identified in a row in the last column, the costs of the children is
the total of the amounts worked out for the items in that row in each of the
previous columns in accordance with paragraph (3)(a).
Schedule 2—Consequential amendments and application and saving
provisions relating to the formulas
Part 1—Consequential amendments
A New Tax System (Family Assistance)
Act 1999
1 Paragraph 2(1)(b) of Schedule 3
Omit “adjusted fringe benefits total”, substitute “reportable
fringe benefits total”.
2 Clauses 4 and 5 of Schedule 3
Repeal the clauses, substitute:
4
Reportable fringe benefits total
An individual’s reportable fringe
benefits total for an income year for an individual who is an employee
(for the purposes of the Fringe Benefits Tax Assessment Act 1986,
whether it applies of its own force or because of the Fringe Benefits Tax
(Application to the Commonwealth) Act 1986) means the employee’s reportable
fringe benefits total (as defined in the Fringe Benefits Tax Assessment Act
1986) for the income year.
5
Target foreign income
(1) An individual’s target foreign
income for an income year is:
(a) the amount of the individual’s
foreign income (as defined in section 10A of the Social Security Act
1991) for the income year that is neither:
(i) taxable income; nor
(ii) received in the form
of a fringe benefit (as defined in the Fringe Benefits Tax Assessment Act
1986, as it applies of its own force or because of the Fringe Benefits
Tax (Application to the Commonwealth) Act 1986) in relation to the
individual as an employee (as defined in the Fringe Benefits Tax Assessment
Act 1986) and a year of tax; and
(b) any amount of income that is not
covered by paragraph (a) that is exempt from tax under section 23AF
or 23AG of the Income Tax Assessment Act 1936, reduced (but not below
nil) by the total amount of losses and outgoings (except capital losses and
outgoings) incurred by the individual in deriving that exempt income.
(2) If it is necessary, for the purposes of
this Act, to work out an amount of foreign income expressed in a foreign
currency received in an income year, the amount in Australian currency is to be
worked out using the market exchange rate for 1 July in that income year.
(3) If there is no market exchange rate for
1 July in the income year (for example, because of a national public
holiday), the market exchange rate to be used is the market exchange rate that
applied on the last working day immediately before that 1 July.
(4) For the purposes of this clause, the
appropriate market exchange rate on a particular day for a foreign currency is:
(a) if there is an on‑demand
airmail buying rate for the currency available at the Commonwealth Bank of
Australia at the start of business in Sydney on that day and the Secretary
determines that it is appropriate to use that rate—that rate; or
(b) in any other case:
(i) if there is another
rate of exchange for the currency, or there are other rates of exchange for the
currency, available at the Commonwealth Bank of Australia at the start of
business in Sydney on that day and the Secretary determines that it is
appropriate to use the other rate or one of the other rates—the rate so
determined; or
(ii) otherwise—a rate of
exchange for the currency available from another source at the start of
business in Sydney on that day that the Secretary determines it is appropriate
to use.
Child Support (Assessment) Act 1989
3 Paragraph 4(2)(b)
Omit “the legislatively fixed standards”, substitute “the costs
of the children”.
4 Section 5
Before “In this Act”, insert “(1)”.
5 Section 5 (definition of adjusted income amount)
Repeal the definition.
6 Section 5
Insert:
adjusted taxable income has the meaning given
by section 43.
7 Section 5
Insert:
annualised MTAWE figure has the meaning given
by section 5A.
8 Section 5
Insert:
care period has the meaning given by
section 48.
9 Section 5 (definition of carer application)
Repeal the definition.
10 Section 5 (definition of carer entitled to child
support)
Repeal the definition, substitute:
carer entitled to child support, in relation
to a child, means:
(a) in the case of an administrative
assessment—a parent, or non‑parent carer, of the child who, under the
administrative assessment, is entitled to be paid child support in relation to
the child; and
(b) in the case of a child support
agreement—has the meaning given by subsection 93(1).
11 Section 5
Insert:
child support case, in relation to a child,
is the administrative assessments for child support for all children who are
children of both of the parents of the child.
12 Section 5
Insert:
child support income has the meaning given by
section 41.
13 Section 5 (definition of child support income
amount)
Repeal the definition.
14 Section 5 (definition of child support percentage)
Repeal the definition, substitute:
child support percentage has the meaning
given by section 55D.
15 Section 5
Insert:
combined child support income has the meaning
given by section 42.
16 Section 5
Insert:
cost percentage has the meaning given by
section 55C.
17 Section 5
Insert:
costs of a child has the meaning given by
section 55H.
18 Section 5
Insert:
Costs of the Children Table means the table
in clause 1 of Schedule 1 to this Act.
19 Section 5
Insert:
court order, in Division 4 of
Part 5, has the meaning given by section 47B.
20 Section 5 (definition of disregarded income
amount)
Repeal the definition.
21 Section 5 (definition of EAWE amount)
Repeal the definition.
22 Section 5 (definition of exempted income amount)
Repeal the definition.
23 Section 5
Insert:
income amount order means:
(a) a determination under Part 6A
(departure determinations), or an order under Division 4 of Part 7
(departure orders), that:
(i) varies the annual rate
of child support payable by a parent for a child or for all the children in a
child support case; or
(ii) varies the adjusted
taxable income, or the child support income, of a parent or provides for the
calculation of that amount; or
(b) provisions of a child support
agreement that has been accepted by the Registrar that have effect, for the
purposes of Part 5, as if they were such an order made by consent.
24 Section 5
Insert:
income percentage has the meaning given by
section 55B.
25 Section 5
Insert:
income support payment has the meaning given
by subsection 66(9).
26 Section 5
Insert:
Income Tax Assessment Act means the Income
Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
27 Section 5 (definition of index number)
Omit “subsection 66(4)”, substitute “subsection 153A(2)”.
28 Section 5 (definition of last day)
Repeal the definition, substitute:
last day, in relation to a child’s secondary
school year, means:
(a) if the child is not required to
sit an examination—the day determined by the secondary school to be the last
day of classes for the school year; and
(b) if the child is required to sit an
examination—the later of:
(i) the day determined by
the secondary school to be the last day of the period of examinations for the
child’s year level; and
(ii) the day determined by
the secondary school to be the last day of classes for the school year.
29 Section 5 (definition of last relevant year of
income)
Repeal the definition, substitute:
last relevant year of income in relation to a
child support period means the last year of income that ended before the start
of the period.
Note: For example, in working out Philippe’s last
relevant year of income for the child support period that began on
1 January 2008, the last relevant year of income is 2006‑07.
30 Section 5 (definition of liable parent)
Repeal the definition, substitute:
liable parent, in relation to a child, means:
(a) in the case of an administrative
assessment—a parent by whom child support is payable for the child under the
administrative assessment; and
(b) in the case of a child support
agreement—has the meaning given by subsection 93(1).
31 Section 5 (definition of liable parent
application)
Repeal the definition.
32 Section 5 (definition of major care)
Repeal the definition.
33 Section 5 (definition of minimum annual rate of
child support)
Omit “subsection 66(4)”, substitute “subsection 66(5)”.
34 Section 5
Insert:
multi‑case allowance has the meaning
given by section 47.
35 Section 5
Insert:
multi‑case cap has the meaning given by
section 55E.
36 Section 5
Insert:
multi‑case child costs has the meaning
given by step 4 of the method statement in section 47.
37 Section 5
Insert:
net rental property loss, in relation to a
parent for a year of income, means:
(a) if the expenses incurred by the
parent on rental property during that year exceed the parent’s gross rental
property income for that year—the amount by which those expenses exceed that
gross rental property income; or
(b) if the expenses incurred by the
parent on rental property during that year do not exceed the parent’s gross
rental property income for that year—nil.
38 Section 5
Insert:
non‑parent carer of a child means an
eligible carer of the child who is not a parent of the child.
39 Section 5
Insert:
parenting plan has the meaning given by
section 63C of the Family Law Act 1975.
40 Section 5
Insert:
pension PP (single) maximum basic amount is
the sum of:
(a) the amount that would have been a
person’s maximum basic rate under Module B of the Pension PP (Single) Rate
Calculator if the person was receiving parenting payment under the Social
Security Act 1991; and
(b) the amount that would have been
the person’s pension supplement under Module BA of the Pension PP (Single) Rate
Calculator if the person was receiving parenting payment under that Act.
41 Section 5
Insert:
percentage of care has the meaning given by
section 48.
42 Section 5
Insert:
regular care has the meaning given by
subsection (2).
43 Section 5 (definition of relevant dependent child)
Repeal the definition, substitute:
relevant dependent child, in relation to a
parent, means a child or step‑child of the parent, but only if:
(a) the parent has at least shared
care of the child or step‑child during the relevant care period; and
(b) either:
(i) the child or step‑child
is under 18; or
(ii) the last day of the
secondary school year in which the child turns 18 has not yet occurred; and
(c) the child or step‑child is
not a member of a couple; and
(d) in the case of a step‑child:
(i) an order is in force
under section 66M of the Family Law Act 1975 in relation to the
parent and the step‑child; or
(ii) the parent has the
duty, under section 124 of the Family Court Act 1997 of Western
Australia, of maintaining the step‑child; and
(e) in the case of a child—the parent
is not assessed in respect of the costs of the child (except for the purposes
of step 4 of the method statement in section 46).
44 Section 5
Insert:
relevant dependent child amount has the
meaning given by section 46.
45 Section 5 (definition of relevant partnered rate
of Social Security pension)
Repeal the definition.
46 Section 5
Insert:
relevant September quarter has the meaning
given by subsection 5A(2).
47 Section 5 (definition of relevant unpartnered
rate of Social Security pension)
Repeal the definition.
48 Section 5
Insert:
remaining period, in relation to a parent who
has made an election under section 60, means the period that the parent
used as the remaining period in applying the method in subsection 60(5).
49 Section 5
Insert:
self‑support amount has the meaning
given by section 45.
50 Section 5
Insert:
shared care has the meaning given by
subsection (3).
51 Section 5 (definition of shared care child)
Repeal the definition.
52 Section 5 (definition of shared ongoing daily
care)
Repeal the definition.
53 Section 5 (definition of substantial care)
Repeal the definition.
54 Section 5 (definition of supplementary amount)
Repeal the definition.
55 Section 5
Insert:
target foreign income has the meaning given
by section 5B.
56 Section 5
Insert:
taxable income has the meaning given by
sections 56 and 57.
57 Section 5
Insert:
tax free pension or benefit means any of the
following pensions or benefits:
(a) a disability support pension under
Part 2.3 of the Social Security Act 1991;
(b) a wife pension under Part 2.4
of the Social Security Act 1991;
(c) a carer payment under
Part 2.5 of the Social Security Act 1991;
(d) an invalidity service pension
under Division 4 of Part III of the Veterans’ Entitlements Act
1986;
(e) a partner service pension under
Division 5 of Part III of the Veterans’ Entitlements Act 1986;
(f) income support supplement under
Part IIIA of the Veterans’ Entitlements Act 1986;
(g) Defence Force Income Support
Allowance under Part VIIAB of the Veterans’ Entitlements Act 1986;
to the extent to which the payment:
(h) is exempt from income tax; and
(i) is not a payment by way of
bereavement payment, pharmaceutical allowance, rent assistance, language,
literacy and numeracy supplement or remote area allowance.
58 Section 5 (definition of yearly equivalent of the
EAWE amount)
Repeal the definition.
59 At the end of section 5
Add:
Definitions of regular care and shared care
(2) A person has regular care of
a child if the person has:
(a) at least 14%; but
(b) less than 35%;
of the care of the child during a care period.
(3) A person has shared care of
a child if the person has:
(a) at least 35%; but
(b) no more than 65%;
of the care of the child during a care period.
60 After section 5
Insert:
5A
Definition of annualised MTAWE figure
(1) The annualised MTAWE
figure for a relevant September quarter means the figure that is 52
times the amount set out for the reference period in the quarter under the
headings “Average Weekly Earnings—Trend—Males—All Employees Total Earnings” in
a document published by the Australian Statistician entitled “Average Weekly
Earnings, Australia”.
(2) The relevant September quarter,
in relation to a child support period, means the quarter ending
on 30 September of the last calendar year ending before the child support
period begins.
(3) If at any time (whether before or after
the commencement of this section), the Australian Statistician publishes the
amount referred to in subsection (1):
(a) under differently described
headings (the new headings); or
(b) in a document entitled otherwise
than as described in subsection (1) (the new document);
then the annualised MTAWE figure is to be calculated in
accordance with subsection (1) as if the references to:
(c) “Average Weekly
Earnings—Trend—Males—All Employees Total Earnings”; or
(d) “Average Weekly Earnings,
Australia”;
were references to the new headings and/or the new
document, as the case requires.
(4) For the purposes of this section, the reference
period in a particular quarter is the period described by the
Australian Statistician as the pay period ending on or before a specified day
that is the third Friday of the middle month of that quarter.
5B
Definition of target foreign income
(1) A parent’s target foreign income for
a year of income is:
(a) the amount of the parent’s foreign
income (as defined in section 10A of the Social Security Act 1991)
for the year of income that is neither:
(i) taxable income; nor
(ii) received in the form
of a fringe benefit (as defined in the Fringe Benefits Tax Assessment Act
1986, as it applies of its own force or because of the Fringe Benefits
Tax (Application to the Commonwealth) Act 1986) in relation to the parent
as an employee (as defined in the Fringe Benefits Tax Assessment Act 1986)
and a year of tax; and
(b) any amount of income that is not
covered by paragraph (a) that is exempt from tax under section 23AF
or 23AG of the Income Tax Assessment Act 1936, reduced (but not below
nil) by the total amount of losses and outgoings (except capital losses and
outgoings) incurred by the parent in deriving that exempt income.
(2) If it is necessary, for the purposes of
this Act, to work out an amount of foreign income expressed in a foreign
currency received in a year of income, the amount in Australian currency is to
be worked out using the market exchange rate for 1 July in that year of
income.
(3) If there is no market exchange rate for
1 July in the year of income (for example, because of a national public
holiday), the market exchange rate to be used is the market exchange rate that
applied on the last working day immediately before that 1 July.
(4) For the purposes of this section, the
appropriate market exchange rate on a particular day for a foreign currency is:
(a) if there is an on‑demand
airmail buying rate for the currency available at the Commonwealth Bank of
Australia at the start of business in Sydney on that day and the Secretary
determines that it is appropriate to use that rate—that rate; or
(b) in any other case:
(i) if there is another
rate of exchange for the currency, or there are other rates of exchange for the
currency, available at the Commonwealth Bank of Australia at the start of
business in Sydney on that day and the Secretary determines that it is
appropriate to use the other rate or one of the other rates—the rate so
determined; or
(ii) otherwise—a rate of
exchange for the currency available from another source at the start of
business in Sydney on that day that the Secretary determines it is appropriate
to use.
61 Subsections 7A(2) and (3)
Repeal the subsections, substitute:
When does a child support period start?
(2) Each of the following times is the start
of a child support period:
(a) the beginning of the day on which
an application for an administrative assessment of the child support payable
for a child is properly made under Part 4;
(b) the beginning of the day mentioned
in paragraph 93(1)(g) (child support payable under a child support agreement
accepted by Registrar);
(c) the start of the first day for
which a child support agreement described in section 34B is to affect the
rate of child support payable for a child;
(d) immediately after the end of the
preceding child support period that relates to child support payable for the
child (whether it was a period starting as described in paragraph (a), (b)
or (c) or this paragraph).
Note: Despite paragraph (2)(a), a child support
period might not start if a non‑parent carer applies for an
administrative assessment of child support during a child support period (see
section 40B).
End of the child support period
(3) The child support period ends at
whichever of the following times occurs soonest after the start of the period:
(a) the time 15 months after the
period started;
(b) the end of the named month during
which the Registrar makes an assessment relating to the annual rate of child
support payable for the child as required by section 34A (assessment when
new tax figure is available);
(c) the time immediately before the
day mentioned in paragraph 93(1)(g) (child support payable under a child
support agreement accepted by Registrar);
(d) the end of the day immediately
before the first day for which a child support agreement described in
section 34B is to affect the rate of child support payable for the child.
62 Subsection 7B(1)
Repeal the subsection, substitute:
(1) In this Act, eligible carer,
in relation to a child, means a person who has at least shared care of the
child.
63 Sections 8 and 8A
Repeal the sections.
64 Paragraph 23(b)
Omit “eligible carers”, substitute “parents”.
65 Paragraph 23(c)
Omit “parents other than eligible carers”, substitute “non‑parent
carers”.
66 Sections 25 to 26A
Repeal the sections, substitute:
25
Persons who may apply—parents
A parent (the applicant)
of a child may apply to the Registrar under this section for administrative
assessment of child support for the child if:
(a) the applicant applies for both
parents to be assessed in respect of the costs of the child; and
(b) the applicant is not living with
the other parent as his or her partner on a genuine domestic basis (whether or
not legally married to the other parent); and
(c) the applicant complies with any
applicable requirements of section 26 (dealing with joint care situations)
and section 26A (dealing with children cared for under child welfare
laws).
Note: A parent by whom child support is payable must
be a resident of Australia on the day on which the application is made (see
section 29A).
25A
Persons who may apply—non‑parent carers
A person who is not a parent of a child
(the applicant) may apply to the Registrar under this section for
administrative assessment of child support for the child if:
(a) the applicant is an eligible carer
of the child; and
(b) one of the following also applies:
(i) the applicant applies
for both parents to be assessed in respect of the costs of the child;
(ii) if one parent of the
child is not a resident of Australia—the applicant applies for the other parent
to be assessed in respect of the costs of the child;
(iii) if the Registrar is
satisfied that there are special circumstances—the applicant applies for the
other parent to be assessed in respect of the costs of the child;
(iv) if one parent of the
child is dead—the applicant applies for the other parent to be assessed in
respect of the costs of the child; and
(c) the applicant is not living with
either parent as the partner of that parent on a genuine domestic basis
(whether or not legally married to that parent); and
(d) the applicant complies with any
applicable requirements of section 26 (dealing with joint care situations)
and section 26A (dealing with children cared for under child welfare
laws).
Note: A parent by whom child support is payable must
be a resident of Australia on the day on which the application is made (see
section 29A).
26
Requirements of applications where there are joint carers
If 2 or more persons (joint carers)
jointly have care of a child, then only one of the joint carers may apply for
administrative assessment of child support for the child. If one of those joint
carers is a parent of the child, the joint carer who applies must be that
parent.
26A
Requirements of application if child is cared for under child welfare law
If a non‑parent carer has care
(however described) of a child under a child welfare law, the non‑parent
carer may apply for child support for the child only if the non‑parent
carer is a relative of the child.
67 Subsection 28(1)
Omit “(1)”.
Note: The heading to section 28 is altered by
omitting “etc.”.
68 At the end of subsection 28(1)
Add:
Note: This provision applies even if the children
are in different child support cases.
69 Subsection 28(2)
Repeal the subsection.
70 Subsection 29(2)
Omit “If the application is a carer application, the”, substitute
“The”.
71 After section 29
Insert:
29A
Person by whom child support is payable must be Australian resident
(1) This section applies if:
(a) an application is made under
section 25 or 25A for a parent to be assessed in respect of the costs of
the child; and
(b) the parent is not a resident of
Australia on the day on which the application is made.
(2) The Registrar must determine whether
child support is reasonably likely to be payable by the parent.
(3) If the Registrar determines that child
support is reasonably likely to be payable by the parent, then the application
is taken not to have been properly made.
Note: If an application is not properly made the
Registrar must refuse the application under section 30.
72 Section 31
Repeal the section, substitute:
31
Requirement to assess child support on acceptance of application
(1) If the Registrar accepts an application
for administrative assessment of child support for a child, the Registrar must,
as quickly as possible:
(a) either:
(i) if the application is
made under section 25—assess both parents in respect of the costs of the
child under Part 5; or
(ii) if the application is
made under section 25A (non‑parent carer applications)—assess both
parents, or the relevant parent, (as the case requires) in respect of the costs
of the child under Part 5; and
(b) assess under Part 5 the
annual rate of child support payable by a parent for the child for the days in
the child support period that starts on the day on which the application was
made.
Note: Part 4A deals with assessments for later
child support periods.
(2) Child support is payable until the day
immediately before the day on which a child support terminating event happens
in relation to the child, the carer entitled to child support, the liable
parent or all 3 of them.
73 Subsections 33(2) and (3)
Repeal the subsections, substitute:
Refusals on ground that Registrar not satisfied that
person a parent
(3) If one of the reasons the Registrar
refused to accept the application was because the Registrar was not satisfied
under section 29 that a person (the other party) who was to
be assessed in respect of the costs of the child is a parent of the child, the
notice must include, or be accompanied by:
(a) a statement that the Registrar was
not satisfied under section 29 that the other party is a parent of the
child; and
(b) a statement to the effect that the
applicant may apply to a court having jurisdiction under this Act for a
declaration under section 106A that the applicant is entitled to
administrative assessment of child support for a child because the other party
is a parent of the child.
74 Section 34
Repeal the section, substitute:
34
Notices to be given in respect of application
(1) If the Registrar accepts an application
for administrative assessment of child support for a child, the Registrar must
notify the applicant and any parent who is to be assessed in respect of the
costs of the child.
(2) The notice must include, or be
accompanied by, a statement to the effect that:
(a) a person who is to be assessed in
respect of the costs of the child may apply to a court having jurisdiction
under this Act for a declaration under section 107 that the applicant was
not entitled to administrative assessment of child support for the child
because the person is not a parent of the child; and
(b) in any case:
(i) the person, may,
subject to the Registration and Collection Act, object to the decision (the original
decision) (other than because the person is not a parent of the child);
and
(ii) the person, if
aggrieved by a later decision on an objection in relation to the original
decision (no matter who lodges the objection), may, subject to that Act, apply
to the SSAT for review of the later decision.
75 Section 34A
Repeal the section, substitute:
34A Registrar
must make assessment when new tax figure is available
Application of section
(1) This section requires the Registrar to
assess the annual rate of child support payable in some cases if:
(a) child support is payable by a
liable parent for a child for a day in a child support period (the earlier
period); and
(b) during the earlier period, an
assessment (the tax assessment) is made under an Income Tax
Assessment Act of the taxable income, or any other component of the adjusted
taxable income, of the liable parent or the other parent, for the latest year
of income (the last year) that ended after the start of the
earlier period.
Registrar must make assessment using new tax figures
(2) As soon as practicable after the tax
assessment is made, the Registrar must assess the annual rate of child support
payable for the child for days in a child support period starting on the first
day of the next named month (after the named month in which the Registrar makes
the assessment).
When new assessment is not required
(3) This section does not require the
Registrar to make an assessment if:
(a) the Registrar calculates that the
tax assessment for the last year could not affect the annual rate of child
support payable for the child for a day in a child support period; or
(b) the annual rate of child support
payable for the child for the first day of the next named month is to be worked
out without reference to the actual taxable income of the parent mentioned in
paragraph (1)(b) because of:
(i) a child support
agreement between the parents of the child; or
(ii) a determination under
Part 6A (departure determination); or
(iii) an order made by a
court under this Act or the Registration and Collection Act; or
(c) the earlier period will end before
the end of the earliest named month in which it is practicable for the
Registrar to make the assessment mentioned in subsection (2).
Note: In the case of paragraph (3)(c), the
Registrar must use the information from the tax assessment to make an assessment
for the period starting immediately after the end of the earlier period (unless
the information is not relevant to an assessment, because of an agreement,
determination or order) (see section 34C).
76 Section 34C
Repeal the section, substitute:
34C
Administrative assessments for child support periods not started by application
or new agreement
The Registrar must assess under this Act
the annual rate of child support payable for a child for days in a child
support period either before, or as soon as practicable after, the start of the
period unless:
(a) the period starts when the
application is made under Part 4; or
(b) the period starts on a day
mentioned in paragraph 93(1)(g); or
(c) an assessment of the child support
payable for the child for days in the period has already been made as required
by section 34A; or
(d) the period starts on the first day
for which a child support agreement described in subsection 34B(1) is to affect
the annual rate of child support payable for the child.
Note 1: Section 31 requires the Registrar to make
an assessment of child support payable as quickly as possible after accepting
an application under Part 4.
Note 2: Subsection 93(2) requires the Registrar to make
an assessment of child support payable as soon as practicable after accepting
certain child support agreements.
Note 3: If a child support agreement has effect for the
purposes of the child support period, it will affect the assessment (see section 95).
77 Paragraphs 83(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) 2 parents of a child who, under
section 25, would be able to properly make an application for
administrative assessment of child support for the child in relation to whom
the agreement is made on the day on which the agreement is entered into; or
(b) one or both parents of a child,
and a non‑parent carer of the child, who, under sections 25 and 25A,
would be able to properly make an application for administrative assessment of child
support for the child in relation to whom the agreement is made on the day on
which the agreement is entered into.
78 Subsection 98S(1)
Repeal the subsection, substitute:
(1) The determinations the Registrar may make
under this Part are as follows:
(a) a determination varying the annual
rate of child support payable by a parent;
(b) a determination varying a parent’s
or non‑parent carer’s cost percentage for a child;
(c) a determination varying a parent’s
child support income;
(d) a determination varying the
parents’ combined child support income;
(e) a determination that:
(i) the column in the
Costs of the Children Table that covers a parent’s child support income or
combined child support income that is, or is determined to be, greater than 2.5
times the annualised MTAWE figure for the relevant September quarter, is the
column headed “2 to 2.5”; and
(ii) the column is to apply
as if the second dollar amount in the heading to that column did not apply;
(f) a determination varying a
parent’s child support percentage;
(g) a determination varying a parent’s
adjusted taxable income;
(h) a determination varying a parent’s
relevant dependent child amount or multi‑case allowance;
(i) a determination varying a
parent’s self‑support amount;
(j) a determination varying the costs
of the children.
Note: There are limitations on the Registrar making
a determination that varies an annual rate of child support payable in respect
of a child support case below the minimum annual rate (see section 98SA).
79 Section 98SA
Repeal the section, substitute:
98SA
Variation not to be below minimum annual rate of child support
The Registrar must not make a
determination under this Part that varies, or that has the effect of varying,
the annual rate of child support payable, for a day in a child support period,
by a liable parent for all of the children in the child support case that
relates to the child in respect of whom the determination is made to a rate
below the minimum annual rate of child support for the child support period,
unless the liable parent has at least regular care of at least one of the
children in that child support case.
80 Section 106A
Repeal the section, substitute:
106A
Declaration that a person is entitled to administrative assessment
(1) This section applies if:
(a) the Registrar refuses to accept
from an applicant an application for administrative assessment of child support
for a child under subsection 30(2); and
(b) one of the reasons for the
Registrar so refusing was that the Registrar was not satisfied under
section 29 that a person who was to be assessed in respect of the costs of
the child is a parent of the child.
Applications for declarations
(2) The applicant may apply to a court having
jurisdiction under this Act for a declaration that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the applicant is entitled to administrative assessment of child
support for the child because the person who was to be assessed in respect of
the costs of the child is a parent of the child; and
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the applicant is entitled to have the Registrar
reconsider the application under Division 2 of Part 4 because the
person who was to be assessed in respect of the costs of the child is a parent
of the child.
(3) The application must be made within:
(a) the time prescribed by the
applicable Rules of Court; or
(b) such further time as is allowed
under the applicable Rules of Court.
Parties
(4) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding are:
(a) the applicant; and
(b) the parent who was to be assessed
in respect of the costs of the child.
Declarations
(5) The court may grant the declaration if the
court is satisfied that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the person is entitled to administrative assessment of child
support because the person who was to be assessed in respect of the costs of
the child is a parent of the child; or
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the applicant is entitled to have the Registrar reconsider
the application under Division 2 of Part 4 because the person who was
to be assessed in respect of the costs of the child is a parent of the child.
(6) If the court grants the declaration:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the Registrar is taken to have accepted the application for
administrative assessment of child support; and
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the Registrar must reconsider the application under
Division 2 of Part 4.
81 Subsection 107(1)
Omit “Where the Registrar accepts a carer application for
administrative assessment of child support for a child, the person from whom
the application sought payment of child support”, substitute “If the Registrar
accepts an application for administrative assessment of child support for a
child, a person who was assessed in respect of the costs of the child”.
82 Subsection 107(3)
Omit “from whom the application sought payment of child support”,
substitute “who was assessed in respect of the costs of the child”.
83 Subsection 107(4)
Repeal the subsection, substitute:
(4) The court may grant the declaration if
the court is satisfied that the applicant was not entitled to administrative
assessment of child support for the child because the person who was assessed
in respect of the costs of the child is not a parent of the child.
84 Paragraph 117(3B)(a)
Omit “child support income amount”, substitute “adjusted taxable
income”.
85 Subsection 118(1)
Repeal the subsection, substitute:
(1) The orders that a court may make under
this Division are as follows:
(a) an order varying the annual rate
of child support payable by a parent;
(b) an order varying a parent’s or non‑parent
carer’s cost percentage for a child;
(c) an order varying a parent’s child
support income;
(d) an order varying the parents’
combined child support income;
(e) an order that:
(i) the column in the
Costs of the Children Table that covers a parent’s child support income or
combined child support income that is, or is ordered to be, greater than 2.5
times the annualised MTAWE figure for the relevant September quarter, is the
column headed “2 to 2.5”; and
(ii) the column is to apply
as if the second dollar amount in the heading to that column did not apply;
(f) an order varying a parent’s child
support percentage;
(g) an order varying a parent’s
adjusted taxable income;
(h) an order varying a parent’s
relevant dependent child amount or multi‑case allowance;
(i) an order varying a parent’s self‑support
amount;
(j) an order varying the costs of the
children.
86 Subsection 139(1)
Omit “a carer application”, substitute “an application”.
87 Subparagraph 139(2A)(d)(ii)
Omit “the person from whom the application sought payment of
child support”, substitute “a person who was to be assessed in respect of the
costs of the child”.
88 Paragraph 139(2A)(d)
Omit “the person from whom the application sought payment of
child support” (second occurring), substitute “the person who was to be
assessed in respect of the costs of the child”.
89 Subsection 139(3)
Repeal the subsection, substitute:
(3) A proceeding under this section may be
instituted by the applicant for administrative assessment of child support
against a person who was to be assessed in respect of the costs of the child.
90 Paragraphs 150B(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) another person has applied for the
person to be assessed in respect of the costs of a child; or
91 Subsection 150C(1) (note)
Omit “the Registrar may act on the basis that the person’s
taxable income is an amount worked out”, substitute “the Registrar may
determine the person’s adjusted taxable income”.
92 After subsection 151B(1)
Insert:
(1A) If a relevant dependent child of a parent
turns 18 during a year in which the child is in full‑time secondary
education, the parent may apply for the relevant dependent child to be taken
into account in any relevant administrative assessment until the last day of
the secondary school year in which the child turns 18.
93 Paragraph 151B(2)(b)
Repeal the paragraph, substitute:
(b) in the case of an application
under subsection (1) for a child support agreement to continue in
force—signed by both the carer entitled to child support for the child and the
liable parent in relation to the child.
94 Paragraph 151C(2)(b)
Repeal the paragraph, substitute:
(b) either:
(i) if the application is
made under subsection 151B(1)—an administrative assessment, or a child support
agreement, in relation to the child either is in force, or is likely to be in
force, on the day before the child’s 18th birthday; or
(ii) otherwise—an administrative
assessment that takes the child into account is in force, or is likely to be in
force, on the day before the child’s 18th birthday; and
95 Subsections 151D(1) and (3)
Omit “section 151B”, substitute “subsection 151B(1)”.
Note: The heading to section 151D is altered by
inserting “under subsection 151B(1)” after “Application”.
96 After section 151D
Insert:
151E
Applications under subsection 151B(1A) in respect of administrative
assessments—consequences of acceptance
Registrar to take necessary action
(1) If the Registrar accepts an application
under subsection 151B(1A), the Registrar must immediately take such action as
is necessary to take account of the change to the meaning of relevant dependent
child (whether by amending an administrative assessment or otherwise).
Child to be regarded as aged 17 for purposes of
Part 5
(2) If the Registrar accepts the application,
the child is taken to be aged 17 for the purposes of applying Part 5 to
the child throughout the period:
(a) beginning on the day on which the
child turned 18; and
(b) ending on the last day of the
secondary school year in which the child turns 18.
Date of effect of decision
(3) A decision of the Registrar to accept an
application in relation to a child under subsection 151B(1A) takes effect on
the day before the child turns 18, whether the decision is made before, on or
after that day.
97 After section 153
Insert:
153A
Indexation of amounts
(1) This section applies for the purposes of
the following provisions:
(a) subsection 65A(2); and
(b) subsection 66(5).
(2) For the purposes of this Act, the amount
specified in those provisions in relation to a child support period that begins
in a particular calendar year is taken to be the amount worked out using the
formula:
where:
base September quarter index number means the
index number for the September quarter of 2005.
highest September quarter index number means
the highest index number for a September quarter since the base September
quarter index number (and including the base September quarter).
index number for a quarter is the All Groups
Consumer Price Index number that is the weighted average of the 8 capital
cities and is published by the Australian Statistician in respect of that
quarter.
(3) Subject to subsection (4), if at any
time (whether before or after the commencement of this subsection) the
Australian Statistician publishes an index number for a quarter in substitution
for an index number previously published by the Australian Statistician for
that quarter, the publication of the later index number is to be disregarded
for the purposes of subsection (2).
(4) If at any time the Australian
Statistician changes the reference base for the Consumer Price Index, regard is
to be had, for the purposes of applying subsection (2) after the change
takes place, only to index numbers published in terms of the new reference
base.
98 Sections 154 and 155
Repeal the sections, substitute:
155
Publication of figures
(1) Before the end of each calendar year, the
Registrar must publish in the Gazette for all child support periods
starting in the following calendar year:
(a) the minimum annual rate of child
support; and
(b) the annual rate of child support
specified in subsection 65A(2) (low income parents not on income support).
(2) Before the end of each calendar year, the
Secretary must publish in the Gazette for all child support periods
starting in the following calendar year:
(a) the annualised MTAWE figure for
the relevant September quarter; and
(b) the Costs of the Children Table,
incorporating:
(i) the annualised MTAWE
figure for the relevant September quarter; and
(ii) any other amounts in
items in the table that can be worked out using the annualised MTAWE figure.
(3) The instruments published under
subsections (1) and (2) are not legislative instruments.
Child Support (Registration and
Collection) Act 1988
99 Subsection 4(1)
Insert:
non‑parent carer has the meaning given
by section 5 of the Assessment Act.
100 Subparagraphs 17(1)(a)(i) and (ii)
After “periodic amount”, insert “to a parent or non‑parent
carer of the child”.
101 Paragraph 24A(2)(c)
Repeal the paragraph, substitute:
(c) the application giving rise to the
child support assessment was made by the parent by whom child support is
payable.
102 Subparagraph 79B(1)(a)(iii)
Omit “the person from whom the application sought payment”,
substitute “a person who was to be assessed in respect of the costs of the
child”.
103 Subsection 80(5)
Repeal the subsection, substitute:
(5) An objection to a decision of the
Registrar to refuse to accept an application for administrative assessment may
not be lodged if one of the reasons for the Registrar so refusing was that the
Registrar was not satisfied under section 29 that a person who was to be
assessed in respect of the costs of a child is a parent of the child concerned.
Note: In that case, the applicant may be able to
apply to a court under section 106A of the Assessment Act for a
declaration that the applicant is entitled to administrative assessment of
child support for the child.
104 Section 85 (table item 4)
Omit “the person to whom or from whom the application seeks
payment of child support, as the case requires”, substitute “each parent who
the application sought to be assessed in respect of the costs of the child, and
any non‑parent carer of the child, (other than the person who objects to
the decision)”.
105 Paragraph 101(3)(b)
Omit “an eligible carer, but not a parent,”, substitute “a non‑parent
carer”.
106 Paragraph 102(2)(b)
Omit “an eligible carer, but not a parent,”, substitute “a non‑parent
carer”.
107 Paragraph 103H(b)
Omit “an eligible carer, but not a parent,”, substitute “a non‑parent
carer”.
108 After section 103V
Insert:
103VA
Appeal to AAT on decisions relating to percentages of care
(1) A party to a review aggrieved by a
decision of the SSAT under this Part relating to a party’s percentage of care
for a child may apply to the AAT for review of the decision.
(2) In subsection (1):
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
109 At the end of paragraph 103X(1)(a)
Add:
(iii) if the decision relates to a
party’s percentage of care for a child—that a party may, subject to the Administrative
Appeals Tribunal Act 1975, apply to the AAT for review of the decision, and
request a statement under section 28 of that Act (except where subsection
28(4) of that Act applies); and
110 Subsection 103X(2)
After “(1)(a)(ii)”, insert “or (iii)”.
Family Law Act 1975
111 Subsection 63G(5)
Omit “seeking payment of child support by the other party to the
plan”.
112 Subsection 66E(1)
Repeal the subsection, substitute:
(1) A court having jurisdiction under this
Part must not, at any time, make, revive or vary a child maintenance order in
relation to a child on the application of a person (the applicant)
against, or in favour of, a person (the respondent) if an
application could properly be made, at that time, by the applicant under the Child
Support (Assessment) Act 1989 for the respondent to be assessed in respect
of the costs of the child, or vice versa.
113 Subsection 66SA(1)
Omit “for administrative assessment of child support (within the
meaning of that Act) for the child seeking payment of child support by the
other person”, substitute “for the other person to be assessed in respect of
the costs of the child”.
114 Paragraphs 86(3B)(c) and 87(4D)(c)
Omit “for administrative assessment of child support (within the
meaning of that Act) for the child, seeking payment of the child support by the
other party to the agreement”, substitute “for the other party to the agreement
to be assessed in respect of the costs of the child”.
Part 2—Application and saving provisions
115 Application
(1) The amendments made by Schedule 1 to this Act,
and this Schedule (other than items 1 and 2 of this Schedule), apply in
relation to a day in a child support period, being a day that is, or is after,
the day on which this item commences.
(2) The amounts referred to in subsections 65A(2) and
66(5) of the Assessment Act (as inserted by Schedule 1 to this Act) are to
be indexed in accordance with section 153A of that Act on and after
1 January 2007 as if item 1 of Schedule 1 had commenced on that
day.
116 Application
The amendments made by items 1 and 2 of this Schedule apply
in relation to the 2008‑09 income year and later income years.
117 Saving assessments etc.
(1) The amendments made by Schedule 1 do not
affect the continuity of:
(a) any administrative assessment, in
force immediately before this item commences, of the annual rate of child
support that is payable by a parent; or
(b) any reduction, that is in force
immediately before this item commences, of an annual rate of child support
payable to nil under section 66A of the Assessment Act; or
(c) any liability that arose under
section 77 of the Assessment Act before this item commences.
(2) For the purposes of the Assessment Act, if an
election made by a person under section 60 of that Act is in force
immediately before this item commences:
(a) the election continues in force
for the remaining days in the child support period, despite the amendments made
by Schedule 1; and
(b) the person is taken to have made
the election for the purposes of assessing the person in respect of the costs
of the child; and
(c) the amount specified in the
relevant notice as the amount the person elects to be his or her child support
income amount is taken to be specified in the notice as his or her adjusted
taxable income; and
(d) the amounts specified as amounts
estimated under steps 2 and 3 of the method statement in subsection 60(5) of
that Act, as in force immediately before this item commences, are taken to be
specified in the notice as the amount estimated under step 2 of the method
statement in subsection 60(5) of that Act, as in force immediately after this
item commences.
(3) For the purposes of the Assessment Act, if the
Registrar has acted on the basis of a determination under section 58 of
that Act that is in force immediately before this item commences:
(a) the determination continues in
force despite the amendments made by Schedule 1; and
(b) a determination of a person’s
supplementary amount for a year of income is taken to be a determination of the
components of the person’s adjusted taxable income referred to in paragraphs
43(1)(b) to (e) of the Assessment Act (as inserted by Schedule 1) for the
year of income; and
(c) a determination of a person’s
taxable income, and the person’s supplementary amount, for a year of income is
taken to be a determination of the person’s adjusted taxable income for the
year of income.
118 Requirement to publish annualised MTAWE figure
(1) Before 1 July 2008, the Registrar must publish
in the Gazette the annual rate of child support specified in subsection
65A(2) of the Assessment Act (as inserted by Schedule 1 to this Act) for
all child support periods that start in that calendar year or the previous
calendar year.
(2) Before 1 July 2008, the Secretary must publish
in the Gazette for all child support periods that start in that calendar
year or the previous calendar year:
(a) the annualised MTAWE figure for
the relevant September quarter; and
(b) the Costs of the Children Table,
incorporating:
(i) the annualised MTAWE
figure for the relevant September quarter; and
(ii) any other amounts in
items in the table that can be worked out using the annualised MTAWE figure.
(3) The instruments published under subitems (1)
and (2) are not legislative instruments.
Schedule 3—SSAT review of child support decisions (commencing on
1 January 2007)
Part 1—Amendments
Child Support (Assessment) Act 1989
1 Section 5
Insert:
final, in relation to a decision of a court,
has the meaning given by section 144.
2 Section 5
Insert:
Registration and Collection Act means the Child
Support (Registration and Collection) Act 1988.
3 Section 33
Repeal the section, substitute:
33
Notice to be given to unsuccessful applicant
(1) If the Registrar refuses to accept an
application for administrative assessment of child support for a child, the
Registrar must immediately notify the applicant in writing.
Refusals on grounds that Registrar not satisfied that
person a parent
(2) Subsection (3) applies if:
(a) the application was a carer
application; and
(b) one of the reasons for the
Registrar refusing to accept the application was that the Registrar was not
satisfied under section 29 that the person from whom the application
sought payment of child support is a parent of the child.
(3) The notice must include, or be
accompanied by:
(a) a statement of the reason referred
to in paragraph (2)(b); and
(b) a statement to the effect that the
applicant may apply to a court having jurisdiction under this Act for a
declaration under section 106A that the applicant is entitled to
administrative assessment of child support for a child because the person from
whom the application sought payment of child support is a parent of the child.
Refusals on other grounds
(4) If subsection (3) does not apply,
the notice must include, or be accompanied by, a statement to the effect that:
(a) the applicant may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) the applicant may, if aggrieved by
a later decision on an objection to the original decision, subject to that Act,
apply to the SSAT for review of the later decision.
Validity of decisions
(5) A contravention of subsection (3) or
(4) in relation to a decision does not affect the validity of the decision.
4 Subsection 34(2)
Repeal the subsection, substitute:
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the person from whom the
application sought payment of child support for a child may apply to a court
having jurisdiction under this Act for a declaration under section 107
that the applicant was not entitled to administrative assessment of child
support for the child because the person is not a parent of the child; and
(b) that the person from whom, or to
whom, the application sought payment of child support:
(i) may, subject to the
Registration and Collection Act, object to the decision (the original
decision) (other than on the ground that the person is not a parent of
the child concerned); and
(ii) if aggrieved by a
later decision on an objection to the original decision (no matter who lodges
the objection), may, subject to that Act, apply to the SSAT for review of the
later decision.
5 Subsection 60A(3)
Omit “Part 6B and section 110”, substitute “Parts VII,
VIIA and VIII of the Registration and Collection Act”.
6 Subsection 60B(2)
Repeal the subsection, substitute:
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the person sought to make the election; and
(b) that if the person is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
7 Subsection 64A(6)
Repeal the subsection, substitute:
(6) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the person is aggrieved by
a later decision on an objection to the original decision, he or she may,
subject to that Act, apply to the SSAT for review of the later decision.
8 Subsection 66C(2)
Repeal the subsection, substitute:
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the applicant may, subject to
the Registration and Collection Act, object to the particulars of the assessment
in relation to which the unsuccessful application was made; and
(b) that if the applicant is aggrieved
by the decision on the objection, he or she may, subject to that Act, apply to
the SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
9 Subsection 70(1)
Omit “Division 3 of Part 7”, substitute
“Part VIIA, or Subdivision B of Division 3 of Part VIII, of the
Registration and Collection Act”.
10 Section 72
Omit “Division 3 of Part 7”, substitute
“Part VIIA, or Subdivision B of Division 3 of Part VIII, of the
Registration and Collection Act”.
11 Subparagraph 76(3)(a)(i)
Omit “this Act”, substitute “the Registration and Collection
Act”.
12 Subparagraph 76(3)(a)(ii)
Repeal the subparagraph, substitute:
(ii) if aggrieved by the
decision on an objection to particulars of the assessment (no matter who lodges
the objection but subject to that Act), to apply to the SSAT for review of the
decision;
13 Subsection 96(2)
Repeal the subsection, substitute:
(2) The notice must include, or be
accompanied by, a statement that specifically draws the attention of the
parties to the agreement to the right:
(a) to object, subject to the
Registration and Collection Act, to the decision (the original decision);
and
(b) if aggrieved by a later decision
on an objection to the original decision (no matter who lodges the objection
but subject to that Act), to apply to the SSAT for review of the later decision.
14 Section 98JA
Repeal the section, substitute:
98JA
Notice of refusal to be served on parties
(1) If the Registrar refuses to make a
determination under this Division, the Registrar must serve notice in writing
of the decision on each of the parties to the proceeding.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may:
(i) if the original
decision was made under section 98E (issues too complex)—apply to a court
having jurisdiction under this Act for an order under Division 4 of
Part 7; or
(ii) otherwise—apply,
subject to the Registration and Collection Act, to the SSAT for review of the
later decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
15 At the end of Division 3 of Part 6A
Add:
98RA
Notice of refusal to be served on parties
(1) If, after having notified parties under
section 98M, the Registrar refuses to make a determination under this
Division, the Registrar must serve notice in writing of the decision on each of
the parties to the proceeding.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may:
(i) if the original
decision was made under section 98R (issues too complex)—apply to a court
having jurisdiction under this Act for an order under Division 4 of
Part 7; or
(ii) otherwise—apply,
subject to the Registration and Collection Act, to the SSAT for review of the
later decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
16 Part 6B
Repeal the Part.
17 Part 7 (heading)
Repeal the heading, substitute:
Part 7—Court review of certain decisions
18 Before Division 1 of Part 7
Insert:
Division 1A—Preliminary
98W
Simplified outline
The following is a simplified outline of
this Part:
• Jurisdiction under this Act
is conferred on certain federal and State courts.
• Generally, a person may
apply for an order under this Part without having first obtained internal
review under Part VII of the Registration and Collection Act.
• A court may declare that a
person is, or is not, entitled to administrative assessment of child support
for a child because another person is, or is not, the parent of the child.
• A court may grant leave for
the making of a departure determination under Part 6A, or a departure
order under Division 4 of this Part, in relation to a period more than 18
months but less than 7 years earlier.
• In special circumstances, a
court may make an order equivalent to a departure determination.
• A court may order that
child support be paid in a form other than periodic amounts paid to a carer.
• A court may set aside a
child support agreement if the consent of one of the parties was obtained by
fraud or undue influence.
• A court may make an order
for the payment of child support if a child is in urgent need of financial
assistance.
• If a proceeding has been
instituted in a court, or before the Registrar under Part 6A, a court may
make an order staying or otherwise affecting the operation of this Act during
the proceeding.
19 Division 1 of Part 7 (heading)
Repeal the heading, substitute:
Division 1—Jurisdiction of courts
20 Before section 99
Insert:
98X
Simplified outline
The following is a simplified outline of
this Division:
• Jurisdiction under this Act
is conferred on the Family Court, the Federal Magistrates Court and certain
State and Territory courts.
• This Division also provides
for appeals to the Family Court from other courts.
21 Division 2 of Part 7 (heading)
Repeal the heading, substitute:
Division 2—Entitlement to administrative assessment
22 Sections 106 and 106A
Repeal the sections, substitute:
106
Simplified outline
The following is a simplified outline of
this Division:
• A court may declare that a
person is entitled to administrative assessment of child support for a child
because another person is the parent of the child.
• A court may declare that a
person is not entitled to administrative assessment of child support for a
child because another person is not the parent of the child.
106A
Declaration that a person is entitled to administrative assessment
(1) This section applies if:
(a) the Registrar refuses to accept
from an applicant a carer application for administrative assessment of child
support for a child under subsection 30(2); and
(b) one of the reasons for the
Registrar so refusing was that the Registrar was not satisfied under
section 29 that the person from whom the application sought payment of
child support is a parent of the child.
Applications for declarations
(2) The applicant may apply to a court having
jurisdiction under this Act for a declaration that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the applicant is entitled to administrative assessment of child
support for the child because the person from whom the application sought
payment of child support is a parent of the child; and
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the applicant is entitled to have the Registrar
reconsider the application under Division 2 of Part 4 because the person
from whom the application sought payment of child support is a parent of the
child.
(3) The application must be made within:
(a) the time prescribed by the
applicable Rules of Court; or
(b) such further time as is allowed
under the applicable Rules of Court.
Parties
(4) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding are:
(a) the applicant; and
(b) the person from whom the
application sought payment of child support.
Declarations
(5) The court may grant the declaration if
the court is satisfied that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the person is entitled to administrative assessment of child
support because the person from whom the application sought payment of child
support is a parent of the child; or
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the applicant is entitled to have the Registrar
reconsider the application under Division 2 of Part 4 because the
person from whom the application sought payment of child support is a parent of
the child.
(6) If the court grants the declaration:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the Registrar is taken to have accepted the application for
administrative assessment of child support; and
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the Registrar must reconsider the application under
Division 2 of Part 4.
23 At the end of subsection 107(1)
Add “because the person is not a parent of the child concerned”.
Note: The heading to section 107 is replaced by
the heading “Declaration that a person is not entitled to administrative
assessment”.
24 Subsections 107(1A) and (1B)
Repeal the subsections, substitute:
(1A) However, a person must not apply for the
declaration in respect of a child if a court has already declared under
section 106A that the applicant was entitled to administrative assessment
of child support for the child, or to have the Registrar reconsider an
application, because the person is a parent of the child.
Note: In that case, the person may be able to appeal
against the declaration under Division 1 of Part 7.
25 Subsection 107(4)
Repeal the subsection, substitute:
(4) The court may grant the declaration if
the court is satisfied that the applicant was not entitled to administrative
assessment of child support for the child because the person from whom the
application sought payment is not a parent of the child.
26 Paragraph 109(2)(b)
Repeal the paragraph.
27 Division 6 of Part 7 (heading)
Repeal the heading, substitute:
Division 6—Setting aside accepted child support agreements
28 Subdivision A of Division 6 of Part 7
Repeal the Subdivision.
29 Subdivision B of Division 6 of Part 7 (heading)
Repeal the heading.
30 Before section 136
Insert:
135
Simplified outline
The following is a simplified outline of
this Division:
• A court may set aside a
child support agreement if the consent of one of the parties was obtained by
fraud or undue influence.
31 Section 138
Omit “Subdivision”, substitute “Division”.
32 Before section 139
Insert:
138A
Simplified outline
The following is a simplified outline of
this Division:
• A court may make an order
for the payment of child support if:
(a) a child is
in urgent need of financial assistance; and
(b) an
application has been made for an administrative assessment in relation to the
child.
• If a proceeding has been
instituted in a court, or before the Registrar under Part 6A, a court may
make an order staying or otherwise affecting the operation of this Act during
the proceeding.
33 Paragraph 139(2A)(d)
Repeal the paragraph, substitute:
(d) if:
(i) the decision of the
Registrar does not become final; and
(ii) one of the reasons for
the Registrar so refusing was that the Registrar was not satisfied under
section 29 that the person from whom the application sought payment of
child support is a parent of the child;
at the time when a decision of a
court becomes final, being a decision (whether under section 106A or on
appeal from a decision of a court under that section) that the person from whom
the application sought payment of child support is not a parent of the child;
or
(e) in any other case—at the time when
a decision that the applicant was not entitled to administrative assessment of
child support becomes final, being a decision:
(i) of the SSAT under
Part VIIA of the Registration and Collection Act; or
(ii) of a court under
Subdivision B of Division 3 of Part VIII of the Registration and
Collection Act or on appeal from a decision of a court under that Subdivision.
34 Subsection 139(2B)
Repeal the subsection, substitute:
(2B) For the purposes of subsection (2A), a
decision of the Registrar refusing to accept an application for administrative
assessment of child support becomes final if an application:
(a) to a court under section 106A
(declarations of entitlement to administrative assessment); or
(b) to the SSAT under Part VIIA
of the Registration and Collection Act;
is not made within the period for doing so. The
application becomes final at the end of the period.
Note: For determining when decisions of the SSAT
become final, see subsection 110W(1) of the Registration and Collection Act.
35 Before section 141
Insert:
140A
Simplified outline
The following is a simplified outline of
this Division:
• In exercising jurisdiction
under this Act, a court has broad powers.
• An amount of child support
paid when there is no liability to do so may be recovered in a court.
36 Before section 144
Insert:
143A
Simplified outline
The following is a simplified outline of
this Division:
• A decision of a court
becomes final at the end of the period for appealing against the decision if no
appeal is made.
• The Registrar may intervene
in any proceeding under this Act.
37 Subsection 151C(5)
Repeal the subsection, substitute:
(5) A notice to a person under this section
must include, or be accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the application under section 151B was
made; and
(b) that if the person is aggrieved by
the decision on an objection to the particulars of the assessment (no matter
who lodges the objection), he or she may, subject to that Act, apply to the
SSAT for review of the decision.
Child Support (Registration and
Collection) Act 1988
38 Title
Omit “related”, substitute “other”.
39 Subsection 4(1)
Insert:
AAT means the Administrative Appeals
Tribunal.
40 Subsection 4(1)
Insert:
administrative assessment has the same
meaning as in the Assessment Act.
41 Subsection 4(1)
Insert:
appealable collection refusal decision means
a decision resulting in the failure of the Registrar to collect an amount
payable under an enforceable maintenance liability, being an amount that has
become due and payable and remained unpaid for at least 6 months, if:
(a) proceedings have not been
instituted in a court for recovery of the amount; or
(b) proceedings have been instituted
in a court for recovery of the amount and at least 3 months have elapsed since
the proceedings were instituted.
42 Subsection 4(1) (at the end of paragraphs (a) to
(bb) of the definition of appealable refusal decision)
Add “or”.
43 Subsection 4(1) (paragraph (c) of the definition of appealable
refusal decision)
Omit “section 71 or 71A”, substitute “section 71, 71A
or 71C”.
44 Subsection 4(1) (at the end of paragraph (c) of the
definition of appealable refusal decision)
Add “or”.
45 Subsection 4(1) (paragraphs (d) and (e) of the
definition of appealable refusal decision)
Repeal the paragraphs.
46 Subsection 4(1)
Insert:
Assessment Act means the Child Support (Assessment)
Act 1989.
47 Subsection 4(1) (paragraph (a) of the definition of court
order)
Before “the Child Support (Assessment) Act 1989”, insert
“this Act,”.
48 Subsection 4(1)
Insert:
final:
(a) in relation to a decision of the
SSAT—has the meaning given by subsection 110W(1); and
(b) in relation to a decision of a
court—has the meaning given by subsections 110W(2) and (3).
49 Subsection 4(1)
Insert:
reconsideration of a decision has the meaning
given by section 110Q.
50 Subsection 4(1)
Insert:
resumption determination means a
determination made by the Registrar under subsection 79A(3) or 79B(3).
51 Subsection 4(1)
Insert:
SSAT means the Social Security Appeals
Tribunal.
52 Subsection 4(1)
Insert:
SSAT Executive Director means the Executive
Director of the SSAT.
53 Subsection 4(1)
Insert:
suspension determination means a
determination made by the Registrar under subsection 79A(1) or 79B(1).
54 Subsection 4(1) (definition of Tribunal)
Repeal the definition.
55 Paragraph 4(4)(a)
Repeal the paragraph, substitute:
(a) the Registrar is required, under
section 22, subsection 24(1), 24A(1) or 25(2), or section 36, 37A,
37B, 38A, 39, 39B or 44, to do an act within a specified period; and
56 Subsection 7(3)
Omit “and the Tribunal”, substitute “, the SSAT and the AAT”.
57 Subsection 7(3)
Omit “or the Tribunal”, substitute “, the SSAT or the AAT”.
58 Paragraphs 23(1)(a), 33(1)(a), 37(a)
Before “the Child Support (Assessment Act) 1989”, insert
“this Act,”.
59 At the end of Part III
Add:
Division 4—Notices in respect of registration decisions
42C
Notices must be given to payers and payees in relation to registration
decisions
Notices must be given
(1) As soon as practicable after the
Registrar:
(a) registers a registrable
maintenance liability under this Act; or
(b) varies particulars entered in the
Child Support Register in relation to a registrable maintenance liability;
the Registrar must serve on the payer and payee of the
liability a notice in writing of the particulars entered in the Child Support
Register in relation to the liability, unless notice of those particulars has
already been given to the payer and the payee under the Assessment Act.
(2) As soon as practicable after the
Registrar deletes an entry in relation to a registrable maintenance liability
from the Child Support Register, the Registrar must serve a notice of the
decision on the payer and payee.
(3) As soon as practicable after the
Registrar makes an appealable refusal decision in relation to a registrable
maintenance liability, the Registrar must serve a notice in writing of the
decision on the payer and payee.
Content of notices
(4) A notice served on a person under this
section in relation to a decision (the original decision) must
include, or be accompanied by, a statement to the effect that:
(a) the person may, subject to this
Act, object to the original decision; and
(b) if the person is dissatisfied by a
later decision of the Registrar on an objection to the original decision (no
matter who lodges the objection), the person may, subject to this Act, apply to
the SSAT for review of the later decision.
(5) A contravention of subsection (4) in
relation to a decision does not affect the validity of the decision.
60 Subsection 54(3)
Repeal the subsection, substitute:
Notices of decisions
(3) If the Registrar makes a decision under
subsection (1) or (2):
(a) to remit only part of a penalty;
or
(b) not to remit any part of a
penalty;
the Registrar must serve written notice of the decision on
the person by whom the penalty is, or but for the remission would be, payable.
(4) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the person may, subject to this
Act, object to the decision (the original decision); and
(b) if the person is dissatisfied by a
later decision of the Registrar on an objection to the original decision, the
person may, subject to this Act, apply to the SSAT for review of the later
decision.
(5) A contravention of subsection (4) in
relation to a decision does not affect the validity of the decision.
61 Section 68
Omit “Where”, substitute “(1) If”.
62 At the end of paragraph 68(a)
Add “or”.
63 At the end of subparagraph 68(b)(i)
Add “and”.
64 At the end of section 68
Add:
Notices of decisions
(2) If the Registrar makes a decision under
subsection (1):
(a) to remit only part of a penalty;
or
(b) not to remit any part of a
penalty;
the Registrar must serve written notice of the decision on
the person by whom the penalty is, or but for the remission would be, payable.
(3) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the person may, subject to this
Act, object to the decision (the original decision); and
(b) if the person is dissatisfied by a
later decision of the Registrar on an objection to the original decision, the
person may, subject to this Act, apply to the SSAT for review of the later
decision.
(4) A contravention of subsection (3) in
relation to a decision does not affect the validity of the decision.
65 After section 71D
Insert:
71E
Notices must be given to payers and payees in relation to registration
decisions
Notices must be given
(1) This section applies if the Registrar
decides, under section 71, 71A or 71C, to credit an amount received by the
payee of an enforceable maintenance liability, or a third party, against the
liability of the payer of that enforceable maintenance liability.
Note: If the Registrar refuses to credit an amount
under section 71, 71A or 71C, the Registrar must give a notice under
subsection 42C(3).
(2) As soon as practicable after the
Registrar credits the amount, the Registrar must serve a notice in writing of
the decision on the payee and the payer.
Content of notices
(3) A notice served on a person under this
section in relation to a decision (the original decision) must
include, or be accompanied by, a statement to the effect that:
(a) the person may, subject to this
Act, object to the original decision; and
(b) if the person is dissatisfied by a
later decision of the Registrar on an objection to the original decision (no
matter who lodges the objection), the person may, subject to this Act, apply to
the SSAT for review of the later decision.
(4) A contravention of subsection (3) in
relation to a decision does not affect the validity of the decision.
66 Subsection 76(1)
Omit “section 79A”, substitute “sections 79A and 79B”.
67 Before section 79A
Insert:
Division 3—Suspension determinations
68 Section 79A
Repeal the section, substitute:
79A
Suspension determinations—pending declarations that parent not entitled to
administrative assessment
Suspension determinations
(1) The Registrar must make a determination
(a suspension determination) that a payee of a registered
maintenance liability in relation to a child is not entitled under subsection
76(1) to be paid an amount that is payable for the child by a payer of the
liability if:
(a) the Registrar has notice that the
payer has made an application under section 107 of the Assessment Act for
a declaration that the payee was not entitled to administrative assessment of
child support for the child because the payer is not the parent of the child;
and
(b) the application is pending.
Payee not entitled to be paid amounts until resumption
determination made
(2) If the Registrar makes a suspension
determination on a day, the payee is not entitled to be paid an amount from
that payer for the child on that or any later day mentioned in subsection 76(1)
unless and until the Registrar makes a determination under subsection (3)
of this section in relation to the payee and an amount payable by that payer
for the child.
Note 1: If the court grants the declaration under
section 107 of the Assessment Act, the application for administrative
assessment of child support is taken to have never been accepted by the
Registrar, and the payee was never entitled to be paid amounts under subsection
76(1) of this Act from that payer for that child.
Note 2: The Registrar must vary the Child Support
Register after making the suspension determination (see section 79C).
Resumption determinations
(3) If:
(a) the Registrar has made a
suspension determination under subsection (1) in relation to the payee of
a registered maintenance liability; and
(b) the Registrar is satisfied that
the application referred to in paragraph (1)(a) has been:
(i) finally refused by the
court (within the meaning of section 144 of the Assessment Act); or
(ii) dismissed or
withdrawn; or
(iii) struck out by the
court;
the Registrar must make a determination (a resumption
determination) that:
(c) the payee is again entitled under
subsection 76(1) to be paid an amount from that payer for the child; and
(d) if the payee has not, because of
the suspension determination, been paid an amount which the payee would
otherwise have been paid under subsection 76(1)—the payee is entitled to be
paid that amount.
Note: The Registrar must vary the Child Support
Register after making the resumption determination (see section 79C).
79B
Suspension determinations—pending SSAT and court reviews
Suspension determinations
(1) The Registrar may make a determination (a
suspension determination) that a payee of a registered
maintenance liability in relation to a child is not entitled under subsection
76(1) to be paid an amount that is payable for the child by the payer of the
liability if:
(a) any of the following proceedings
has been brought by the payer under item 9 of the table in subsection
80(1) and the proceeding is pending:
(i) a proceeding that the
child was not a child in relation to whom the application for administrative
assessment of child support was entitled to be made;
(ii) a proceeding that the
applicant was not a person entitled to make the application for the child;
(iii) a proceeding that the
person from whom the application sought payment was not a resident of
Australia; or
(b) a proceeding has been brought by
the payer under Subdivision B of Division 3 of Part VIII (court
review) in relation to the payee’s entitlement to administrative assessment of
child support for the child and the proceeding is pending under that
Subdivision.
Payee not entitled to be paid amounts until resumption
determination made
(2) If the Registrar makes a suspension
determination on a day, the payee is not entitled to be paid an amount from
that payer for the child on that or any later day mentioned in subsection 76(1)
unless and until the Registrar makes a determination under subsection (3)
of this section in relation to the payee and an amount payable by that payer
for the child.
Note: The Registrar must vary the Child Support
Register after making the suspension determination (see section 79C).
Resumption determinations
(3) If:
(a) the Registrar has made a
suspension determination under subsection (1) in relation to the payee of
a registered maintenance liability; and
(b) the Registrar is satisfied that
the proceeding referred to in subsection (1) has been:
(i) finally refused by the
court (within the meaning of section 110W); or
(ii) dismissed or
withdrawn; or
(iii) struck out by the
court;
the Registrar must make a determination (a resumption
determination) that:
(c) the payee is again entitled under
subsection 76(1) to be paid an amount from that payer for the child; and
(d) if the payee has not, because of
the suspension determination, been paid an amount which the payee would
otherwise have been paid under subsection 76(1)—the payee is entitled to be
paid that amount.
Note: The Registrar must vary the Child Support
Register after making the resumption determination (see section 79C).
79C
Varying particulars after suspension or resumption determination is made
(1) Immediately after making a suspension
determination in relation to an amount payable under a registered maintenance
liability, the Registrar must vary the particulars entered in the Child Support
Register in relation to the liability in whatever way the Registrar considers
necessary or desirable to give effect to the determination.
Note: As soon as practicable after varying
particulars under this subsection, the Registrar must serve a notice under
section 42C.
(2) Immediately after making a resumption
determination in relation to an amount payable under a registered maintenance
liability, the Registrar must vary the particulars entered in the Child Support
Register in relation to the liability in whatever way the Registrar considers
necessary or desirable to give effect to the determination.
Note: As soon as practicable after varying
particulars under this subsection, the Registrar must serve a notice under
section 42C.
69 Part VII
Repeal the Part, substitute:
Part VII—Internal objection procedures for certain decisions
Division 1—Preliminary
79D
Simplified outline
The following is a simplified outline of
this Part:
• Certain persons can object
under this Part to certain decisions of the Registrar under the Assessment Act
and this Act.
• If a person objects to a
decision, the Registrar is required to reconsider the decision under this Part.
• If a person is dissatisfied
with the reconsideration, he or she can apply to the SSAT for review of the
decision under Part VIIA of this Act.
• A person can appeal from
the SSAT to a court on a question of law under Subdivision B of Division 3
of Part VIII of this Act.
79E
Object of this Part
The object of this Part is to provide
for internal reconsideration of decisions of the Registrar before the decisions
may be reviewed by the SSAT under Part VIIA.
Division 2—Decisions against which objections may be lodged
80
Decisions against which objections may be lodged
(1) A person may lodge with the Registrar an
objection in writing to a decision of the Registrar if:
(a) the decision is set out in an item
of the following table; and
(b) the person is set out in that
item.
|
Decisions/objectors
|
|
Item
|
Decision
|
Who may object
|
|
1
|
to register a registrable maintenance liability
|
(a) the payer of the registrable maintenance liability; or
(b) the payee of the registrable maintenance liability
|
|
2
|
as to particulars entered in the Child Support Register in
relation to a registrable maintenance liability
|
(a) the payer of the registrable maintenance liability; or
(b) the payee of the registrable maintenance liability
|
|
3
|
as to particulars varied in the Child Support Register in
relation to a registrable maintenance liability
|
(a) the payer of the registrable maintenance liability; or
(b) the payee of the registrable maintenance liability
|
|
4
|
to delete an entry from the Child Support Register in
relation to a registrable maintenance liability
|
(a) the payer of the registrable maintenance liability; or
(b) the payee of the registrable maintenance liability
|
|
5
|
to credit, under section 71, 71A or 71C of this Act,
an amount received by the payee of a registrable maintenance liability, or a
third party, against the liability of the payer of the liability to the
Commonwealth
|
the payee of the registrable maintenance liability
|
|
6
|
to make an appealable refusal decision in relation to a
registrable maintenance liability
|
(a) the payer of the registrable maintenance liability; or
(b) the payee of the registrable maintenance liability
|
|
7
|
to make an appealable collection refusal decision in
relation to a registrable maintenance liability
|
the payee of the registrable maintenance liability
|
|
8
|
in relation to the remission of a penalty under subsection
54(1) or (2) or section 68 of this Act
|
the person by whom the penalty is payable
|
|
9
|
to accept an application for administrative assessment
under subsection 30(1) of the Assessment Act
|
(a) the person from whom the application seeks payment of
child support; or
(b) the person to whom the application seeks payment of child
support
|
|
10
|
to refuse to accept an application for administrative
assessment under subsection 30(2) of the Assessment Act
|
the applicant
|
|
11
|
as to the particulars of an administrative assessment
|
(a) the carer entitled to child support; or
(b) the liable parent
|
|
12
|
in relation to the remission of a penalty under
section 64A of the Assessment Act
|
the person by whom the penalty is payable
|
|
13
|
to terminate a child support agreement under paragraph 80G(1)(d)
or (e) of the Assessment Act
|
a party to the agreement
|
|
14
|
to accept or to refuse to accept an agreement in relation
to a child under section 92 or 98U of the Assessment Act
|
a party to the agreement
|
|
15
|
to make or to refuse to make a determination under
Part 6A of the Assessment Act
|
(a) the carer entitled to child support; or
(b) the liable parent
|
Objections to particulars in the Child Support Register
(2) An objection to a decision of the
Registrar as to particulars entered in the Child Support Register in relation
to a registrable maintenance liability may be lodged:
(a) on the ground that the relevant
entry does not relate to a registrable maintenance liability; or
(b) on any other ground.
(3) An objection to a decision of the
Registrar as to particulars varied in the Child Support Register in relation to
a registrable maintenance liability may only be made against:
(a) the particulars varied; and
(b) any other particulars affected by
the variation.
Objections to administrative assessments—parentage
(4) An objection to a decision of the
Registrar to accept an application for administrative assessment under
subsection 30(1) of the Assessment Act may not be lodged on the ground that the
person is not the parent of the child concerned.
Note: In that case, the person may be able to apply
to a court under section 107 of the Assessment Act for a declaration that
the applicant for the administrative assessment in question was not entitled to
it.
(5) An objection may not be lodged to a
decision of the Registrar to refuse to accept a carer application for
administrative assessment if one of the reasons for the Registrar so refusing
was that the Registrar was not satisfied under section 29 that the person
from whom the application sought payment of child support is a parent of the
child concerned.
Note: In that case, the applicant may be able to
apply to a court under section 106A of the Assessment Act for a declaration
that the applicant is entitled to administrative assessment of child support
for the child.
Division 3—Time limits on lodging objections
81
Time limits on lodging objections
(1) An objection to a decision (other than an
objection to an appealable collection refusal decision) must be lodged by a
person within 28 days after a notice of the decision is served on the person.
(2) An objection to an appealable collection
refusal decision must be lodged by a person within 28 days after the decision
first comes to the notice of the person.
82
Applications for extensions of time
(1) If the period for the lodgment by a
person of an objection under section 81 has ended, the person may, even
though the period has ended, send the objection to the Registrar together with
an application in writing requesting the Registrar to treat the objection as
having been duly lodged.
(2) The application must state fully and in
detail the grounds of the application, including the circumstances concerning,
and the reasons for, the failure by the person to lodge the objection as
required by section 81.
83
Consideration of applications for extensions of time for lodging objections
(1) If an application is sent to the
Registrar under section 82 in relation to an objection under this Part,
the Registrar must:
(a) consider the application; and
(b) within 60 days after the
application is received by the Registrar:
(i) either grant or refuse
the application; and
(ii) if the application is
granted—deal with the objection under subsection 87(1).
(2) If the Registrar does not either grant or
refuse to grant the application within that period of 60 days, the Registrar is
taken, at the end of that period, to have refused to grant the application.
(3) The Registrar must serve notice in
writing of the decision on the person who made the application.
(4) The notice must include, or be
accompanied by:
(a) the reasons for the decision; and
(b) a statement to the effect that, if
the person is aggrieved by the decision, application may be made, subject to
this Act, to the SSAT for review of the decision.
(5) A contravention of subsection (4) in
relation to a decision does not affect the validity of the decision.
(6) If an application under subsection 82(1)
is granted, the person who made the application is, for the purposes of this
Act, taken to have duly lodged the objection to which the application relates.
Division 4—Grounds of objections
84
Grounds of objections
The objection must state fully and in
detail the grounds relied on.
85
Registrar to serve copies of grounds of objections on other parties
The following table has effect:
|
Recipients of grounds
of objections
|
|
Item
|
If a person objects to
...
|
the Registrar must, as
soon as practicable, serve a copy of the grounds of objection on ...
|
|
1
|
a decision that more than one person could have objected
to under section 80 of this Act
|
each other person who could have objected to the decision
|
|
2
|
a decision to credit, under section 71, 71A or 71C of
this Act, an amount received by the payee of a registrable maintenance
liability against the liability of the payer of the liability to the
Commonwealth
|
the payer of the registrable maintenance liability
|
|
3
|
an appealable collection refusal decision in relation to a
registrable maintenance liability
|
the payer of the registrable maintenance liability
|
|
4
|
a decision to refuse to accept an application for
administrative assessment under subsection 30(2) of the Assessment Act
|
the person to whom or from whom the application seeks
payment of child support, as the case requires
|
86
Other party may oppose or support objection
(1) A person served with a copy of the
grounds of objection under section 85 may lodge with the Registrar a
written notice in opposition to, or in support of, the objection.
(2) The notice must be lodged within 28 days
after service on the person of the copy of the grounds of objection.
(3) The notice must state fully and in detail
the grounds relied on.
Division 5—Consideration of objections
87
Consideration of objections by Registrar
(1) If an objection is lodged with the
Registrar under this Part, the Registrar must:
(a) consider the objection and any
notice lodged with the Registrar under section 86 in relation to the
objection; and
(b) within 60 days after the objection
is lodged with the Registrar, either:
(i) disallow the
objection; or
(ii) allow it in whole or
in part.
(2) The Registrar must serve notice in
writing of the decision on:
(a) the person who lodged the
objection; and
(b) each other person who was entitled
to be served a copy of the grounds of objection under section 85.
(3) A notice served on a person under
subsection (2) must include, or be accompanied by:
(a) the reasons for the decision; and
(b) a statement to the effect that if
the person is aggrieved by the decision on the objection:
(i) if the decision
objected to was a decision by the Registrar under section 98E or 98R of
the Assessment Act—the person may apply to a court for an order under
Division 4 of Part 7 of that Act; or
(ii) otherwise—the person
may, subject to this Act, apply to the SSAT for review of the decision.
(4) A contravention of subsection (3) in
relation to a decision does not affect the validity of the decision.
Part VIIA—SSAT review of certain decisions
Division 1—Preliminary
87A
Simplified outline
The following is a simplified outline of
this Part:
• If a person objects to a
decision of the Registrar under Part VII, the Registrar is required to
reconsider the decision under that Part.
• If a person is dissatisfied
with the reconsideration, he or she can apply to the SSAT for review of the
decision under this Part.
• The SSAT must pursue the
objective of providing a mechanism of review that is fair, just, economical,
informal and quick.
• A person can appeal from
the SSAT to a court on a question of law under Subdivision B of Division 3
of Part VIII of this Act.
88
SSAT objective
In carrying out its functions under this
Act, the SSAT must pursue the objective of providing a mechanism of review that
is fair, just, economical, informal and quick.
Division 2—Applications for review
Subdivision A—Applications for review
89
Applications for review
(1) A person may apply to the SSAT for review
of a decision of the Registrar if:
(a) the decision is set out in an item
of the following table; and
(b) the person is set out in that
item.
|
Decisions/applicants
|
|
Item
|
Decision
|
Who may apply for
review
|
|
1
|
a decision under subsection 83(1) on an application for an
extension of time
|
the person who applied for the extension of time
|
|
2
|
a decision under subsection 87(1) on an objection to a
decision (the original decision) of the Registrar
|
(a) the person who objected to the original decision under
section 80; or
(b) a person who was entitled to be served a copy of the
grounds of objection under section 85
|
(2) However, a person may not apply to the
SSAT for review of a decision under subsection 87(1) on an objection to a
decision (the original decision) of the Registrar if the original
decision was made under section 98E or 98R of the Assessment Act.
Note: In that case, the person may apply to a court
for an order under Division 4 of Part 7 (departure orders) of the
Assessment Act.
Subdivision B—Time limit on applications for review
90
Time limit on applications for review
An application for review under this
Part must be made by a person within the period of 28 days starting on the day
on which the relevant notice under subsection 83(3) or 87(2) is served on the
person.
91
Application for extension of time
(1) If the period for applying for review
under this Part has ended, a person may make an application for review under
this Part that includes a written application (the extension application)
asking the SSAT Executive Director to consider the application for review
despite the ending of the period.
(2) The extension application must state the
reasons for the person’s failure to apply for the review within the period
required by section 90.
92
Consideration of applications for extension of time for lodging objections
(1) If a person applies to the SSAT under
section 91 in relation to an application for review, the SSAT Executive
Director must:
(a) consider the extension
application; and
(b) within 60 days after the extension
application is received by the SSAT, grant or refuse the extension application;
and
(c) if the extension application is
granted—deal with the application for review under this Part.
(2) If the SSAT Executive Director does not
make a decision on the extension application within 60 days after the extension
application was made, the SSAT Executive Director is taken to have refused the
extension application at the end of that period.
(3) The SSAT Executive Director must give
written notice of the decision granting or refusing the extension application
to the person who made the extension application.
(4) If the SSAT Executive Director refuses
the extension application, the notice under subsection (3) must include,
or be accompanied by, a statement to the effect:
(a) that the person may, subject to
the Administrative Appeals Tribunal Act 1975, apply to the AAT for
review of the decision; and
(b) except where subsection 28(4) of
that Act applies—that the person may request a statement under section 28
of that Act.
(5) A contravention of subsection (4) in
relation to a decision does not affect the validity of the decision.
(6) If an extension application under
section 91 is granted, the person who made the application is, for the
purposes of this Act, taken to have duly made the application for review under
this Part to which the extension application relates.
(7) A person whose extension application has
been refused by the SSAT Executive Director may apply to the AAT for review of
the decision.
(8) In subsection (7):
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
93
Procedures on receiving applications for review not required until review of
extension application completed
If an extension application is made
under section 91 in relation to an application for review:
(a) subsections 95(2) to (6) and
section 96 are taken not to apply in respect of the application for review
unless and until a decision of the SSAT Executive Director, the AAT or a court
decides that the extension application is to be granted by the SSAT Executive
Director; and
(b) if such a decision is
made—subsection 95(2) applies as if the application for review under this Part
is received by an office of the SSAT on the day on which that decision is made.
Subdivision C—Application procedures
94
Application procedures
(1) A person may apply to the SSAT for review
under this Part by:
(a) sending or delivering a written application
to:
(i) an office of the SSAT;
or
(ii) an office of the
Department; or
(iii) an office of the
Commonwealth Services Delivery Agency; or
(iv) an office of the
Department administering the Commonwealth Services Delivery Agency Act 1997;
or
(b) going to an office of the SSAT and
making an oral application; or
(c) contacting an office of the SSAT
by telephone and making an oral application.
(2) If a person makes an oral application in
accordance with paragraph (1)(b) or (c), the person receiving the oral
application must:
(a) make a written record of the
details of the oral application; and
(b) note on the record the day on
which the application is made.
(3) If a person makes a written record of an
oral application in accordance with subsection (2), this Part has effect
as if the written record were a written application made on the day on which
the oral application was made.
(4) An application may include a statement of
the reasons for seeking a review of the decision.
95 Procedures
on receiving applications for review
Applications must be forwarded to SSAT
(1) If an application for review under this
Part is sent or delivered to an office of a Department or of the Commonwealth
Services Delivery Agency under section 94, the Secretary of that
Department or the CEO of the Agency, as the case requires, must send the
application to the SSAT Executive Director:
(a) as soon as practicable; and
(b) in any case—not later than 7 days
after the application is received at the office of that Department or Agency.
SSAT must notify applicants and Registrar of receipt of
applications
(2) If:
(a) an application for review under
this Part is received by an office of the SSAT; or
(b) a Secretary or the CEO sends such
an application to the SSAT Executive Director in accordance with
subsection (1);
the SSAT Executive Director must give the applicant, the
Registrar and any other party to the review written notice that the application
has been received.
Note: The parties to the review are set out in
section 101.
Registrar must provide information to SSAT
(3) Within 28 days after receiving the notice
under subsection (2), the Registrar must send to the SSAT Executive
Director:
(a) a statement about the decision
under review that:
(i) sets out the findings
of fact made by the Registrar; and
(ii) refers to the evidence
on which those findings were based; and
(iii) gives the reasons for
the decision; and
(b) the original or a copy of every
document or part of a document that:
(i) is in the possession,
or under the control, of the Registrar; and
(ii) is relevant to the
review of the decision.
Note: The Registrar must also send copies of the
statement and documents to each party (see section 96).
(4) If the SSAT Executive Director requests
the Registrar to send the statement and documents referred to in
subsection (3) by a day earlier than the day fixed by that subsection, the
Registrar must take reasonable steps to comply with the request.
(5) If:
(a) after the end of the period referred
to in subsection (3) but before the determination of the review, the
Registrar obtains possession of a document; and
(b) the Registrar considers that the
document or a part of the document is relevant to the review; and
(c) a copy of the document or the part
of the document has not been sent to the SSAT Executive Director in accordance
with subsection (3);
the Registrar must send a copy of the document or the part
of the document to an office of the SSAT as soon as practicable after obtaining
possession of the document.
(6) If the Registrar must provide the SSAT
with a document under this section, the Registrar must provide the SSAT with:
(a) if the SSAT Executive Director
requests the Registrar to provide a specified number of copies of the document—that
number of copies of the document; or
(b) otherwise—2 copies of the
document.
96
Parties to be given statements about decisions under review
(1) Within 28 days after receiving the notice
under subsection 95(2), the Registrar must give each party to the review a copy
of the statement and documents referred to in subsection 95(3).
Note: The parties to the review are set out in
section 101.
(2) The SSAT Executive Director may, by
writing given to the person, direct a person who has received a copy of a
statement or a document in accordance with subsection (1):
(a) not to disclose information in the
statement or document; or
(b) not to disclose information in the
statement or document except in the circumstances, or for the purposes,
specified in the direction.
Offence
(3) A person commits an offence if:
(a) the SSAT Executive Director gives
a direction to the person under subsection (2); and
(b) the person contravenes the
direction.
Penalty: Imprisonment for 2 years.
97
When document is not required to be sent
(1) Subject to section 98, the Registrar
is not required, under paragraph 95(3)(b) or subsection 93(5), to send a
document, or part of a document, that is relevant to a review if:
(a) for a document or a part of a
document that is required under paragraph 95(3)(b)—within 28 days after
receiving the relevant notice under subsection 95(2); or
(b) for a document or a part of a
document that is required under subsection 95(5)—as soon as practicable;
the Registrar:
(c) applies to the SSAT Executive
Director for a direction under section 98 in relation to the document or
the part of the document; and
(d) sends to the SSAT 2 copies of the
document or the part of the document, together with the application for the
direction; and
(e) gives a copy of the application
for the direction to each party to the application for review.
(2) Subsection (1) does not affect the
obligation of the Registrar to comply with paragraph 95(3)(b) or subsection
93(5) in relation to any document or part of a document to which
subsection (1) does not apply.
98
Directions prohibiting or restricting disclosure of documents
(1) If, after considering an application by
the Registrar under section 97 for a direction in respect of a document or
a part of a document, the SSAT Executive Director directs the Registrar to send
the document or the part of the document under paragraph 95(3)(b) or subsection
93(5), the Registrar must do so.
(2) The SSAT Executive Director may give
directions (whether on application by the Registrar or on his or her
initiative) prohibiting or restricting the disclosure to some or all of the
parties to a review of the contents of a document or statement referred to in
subsection 95(3) or (5) that relates to the review if he or she is satisfied
that it is desirable to do so because of the confidential nature of the
document or statement, or for any other reason.
Subdivision D—Effect of variations of original decisions on applications
99
Variations of decisions before reviews completed
(1) If the Registrar varies a decision:
(a) after an application has been made
to the SSAT under this Part for review of the decision; but
(b) before the determination of the
review;
the application for review is to be treated as if it were
an application for review of the decision as varied.
(2) If the Registrar sets a decision aside
and substitutes a new decision:
(a) after an application has been made
to the SSAT for review of the original decision; but
(b) before the determination of the
review;
the application for review is to be treated as if it were
an application for review of the new decision.
(3) If:
(a) a person applies to the SSAT for
review of a decision; and
(b) before the determination of the
review, the Registrar varies the decision or sets it aside and substitutes a
new decision;
the person may either:
(c) proceed with the application for
review of the decision as varied or the new decision, as the case may be; or
(d) apply to the SSAT Executive
Director to have the application dismissed under section 100.
Subdivision E—Dismissal of applications
99A
Subdivision does not apply in relation to Registrar
This Subdivision does not apply in
relation to a party if the party is the Registrar.
100
Dismissal of an application
(1) The SSAT Executive Director may, on the
application of a party or on his or her own initiative, dismiss an application
for review of a decision if:
(a) the decision is not reviewable
under this Part; or
(b) the application is frivolous or
vexatious; or
(c) all of the parties consent; or
(d) the SSAT Executive Director is
satisfied:
(i) after having
communicated with each party; or
(ii) after having made
reasonable attempts to communicate with each party and having failed to do so;
or a combination of both, that
none of the parties intend to proceed with the application; or
(e) all of the parties fail to attend
the hearing; or
(f) all of the parties have been
removed from the proceeding under subsection 101(5).
(2) The SSAT Executive Director may dismiss
an application under paragraph (1)(b) only if:
(a) one of the following applies:
(i) the SSAT Executive
Director has received and considered submissions from the applicant;
(ii) the SSAT Executive
Director has otherwise communicated with the applicant in relation to the
grounds of the application;
(iii) the SSAT Executive
Director has made reasonable attempts to communicate with the applicant in
relation to the grounds of the application and has failed to do so; and
(b) all of the parties (other than the
applicant) consent to the dismissal.
Division 3—Parties to reviews
101
Parties to reviews
(1) The parties to a review under this Part
are:
(a) the applicant; and
(b) the Registrar; and
(c) any other person who was entitled
to apply for review of the decision under section 89; and
(d) any other person who has been made
a party to the review under subsection (4).
SSAT Executive Director may add parties
(2) Any person whose interests are affected
by the decision may apply in writing to the SSAT Executive Director to be made
a party to the review.
(3) However, a person may not apply under
subsection (2) if:
(a) the person is a child of a party
referred to in paragraph (1)(a), (c) or (d); or
(b) a party referred to in
paragraph (1)(a), (c) or (d) is an eligible carer, but not a parent, of
the person.
(4) The SSAT Executive Director may order
that a person who has applied under subsection (2) be made a party to the
review.
SSAT Executive Director may remove parties
(5) The SSAT Executive Director may direct
that a party to a review no longer be a party to the review if:
(a) the party consents; or
(b) the SSAT Executive Director is
satisfied:
(i) after having
communicated with the party; or
(ii) after having made
reasonable attempts to communicate with the party and having failed to do so;
that the party does not intend
to participate in or proceed with the review; or
(c) the party fails to comply with a
direction or order of the SSAT or of the SSAT Executive Director given in
relation to the review; or
(d) the party fails to attend the
hearing.
102
Notice of application to persons affected by decision
(1) If:
(a) an application has been made to
the SSAT under this Part for review of a decision; and
(b) the SSAT Executive Director is
satisfied that the interests of a person who is not a party to the review are
affected by the decision;
the SSAT Executive Director must take reasonable steps to
give the person written notice that an application has been made to the SSAT
for review of the decision.
(2) However, subsection (1) does not
apply to a person if:
(a) the person is a child of a party
referred to in paragraph 101(1)(a), (c) or (d); or
(b) a party referred to in paragraph
101(1)(a), (c) or (d) is an eligible carer, but not a parent, of the person.
(3) The notice under subsection (1):
(a) must be in writing; and
(b) must include, or be accompanied
by, notification of the person’s right under subsection 101(2) to apply to the
SSAT Executive Director to be added as a party to the review; and
(c) may be given at any time before
the determination of the review.
(4) The SSAT Executive Director must give
each party to the review a copy of the notice.
Division 3A—Prehearing conferences
103
Pre‑hearing conferences
(1) The SSAT Executive Director may convene
one or more conferences with the parties to a review if he or she considers
that it would assist in the conduct and consideration of the review to do so.
(2) At a conference, the SSAT Executive
Director may:
(a) fix a day or days for the hearing;
and
(b) give directions about the time
within which submissions are to be made to the SSAT; and
(c) give directions about the time
within which evidence is to be brought before the SSAT.
Note: Section 103W applies if the parties reach
an agreement at the pre‑hearing conference.
Division 4—Hearings
Subdivision A—Arrangements for hearings
103A
Arrangements for hearings
(1) The SSAT Executive Director must fix a
day, time and place for the hearing of a review of a decision if:
(a) an application is made to the SSAT
for review of the decision; and
(b) the parties to the review do not
reach an agreement before a hearing of the review is to begin; and
(c) the SSAT Executive Director has
not already done so at a pre‑hearing conference.
(2) The SSAT Executive Director must give the
applicant and any other parties to the review written notice of the day, time
and place fixed for the hearing of the application.
(3) The notice under subsection (2) must
be given a reasonable time before the day fixed for the hearing.
Subdivision B—Submissions from parties other than the Registrar
103B
Subdivision does not apply in relation to Registrar
This Subdivision does not apply in
relation to a party if the party is the Registrar.
103C
Submissions
(1) A party to a review under this Part may
make:
(a) oral submissions to the SSAT; or
(b) written submissions to the SSAT;
or
(c) both oral and written submissions
to the SSAT.
Note: The SSAT Executive Director may direct that a
hearing be conducted without oral submissions from the parties (see
section 103D).
(2) A party to a review may have another
person make submissions to the SSAT on his or her behalf.
(3) The SSAT Executive Director may determine
that submissions to the SSAT by a party or a party’s representative are to be
made by telephone or by means of other electronic communications equipment.
(4) Without limiting subsection (3), the
SSAT Executive Director may make a determination under that subsection in relation
to an application if:
(a) the application is urgent; or
(b) the party lives in a remote area
and unreasonable expense would be incurred if the party or the party’s
representative had to travel to the place at which the hearing is to be held;
or
(c) the party is unable to attend the
hearing because of illness or infirmity; or
(d) the party has failed to attend the
hearing and has not indicated that he or she intends to attend the hearing.
(5) If a party is not proficient in English,
the SSAT Executive Director may give directions in relation to the use of an
interpreter in connection with the hearing of the review.
103D
Written submissions only
(1) The SSAT Executive Director may direct
that a hearing be conducted without oral submissions from the parties if:
(a) the SSAT Executive Director
considers that the review hearing could be determined fairly on the basis of
written submissions by the parties; and
(b) all parties to the review consent
to the hearing being conducted without oral submissions.
(2) If the SSAT Executive Director gives a
direction under subsection (1), the SSAT Executive Director must give each
of the parties to the review written notice:
(a) informing the party of the
direction; and
(b) inviting the party to submit
written submissions; and
(c) specifying the address to which
the written submissions are to be delivered; and
(d) specifying the time within which
the written submissions are to be delivered.
The SSAT Executive Director must give a copy of the notice
to the Registrar.
(3) The time specified under
paragraph (2)(d) must be such as to allow a reasonable period for the
parties to make written submissions.
(4) Despite subsection (1), the SSAT, as
constituted for the hearing, may, if it thinks necessary after considering the
written submissions made by the parties, make an order permitting the parties
to make oral submissions to the SSAT at the hearing of the review.
103E Hearings
without oral submissions from a party
(1) If a party to a review has informed the
SSAT Executive Director that the party does not intend to make oral submissions
to the SSAT, the SSAT may proceed to hear the application for review without
oral submissions from the party.
(2) If:
(a) the SSAT Executive Director has
determined that oral submissions to the SSAT by a party or a party’s
representative are to be made by telephone or by means of other electronic
communications equipment; and
(b) on the day fixed for the hearing,
the presiding member of the SSAT as constituted for the purposes of the review
has been unable to contact the party or the party’s representative, as the case
may be, after taking reasonable steps to do so;
the SSAT Executive Director may authorise the SSAT to
proceed to hear the application without oral submissions from the party or the
party’s representative, as the case may be.
(3) If:
(a) the SSAT Executive Director has
not determined that oral submissions to the SSAT by a party or a party’s
representative are to be made by telephone or by means of other electronic
communications equipment; and
(b) the party or the party’s
representative, as the case may be, does not attend the hearing at the time
fixed for the hearing;
the SSAT Executive Director may authorise the SSAT to
proceed to hear the application without oral submissions from the party or the
party’s representative, as the case may be.
(4) If the SSAT Executive Director gives an
authorisation under subsection (2) or (3), the SSAT may proceed to hear
the application in accordance with the authorisation.
(5) If the hearing for the review has not
been completed, the SSAT Executive Director may revoke an authorisation under
subsection (2) or (3).
Subdivision C—Submissions from the Registrar
103F
Submissions from the Registrar
(1) The Registrar may make written
submissions to the SSAT.
Registrar may request permission to make oral
submissions
(2) The Registrar may, by writing, request
the SSAT Executive Director for permission to make:
(a) oral submissions to the SSAT; or
(b) both oral and written submissions
to the SSAT.
The request must explain how such submissions would assist
the SSAT.
(3) The SSAT Executive Director may, by
writing, grant the request if, in the opinion of the SSAT Executive Director
having regard to the objective laid down by section 88, such submissions
would assist the SSAT.
SSAT may order Registrar to make oral submissions
(4) The SSAT Executive Director may order the
Registrar to make:
(a) oral submissions to the SSAT; or
(b) both oral and written submissions
to the SSAT;
if, in the opinion of the SSAT Executive Director having
regard to the objective laid down by section 88, such submissions would
assist the SSAT.
Subdivision D—Other evidence provisions
103G
Evidence on oath or affirmation
The SSAT may take evidence on oath or
affirmation for the purposes of a review of a decision.
103H
Children of parties not to give evidence
A person may not give evidence for the
purposes of a review of a decision if:
(a) the person is a child of a party
referred to in paragraph 101(1)(a), (c) or (d); or
(b) a party referred to in paragraph
101(1)(a), (c) or (d) is an eligible carer, but not a parent, of the person.
103J
Provision of further information by Registrar
(1) The SSAT Executive Director may ask the
Registrar to provide the SSAT with information or a document that the Registrar
has and that is relevant to the review of a decision.
(2) The Registrar must comply with a request
under subsection (1):
(a) as soon as practicable; and
(b) in any event—not later than 14
days after the request is made.
(3) If the request is for a document, the
Registrar must provide the SSAT with:
(a) if the request specifies a number
of copies—that number of copies of the document; or
(b) otherwise—2 copies of the
document.
103K
Power to obtain information
(1) The SSAT Executive Director may, if it is
reasonably necessary for the purposes of a review, by written notice given to
the person, require a person:
(a) to give to the SSAT:
(i) within a reasonable
period specified in the notice (being a period of not less than 7 days); and
(ii) in a reasonable manner
specified in the notice;
such information as the SSAT
Executive Director requires; or
(b) to attend before the SSAT
Executive Director (or an officer authorised by the SSAT Executive Director for
the purpose):
(i) at a reasonable time
specified in the notice; and
(ii) at a reasonable place
specified in the notice;
and then and there answer
questions; or
(c) to produce to the SSAT:
(i) at a reasonable time
specified in the notice; and
(ii) at a reasonable place
specified in the notice;
any documents in the custody or
under the control of the person.
(2) A person commits an offence if:
(a) the SSAT Executive Director gives
the person a notice under subsection (1); and
(b) the person refuses or fails to
comply with the notice.
Penalty: Imprisonment for 6 months.
(3) Subsection (2) does not apply if
complying with the notice might tend to incriminate the person.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) A person who is required to attend under
this section is allowed such expenses as are prescribed by the regulations for
the purposes of subsection 120(2).
103L
SSAT may require Registrar to obtain information
(1) If the SSAT Executive Director is
satisfied that a person:
(a) has information that is relevant
to a review; or
(b) has custody or control of a document
that is relevant to a review;
the SSAT Executive Director may, for the purpose of the
review, ask the Registrar to exercise the Registrar’s powers under
section 161 of the Assessment Act or section 120 of this Act.
Note: A person who fails to comply with a notice
given under section 161 of the Assessment Act or section 120 of this
Act commits an offence under that section.
(2) The Registrar must comply with a request
under subsection (1):
(a) as soon as practicable; and
(b) in any event—within 7 days after
the request is made.
Subdivision E—Hearing procedure
103M
Chair for hearings
(1) If the SSAT is constituted by 2 or more
members for the purposes of the review of a decision, the SSAT Executive
Director must designate one of those members as the member who is to preside at
the hearing of the review.
(2) If the SSAT Executive Director is one of
those members, he or she may designate himself or herself as the member who is
to preside.
103N
Hearing procedure
(1) The SSAT, in reviewing a decision under
this Part:
(a) is not bound by legal
technicalities, legal forms or rules of evidence; and
(b) is to act as speedily as a proper
consideration of the review allows; and
(c) in determining what a proper
consideration of the review requires, must have regard to the objective laid
down by section 88.
(2) The SSAT may inform itself on any matter
relevant to a review of a decision in any manner it considers appropriate.
Note: The SSAT Executive Director may give
directions as to the procedure to be followed in connection with reviews (see
section 103ZA).
103P
Hearing in private
(1) The hearing of a review must be in
private.
(2) The SSAT Executive Director may give
directions, in writing or otherwise, as to the persons who may be present at
any hearing of a review.
(3) In giving directions under
subsection (2), the Executive Director must have regard to:
(a) the wishes of the parties; and
(b) the need to protect their privacy.
103Q
Restrictions on disclosure of information obtained at hearing
(1) The SSAT Executive Director may make an
order directing a person who is present at the hearing of a review:
(a) not to disclose information
obtained by the person in the course of the hearing; or
(b) not to disclose information
obtained by the person in the course of the hearing except in the
circumstances, or for the purposes, specified in the order.
(2) A person commits an offence if:
(a) the SSAT Executive Director makes
an order under subsection (1) in relation to the person; and
(b) the person contravenes the order.
Penalty: Imprisonment for 2 years.
103R
Adjournment of hearings
(1) The SSAT may adjourn the hearing of a
review from time to time.
(2) Without limiting subsection (1), the
SSAT may refuse to adjourn the hearing of a review if:
(a) the hearing has already been
adjourned on 2 or more occasions; or
(b) the SSAT is satisfied that to
grant an adjournment would be inconsistent with the pursuit of the objective
laid down by section 88.
Division 5—Decisions on review
Subdivision A—SSAT review powers
103S
SSAT must affirm, vary or set aside decisions
If a person applies to the SSAT for
review of a decision under this Part, the SSAT must:
(a) affirm the decision; or
(b) vary the decision; or
(c) set the decision aside and:
(i) substitute a new
decision; or
(ii) send the matter back
to the Registrar for reconsideration in accordance with any directions or
recommendations of the SSAT.
103T
Powers of the SSAT for purposes of reviews
(1) Subject to the regulations, the SSAT may,
for the purpose of reviewing a decision under this Part, exercise all the
powers and discretions that are conferred by this Act and the Assessment Act on
the Registrar.
(2) To avoid doubt, any limitation on the
exercise of a power or discretion by the Registrar also limits the exercise of
that power or discretion by the SSAT under this Part.
(3) The regulations may specify provisions of
this Act and the Assessment Act to which subsection (1) does not apply.
103U
Decision of questions before SSAT
(1) Subject to subsection (2), a
question arising before the SSAT on a review is to be decided according to the
opinion of a majority of the members constituting the SSAT for the purposes of
the review.
(2) If, on a question arising on a review,
the opinions of the members of the SSAT are equally divided, the question is to
be decided according to the opinion of the member presiding.
103V
Date of effect of SSAT decisions
(1) This section applies if the SSAT:
(a) varies a decision under review; or
(b) sets aside a decision under review
and substitutes a new decision.
(2) The decision as varied or the new
decision (as the case may be) has effect, or is to be taken to have had effect,
on and from:
(a) if the SSAT specifies a day in its
decision (whether before or after the day on which the decision is given)—the
day specified; or
(b) otherwise—the day on which the
decision under review has or had effect.
Note: The SSAT cannot specify a day that the
Registrar could not have specified (see subsection 103T(2)).
Subdivision B—Consent orders
103W
Powers of SSAT if parties reach agreement
(1) If, at any stage of a proceeding for a
review (including at a pre‑hearing conference under section 103):
(a) the parties (other than the
Registrar) agree to the terms of a decision of the SSAT:
(i) in the proceeding; or
(ii) in relation to a part
of the proceeding, or a matter arising out of the proceeding;
that would be acceptable to the
parties; and
(b) the terms of the agreement are:
(i) put in writing; and
(ii) signed by or on behalf
of the parties; and
(iii) lodged with the SSAT;
and
(c) the SSAT is satisfied that a
decision in those terms, or consistent with those terms, would be within the
powers of the SSAT;
the SSAT may, if it appears to it to be appropriate to do
so, act in accordance with whichever of subsection (2) or (3) is relevant
in the particular case.
Note: The SSAT cannot make a decision that the
Registrar could not have made (see subsection 103T(2)).
(2) If the agreement reached is an agreement
as to the terms of a decision of the SSAT in the proceeding, the SSAT may make
a decision in accordance with those terms:
(a) without holding a hearing of the
proceeding; or
(b) if a hearing has commenced—without
completing the hearing.
(3) If the agreement relates to a part of the
proceeding, or a matter arising out of the proceeding, the SSAT may in its
decision in the proceeding give effect to the terms of the agreement without
dealing at the hearing of the proceeding with the part or matter to which the
agreement relates.
Subdivision C—Notification and publication of decisions
103X
Procedure following SSAT decision
(1) If the SSAT makes a decision on a review,
the SSAT must:
(a) within 14 days after making the
decision, give a written notice to the parties that:
(i) sets out the decision;
and
(ii) sets out the effect of
section 110B (appeal made to a court on a question of law); and
(b) return to the Registrar any
document that the Registrar has provided to the SSAT in connection with the
review; and
(c) give the Registrar a copy of any
other document that contains evidence or material on which the findings on any
material questions of fact are based.
Note: Within the 14 days referred to in
paragraph (1)(a), the SSAT must also give the parties oral or written
reasons for the decision (see subsection (3)).
(2) A failure to comply with
subparagraph (1)(a)(ii) in relation to a decision of the SSAT does not
affect the validity of the decision.
Statements of reasons
(3) The SSAT must, within 14 days after
making the decision, either:
(a) do both of the following:
(i) give reasons for the
decision orally to the parties;
(ii) explain that the
parties may request a written notice under paragraph (b) within 14 days
after the notice is given under paragraph (1)(a); or
(b) give to each party a written
notice (whether or not as part of the notice under paragraph (1)(a)) that:
(i) sets out the reasons
for the decision; and
(ii) sets out the findings
on any material questions of fact; and
(iii) refers to evidence or
other material on which the findings of fact are based.
(4) If the SSAT does not give a written
notice to a party under paragraph (3)(b), the party may, within 14 days
after the day on which the notice under paragraph (1)(a) is given to the
party, request such a notice from the SSAT.
(5) The SSAT must comply with a request under
subsection (4) within 14 days after the day on which it receives the
request.
103Y
Correction of errors in decisions or statements of reasons
Correction of errors
(1) If:
(a) the SSAT makes a decision on a
review; and
(b) the presiding member of the SSAT
as constituted for the purposes of the review is satisfied that there is an
obvious error in:
(i) the text of the
decision; or
(ii) a written statement of
reasons for the decision;
the presiding member may alter the text of the decision or
statement.
(2) If the text of a decision or statement is
altered under subsection (1), the altered text is taken to be the decision
of the SSAT or the statement of reasons for the decision, as the case may be.
Examples of obvious errors
(3) Examples of obvious errors in the text of
a decision or statement of reasons are if:
(a) there is an obvious clerical or
typographical error in the text of the decision or statement; or
(b) there is an inconsistency between
the decision and the statement.
Subdivision D—Costs
103Z
Costs of review
(1) Subject to subsection (4), a party
to a review must bear any expenses incurred by the party in connection with the
review.
(2) The SSAT may determine that the
Commonwealth is to pay the reasonable costs that are:
(a) incurred by a party for travel and
accommodation in connection with the review; and
(b) specified in the determination.
(3) If the SSAT arranges for the provision of
a medical service in relation to a party to a review, the SSAT may determine
that the Commonwealth is to pay the costs of the provision of the service.
(4) If the SSAT makes a determination under
subsection (2) or (3), the costs to which the determination relates are
payable by the Commonwealth.
Division 6—Other provisions
103ZA
Directions as to procedure for reviews
Directions by SSAT Executive Director
(1) The SSAT Executive Director:
(a) may give general directions as to
the procedure to be followed by the SSAT in connection with the review of
decisions under this Part; and
(b) may give directions as to the
procedure to be followed by the SSAT in connection with a particular review.
(2) A direction under subsection (1)
must not be inconsistent with any provision of the Assessment Act or this Act.
(3) A direction under paragraph (1)(b)
may be given before or after the hearing of the particular review has commenced.
Directions by presiding member
(4) The presiding member of the SSAT as
constituted for the purposes of a particular review may give directions as to
the procedure to be followed on the hearing of the review.
(5) A direction under subsection (4) must
not be inconsistent with:
(a) any provision of the Assessment
Act; or
(b) any provision of this Act; or
(c) a direction under
subsection (1).
(6) A direction under subsection (4) may
be given before or after the hearing of the particular review has commenced.
Directions must have regard to SSAT objective
(7) Directions under this section must have
due regard to the objective laid down by section 88.
Legislative instrument status of instruments
(8) A general direction made under
paragraph (1)(a) is a legislative instrument.
(9) A direction made under
paragraph (1)(b) or subsection (4) is not a legislative instrument.
70 Part VIII (heading)
Repeal the heading, substitute:
Part VIII—Court review of certain decisions
71 Before section 104
Insert:
Division 1—Preliminary
103ZB
Simplified outline
The following is a simplified outline of
this Part:
• Jurisdiction under this Act
is conferred on certain federal and State courts.
• A person may appeal a
decision of the SSAT under Part VIIA to a court on an error of law.
• The SSAT may refer a
question of law arising in a proceeding under Part VIIA to a court.
• If a proceeding has been
instituted in a court or before the SSAT or the Registrar, the court may make
an order staying or otherwise affecting the operation of the Assessment Act or
this Act during the proceeding.
Division 2—Jurisdiction of courts
103ZC
Simplified outline
The following is a simplified outline of
this Division:
• Jurisdiction under this Act
is conferred on the Family Court, the Federal Magistrates Court and certain
State and Territory courts.
• This Division also provides
for appeals to the Family Court from other courts.
72 At the end of Part VIII
Add:
Division 3—Appeals and references of questions of law from SSAT to
courts
Subdivision A—Preliminary
110A
Simplified outline
The following is a simplified outline of
this Division:
• If a person is dissatisfied
with a decision of the SSAT on a question of law in relation to a review under
Part VIIA of a decision of the Registrar, the person may appeal the
decision to a court.
• The SSAT may refer a
question of law arising in a proceeding under Part VIIA to a court.
Subdivision B—Appeals from decisions of SSAT
110B
Appeals from decisions of SSAT
A party to a proceeding before the SSAT
under Part VIIA may appeal to a court having jurisdiction under this Act,
on a question of law, from any decision of the SSAT in that proceeding.
110C
Time limits for instituting appeals
(1) An appeal by a person under this Division
must be instituted in a court:
(a) within:
(i) the time prescribed by
the applicable Rules of Court; or
(ii) such further time as
is allowed under the applicable Rules of Court; and
(b) in such manner as is prescribed by
the applicable Rules of Court.
(2) Without limiting the grounds on which
further time may be allowed under subparagraph (1)(a)(ii), further time
may, in the interests of justice, be allowed on the ground that:
(a) the SSAT made an oral statement as
to the reasons for the decision under paragraph 103X(3)(a); and
(b) the SSAT later gave a written
statement of reasons for the decision under paragraph 103X(3)(b) or subsection
103X(5); and
(c) the written statement contains
reasons that were not mentioned in the oral statement.
110D
Parties to appeals
The parties to a proceeding under this
Subdivision are the people who were the parties to the proceeding before the
SSAT when the SSAT made the relevant decision.
110E
Constitution of courts
The jurisdiction of a court to hear and
determine appeals instituted in that court in accordance with this Subdivision
may be exercised by the court constituted:
(a) as a Full Court; or
(b) by a single Judge.
110F
Powers of courts
(1) The court must hear and determine an
appeal under this Subdivision and may make such order as it thinks appropriate
by reason of its decision.
(2) Without limiting subsection (1), the
orders that may be made by the court on an appeal include:
(a) an order affirming or setting
aside the decision of the SSAT; or
(b) an order remitting the case to be
heard and decided again, either with or without the hearing of further
evidence, by the SSAT in accordance with the directions of the court.
Constitution of SSAT if courts remit cases etc.
(3) If the court makes an order remitting a
case to be heard and decided again by the SSAT:
(a) the SSAT need not be constituted
for the hearing by the person or persons who made the decision to which the
appeal relates; and
(b) whether or not the SSAT is
reconstituted for the hearing—the SSAT may, for the purposes of the proceeding,
have regard to any record of the proceeding before the SSAT prior to the appeal
(including a record of any evidence taken in the proceeding), so long as doing
so is not inconsistent with the directions of the court.
110G
Courts may make findings of fact
(1) If a party to a proceeding before the
SSAT appeals to a court under this Subdivision, the court may make findings of
fact if:
(a) the findings of fact are not
inconsistent with findings of fact made by the SSAT (other than findings made
by the SSAT as the result of an error of law); and
(b) it appears to the court that it is
convenient for the court to make the findings of fact, having regard to:
(i) the extent (if any) to
which it is necessary for facts to be found; and
(ii) the means by which
those facts might be established; and
(iii) the expeditious and
efficient resolution of the whole of the matter to which the proceeding before
the SSAT relates; and
(iv) the relative expense to
the parties of the court, rather than the SSAT, in making the findings of fact;
and
(v) the relative delay to
the parties of the court, rather than the SSAT, in making the findings of fact;
and
(vi) whether any of the
parties considers that it is appropriate for the court, rather than the SSAT,
to make the findings of fact; and
(vii) such other matters (if
any) as the court considers relevant.
(2) For the purposes of making findings of
fact under subsection (1), the court may:
(a) have regard to the evidence given
in the proceeding before the SSAT; and
(b) receive further evidence.
(3) Subsection (1) does not limit the
court’s power under paragraph 110F(2)(b) to make an order remitting the case to
be heard and decided again by the SSAT.
Subdivision C—References of questions of law from SSAT
110H
Reference of questions of law to courts
(1) The SSAT may:
(a) of its own initiative; or
(b) at the request of a party;
refer a question of law arising in a proceeding before the
SSAT under Part VIIA to a court having jurisdiction under this Act for
decision.
(2) A question must not be so referred
without the agreement of the SSAT Executive Director.
(3) If a question of law arising in any
proceeding has been referred to a court under this Subdivision, the SSAT must
not, in that proceeding:
(a) give a decision to which the
question is relevant while the reference is pending; or
(b) proceed in a manner, or make a
decision, that is inconsistent with the opinion of the court on the question.
110J
Questions to be determined by Full Courts
The jurisdiction of a court to hear and
determine a question of law under this Subdivision must be exercised by the
court constituted:
(a) as a Full Court; or
(b) by a single Judge.
Subdivision D—Other provisions
110K
Sending of documents to, and disclosure of documents by, the court
When an appeal is instituted in a court,
or a question of law is referred to a court, under this Division:
(a) the SSAT Executive Director must
cause to be sent to the court all documents that were before the SSAT in
relation to the proceeding to which the appeal or reference relates; and
(b) at the conclusion of the
proceeding before the court in relation to the appeal or reference, the court
must cause the documents to be returned to the SSAT.
73 After Part VIII
Insert:
Part VIIIA—Other provisions relating to reviews of decisions
Division 1A—Preliminary
110N
Simplified outline
The following is a simplified outline of
this Part:
• The reconsideration of a
decision by the Registrar, the SSAT or a court does not affect the operation of
the decision or prevent the taking of any action to implement the decision.
• Once a decision becomes
final, the Registrar must implement the decision.
• A person might commit an
offence if the person publishes an account of a proceeding, or a list of
proceedings, under Part VIIA or Division 3 of Part VIII that
identifies a witness or party.
Division 1—Effect of pending reconsiderations on assessments,
registrations etc.
Subdivision A—Preliminary
110P
Scope of Division
(1) This Division applies for the purposes of
the Assessment Act and this Act.
(2) This Division is subject to
section 111C (stay orders).
110Q
Meaning of reconsideration
For the purposes of this Act, each of
the following is a reconsideration of a decision:
(a) an objection to the decision under
Part VII;
(b) an application to the SSAT for
review of that objection under Part VIIA;
(c) an appeal to a court from that
review under Division 3 of Part VIII;
(d) an appeal to another court from
that appeal under Division 2 of Part VIII and any subsequent appeals
under that Division.
Subdivision B—Effect of pending reconsiderations
110R
Pending reconsiderations do not affect operation of decisions
The institution of a reconsideration of
a decision does not:
(a) affect the operation of the
decision; or
(b) prevent the taking of action to
implement the decision.
110S
Pending reconsiderations not to affect registrations etc.
(1) The fact that a reconsideration of a
decision in relation to a registrable maintenance liability is pending does
not, in the meantime, interfere with, or affect:
(a) the registration of the liability;
or
(b) the particulars entered in the
Child Support Register in relation to the liability.
(2) Amounts payable under such a liability or
payable, by way of penalty, in relation to such a liability may be recovered as
if no reconsideration were pending.
110T
Pending reconsiderations do not affect assessments
(1) The fact that a reconsideration of a
decision is pending in relation to a person does not, in the meantime,
interfere with, or affect, any administrative assessment made in relation to
the person.
(2) Any such assessment may be registered
under the Assessment Act, and any amounts of child support and other amounts
may be recovered in relation to the assessment, as if no reconsideration were
pending.
110U
Pending reconsiderations do not affect decisions under section 64A of the
Assessment Act
(1) The fact that a reconsideration of a
decision of the Registrar under section 64A of the Assessment Act is
pending does not, in the meantime, interfere with, or affect, the decision.
(2) Amounts payable in relation to such a
decision may be recovered as if no appeal were pending.
Division 2—Implementation of decisions
110V
Registrar must implement decisions
When the Registrar, the SSAT or a court
makes a decision on a reconsideration, the Registrar must immediately take such
action as is necessary to give effect to the decision.
Division 3—Determining when decisions become final
110W
Determining when decisions become final
SSAT
(1) For the purposes of the Assessment Act
and this Act, if:
(a) a decision is a decision of the
SSAT under Part VIIA of this Act; and
(b) an appeal may be made to a court
under Subdivision B of Division 3 of Part VIII of this Act against
the decision; and
(c) an appeal is not made within the
period for doing so;
the decision becomes final at the end of that period.
Full Court of the Family Court
(2) For the purposes of this Act, if:
(a) a decision is a decision of the
Full Court of the Family Court under Part VIII; and
(b) an application may be made for
special leave to appeal to the High Court within the period of 30 days after
the making of the decision; and
(c) an application is not made within
that period;
the decision becomes final at the end of that period.
Other courts
(3) For the purposes of this Act, if:
(a) a decision is a decision of a
court (other than the Full Court of the Family Court) under Part VIII; and
(b) an application may be made for
leave to appeal under Division 2 of Part VIII against the decision;
and
(c) an application is not made within
the period for doing so;
the decision becomes final at the end of that period.
Division 4—Restrictions on publication of review proceedings
110X
Restrictions on publication of review proceedings
Offence of publishing identifying accounts
(1) A person commits an offence if:
(a) the person:
(i) publishes in a
newspaper or periodical publication, by radio broadcast or television or by
other electronic means; or
(ii) otherwise disseminates
to the public or to a section of the public by any means;
any account of any proceedings,
or of any part of any proceedings, under Part VIIA or Division 3 of
Part VIII; and
(b) the account identifies:
(i) a party to the
proceedings; or
(ii) a person who is
related to, or associated with, a party to the proceedings or is, or is alleged
to be, in any other way concerned in the matter to which the proceedings
relate; or
(iii) a witness in the proceedings.
Penalty: Imprisonment for 12 months.
(2) Without limiting the generality of
subsection (1), an account of proceedings, or of any part of proceedings,
referred to in that subsection is taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title,
pseudonym or alias of the person; or
(ii) the address of any
premises at which the person resides or works, or the locality in which any
such premises are situated; or
(iii) the physical
description or the style of dress of the person; or
(iv) any employment or
occupation engaged in, profession practised or calling pursued, by the person
or any official or honorary position held by the person; or
(v) the relationship of the
person to identified relatives of the person or the association of the person
with identified friends or identified business, official or professional
acquaintances of the person; or
(vi) the recreational
interests, or the political, philosophical or religious beliefs or interests,
of the person; or
(vii) any real or personal
property in which the person has an interest or with which the person is
otherwise associated;
and the particulars are
sufficient to identify that person to a member of the public, or to a member of
the section of the public to which the account is disseminated, as the case
requires; or
(b) in the case of a written or
televised account or an account by other electronic means—it is accompanied by
a picture of the person; or
(c) in the case of a broadcast or
televised account or an account by other electronic means—it is spoken in whole
or in part by the person and the person’s voice is sufficient to identify that
person to a member of the public, or to a member of the section of the public
to which the account is disseminated, as the case requires.
Offence of publishing identifying lists
(3) A person commits an offence if:
(a) the person:
(i) publishes in a
newspaper or periodical publication, by radio broadcast or television or by
other electronic means; or
(ii) otherwise disseminates
to the public or to a section of the public by any means (otherwise than by the
display of a notice in the premises of the SSAT);
a list of proceedings under
Part VIIA or Division 3 of Part VIII; and
(b) the proceedings are identified by
reference to the names of the parties to the proceedings.
Penalty: Imprisonment for 12 months.
Defence
(4) Subsections (1) and (3) do not apply
to, or in relation to:
(a) the
communication, to persons concerned in proceedings in any court, of any
pleading, transcript of evidence or other document for use in connection with
those proceedings; or
(b) the communication of any pleading,
transcript of evidence or other document to:
(i) a body that is
responsible for disciplining members of the legal profession in a State or
Territory; or
(ii) persons concerned in
disciplinary proceedings, against a member of the legal profession of a State
or Territory, before a body that is responsible for disciplining members of the
legal profession in that State or Territory; or
(c) the communication, to a body that
grants assistance by way of legal aid, of any pleading, transcript of evidence
or other document for the purpose of facilitating the making of a decision as
to whether assistance by way of legal aid should be granted, continued or
provided in a particular case; or
(d) the publishing of a notice or
report in accordance with the direction of a court; or
(e) the publication by the SSAT of
lists of proceedings under Part VIIA, or Division 3 of
Part VIII, identified by reference to the names of the parties, that are
to be dealt with by the SSAT; or
(f) the publishing of any publication
intended primarily for use by the members of any profession, being:
(i) a separate volume or
part of a series of law reports; or
(ii) any other publication
of a technical character; or
(g) the publication or other
dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a
member of a profession, in connection with the practice by that person of that
profession or in the course of any form of professional training in which that
person is involved; or
(ii) to an individual who
is a party to any proceedings under this Act, in connection with the conduct of
those proceedings; or
(iii) to a person who is a
student, in connection with the studies of that person; or
(h) the publication of accounts of
proceedings, where those accounts have been approved by the court.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (4) (see subsection 13.3(3) of the Criminal
Code).
Criminal procedure
(5) An offence against subsection (1) or
(3) is an indictable offence.
(6) Proceedings for an offence against
subsection (1) or (3) must not be commenced except by, or with the written
consent of, the Director of Public Prosecutions.
Definitions
(7) In this section:
court includes:
(a) an officer of a court
investigating or dealing with a matter in accordance with:
(i) the Assessment Act; or
(ii) this Act; or
(iii) regulations made under
the Assessment Act or this Act; or
(iv) any Rules of Court; and
(b) a tribunal established by or under
a law of the Commonwealth or of a State or a Territory.
electronic means includes:
(a) in the form of data, text or
images by means of guided or unguided electromagnetic energy; or
(b) in the form of speech by means of
guided or unguided electromagnetic energy, if the speech is processed at its
destination by an automated voice recognition system.
74 Subsection 116(1)
Repeal the subsection, substitute:
(1) The mere production of a document signed
by the Registrar purporting to be a copy of the entry in the Child Support
Register in relation to a registrable maintenance liability is prima facie
evidence:
(a) that the liability is a
registrable maintenance liability; and
(b) that the liability is duly
registered under this Act; and
(c) that the particulars of the entry
in the Child Support Register in relation to the liability are those set out in
the document; and
(d) that all of those particulars are
correct.
(1A) Paragraphs (1)(a), (b) and (d) do not
apply in relation to proceedings under Part VII or VIIA, or under
Subdivision B of Division 3 of Part VIII, on an objection to a
decision:
(a) to register a registrable
maintenance liability; or
(b) as to particulars entered in the
Child Support Register in relation to a registrable maintenance liability.
(1B) Paragraph (1)(c) does not apply in
relation to proceedings under Part VII or VIIA, or under Subdivision B of
Division 3 of Part VIII, on an objection to a decision as to
particulars varied in the Child Support Register in relation to a registrable
maintenance liability.
Family Law Act 1975
75 At the end of subsection 69B(2)
Add “or the Child Support (Registration and Collection) Act
1988”.
Social Security (Administration) Act
1999
76 Clause 20 of Schedule 3
Omit “or the Employment Services Act 1994”, substitute “,
the Employment Services Act 1994, the Child Support (Assessment) Act
1989 or the Child Support (Registration and Collection) Act 1988”.
Part 2—Application provisions
77 Application—review of decisions
Decisions of the Registrar—internal review pending or not
yet started at commencement
(1) Subject to subitem (3), Part VII
(internal review) of the Registration and Collection Act (as amended by this
Schedule) applies in relation to a decision made by the Registrar under that
Act or the Assessment Act before or after the commencement of this item.
Note: Part VII of the Registration and
Collection Act (as amended by this Schedule) also applies if a proceeding for
internal review was pending under that Part or Part 6B of the Assessment
Act immediately before the commencement of this item (see subitem (4)).
(2) Part VIIA (SSAT review) of the Registration
and Collection Act (as inserted by this Schedule) applies in relation to a
decision made by the Registrar under subsection 83(1) or 87(1) of the
Registration and Collection Act after the commencement of this item.
Decisions of the Registrar—internal review completed
before commencement
(3) If, before the commencement of this item:
(a) a person objected under:
(i) Part 6B of the
Assessment Act; or
(ii) Part VII of the
Registration and Collection Act;
to a decision (however
described) of the Registrar (the original decision); and
(b) the Registrar made a decision (the
objection decision) on the objection under:
(i) subsection 98ZC(1) of
the Assessment Act; or
(ii) subsection 87(1) or
98(1) of the Registration and Collection Act;
those Acts, as in force immediately before that commencement,
continue to apply in relation to the original decision and the objection
decision.
Pending proceedings—internal reviews
(4) A proceeding before the Registrar that, immediately
before the commencement of this item, was pending under:
(a) Part 6B of the Assessment Act;
or
(b) Part VII of the Registration
and Collection Act;
is taken, at that commencement, to be pending under Part VII
of the Registration and Collection Act as amended by this Schedule.
(5) The Assessment Act and the Registration and
Collection Act, as in force immediately before the commencement of this item,
continue to apply in relation to a decision made by the Registrar before that
commencement under:
(a) subsection 98ZE(1) of the Assessment
Act; or
(b) subsection 91(1) or 101(1) of the
Registration and Collection Act.
Pending proceedings—court and AAT reviews
(6) The amendments of the Assessment Act and the
Registration and Collection Act made by this Schedule do not affect:
(a) any proceeding pending before a
court under:
(i) Part 7 of the
Assessment Act; or
(ii) section 88 of the
Registration and Collection Act;
immediately before the
commencement of this item; or
(b) any proceeding pending before the
Administrative Appeals Tribunal under:
(i) subsection 98ZE(7) or
98ZF(1) of the Assessment Act; or
(ii) subsection 91(5),
99(1) or 101(5) of the Registration and Collection Act;
immediately before the
commencement of this item; or
(c) any order or declaration:
(i) made by a court or the
Administrative Appeals Tribunal under those Acts; and
(ii) in force immediately
before the commencement of this item; or
(d) any appeal to a court in relation
to a proceeding referred to in paragraph (a) or (b).
(7) The amendments of the Assessment Act made by
items 5, 9 and 10 of this Schedule do not apply in relation to a
proceeding under Division 3 of Part 7 of that Act as in force
immediately before the commencement of this item.
78 Application and saving—notices
(1) The amendments of the Assessment Act made by
items 3, 4, 6, 7, 8, 11, 12, 13, 14 and 37 of this Schedule apply in
relation to notices given under that Act after the commencement of this item.
(2) The amendments of the Registration and Collection
Act made by items 59, 60, 64 and 65 of this Schedule apply in relation to
decisions of the Registrar made under that Act after the commencement of this
item.
(3) The amendments of the Assessment Act and the
Registration and Collection Act made by this Schedule do not affect the
validity of a notice given by the Registrar under any provision of those Acts
before the commencement of this item.
79 Application—section 110X of the Registration and
Collection Act
Section 110X of the Registration and Collection Act (as
inserted by this Schedule) applies in relation to proceedings commenced under
Part VIIA, or Division 3 of Part VIII, of that Act after the
commencement of this item.
80 Application of amendments in relation to Western
Australian exnuptial children
If, immediately after the commencement of this item, the
Assessment Act and the Registration and Collection Act do not extend to Western
Australia in relation to the maintenance of exnuptial children because:
(a) the Parliament of Western
Australia has not referred to the Parliament of the Commonwealth the matter of
the maintenance of exnuptial children or matters that include that matter; and
(b) Western Australia has not adopted
those Acts as amended by this Act;
items 77 to 79 of this Schedule apply in Western Australia,
after Western Australia adopts those Acts as amended by this Act, in relation
to the maintenance of exnuptial children as if references in those items to the
commencement of those items were references to the adoption of those Acts by
Western Australia as amended by this Act.
Schedule 4—Other amendments commencing on 1 January 2007
Part 1—Amendments
Child Support (Assessment) Act 1989
1 Paragraph 76(3)(aa)
Omit “, subject to subsection 98A(3),”.
2 Paragraph 76(3)(b)
Repeal the paragraph.
3 Part 6A (heading)
Repeal the heading, substitute:
Part 6A—Departure from
administrative assessment of child support (departure determinations)
4 Division 1 of Part 6A
Repeal the Division, substitute:
Division 1—Preliminary
98A
Simplified outline
The following is a simplified outline of
this Part:
• The Registrar can make a
determination under this Part to depart from the provisions of this Act
relating to administrative assessment of child support for a child.
• A liable parent or a carer
entitled to child support can apply for such a determination, or the Registrar
can make a determination on his or her own initiative.
• The Registrar must not make
a determination in respect of a day that is more than 18 months earlier without
leave of a court under section 112.
• The grounds for deciding
whether to make a determination are the same as a court uses in deciding
whether to make an order under Division 4 of Part 7.
• If the Registrar is
considering making a determination, the parties can make a child support
agreement in relation to child support payable for the child instead of the
Registrar making the determination.
• Under section 80 of
the Registration and Collection Act, certain persons can object to a decision
to make or refuse to make a determination under this Part.
5 Subsection 98B(1) (note)
Omit “Note”, substitute “Note 1”.
6 At the end of subsection 98B(1)
Add:
Note 2: The Registrar may only make a determination
under this Part in respect of a day that is more than 18 months earlier than
the day on which the relevant application is made with a court’s leave under
section 112 (see subsection 98S(3B)).
7 Subsection 98K(1) (note)
Omit “Note”, substitute “Note 1”.
8 At the end of subsection 98K(1)
Add:
Note 2: The Registrar may only make a determination
under this Part in respect of a day that is more than 18 months earlier than
the day on which the relevant parties are notified under section 98M with
a court’s leave under section 112 (see subsection 98S(3B)).
9 Subsection 98S(1)
Omit “Subject to section 98A, the”, substitute “The”.
10 At the end of subsection 98S(1)
Add:
Note: There are limitations on the Registrar making
a determination that varies an annual rate of child support below the minimum
annual rate of child support (see section 98SA).
11 After subsection 98S(3A)
Insert:
(3B) The Registrar may only make a determination
under this Part in respect of a day in a child support period, being a day that
is more than 18 months earlier than:
(a) the day on which the application
for the determination is made under section 98B; or
(b) the day on which the Registrar
notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for
the determination to be made.
(3C) If a court has granted leave under
section 112, the Registrar may only make a determination under this Part
in respect of a day in a child support period if the day is within the period
specified by the court, under subsection 112(6), in the order granting the
leave.
12 At the end of Division 4 of Part 6A
Add:
98SA
Variation not to be below minimum annual rate of child support
(1) Subject to subsection (2), the
Registrar must not make a determination under this Part that varies, or that has
the effect of varying, the annual rate of child support payable by a liable
parent in respect of a day in a child support period under an assessment to a
rate below the minimum annual rate of child support in respect of that period.
(2) The Registrar may make a determination
that varies, or has the effect of varying, the annual rate of child support
payable by a liable parent in respect of a day in a child support period under
an assessment to a rate below the minimum annual rate of child support in respect
of that period if section 66 does not apply in relation to the child
support payable by the liable parent because of the operation of
section 66B.
13 At the end of section 107
Add:
(6) If the court grants the declaration, the
court must, as soon as practicable, consider making an order under
section 143.
14 Division 3 of Part 7
Repeal the Division, substitute:
Division 3—Application for amendment of administrative assessment that
is more than 18 months old
110
Simplified outline
The following is a simplified outline of
this Division:
• Normally, the Registrar
cannot make a departure determination under Part 6A, and a court cannot
make a departure order under Division 4 of this Part, in respect of a day
in a child support period that is more than 18 months earlier.
• Under this Division, a
liable parent, a carer entitled to child support or the Registrar can apply to
certain courts for leave for a determination or order to be made in respect of
a day in a child support period that is more than 18 months earlier.
• A court must not grant
leave for such a determination or order to be made in respect of a day in a
child support period that is more than 7 years earlier.
• If a court grants leave,
the court can decide whether the Registrar should make such a determination or
the court should make such an order.
111
Application for amendment of administrative assessment that is more than 18
months old
Parent or carer applications
(1) A liable parent, or a carer entitled to
child support, (the applicant) may apply to a court having
jurisdiction under this Act for leave for:
(a) the Registrar to make a
determination under section 98S; or
(b) the court to make an order under
section 118;
in respect of a day in a child support period, being a day
that is more than 18 months, and less than 7 years, earlier than the day on
which the application under this section is made.
(2) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding under
subsection (1) are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to
child support.
Registrar application
(3) The Registrar (the applicant)
may apply to a court having jurisdiction under this Act for leave for the
Registrar to make a determination under section 98S in respect of a day in
a child support period, being a day that is more than 18 months, and less than
7 years, earlier than the day on which the application under this section is
made.
(4) The parties to the proceeding under
subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child
support.
112
Court may grant leave to amend administrative assessment that is more than 18
months old
(1) If an application is made to a court
under section 111, the court may grant leave for:
(a) the Registrar to make a
determination under section 98S; or
(b) the court to make an order under
section 118.
(2) The court may grant leave for an order to
be made under section 118 if the court is satisfied that it would be in
the interest of the parties to the proceeding for the court to consider, at the
same time as it hears the application under section 111, whether an order
should be made under section 118. If the court does so, the applicant is
taken to have made an application to the court under section 116 for such
an order.
(3) Otherwise, the court may grant leave for
the Registrar to make a determination under section 98S.
Matters to be considered
(4) In considering whether to grant leave
under subsection (1), the court must have regard to:
(a) any responsibility, and reason,
for the delay in:
(i) making an application
under section 98B or 116; or
(ii) making a determination
under section 98S;
as the case requires; and
(b) the hardship to the applicant
(other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or
parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other
relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this
section must specify the period in respect of which the Registrar may make a
determination or the court may make an order.
(7) The period specified under
subsection (6):
(a) must not include a day in a child
support period if the day is more than 7 years earlier than the day on which
the application under section 111 was made; and
(b) is not limited by the terms of
that application.
No requirement to make determination or order
(8) The granting of leave under
subsection (1) does not imply that:
(a) the Registrar is required to make
a determination under section 98S; or
(b) the court is required to make an
order under section 118.
113
Implementation of decisions
When a decision of a court under this
Division is made, the Registrar must immediately take such action (if any) as
is necessary to give effect to the decision.
113A
Pending application not to affect assessment
Subject to section 140 (stay
orders), the fact that a proceeding is pending under this Division in relation
to a person does not, in the meantime, interfere with, or affect, any
administrative assessment made in relation to the person, and any such
assessment may be registered under the Registration and Collection Act, and
amounts of child support and other amounts recovered in relation to the
assessment, as if no proceeding were pending.
15 Division 4 of Part 7 (heading)
Repeal the heading, substitute:
Division 4—Orders for departure from administrative assessment in
special circumstances (departure orders)
16 Before section 114
Insert:
113B
Simplified outline
The following is a simplified outline of
this Division:
• Certain courts can make an
order under this Division to depart from the provisions of this Act relating to
administrative assessment of child support for a child.
• A person can apply for such
an order in certain limited circumstances. (If a person cannot apply for an
order under this Division, the person might instead be able to apply for a
determination by the Registrar under Part 6A.)
• A court can also make such
an order without an application in some circumstances (such as after setting
aside a child support agreement).
• A court must not make an
order in respect of a day in a child support period that is more than 18 months
earlier without leave of the court under section 112.
17 Section 115
Repeal the section.
18 Subsections 116(1), (1A) and (1B)
Repeal the subsections, substitute:
(1) A liable parent or a carer entitled to
child support may, in respect of an administrative assessment of child support
for a child, apply to a court having jurisdiction under this Act for an order
under this Division in relation to the child in the special circumstances of
the case if:
(a) all of the following apply:
(i) the Registrar has,
under section 98E or 98R, refused to make a determination under
Part 6A in respect of the administrative assessment;
(ii) an objection to the
refusal has been lodged under section 80 of the Registration and
Collection Act;
(iii) the Registrar has
disallowed the objection; or
(b) both of the following apply:
(i) the liable parent or
carer entitled to child support is a party to an application pending in a court
having jurisdiction under this Act;
(ii) the court is satisfied
that it would be in the interest of the liable parent and the carer entitled to
child support for the court to consider whether an order should be made under
this Division in relation to the child in the special circumstances of the
case; or
(c) in the case of a liable parent—the
administrative assessment of child support payable by the liable parent for the
child is made under subsection 66(1).
Note 1: For the orders that a court may make under this
Division see section 118.
Note 2: With a court’s leave, a court may make an order
under this Division in respect of a day that is more than 18 months earlier
than the day on which the relevant application was made (see subsection
118(2B)). A person is taken to have applied under this section if leave is
granted.
19 After subsection 118(2A)
Insert:
(2B) A court may only make an order under this
Division in respect of a day in a child support period, being a day that is
more than 18 months earlier than the day on which the application for the order
is made under section 116, if the court has granted leave under section 112
for the order to be made.
(2C) If the court has granted leave under
section 112, the court may only make an order under this Division in
respect of a day in a child support period if the day is within the period
specified by the court, under subsection 112(6), in the order granting the
leave.
20 Subsection 123(3)
Omit “Division 4 (Orders for departure from administrative
assessment in special circumstances)”, substitute “Division 3
(administrative assessments more than 18 months old) or Division 4 (departure
orders)”.
21 After paragraph 124(2)(a)
Insert:
(aa) any determination in force under
Part 6A (departure determinations) in relation to the child, the carer
entitled to child support and the liable parent; and
22 Paragraph 124(2)(b)
Omit “(Orders for departure from administrative assessment in
special circumstances)”, substitute “(departure orders)”.
23 After subsection 143(3)
Insert:
(3A) If:
(a) a person (the payer)
has paid an amount of child support to another person (the payee);
and
(b) the court has made a declaration
under section 107 that the payee was not entitled to an administrative
assessment of child support for the child because the payer is not the parent
of the child; and
(c) the court:
(i) is considering whether
to make an order under this section; or
(ii) if such an order is to
be made, is determining the amount that is to be recovered and whether payment
is to be made in the form of a lump sum payment or a periodic amount;
then the court must have regard to the matters set out in
subsection (3B). This subsection does not limit subsection (3).
(3B) For the purposes of subsection (3A),
the court must have regard to the following matters:
(a) whether the payee or the payer
knew, or should reasonably have known, that the payer was not the parent of the
child;
(b) whether the payee or the payer
engaged in any conduct (by act or omission) that directly or indirectly
resulted in the application for administrative assessment of child support for
the child being accepted by the Registrar;
(c) whether there was any delay by the
payer in applying under section 107 for a declaration once he or she knew,
or should reasonably have known, that he or she was not the parent of the
child;
(d) whether there is any other child
support that is, or may become, payable to the payee for the child by the
person who is the parent of the child;
(e) the relationship between the payer
and the child;
(f) the financial circumstances of
the payee and the payer.
Child Support (Registration and
Collection) Act 1988
24 Subsection 4(1) (definition of registrable maintenance
liability)
After “17” insert “, 17A”.
25 After section 17
Insert:
17A
Liabilities in relation to persons who have paid amounts where no liability to
pay because the person is not the parent
Subject to section 19, a liability
is a registrable maintenance liability if:
(a) it is a liability of a person (the
payer) to pay an amount to another person (the payee);
and
(b) it arises under a court order made
under section 143 of the Assessment Act; and
(c) the court made the order in
response to a declaration under section 107 of that Act that the payer was
not entitled to an administrative assessment of child support for a child
because the payee is not the parent of the child.
26 Paragraph 19(2)(a)
After “17”, insert “, 17A”.
27 Subsection 30(3)
Repeal the subsection, substitute:
(3) If a registrable maintenance liability is
registered under this Act, the payee of the liability is not entitled to, and
may not enforce payment of, amounts payable under the liability other than by
instituting a proceeding under section 113A to recover a debt due in
relation to the liability.
28 After subsection 37B(7)
Insert:
Section not to prevent payee recovery of a debt
(7A) This section does not prevent a payee of a
registered maintenance liability from instituting a proceeding under
section 113A during a low‑income non‑enforcement period to
recover a debt due in relation to the liability.
29 Section 70
Omit “Where”, substitute “(1) If”.
30 At the end of section 70
Add:
(2) This section does not apply to amounts
paid to the Registrar in accordance with a court order made in relation to a
proceeding instituted by a payee of a registered maintenance liability under
section 113A to recover a debt due in relation to the liability.
31 Paragraph 71AA(1)(a)
After “17”, insert “or 17A”.
32 Paragraphs 71AA(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) in respect of each debt, the
Commonwealth would be required, under section 76, to pay the amount paid
by one of the persons to the other person; and
(c) for a debt that arose from a
liability referred to in section 17—the liability provided for child
support for a child of the 2 persons;
33 Paragraph 72D(1)(c)
Repeal the paragraph, substitute:
(c) the Registrar is satisfied that
the person has persistently and without reasonable grounds failed to pay:
(i) child support debts
arising from a registrable maintenance liability under section 17; or
(ii) a child support debt
arising from a registrable maintenance liability under section 17A; and
34 Subsection 72D(2)
Repeal the subsection, substitute:
(2) For the purposes of
paragraph (1)(c), the Registrar must have regard to the following matters:
(a) the capacity of the person
concerned to pay the debt or debts;
(b) the number of occasions on which
action has been taken to recover the debt or debts, and the outcome of the
recovery action;
(c) if subparagraph (1)(c)(i)
applies—the number of occasions on which the debts mentioned in that
subparagraph had not been paid on or before the day on which they became due
and payable;
(d) if subparagraph (1)(c)(ii) applies—the
length of time for which the debt mentioned in that subparagraph has remained
unpaid after the day on which it became due and payable;
(e) such other matters as the
Registrar considers appropriate.
35 Paragraph 72E(a)
After “17”, insert “or 17A”.
36 Before Part IX
Insert:
Part VIIIB—Other provisions relating to courts
111A
Simplified outline
The following is a simplified outline of
this Part:
• In exercising jurisdiction
under this Act, a court has broad powers.
• If a proceeding has been
instituted under this Act in a court or before the SSAT or the Registrar, a
court may make an order staying or otherwise affecting the operation of the
Assessment Act or this Act during the proceeding.
• If a court makes an order
under this Act, a copy of the order must be sent to the Registrar.
• The Registrar may intervene
in any proceeding under this Act.
• There are specific
provisions relating to a proceeding brought by a payee of a registered maintenance
liability under section 113A.
111B General powers of
court
(1) A court’s powers under this Act include
the power to do all or any of the following:
(a) order payment of a lump sum,
whether in one amount or by instalments;
(b) order payment of a weekly,
monthly, yearly or other periodic amount;
(c) order that a specified transfer or
settlement of property be made;
(d) order that payment of an amount
ordered to be paid be wholly or partly secured as the court specifies;
(e) order that any necessary deed or
instrument be executed, and that such documents of title be produced and such
other things be done, as are necessary to enable an order to be carried out
effectively or to provide security for the due performance of an order;
(f) order that payment be made to a
specified person or public authority or into court;
(g) make a permanent order, an order
pending the disposal of proceedings, an order for a fixed period, an order
until a child attains a specified age or an order until further order;
(h) make an order expressed to be
retrospective to such day as the court considers appropriate;
(i) make an order:
(i) discharging an order;
or
(ii) suspending the
operation of an order wholly or in part and either until further order or until
a fixed time or the happening of a future event; or
(iii) reviving wholly or in
part the operation of an order that has been suspended; or
(iv) varying an order in any
way;
(j) make an order imposing terms and
conditions;
(k) make an order by consent;
(l) make any other order (whether or
not of the same kind as those referred to in paragraphs (a) to (k)) that
the court considers appropriate;
(m) make an order at any time.
(2) The making of an order of a kind referred
to in paragraph (1)(c), or of any other order under this Act, in relation
to a child does not prevent a court from making a subsequent order (whether
under this Act or otherwise) in relation to the child.
(3) The applicable Rules of Court may make
provision with respect to the making of orders under this Act (whether as to
their form or otherwise) for the purpose of facilitating their enforcement and
the collection of any child support payable under them.
111C
Stay orders
(1) This section applies if a proceeding has
been instituted:
(a) in a court having jurisdiction
under this Act; or
(b) before the Registrar under
Part VII; or
(c) before the SSAT under
Part VIIA.
(2) A party to the proceeding may, subject to
the Family Law Act 1975:
(a) in the case of a proceeding
instituted in a court—apply to that court for an order under this section; or
(b) otherwise—apply to a court having
jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination
of the proceeding, the court may make such orders as the court considers
appropriate staying or otherwise affecting the operation or implementation of
the Assessment Act and this Act if the court considers that it is desirable to
do so, taking into account the interests of the persons who may be affected by
the outcome of the proceeding.
(4) The court may, by order, vary or revoke
an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and
conditions as are specified in the order; and
(b) operates for:
(i) such period as is
specified in the order; or
(ii) if no period is
specified—until a decision of the court, the Registrar or the SSAT determining
the proceeding becomes final.
(6) For the purposes of subparagraph (5)(b)(ii),
a decision of the Registrar becomes final at the end of the period within which
an application could have been made to the SSAT under Part VIIA, if an
application has not been made within that period.
111D
Copies of orders to be forwarded to Registrar
(1) If a court makes an order under this Act,
the registrar or other responsible officer of the court must, within 28 days
after the day on which the order is made, send a certified or sealed copy of
the order to the Child Support Registrar.
(2) The Child Support Registrar may, by
written notice served on the registrar or other responsible officer of a court,
vary, in relation to the court, the requirement of subsection (1) in such
instances and to such extent as the Child Support Registrar considers
appropriate.
111E
Registrar may intervene in proceedings
(1) The Registrar may intervene in, and
contest and argue any question arising in, a proceeding under this Act.
(2) If the Registrar intervenes in a
proceeding under this Act, the Registrar is taken to be a party to the
proceeding with all the rights, duties and liabilities of a party.
(3) This section does not limit Part IX
of the Family Law Act 1975.
111F
Court order for payment in proceedings instituted by payee to recover debt
If, in relation to a proceeding
instituted by the payee of a registered maintenance liability under
section 113A, the court makes an order for payment of an amount by the
payer of the liability, the court may specify in the order that payment be made
to:
(a) the payee of the liability; or
(b) the Registrar.
111G
Costs in proceedings instituted by payee to recover debt
To avoid doubt, if:
(a) a payee of a registered
maintenance liability has instituted a proceeding under section 113A to
recover a debt due in relation to the liability; and
(b) the Registrar is not a party to
the proceeding;
the Commonwealth is not liable for costs in the
proceeding.
37 Subsection 113(1)
Repeal the subsection, substitute:
Debts due by a payer may be recovered by the Registrar
or the payee
(1) A debt due to the Commonwealth under this
Act in relation to a registered maintenance liability:
(a) is payable to the Registrar in the
manner and at the place prescribed; and
(b) may be sued for and recovered by:
(i) the Registrar suing in
his or her official name; or
(ii) the payee of the
liability suing in accordance with section 113A; and
(c) may be recovered in:
(i) a court having
jurisdiction for the recovery of debts up to the amount of the debt; or
(ii) a court having
jurisdiction under this Act.
38 Subsection 113(2)
After “taken”, insert “by the Registrar”.
Note: The following heading to subsection 113(2) is
inserted “Registrar to keep payee informed of action taken to recover debt”.
39 After section 113
Insert:
113A
Recovery of debts by payees
Payee to notify Registrar of intention to institute a
proceeding to recover debt
(1) A payee of a registered maintenance
liability may sue for and recover a debt due in relation to the liability if
the payee notifies the Registrar in writing of his or her intention to
institute a proceeding to recover the debt:
(a) at least 14 days before
instituting the proceeding; or
(b) in exceptional
circumstances—within such shorter period as the court allows.
Note: For provisions relating to proceedings
instituted under this section, see sections 111F and 111G.
Payee to notify Registrar of orders made and payments
received
(2) A payee of a registered maintenance
liability who has instituted a proceeding in a court to recover a debt under
subsection (1) must give notice to the Registrar, in the manner specified
by the Registrar, of:
(a) any orders (including orders as to
costs) made by the court in relation to the payee and the debt due in relation
to the liability; and
(b) any payments received by the payee
from the payer under any such order;
within 14 days of the order being made or the payment
being received.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(3) A payee commits an offence if:
(a) either:
(i) the court makes an
order in relation to the payee and the debt due in relation to the liability;
or
(ii) the payee receives a
payment from the payer under any such order; and
(b) the payee fails to notify the
Registrar under subsection (2) of the order being made or the payment
being received.
Penalty: 10 penalty units.
(4) Subsection (3) is an offence of
strict liability.
(5) It is a defence to a prosecution for an
offence against subsection (3) if the person charged proves that the
person gave the notice to the Registrar as soon as reasonably practicable after
becoming aware of the making of the relevant order or of the receipt of the
relevant payment, as the case may be.
40 After subsection 120(1)
Insert:
(1A) A court having jurisdiction under this Act
may, in a proceeding instituted in the court by a payee of a registered
maintenance liability under section 113A to recover a debt due in relation
to the liability, exercise all the powers of the Registrar under
subsection (1).
41 Subsection 120(3)
After “subsection (1)”, insert “, or by a court in
accordance with subsection (1A),”.
Part 2—Application provisions
42 Application
The amendments made by items 11, 14, 17, 18 and 19 of this
Schedule apply in respect of:
(a) an application made under
section 98B of the Assessment Act after the commencement of this Schedule;
and
(b) a determination in respect of
which parties were notified under section 98M of the Assessment Act after
the commencement of this Schedule; and
(c) an application made under
section 116 of the Assessment Act after this item commences, even if the
application relates to a decision made before the commencement of this
Schedule:
(i) to make, or refuse to
make, a determination under Part 6A of that Act; or
(ii) to make an
administrative assessment under subsection 66(1) of that Act.
43 Application
The amendments made by items 13 and 23 of this Schedule
apply in respect of proceedings instituted after the commencement of this
Schedule in respect of declarations made under section 107 of the
Assessment Act after that commencement.
44 Application
The amendments made by items 24 to 26 and 31 to 35 of this
Schedule apply in respect of a court order made under section 143 of the
Assessment Act in response to a declaration made under section 107 of that
Act, whether the order under section 143 was made before or after the
commencement of this Schedule.
45 Application
The amendments made by items 27 and 37 to 41 of this
Schedule apply to debts due to the Commonwealth under that Act that are
outstanding on and after the commencement of this Schedule, whether the debt
arose before or after the commencement of this Schedule.
46 Application of amendments in relation to Western
Australian exnuptial children
If, immediately after the commencement of this Schedule, the
Assessment Act and the Registration and Collection Act do not extend to Western
Australia in relation to the maintenance of exnuptial children because:
(a) the Parliament of Western
Australia has not referred to the Parliament of the Commonwealth the matter of
the maintenance of exnuptial children or matters that include that matter; and
(b) Western Australia has not adopted
those Acts as amended by this Act;
items 42 to 45 of this Schedule apply in Western Australia,
after Western Australia adopts those Acts as amended by this Act, in relation
to the maintenance of exnuptial children as if references in those items to the
commencement of this Schedule were references to the adoption of those Acts by Western
Australia as amended by this Act.
Schedule 5—Amendments relating to child support agreements and court
orders (commencing on 1 July 2008)
Part 1—Main amendments
Division 1—Binding and limited
child support agreements
Child Support (Assessment) Act 1989
1 Section 5
Insert:
binding child support agreement has the
meaning given by section 80C.
2 Section 5
Insert:
limited child support agreement has the
meaning given by section 80E.
3 Section 5
Insert:
termination agreement has the meaning given
by section 80D.
4 Section 34B
Repeal the section, substitute:
34B
Administrative assessment for child support period started by new agreement
when support already payable
(1) The Registrar must assess the annual rate
of child support payable for a child for a day in a child support period if:
(a) the Registrar accepts a child
support agreement made in relation to the child; and
(b) child support is already payable
by a parent for the child under an administrative assessment; and
(c) the agreement is to affect the
annual rate of child support payable for the child.
The Registrar must assess the annual rate immediately
after accepting the agreement.
Note: Section 95 explains how the provisions of
the agreement affect the assessment.
(2) The child support period starts:
(a) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement states
that child support is to be payable from a specified day; and
(iii) the day specified is
not earlier than the day on which child support first became payable under the
administrative assessment;
on the specified day; or
(b) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement states
that child support is to be payable from a specified day; and
(iii) the day specified is
earlier than the day on which child support first became payable under the
administrative assessment;
on the day on which child
support first became payable under the administrative assessment; or
(c) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement does not
specify a day from which child support is to be payable;
on the day on which the
agreement was signed; or
(d) otherwise—on the day on which the
application was made to the Registrar for acceptance of the agreement.
5 Division 1 of Part 6
Repeal the Division, substitute:
Division 1—Preliminary
80A
Simplified outline
The following is a simplified outline of
this Part:
• Parents (and non‑parent
carers) of a child can, using a child support agreement, agree between
themselves the child support that is to be payable for the child.
• There are 2 sorts of
agreements. The first is a binding child support agreement. Each party to the
agreement must have received legal advice before entering the agreement, and
must also receive legal advice before terminating the agreement.
• The second sort of
agreement is a limited child support agreement. An administrative assessment
must be in place before a limited child support agreement can be accepted by
the Registrar. The annual rate of child support payable under the agreement
must be at least the annual rate of child support otherwise payable under this
Act.
• Agreements may include
provisions that state that child support is to be payable otherwise than in the
form of periodic amounts. There are 2 main kinds of such provisions:
(a) non‑periodic
payment provisions, under which lump sum payments and other non‑periodic
payments (such as school fees) may be made; and
(b) lump sum
payment provisions, under which lump sum payments may be made.
• Payments made under non‑periodic
payment provisions reduce the annual rate of child support payable.
• Payments made under lump
sum payment provisions are credited against the liability of a party to the
agreement (rather than reducing the annual rate of child support payable).
80B
Cases in relation to which Part applies
This Part applies where the parents of
an eligible child, or a parent or the parents of an eligible child and a non‑parent
carer of the child, want to give effect to an agreement between themselves in
relation to child support payable for the child.
Division 1A—Binding and limited child support agreements
Subdivision A—Binding child support agreements
80C
Making binding child support agreements
(1) An agreement is a binding child
support agreement if:
(a) the agreement is binding on the
parties to the agreement in accordance with subsection (2); and
(b) the agreement complies with
subsection 81(2).
(2) For the purposes of subsection (1),
an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the
parties to the agreement; and
(c) the agreement contains, in
relation to each party to the agreement, a statement to the effect that the
party to whom the statement relates has been provided, before the agreement was
signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(d) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(e) the agreement has not been
terminated under section 80D; and
(f) after the agreement is signed,
either the original agreement or a copy of the agreement is given to each
party.
Note: For the manner in which the contents of a
binding child support agreement may be proved, see section 48 of the Evidence
Act 1995.
80CA
No variation of binding child support agreements
(1) A binding child support agreement must
not be varied.
Note: A binding child support agreement can be
terminated and replaced with a new binding child support agreement.
(2) However, subsection (1) does not
prevent a binding child support agreement between parties from incorporating by
reference the provisions of a previous child support agreement between the
parties.
80D
Terminating binding child support agreements
(1) A binding child support agreement (the previous
agreement) may be terminated only by:
(a) a provision being included in a
new binding child support agreement made by the parties to the previous
agreement to the effect that the previous agreement is terminated; or
(b) the parties to the previous
agreement making a written agreement (a termination agreement):
(i) that is binding on the
parties in accordance with subsection (2); and
(ii) to the effect that the
agreement is terminated; or
(c) a court order setting aside the
previous agreement under section 136.
(2) For the purposes of
subparagraph (1)(b)(i), an agreement is binding on the parties if, and
only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the
parties to the agreement; and
(c) the agreement contains, in
relation to each party to the agreement, a statement to the effect that the
party to whom the statement relates has been provided, before the agreement was
signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(d) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(e) the agreement has not been set
aside by a court under section 136; and
(f) after the agreement is signed,
either the original agreement or a copy of the agreement is given to each
party.
Note: For the manner in which the contents of a
termination agreement may be proved, see section 48 of the Evidence Act
1995.
(3) A binding child support agreement is
terminated:
(a) if paragraph (1)(a)
applies—on the day set out in the following paragraph:
(i) if the new binding
child support agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the new binding child support agreement is signed; and
(b) if paragraph (1)(b)
applies—on the day set out in the following paragraph:
(i) if the termination
agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the termination agreement is signed; and
(c) if paragraph (1)(c)
applies—on the day on which the court order takes effect.
Subdivision B—Limited child support agreements
80E
Making limited child support agreements
(1) An agreement is a limited child
support agreement if:
(a) it is in writing; and
(b) it is signed by the parties to the
agreement; and
(c) it complies with subsection 81(2);
and
(d) it meets the conditions in
subsection (2), (3) or (4), as the case requires, (assuming the agreement
is accepted by the Registrar).
Note: In addition to the requirements in this
section, there must be an administrative assessment in force in relation to the
child in respect of whom the agreement is made (see subsection 92(3)).
Child support payable on day application for acceptance
of agreement is made to Registrar
(2) An agreement meets the condition in this
subsection if:
(a) child support is to be payable
under the agreement, by one party to the agreement to the other party or
parties, on the day on which the application is made to the Registrar for
acceptance of the agreement; and
(b) the annual rate of child support
that is so payable under the agreement on that day is at least the annual rate
of child support that would otherwise be payable under this Act on that day.
Note: If the child support payable under the
agreement is not a periodic amount, the regulations can prescribe the method by
which that amount is to be converted into an annual rate (see
subsection (5)).
Child support payable on day agreement commences
(3) An agreement meets the condition in this
subsection if:
(a) child support is not to be payable
under the agreement, by one party to the agreement to the other party or
parties, on the day on which the application is made to the Registrar for
acceptance of the agreement; but
(b) the annual rate of child support
that is payable under the agreement, by one party to the agreement to
the other party or parties, on the day on which the agreement commences is at
least the annual rate of child support that would otherwise be payable under
this Act on that day.
Child support payable for past period
(4) An agreement meets the condition in this
subsection if:
(a) child support is payable under the
agreement, by one party to the agreement to the other party or parties,
for a period before the day on which the application is made to the Registrar
for acceptance of the agreement; and
(b) the amount of child support that
is so payable under the agreement for that period is at least the amount of
child support that would otherwise be payable under this Act for that period.
Regulations
(5) The regulations may, for the purposes of
subsections (2), (3) and (4), provide a method of converting an amount of
child support that is payable under an agreement otherwise than in the form of
periodic amounts into an annual rate of child support.
80F No
variation of limited child support agreements
(1) A limited child support agreement must
not be varied.
Note: A limited child support agreement can be
terminated and replaced with a new limited child support agreement.
(2) However, subsection (1) does not
prevent a limited child support agreement between parties from incorporating by
reference the provisions of a previous child support agreement between the
parties.
80G
Terminating limited child support agreements
(1) A limited child support agreement (the previous
agreement) may be terminated only by:
(a) a provision being included in:
(i) a new limited child
support agreement made by the parties to the previous agreement; or
(ii) a binding child
support agreement made by the parties to the previous agreement;
to the effect that the previous
agreement is terminated; or
(b) the parties to the previous
agreement making a written agreement that is signed by those parties to the
effect that the previous agreement is terminated; or
(c) a court order setting aside the
previous agreement under section 136; or
(d) if the notional assessment of the
amount of child support that would have been payable by one party to the
previous agreement to another party is varied by more than 15% from the
previous notional assessment in circumstances not contemplated by the previous
agreement—a party to the previous agreement giving the Registrar written notice
of the termination of the agreement within 60 days of that party receiving
notice of the variation; or
(e) if the previous agreement was made
3 or more years earlier—a party to the previous agreement giving the Registrar
written notice of the termination of the previous agreement.
(2) A limited child support agreement is
terminated:
(a) if paragraph (1)(a)
applies—on the day set out in the following paragraph:
(i) if the new limited
child support agreement, or binding child support agreement, specifies a day on
which it takes effect—that day;
(ii) otherwise—the day on
which the new limited child support agreement or binding child support
agreement is signed; and
(b) if paragraph (1)(b) applies—on
the day set out in the following paragraph:
(i) if the written
agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the written agreement is signed; and
(c) if paragraph (1)(c)
applies—on the day on which the court order takes effect; and
(d) if paragraph (1)(d) or (e)
applies—28 days after the notice is given.
(3) If a limited child support agreement is
terminated under paragraph (1)(d) or (e), the Registrar must notify in
writing the other parties to the agreement of the termination.
(4) The notice under subsection (3) must
include, or be accompanied by, a statement that specifically draws the
attention of the parties to the previous agreement to the right:
(a) to object, subject to the
Registration and Collection Act, to the decision (the original decision)
to terminate the agreement; and
(b) if aggrieved by a later decision
on an objection to the original decision (no matter who lodges the objection
but subject to that Act), to apply to the SSAT for review of the later
decision.
6 Section 81
Repeal the section, substitute:
81 Child
support agreement definition and general requirement
(1) An agreement is a child support
agreement if:
(a) the agreement is a binding child support
agreement; or
(b) the agreement is a limited child
support agreement.
Note: For the definitions of binding child
support agreement and limited child support agreement,
see sections 80C and 80E.
(2) An agreement is a binding child support
agreement or a limited child support agreement if it complies with the
following provisions:
(a) section 82 (children in
relation to whom agreements may be made);
(b) section 83 (persons who may
be parties to agreements);
(c) section 84 (provisions that
may be included in agreements).
Note: A parenting plan under the Family Law Act
1975 may, subject to the requirements of this Division, be a child support
agreement.
7 Section 85
Repeal the section.
8 Paragraph 88(a)
Repeal the paragraph, substitute:
(a) either:
(i) the agreement is a
child support agreement; or
(ii) the agreement is a
termination agreement or a written agreement referred to in paragraph
80G(1)(b); and
9 Subsection 89(1)
Omit “(1)”.
10 Subsection 89(4)
Repeal the subsection.
11 Section 91
Omit “a child support agreement”, substitute “an agreement
referred to in paragraph 88(a)”.
12 Section 91A
Repeal the section.
13 Subsections 92(3) and (4)
Repeal the subsections, substitute:
(3) The Registrar must refuse to accept a
limited child support agreement if, immediately before the application for
acceptance of the agreement is made, no administrative assessment is in force
in relation to the child.
14 Paragraph 93(1)(g)
Repeal the paragraph, substitute:
(g) the child support is payable from
the day on which the application was made to the Registrar for acceptance of
the agreement; and
(h) the child support is payable until
the earlier of the following days:
(i) the day immediately
before the day on which a child support terminating event happens in relation
to the child, the carer entitled to child support, the liable parent or all 3
of them;
(ii) the day on which the
agreement is terminated under section 80D or 80G.
15 Subsection 93(2)
Omit “the period mentioned in paragraph (1)(g) starts”,
substitute “on which the application was made to the Registrar for acceptance
of the agreement”.
16 Subsection 93(2) (note)
Repeal the note, substitute:
Note: The Registrar must assess, under section 34B,
the annual rate of child support payable under an agreement if an annual rate
of child support is already payable and the agreement is to affect that annual
rate.
17 Section 94
Repeal the section, substitute:
94
Registrar to take action to give effect to accepted child support agreement or
termination agreement etc.
(1) After the Registrar accepts a child
support agreement made in relation to a child, the Registrar must immediately
take such further action (if any) as is necessary to give effect to the
agreement.
Note: After accepting the agreement,
section 34B or 93 or Part 5 might require the Registrar to assess an
annual rate of child support payable.
(2) In making any administrative assessment
in relation to the child, the Registrar must act in accordance with
section 95 (effect of certain provisions of accepted child support
agreements).
(3) After the Registrar accepts a termination
agreement, or a written agreement referred to in paragraph 80G(1)(b), the
Registrar must immediately take such further action (if any) as is necessary to
give effect to the agreement.
18 Division 6 of Part 6
Repeal the Division.
19 Paragraph 98U(4)(a)
Omit “94”, substitute “93”.
20 Section 98W
Omit:
• A court may order that
child support be paid in a form other than periodic amounts paid to a carer.
• A court may set aside a
child support agreement if the consent of one of the parties was obtained by
fraud or undue influence.
substitute:
• A court may order that
child support be paid in a form other than periodic amounts paid to a carer
(including in the form of a lump sum payment).
• A court may set aside a
child support agreement or termination agreement in certain circumstances (such
as fraud, undue influence or change of circumstance).
21 At the end of subsection 116(1)
Add:
Note 3: A court may make an order under this Division
if the court sets aside a child support agreement under section 136.
22 Paragraph 124(2)(c)
Omit “benefit; and”, substitute “benefit.”.
23 Paragraph 124(2)(d)
Repeal the paragraph.
24 Section 128
Repeal the section.
25 Paragraph 129(3)(b)
Repeal the paragraph.
26 Subsection 129(8)
Omit “(3)(b) or (d)”, substitute “(3)(d)”.
27 Section 135
Repeal the section, substitute:
135
Simplified outline
The following is a simplified outline of
this Division:
• Certain courts may set
aside a child support agreement or a termination agreement if:
(a) the
agreement of one of the parties was obtained by fraud, undue influence or
unconscionable conduct; or
(b) there has
been a significant change in circumstances; or
(c) the annual
rate of child support payable under the agreement is not proper or adequate.
28 Section 136
Repeal the section, substitute:
136
Power of court to set aside child support agreements or termination agreements
(1) A party to either of the following
agreements may apply to a court having jurisdiction under this Act for the
court to set aside the agreement:
(a) a child support agreement that has
been accepted by the Registrar under section 92;
(b) a termination agreement, or a
written agreement referred to in paragraph 80G(1)(b), that has been accepted by
the Registrar under section 92.
(2) If a party has applied under
subsection (1), the court may set aside the agreement in accordance with
the application if the court is satisfied:
(a) that the party’s agreement was
obtained by fraud or a failure to disclose material information; or
(b) that another party to the
agreement, or someone acting for another party:
(i) exerted undue
influence or duress in obtaining that agreement; or
(ii) engaged in
unconscionable or other conduct;
to such an extent that it would
be unjust not to set aside the agreement; or
(c) that because of a significant
change in the circumstances of one of the parties to the agreement, or a child
in respect of whom the agreement is made, it would be unjust not to set aside
the agreement; or
(d) in the case of a child support
agreement—that the agreement provides for an annual rate of child support that
is not proper or adequate, taking into account all the circumstances of the
case (including the financial circumstances of the parties to the agreement).
(3) Subject to section 145 (Registrar
may intervene in proceedings), the parties to a proceeding under
subsection (1) are the parties to the agreement.
(4) If:
(a) the court sets aside a child
support agreement under this section; and
(b) the court is satisfied as
mentioned in paragraph 117(1)(b) (departure orders);
the court may make an order under Division 4 of
Part 7 without an application having been made under section 116.
29 Subsection 137(1)
Omit “a child support agreement”, substitute “an agreement”.
Division 2—Lump sum payments
A New Tax System (Family Assistance)
Act 1999
30 Subparagraphs 8(5)(b)(i) and (ii) of Schedule 3
Repeal the subparagraphs, substitute:
(i) non‑periodic
payment provisions (within the meaning of that Act) under which the individual
is providing child support to another individual for a child; and
(ii) a statement that the
annual rate of child support payable under any relevant administrative
assessment is to be reduced by a specified amount that represents an annual
value of the child support to be provided; and
Child Support (Assessment) Act 1989
31 Subsection 5(1)
Insert:
lump sum payment provisions has the meaning
given by paragraph 84(1)(e).
32 Subsection 5(1)
Insert:
non‑periodic payment provisions has the
meaning given by paragraph 84(1)(d).
33 Subsection 5(1)
Insert:
otherwise than in the form of periodic amounts,
in relation to child support, means child support that is not paid as periodic
amounts, and includes child support paid in the form of:
(a) a lump sum payment; and
(b) a transfer or settlement of
property.
Note: Periodic amount is defined in
section 4 of the Registration and Collection Act.
34 After paragraph 76(2)(g)
Insert:
(ga) if a child support agreement
includes lump sum payment provisions, or if a court has made an order under
section 123A, in respect of the children in the child support case to
which the assessment relates:
(i) the amount of the lump
sum payment specified in the agreement or order; and
(ii) the amount of any
remaining lump sum payment (within the meaning of the Registration and
Collection Act); and
(iii) any annual rate and
daily rate of child support that remains payable under section 78 of this
Act after taking into account any remaining lump sum payment that will be
credited under section 69A of the Registration and Collection Act;
35 After paragraph 76(3)(c)
Insert:
(ca) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right to apply to a court having jurisdiction under this Act for
an order under section 123A that the liable parent provide child support
for the child in the form of a lump sum payment to be credited against the
liability of the liable parent under any relevant administrative assessment;
36 Section 78
Before “An”, insert “(1)”.
37 At the end of section 78
Add:
(2) An amount payable under
subsection (1), in relation to a day in a month in a year of income, is
taken to be paid at the time that the amount becomes due and payable, to the
extent that a remaining lump sum payment will be credited, under
section 69A of the Registration and Collection Act, at the end of the year
of income against the liability to pay child support in relation to all or part
of that amount.
38 Section 84
Repeal the section, substitute:
84
Provisions that may be included in agreements
Provisions that may be included
(1) An agreement is a child support agreement
only if it includes one or more of the following kinds of provisions:
(a) provisions under which a party is
to pay child support for a child to another party in the form of periodic
amounts paid to the other party;
(b) provisions under which the rate at
which a party is already liable to pay child support for a child to another
party in the form of periodic amounts paid to the other party is varied;
(c) provisions agreeing between
parties any other matter that may be included in an order made by a court under
Division 4 of Part 7 (departure orders);
(d) provisions (the non‑periodic
payment provisions) that state:
(i) that a party (the liable
party) is to provide child support for a child to another party
otherwise than in the form of periodic amounts; and
(ii) that the annual rate
of child support payable for the child by the liable party under any relevant
administrative assessment is to be reduced, in the manner specified under
subsection (6), by the amount of child support to be provided by the
liable party;
(e) provisions (the lump sum
payment provisions) that meet the requirements of subsection (7)
and that state:
(i) that a party (the liable
party) is to provide child support for a child to another party in the
form of a lump sum payment (including by way of transfer or settlement of
property); and
(ii) that the lump sum
payment is to be credited against the liable party’s liability under the
relevant administrative assessment in relation to amounts payable under the
liability;
(f) provisions under which a party is
to provide child support for a child to another party otherwise than in the
form of periodic amounts and that are not non‑periodic payment provisions
or lump sum payment provisions;
(g) provisions under which the
liability of a party to pay or provide child support for a child to another
party is to end from a specified day.
(2) The agreement may include more than one
kind of provision in relation to different parts of a child support period and
different child support periods.
Other kinds of provisions not to have effect
(3) If the agreement also includes provisions
of a kind not referred to in subsection (1), those provisions do not have
effect for the purposes of this Act.
(4) Subsection (3) does not affect the
operation of provisions of the kind referred to in that subsection for any
other purpose.
Agreement may also be parenting plan, maintenance
agreement or financial agreement
(5) Without limiting subsection (4),
nothing in this Part is to be taken to prevent the same document being both a
child support agreement and:
(a) a parenting plan; or
(b) a maintenance agreement or
financial agreement under the Family Law Act 1975.
Additional requirements of agreements with non‑periodic
payment provisions
(6) If an agreement includes provisions of
the kind referred to in paragraph (1)(d), the statement referred to in
subparagraph (1)(d)(ii) must specify either:
(a) that the annual rate of child
support payable under the administrative assessment is to be reduced by a
specified amount that represents an annual value of the child support payable;
or
(b) that the annual rate of child
support payable under the administrative assessment is to be reduced by 100% or
another specified percentage that is less than 100%.
Note: Non‑periodic payment provisions are
taken to have effect as if they were a statement made by a court under
section 125 in an order made under section 124 (see subsection
95(3)).
Additional requirements etc. of agreements with lump
sum payment provisions
(7) If an agreement includes provisions of
the kind referred to in paragraph (1)(e), the provisions meet the
requirements of this subsection if:
(a) the agreement is a binding child
support agreement; and
(b) an administrative assessment, in
relation to the child in respect of whom the agreement is made, is in force
immediately before the application for acceptance of the agreement is made; and
(c) the amount of the lump sum
payment:
(i) is specified in the
agreement; and
(ii) equals or exceeds the
annual rate of child support payable for the child under the administrative
assessment.
Note: If an agreement includes provisions of the
kind referred to in paragraph (1)(e) (lump sum payment provisions), the
lump sum payment is credited under section 69A of the Registration and
Collection Act against the liable party’s liability (rather than reducing the
annual rate of child support payable under the administrative assessment).
(8) An agreement that includes lump sum
payment provisions may also state that the lump sum payment is to be credited
against the liability under the administrative assessment in relation to 100%,
or another specified percentage that is less than 100%, of the child support
payable under the liability.
Note: If an agreement does not specify a percentage,
the lump sum payment is credited against the liability in relation to 100% of
the amounts payable under the liability (see section 69A of the
Registration and Collection Act).
39 Subsections 95(3) and (4)
Repeal the subsections, substitute:
(3) If the agreement includes non‑periodic
payment provisions:
(a) the provisions have effect, for
the purposes of this Act, as if they were a statement made by a court under
section 125 in an order made under section 124; and
(b) if the provisions or the agreement
is registered in a court having jurisdiction under Part VII of the Family
Law Act 1975—Division 13A of Part VII, and Parts XIII and XIIIB,
of that Act apply in relation to the provisions as if the provisions were an
order made by the court under Part VII of that Act.
Note 1: The effect of paragraph (3)(a) is that the
Registrar must make any subsequent administrative assessment on the basis of
the annual rate of child support as reduced by the amount or percentage
specified in the child support agreement (see section 127).
Note 2: This section does not deal with lump sum
payment provisions (see paragraph 84(1)(e) of this Act and section 69A of
the Registration and Collection Act).
40 At the end of section 96
Add:
(4) If a child support agreement includes
lump sum payment provisions, the notice must specify:
(a) the amount of the lump sum payment
specified in the agreement; and
(b) any annual rate and daily rate of
child support that remains payable after taking into account any remaining lump
sum payment (within the meaning of the Registration and Collection Act) that
will be credited under section 69A of that Act.
41 Subsection 123(1)
Repeal the subsection, substitute:
(1) An application may be made to a court
having jurisdiction under this Act for:
(a) an order that a liable parent
provide child support otherwise than in the form of periodic amounts paid to the
carer entitled to child support; or
(b) an order that a liable parent
provide child support in the form of a lump sum payment to be credited against
the liability under the relevant administrative assessment in relation to
amounts payable under the liability.
42 Subsection 123(2)
After “application”, insert “under subsection (1)”.
43 After section 123
Insert:
123A
Orders for provision of child support in the form of lump sum payment to be
credited against liability
(1) The court may make an order that a liable
parent provide child support for a child to a carer entitled to child support
in the form of a lump sum payment to be credited against the liability under
the relevant administrative assessment in relation to amounts payable under the
liability if:
(a) the carer entitled to child
support or the liable parent makes an application to a court under paragraph
123(1)(b); and
(b) the court is satisfied that it
would be:
(i) just and equitable as
regards the child, the carer entitled to child support and the liable parent;
and
(ii) otherwise proper;
to make an order under this
section; and
(c) the amount of the lump sum payment
equals or exceeds the annual rate of child support payable for the child under
the administrative assessment.
Note: If the court makes such an order, the lump sum
payment is credited under section 69A of the Registration and Collection
Act against the liable parent’s liability (rather than reducing the annual rate
of child support payable under the administrative assessment).
(2) A lump sum payment may include a payment
by way of transfer or settlement of property.
(3) An order under subsection (1):
(a) must specify the amount of the
lump sum payment; and
(b) must specify that the lump sum
payment is to be credited against the liability under the administrative
assessment in relation to 100%, or another specified percentage that is less
than 100%, of the amounts payable under the liability.
(4) In determining the application made under
paragraph 123(1)(b), the court must have regard to:
(a) the administrative assessment; and
(b) any determination in force under
Part 6A (departure determinations) in relation to the child, the carer
entitled to child support and the liable parent; and
(c) any order in force under
Division 4 of this Part (departure orders) in relation to the child, the
carer entitled to child support and the liable parent; and
(d) whether the carer entitled to
child support is in receipt of an income tested pension, allowance or benefit;
and
(e) if the carer entitled to child
support is not in receipt of such a pension, allowance or benefit—whether the
circumstances of the carer are such that, taking into account the effect of the
order proposed to be made by the court, the carer would be unable to support
himself or herself without an income tested pension, allowance or benefit.
(5) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and the
liable parent to make an order under subsection (1), the court must have
regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(6) In having regard to the earning capacity
of a parent of the child under paragraph 117(4)(da), the court may determine
that the parent’s earning capacity is greater than is reflected in his or her
income for the purposes of this Act only if the court is satisfied as mentioned
in subsection 117(7B).
(7) In determining whether it would be
otherwise proper to make an order under subsection (1), the court must
have regard to the matters mentioned in subsection 117(5).
(8) Subsections (4), (5), (6) and (7) do
not limit the matters to which the court may have regard.
44 Paragraph 124(1)(a)
Repeal the paragraph, substitute:
(a) a carer entitled to child support
or a liable parent makes an application under paragraph 123(1)(a); and
45 Subsections 125(1), (2) and (3)
Repeal the subsections, substitute:
(1) If the court makes an order under
section 124, the court must state in the order whether the annual rate of
child support payable by the liable parent under any relevant administrative
assessment is to be reduced, in the manner specified under subsection (3),
by the child support ordered to be provided by the liable parent.
(2) The court may state that the annual rate
of child support payable by the liable parent is not to be so reduced only if
it is satisfied that, in the special circumstances of the case, it would be:
(a) just and equitable as regards the
child, the carer entitled to child support and the liable parent; and
(b) otherwise proper;
that the annual rate of child support not be reduced by
the child support ordered to be provided.
(3) If the court states in the order that the
annual rate of child support is to be reduced by the child support ordered to
be provided, the court must also state in the order either:
(a) that the annual rate of child
support payable is to be reduced by a specified amount that represents an
annual value of the child support to be provided; or
(b) that the annual rate of child
support payable is to be reduced by 100% or another specified percentage that
is less than 100%.
46 Subsection 126(1)
After “section” (first occurring), insert “123A or”.
47 Subparagraph 126(1)(a)(ii)
Repeal the subparagraph, substitute:
(ii) if the order is an
order under section 123A—the matters specified in the order under
subsection 123A(3); and
(iii) if the order is an
order under section 124—the statement or statements included in the order
under section 125; and
48 Subsection 127(1)
Repeal the subsection, substitute:
(1) This section applies if the court makes
an order under section 124 that includes a statement under
section 125 that the annual rate of child support payable by a liable
parent under an administrative assessment is to be reduced, in the manner
specified under subsection 125(3), by the child support ordered to be provided
by the liable parent.
49 Subsection 129(1)
After “section” (first occurring), insert “123A or”.
50 Paragraph 129(1)(f)
Omit “included in the order under section 125”, substitute
“made by a court under section 125 in an order made under
section 124”.
51 Subsection 129(2)
After “section” (first occurring), insert “123A or”.
52 Subsection 129(4)
Omit “the order” (first occurring), substitute “an order made
under section 124”.
53 Subparagraph 130(1)(a)(ii)
After “an order”, insert “made under section 124”.
54 Subsection 131(1)
After “section” (second occurring), insert “123A or”.
Child Support (Registration and
Collection) Act 1988
55 Subsection 4(1)
Insert:
regular care has the meaning given by
subsection 5(2) of the Assessment Act.
56 Subsection 4(1)
Insert:
remaining lump sum payment has the meaning
given by subsection 69A(4).
57 At the end of section 66
Add:
(3) An amount payable under
subsection (1) or (2), in respect of a day in an initial period or payment
period in a year of income, is taken to be paid at the time that the amount
becomes due and payable, to the extent that a remaining lump sum payment will
be credited, under section 69A, at the end of the year of income against a
liability in relation to all or part of that amount.
58 After section 69
Insert:
69A
Crediting of lump sum payments
(1) This section applies if:
(a) either:
(i) a child support
agreement accepted by the Registrar includes lump sum payment provisions in
accordance with paragraph 84(1)(e) of the Assessment Act; or
(ii) a court has made an
order under section 123A of that Act in relation to the provision of child
support in the form of a lump sum payment; and
(b) the Registrar has been notified
that the lump sum payment has been paid in accordance with the agreement or order.
(2) The Registrar must, in accordance with
subsection (3):
(a) in respect of an initial period or
payment period, in a year of income, for a registered maintenance liability,
credit the remaining lump sum payment against the liability:
(i) if the agreement or
order states that the lump sum payment is to be credited against the liability
in relation to a specified percentage of the amount payable under the
liability—in relation to that percentage of the amount payable under the
liability; and
(ii) if
subparagraph (i) does not apply—in relation to 100% of the amount payable
under the liability; and
(b) reduce, but not below nil, the
remaining lump sum payment by the amount so credited.
(3) The Registrar must credit a remaining
lump sum payment and reduce the remaining lump sum payment at the end of each
year of income.
(4) The remaining lump sum payment,
in relation to the lump sum payment paid under the agreement or order, means:
(a) for the initial period or the
first payment period that occurs after the agreement is accepted or the order
is made—the lump sum payment; and
(b) for the first payment period that
begins on or after 1 January in a calendar year (other than a payment
period covered by paragraph (a))—the remaining lump sum payment for the
previous initial period or payment period as indexed under subsection (5);
and
(c) otherwise—so much of the remaining
lump sum payment as remains after crediting under the previous application of
this section.
(5) The remaining lump sum payment, for the
first payment period that begins on or after 1 January in a calendar year,
is indexed as follows:
where:
base quarter means the September quarter
(before the September quarter for the previous calendar year, but after the
agreement is accepted or the order is made) with the highest index number.
indexation factor means:
index number for a quarter is the All Groups
Consumer Price Index number that is the weighted average of the 8 capital
cities and is published by the Australian Statistician in respect of that
quarter.
(6) If an indexation factor worked out under subsection (5)
would be less than 1, the indexation factor is to be increased to 1.
(7) Subject to subsection (8), if at any
time (whether before or after the commencement of this subsection), the
Australian Statistician publishes an index number for a quarter in substitution
for an index number previously published by the Australian Statistician for
that quarter, the publication of the later index number is to be disregarded
for the purposes of subsection (5).
(8) If at any time the Australian
Statistician changes the reference base for the Consumer Price Index, regard is
to be had, for the purposes of applying subsection (5) after the change
takes place, only to index numbers published in terms of the new reference
base.
Division 3—Notional assessments
A New Tax System (Family Assistance)
Act 1999
59 Subsection 3(1) (definition of capitalised maintenance
income)
After “means maintenance income”, insert “(other than child
maintenance to which clause 20B or 20C of Schedule 1 applies)”.
60 Subsection 3(1)
Insert:
child support agreement has the meaning given
by section 81 of the Child Support (Assessment) Act 1989.
61 Subsection 3(1) (paragraph (a) of the definition of maintenance
income)
Repeal the paragraph, substitute:
(a) child maintenance—any one or more
of the following amounts:
(i) if clause 20B of
Schedule 1 applies (notional assessments for child support agreements)—the
amount worked out under that clause;
(ii) if clause 20C of
Schedule 1 applies (lump sum payments)—the amount worked out under that
clause;
(iii) otherwise—the amount
of a payment or the value of a benefit that is received by the individual for
the maintenance of an FTB child of the individual and is received from a parent
of the child, or the partner or former partner of a parent of the child; or
62 Subsection 3(1)
Insert:
notional assessment has the meaning given by
section 146E of the Child Support (Assessment) Act 1989.
63 After clause 20A of Schedule 1
Insert:
20B
Working out amounts of child maintenance using notional assessments
(1) If:
(a) an individual receives child
maintenance for an FTB child of the individual under a child support agreement
or court order; and
(b) there is, in relation to the
agreement or order, a notional assessment of the annual rate of child support
that would be payable to the individual for the child for a particular day in a
child support period if that annual rate were payable under Part 5 of the Child
Support (Assessment) Act 1989 instead of under the agreement or order;
then the amount of child maintenance that the individual
is taken to have received in an income year under the agreement or order for
the child for a period is worked out in accordance with this clause.
Note: The amount worked out in accordance with this
clause is annualised under clause 20A.
Individual taken to have received notional assessed
amount
(2) For the purposes of this Act, the amount
of child maintenance that the individual is taken to have received under the
agreement or order for the child for the period is, subject to this clause, the
amount (the notional assessed amount) that the individual would
have received if the individual had received the annual rate of child support
for the child for the period that is included in the notional assessment.
Underpayments
(3) If the amount received in an income year
by the individual under the agreement or order for the child for the period is
less than the amount that is payable to the individual under the agreement or
order for the child for the period (such that a debt arises for the period
under the agreement or order), then, for the purposes of this Act, the amount
of child maintenance that the individual is taken to have received under the
agreement or order for the child for the period is the following amount (the notional
amount paid):
Note: This subclause only applies in respect of
enforceable maintenance liabilities (see subclause (7)).
Arrears
(4) If the amount received in an income year
by the individual under the agreement or order for the child for the period
exceeds the amount that is payable to the individual under the agreement or
order for the child for the period, then, for the purposes of this Act, the
amount of child maintenance that the individual is taken to have received under
the agreement or order for the child for the period is:
Note: This subclause only applies in respect of
enforceable maintenance liabilities (see subclause (7)).
(5) The notional arrears amount,
in respect of a debt arising for a previous period under the agreement or
order, is:
(6) For the purposes of subclause (5),
if:
(a) an individual has more than one
debt that arose under an agreement or order for previous periods; and
(b) the amount received in an income
year by the individual under the agreement or order for a child for a period
exceeds the amount that is payable to the individual under the agreement or
order for the child for the period;
then:
(c) the individual is taken to have
received the excess to pay off each debt in the order in which the debts arose;
and
(d) each debt is reduced by the amount
of the debt that is paid off.
(7) Subclauses (3) and (4) only apply in
respect of enforceable maintenance liabilities (within the meaning of the Child
Support (Registration and Collection) Act 1988).
20C
Working out amounts of child maintenance in relation to lump sum payments
(1) This clause applies if an individual
receives in an income year child maintenance for an FTB child of the individual
under:
(a) a child support agreement,
containing lump sum payment provisions (within the meaning of paragraph
84(1)(e) of the Child Support (Assessment) Act 1989), to which
clause 20B does not apply; or
(b) a court order made under
section 123A of that Act;
in the form of a lump sum payment that is to be credited
under section 69A of the Child Support (Registration and Collection)
Act 1988 against a liability under an administrative assessment.
(2) For the purposes of this Act, the amount
of child maintenance that the individual is taken to have received in an income
year under the agreement or order for the child for a period is the amount that
is credited under section 69A of the Child Support (Registration and
Collection) Act 1988 against the liability under the administrative
assessment for the child for the period.
Note: The amount worked out under this clause is
annualised under clause 20A.
Child Support (Assessment) Act 1989
64 Subsection 5(1)
Insert:
notional assessment has the meaning given by
section 146E.
65 Subsection 5(1)
Insert:
provisional notional assessment means a
provisional notional assessment made under section 146B.
66 Subsection 34B(1) (note)
Omit “Note”, substitute “Note 1”.
67 At the end of subsection 34B(1)
Add:
Note 2: If the Registrar makes an assessment under this
section, the Registrar must make a provisional notional assessment under
section 146B.
68 Subsection 93(2) (note)
Omit “Note”, substitute “Note 1”.
69 At the end of subsection 93(2)
Add:
Note 2: If the Registrar makes an assessment under this
section, the Registrar must make a provisional notional assessment under
section 146B.
70 At the end of subsection 125(1)
Add:
Note: If the court makes a statement under this
section that the annual rate of child support is to be reduced, the Registrar
must make a provisional notional assessment under section 146B.
71 After Part 7
Insert:
Part 7A—Notional assessments
Division 1—Preliminary
146A
Simplified outline
The following is a simplified outline of
this Part:
• If the Registrar accepts a
certain kind of child support agreement, or the court makes a certain kind of
order, the Registrar must make a provisional notional assessment of the annual
rate of child support that would be payable for a day in a child support period
if child support were payable under Part 5 instead of under the agreement
or order.
• The notional assessment is
used in the maintenance income test in working out a person’s Part A rate of
family tax benefit under the A New Tax System (Family Assistance) Act 1999.
• A parent may estimate their
adjusted taxable income for the purposes of making a provisional notional
assessment.
Division 2—Notional assessments
146B
Provisional notional assessments
(1) The Registrar must make a provisional
notional assessment in accordance with this section if:
(a) the Registrar makes an assessment
under section 34B or section 93; or
(b) a court makes a statement under
section 125, in an order under section 124, that an annual rate of
child support payable is to be reduced.
(2) The Registrar must make a provisional
notional assessment of the annual rate of child support that would be payable
for a child for a particular day in a child support period, by the liable
parent to the carer entitled to child support, if that annual rate were payable
under Part 5 (taking into account any relevant determination under
Part 6A, or any relevant order under Division 4 of Part 7) for
the child for that day instead of under the agreement or order.
(3) The Registrar must serve notice in
writing of the provisional notional assessment on the liable parent and the
carer entitled to child support.
(4) The notice must specify in respect of the
provisional notional assessment the matters that are required under
section 69 and subsection 76(2) in respect of an administrative
assessment.
(5) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the liable parent or the carer
entitled to child support can seek a variation of the provisional notional
assessment in accordance with section 146C within 14 days of receiving the
notice; and
(b) once the provisional notional
assessment becomes a notional assessment under section 146E, the liable
parent or the carer entitled to child support may, subject to the Registration
and Collection Act, object to the particulars of the notional assessment; and
(c) if aggrieved by a later decision
on an objection to those particulars, the liable parent or the carer entitled
to child support may, subject to that Act, apply to the SSAT for review of the
later decision.
146C
Variation of provisional notional assessments
(1) A liable parent or carer entitled to
child support (the applicant) may seek a variation of a
provisional notional assessment within 14 days of receiving a notice under
section 146B in respect of the provisional notional assessment by doing
one or more of the following:
(a) by notifying the Registrar of a
change to the percentage of care that the liable parent or the carer entitled
to child support has for the child for the particular day in the child support
period in respect of which the provisional notional assessment is made;
(b) by making an application under
section 146D for a determination under Part 6A (departure
determinations);
(c) if the applicant is a parent of
the relevant child—by making an election under subsection 146G(1) (estimate of
adjusted taxable income).
Note: A person who does not receive a notice that is
served on the person is taken to have received the notice 14 days after the
notice was served (see subsection 146E(2)).
(2) The Registrar may vary the provisional
notional assessment of the annual rate of child support that would be payable
for the child for the particular day if:
(a) an applicant seeks a variation in
accordance with subsection (1); and
(b) any one or more of the following
applies:
(i) if
paragraph (1)(a) applies—the Registrar determines a different percentage
of care for the parent or the carer for the child for the particular day under
Division 4 of Part 5;
(ii) if
paragraph (1)(b) applies—the Registrar makes a determination in respect of
the child under section 98S;
(iii) if paragraph (1)(c)
applies—the Registrar does not refuse to accept the election under
section 146H.
(3) The Registrar may refuse to vary the
provisional notional assessment if:
(a) the liable parent or the carer
entitled to child support seeks a variation to the provisional notional
assessment in accordance with subsection (1); and
(b) any of the following applies:
(i) if
paragraph (1)(a) applies—the Registrar does not determine a different
percentage of care for the parent or carer for the child for the particular day
under Division 4 of Part 5;
(ii) if
paragraph (1)(b) applies—the Registrar refuses to make a determination in
respect of the child under section 98S;
(iii) if
paragraph (1)(c) applies—the Registrar refuses to accept the election
under section 146H; and
(c) if the liable parent or carer
entitled to child support seeks a variation by doing more than one of the
things mentioned in subsection (1)—the Registrar has not already varied
the provisional notional assessment under subsection (2).
(4) The liable parent and the carer entitled
to child support are not entitled:
(a) to make an application to the SSAT
under section 80 of the Registration and Collection Act; or
(b) to make an application to a court
under section 116;
in respect of the making of, or refusal to make, a
determination under Part 6A.
Note: Instead, once the provisional notional
assessment becomes a notional assessment, an objection can be made to the
particulars of the notional assessment under section 80 of the
Registration and Collection Act.
146D
Departure determinations in respect of provisional notional assessments
(1) A person may, by written application, ask
the Registrar to make a determination under Part 6A (departure
determinations) if:
(a) a provisional notional assessment
has not yet become a notional assessment under section 146E; and
(b) the person is of the view that,
because of special circumstances that exist, the provisions of this Act
relating to administrative assessment of child support should be departed from
for the purposes of making the provisional notional assessment; and
(c) the person has not previously
applied under this section in relation to the provisional notional assessment.
(2) If a person makes an application under
subsection (1), Division 2 of Part 6A applies as if:
(a) references in that Division to an
administrative assessment were references to the provisional notional
assessment; and
(b) section 98JA did not apply.
146E
Notional assessments
(1) A provisional notional assessment becomes
a notional assessment:
(a) 14 days after the notice of the
provisional notional assessment is received by all the parties under
section 146B; or
(b) if a liable parent or a carer
entitled to child support seeks a variation to the provisional notional
assessment in accordance with section 146C—on the day on which the
Registrar varies, or refuses to vary, the provisional notional assessment under
that section.
(2) For the purposes of this section and
section 146C, if a person does not receive a notice served under
section 146B before 14 days after the day on which the notice was served
on the person by post at the person’s last known address, the person is taken
to have received the notice on the 14th day.
(3) To avoid doubt, subsection (2)
applies whether the person receives the notice after the time referred to in
that subsection or does not receive the notice at all.
(4) After a provisional notional assessment
becomes a notional assessment, the Registrar must serve notice in writing of
the notional assessment on the liable parent and the carer entitled to child
support.
(5) The notice must specify in respect of the
notional assessment the matters that are required by section 69 and
subsection 76(2) in respect of an administrative assessment.
(6) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the party may, subject to the
Registration and Collection Act, object to the particulars of the notional
assessment; and
(b) if aggrieved by a later decision
on an objection to those particulars, may, subject to that Act, apply to the
SSAT for review of the later decision.
(7) A contravention of subsection (5) or
(6) does not affect the validity of the notional assessment.
146F
Later provisional notional assessments
The Registrar must make a new
provisional notional assessment under section 146B:
(a) if the relevant child support
agreement or court order continues in force for more than 3 years—at the end of
the 3 year period after the most recent notional assessment relating to the
agreement or order was made; or
(b) if the relevant child support
agreement was a limited child support agreement—on the request of a party to
the agreement; or
(c) in any case—if the amount of child
support that is payable under the relevant child support agreement or court
order for a day in the child support period changes by more than 15% from the
previous day.
Division 3—Estimating adjusted taxable income for notional assessments
146G
Estimating adjusted taxable income for purposes of notional assessments
(1) Before a provisional notional assessment
relating to a child becomes a notional assessment under section 146E, a
parent of the child may elect that, for the purposes of making the provisional
notional assessment, the parent’s adjusted taxable income for the 12 month
period beginning on the particular day in the child support period in respect
of which the provisional notional assessment is made is the amount estimated by
the parent.
(2) However, a parent may not make an
election under this section in relation to a child if an order or determination
referred to in paragraph (a) of the definition of income amount
order is in force in relation to the parent and the particular day in
the child support period in respect of which the provisional notional
assessment is made.
Election must be for amount less than adjusted taxable
income for last relevant year of income
(3) The parent may make an election relating
to a child only if the amount that he or she estimates under
subsection (1) is not more than 85% of the total of the parent’s adjusted
taxable income for the last relevant year of income for the child support
period.
How election is made
(4) The parent makes the election by giving
notice of it to the Registrar in the manner specified by the Registrar. The
notice must specify the amount the parent estimates to be his or her adjusted
taxable income.
146H
Registrar may refuse to accept election
(1) The Registrar may refuse to accept the
parent’s election if the Registrar is satisfied that the amount the parent
estimated under subsection 146G(1) is likely to be less than the actual amount
that would be the parent’s adjusted taxable income for that 12 month period.
Note: If the Registrar refuses to accept the
election, he or she may refuse to vary the provisional notional assessment
under subsection 146C(3).
(2) In making the decision as to whether to
refuse the election, the Registrar:
(a) may act on the basis of
information that the Registrar has received or obtained as to the financial
circumstances of the parent; and
(b) may, but is not required to,
conduct an inquiry into the matter.
(3) Except for the purposes of Parts VII,
VIIA and VIII of the Registration and Collection Act (dealing with objections
and appeals), if the Registrar refuses to accept an election, the election is
taken never to have been made.
146J
Effect of election
(1) If a parent makes an election under
subsection 146G(1) relating to a child, then, for the purposes of making the
provisional notional assessment, the parent’s adjusted taxable income is the
amount the parent estimated.
(2) Subsection (1) has effect subject to
any order or determination referred to in paragraph (a) of the definition
of income amount order that is made after the making of the
election that applies in relation to the parent and the particular day in the
child support period in respect of which the provisional notional assessment is
made.
(3) The Registrar must take such action as is
necessary to give effect to subsection (1) in relation to the provisional
notional assessment that has been made in relation to the parent and the child
(whether by varying the provisional notional assessment or otherwise).
146K
Revocation of election
(1) Before a provisional notional assessment
becomes a notional assessment under section 146E, a parent who has made an
election under subsection 146G(1) in relation to a child may, by notice given
to the Registrar, revoke the election.
(2) A notice given to the Registrar must be
given in the manner specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
146L
Effect of revocation
(1) If a parent who made an election under
section 146G relating to a child revokes the election and substitutes a
new election before the provisional notional assessment becomes a notional
assessment under section 146E, then, for the purposes of making the provisional
notional assessment, the parent’s adjusted taxable income is the amount the
parent elected in the new election.
(2) Subsection (1) has effect subject to
any order or determination referred to in paragraph (a) of the definition
of income amount order that is made after the making of the
election that applies in relation to the parent and the particular day in the
child support period in respect of which the provisional notional assessment is
made.
(3) The Registrar must take such action as is
necessary to give effect to subsection (1) in relation to the provisional
notional assessment that has been made in relation to the parent and the child
(whether by varying the provisional notional assessment or otherwise).
(4) This section does not prevent:
(a) the Registrar making a
determination under Part 6A; or
(b) a court making any order under
Division 4 of Part 7; or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect, for the purposes of Part 5, as if they were such an order made by
consent.
Child Support (Registration and
Collection) Act 1988
72 Subsection 80(1) (after table item 14)
Insert:
|
14A
|
as to the particulars of a notional assessment
|
(a) the carer entitled to child support; or
(b) the liable parent
|
Part 2—Application and transitional provisions
73 Application
(1) The amendments made by this Schedule (other than
item 58) apply in respect of:
(a) a child support agreement if the
application for acceptance of the agreement is made after Division 3 of
Part 1 of this Schedule commences; and
(b) subject to subitem (3), an
application made to a court after that Division commences.
(2) To avoid doubt, if:
(a) an application is made for
acceptance of a child support agreement before Division 3 of Part 1
of this Schedule commences; and
(b) immediately before that Division
commences, the agreement has been neither accepted nor refused by the
Registrar;
the Assessment Act, the Registration and Collection Act, the A
New Tax System (Family Assistance) (Administration) Act 1999 and the Social
Security Act 1991, as in force at that time, continue to apply after that
time in respect of the application.
(3) To avoid doubt, if:
(a) an application is made to a court
before Division 3 of Part 1 of this Schedule commences; and
(b) immediately before that Division
commences, the application has not been finally dealt with by the court;
the Assessment Act and the Registration and Collection Act, as in
force at that time, continue to apply after that time in respect of the
application (including in respect of an appeal to another court in relation to
any order made by the court).
74 Registrar to review all agreements
(1) Before 1 July 2008, the Registrar must:
(a) review every child support
agreement made before that day that will be in force:
(i) immediately before
that day; or
(ii) after that day; and
(b) determine in writing whether each
such agreement is:
(i) to be taken to be a
binding child support agreement; or
(ii) to be terminated.
(2) If, in accordance with subitem 73(2), the Registrar
accepts a child support agreement on or after 1 July 2008 under the
Assessment Act as in force immediately before that day, the Registrar must:
(a) review the agreement; and
(b) determine in writing whether the
agreement is:
(i) to be taken to be a
binding child support agreement; or
(ii) to be terminated.
(3) After the Registrar makes a determination under
subitem (1) or (2), the Registrar must serve notice in writing of the
determination on each of the parties to the agreement.
(4) The notice must include, or be accompanied by, a
statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may apply, subject to that Act, to the SSAT for
review of the later decision.
(5) A contravention of subitem (4) in relation to
a decision does not affect the validity of the decision.
(6) The Registration and Collection Act (as amended by
Schedule 3 of this Act) applies as if the table in subsection 80(1) of
that Act (as inserted by Schedule 3 of this Act) included the following
table item:
|
16
|
a determination under item 74 of Schedule 5 to
the Child Support Legislation Amendment (Reform of the Child Support
Scheme—New Formula and Other Measures) Act 2006 that an agreement is to
be a binding child support agreement or is to be terminated
|
a party to the agreement
|
75 Effect of determinations
Effect of determinations
(1) If the Registrar makes a determination under
subparagraph 74(1)(b)(i) or (2)(b)(i), then, for the purposes of the Assessment
Act and the Registration and Collection Act, at the time specified in
subitem (4) (if the agreement has not been previously terminated):
(a) the agreement is taken to be a
binding child support agreement; and
(b) the amendments made by this
Schedule do not affect the continuity of any assessment, in force at that time,
of the annual rate of child support that is payable under the agreement.
(2) If the Registrar makes a determination under
subparagraph 74(1)(b)(ii) or (2)(b)(ii), then, for the purposes of the
Assessment Act and the Registration and Collection Act, for any day in a child
support period that is on or after the time specified in subitem (4) (if
the agreement has not been previously terminated), the agreement is terminated
by force of this item.
(3) Subitems (1) and (2) do not affect the
operation of provisions in an agreement that do not have effect for the
purposes of the Assessment Act or the Registration and Collection Act.
When determinations take effect
(4) For the purposes of subitems (1) and (2), the
following time is specified:
(a) if the determination is made under
subparagraph 74(1)(b)(i)—the time that item 5 of this Schedule commences;
(b) otherwise—the latest of the
following times:
(i) if the decision of the
Registrar to make the determination becomes final—at the time when that
decision becomes final;
(ii) if a decision of the
SSAT relating to the Registrar’s determination becomes final—at the time when
that decision becomes final (within the meaning of subsection 110W(1) of the
Registration and Collection Act);
(iii) if neither
subparagraph (i) nor (ii) applies—at the time when a decision of a court
relating to the Registrar’s determination becomes final (within the meaning of
subsection 110W(2) or (3) of that Act);
(iv) at the time when the
agreement takes effect.
(5) For the purposes of subparagraph (4)(b)(i), a
decision of the Registrar becomes final at the end of the period within which
an application could have been made to the SSAT under section 80 of the
Registration and Collection Act (as it applies because of subitem 74(6) of this
Schedule).
Terminating deemed binding child support agreements
(6) In addition to section 80D of the Assessment
Act (as inserted by this Schedule), an agreement that is taken to be a binding
child support agreement under subitem (1) may be terminated by another
agreement that:
(a) is in writing; and
(b) is signed by the parties to the
original agreement.
76 Delegation
(1) The Registrar may, by writing, delegate all or any
of his or her powers and functions under item 74 of this Schedule to an
SES employee, or acting SES employee, of the Department.
(2) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the Registrar.
77 Application
The amendment made by item 58 of this Schedule applies in
relation to lump sum payments that are paid by a payer:
(a) in accordance with lump sum
payment provisions in an agreement under paragraph 84(1)(e) of the Assessment
Act or a court order made under section 123A of that Act (as amended or
inserted by this Schedule); and
(b) after the commencement of
Division 2 of Part 1 of this Schedule.
Part 3—Consequential amendments
A New Tax System (Family Assistance)
(Administration) Act 1999
78 Subsection 104(1)
Omit “(1) Under”, substitute “Under”.
Note: The heading to subsection 104(1) is deleted.
79 Subsection 104(2)
Repeal the subsection.
80 Subsection 106(3)
Repeal the subsection, substitute:
Notice to be given of other review decisions
(3) If:
(a) the Secretary makes a review
decision under section 105 to:
(i) vary an original
decision; or
(ii) set aside an original
decision and substitute a new decision; and
(b) the review decision is in respect
of any other original decision that, under section 104, may be reviewed
(other than a review decision referred to in subsection (1) or (2));
the Secretary must give notice of the review decision to
the person whose entitlement, or possible entitlement, to family assistance or
one‑off payment to families is affected by the decision.
81 Subsection 108(1)
Repeal the subsection, substitute:
Decisions that may and may not be reviewed under
section 109A
(1) A decision of any officer under the
family assistance law must be reviewed on application under section 109A
unless an exception set out in subsection (2) applies to the decision.
82 Section 109
Repeal the section.
83 Subsection 109B(3)
Repeal the subsection, substitute:
Notice to be given of other review decisions
(3) If a review decision is in respect of any
other original decision that may be reviewed under section 109A, other
than an original decision referred to in subsection (2), the decision
reviewer must give the applicant written notice of his or her decision:
(a) to affirm or vary the decision
reviewed; or
(b) to set it aside and substitute a
new decision.
84 Subsection 111(1B)
Repeal the subsection.
85 Subsection 118(2A)
Repeal the subsection.
86 Subsection 122(4)
Repeal the subsection.
87 Paragraph 139(1)(a)
Repeal the paragraph, substitute:
(a) may give general directions as to
the procedure to be followed by the SSAT in connection with the review of
decisions under the family assistance law; and
88 Paragraph 139(5)(aa)
Repeal the paragraph.
89 Subsection 142(5)
Repeal the subsection.
Social Security Act 1991
90 Subsection 23(1) (definition of officer)
Omit “, the Farm Household Support Act 1992 or subsection
91A(3) of the Child Support (Assessment) Act 1989”, substitute “or the Farm
Household Support Act 1992”.
Schedule 6—Amendments relating to departure orders (commencing on
1 July 2008)
Part 1—Amendments
Child Support (Assessment) Act 1989
1 Subsection 98C(3)
Omit “Subsections 117(4)”, substitute “Subsections 117(2A) and
(4)”.
2 Subsection 98L(2)
Omit “Subsections 117(4)”, substitute “Subsections 117(2A) and
(4)”.
3 Subsection 98S(3A)
Repeal the subsection.
4 Subsection 98U(3)
Omit “Subsections 117(4)”, substitute “Subsections 117(2A) and
(4)”.
5 After paragraph 117(2)(a)
Insert:
(aa) that, in the special circumstances
of the case, the capacity of either parent to provide financial support for the
child is significantly reduced because of the responsibility of the parent to
maintain another child (the resident child) of the parent;
6 Subparagraph 117(2)(c)(ii)
Omit “child; or”, substitute “child.”.
7 Subparagraphs 117(2)(c)(iii) and (iv)
Repeal the subparagraphs.
8 Subsection 117(2) (note)
Repeal the note.
9 Subsection 117(3)
Repeal the subsection, substitute:
Parent’s responsibility to maintain resident child
(2A) The ground for departure mentioned in
paragraph (2)(aa) is taken not to exist in respect of a resident child
unless:
(a) the resident child normally lives
with the parent, but is not a child of the parent; and
(b) the parent is, or was, for 2
continuous years, a member of a couple; and
(c) the other member of the couple is,
or was, a parent of the resident child; and
(d) the resident child is aged under
18; and
(e) the resident child is not a member
of a couple; and
(f) neither parent of the resident
child is able to support the resident child due to:
(i) the death of the
parent; or
(ii) the ill‑health
of the parent; or
(iii) the responsibility of
the parent to care for another child; and
(g) the court is satisfied that the
resident child requires financial assistance.
High costs involved in enabling parent to care for a
child
(2B) A parent’s costs involved in enabling the
parent to care for a child can only be high for the purposes of
subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will
be incurred, during a child support period, total more than 5% of the amount
worked out by:
(a) dividing the parent’s adjusted
taxable income for the period by 365; and
(b) multiplying the quotient by the
number of days in the period.
(2C) If a parent has at least regular care of a
child, then the only costs that can be taken into account for the purposes of
subsection (2B) are costs related to travel to enable the parent to care
for the child.
10 Section 117A
Repeal the section.
11 Subsection 118(2A)
Repeal the subsection.
Part 2—Application provision
12 Application
The amendments made by this Schedule apply in respect of:
(a) an application made under
section 98B of the Assessment Act after this item commences; and
(b) a determination in respect of
which parties were notified under section 98M of the Assessment Act after
this item commences; and
(c) an application made under
section 116 of the Assessment Act after this item commences, even if the
application relates to a decision made before this item commences:
(i) to make, or refuse to
make, a determination under Part 6A of that Act; or
(ii) to make an
administrative assessment under subsection 66(1) of that Act.
Schedule 7—Other amendments commencing on 1 July 2008
Part 1—Amendments
Child Support (Assessment) Act 1989
1 At the end of section 12
Add:
(5) A child support terminating event happens
in relation to a child and the child’s parents if the parents become members of
the same couple for a period of 6 months or more.
2 Before section 151
Insert:
150E
Suspension of liability to pay child support where parents reconcile
Child support not payable if parents reconcile
(1) The Registrar must make a determination
(a suspension determination) that child support is not payable
for a child by a liable parent to the other parent of the child if:
(a) the Registrar is notified, or
otherwise becomes aware, that the parents have become members of the same
couple; and
(b) the Registrar is satisfied that
the parents have become members of the same couple.
(2) If the Registrar makes a suspension
determination, child support for the child is not payable by the liable parent
to the other parent:
(a) from the day the Registrar
determines that the parents became members of the same couple; and
(b) until the Registrar makes a
determination under subsection (3) in relation to the parents.
Note: Under section 12, there is a child
support terminating event if the parents are members of the same couple for a
period of 6 months or more.
Payment of child support to continue if reconciliation
not successful
(3) If:
(a) a child support terminating event
has not happened in relation to a child and the child’s parents under
subsection 12(5); and
(b) the Register is satisfied that the
parents have ceased being members of the same couple;
then the Registrar must make a determination under this
subsection that child support is again payable by the liable parent to the
other parent.
(4) If the Registrar makes a determination
under subsection (3), child support is again payable by the liable parent
to the other parent from the day that the Registrar is satisfied that the
parents ceased to be members of the same couple.
Suspension determination not to prevent payment of
child support to non‑parent carers
(5) To avoid doubt, child support is still
payable by a liable parent for a child to a non‑parent carer of the child
despite a suspension determination being made in respect of the parents of the
child.
Child Support (Registration and
Collection) Act 1988
3 Subsection 39(5)
Repeal the subsection, substitute:
(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.
4 Section 71A
Before “Subject”, insert “(1)”.
5 Section 71A
After “section 30”, insert “and in accordance with
subsections (2) and (3)”.
6 At the end of section 71A
Add:
(2) If:
(a) the application referred to in
paragraph (1)(b) specifies that the amount, or part of the amount,
received by the third party is to be credited against the liability in relation
to a specified percentage that is less than 100% of the amount payable under
the liability; and
(b) the Registrar is satisfied that
the payer and the payee agree that the amount received is to be credited
against the liability in relation to that percentage of the amount, or the part
of the amount, payable under the liability;
then the Registrar must credit the amount received against
the liability in relation to that percentage of the amount, or the part of the
amount, payable under the liability.
(3) Otherwise, the Registrar must credit the
amount received against the liability in relation to 100% of the amount, or the
part of the amount, payable under the liability.
7 Subsections 71C(1) and (2)
Repeal the subsections, substitute:
(1) If:
(a) the payer of an enforceable
maintenance liability in relation to a payment period or initial period has
made one or more payments to the payee of the liability, or to another person;
and
(b) the payment is a payment of the
kind specified in the regulations; and
(c) the sum of those payments exceeds
the sum of all such payments previously credited under this section against the
liability for all past periods; and
(d) the payer does not, at the time at
which the Registrar applies this section, have at least regular care of any of
the children to whom the relevant administrative assessment relates;
then the Registrar must, despite section 30, credit
the excess amount mentioned in paragraph (c), up to a maximum amount that
is equal to 30% of the amount payable under the payer’s liability for the
period, against the liability in relation to the amount payable under the
liability for the period.
Note: Subsection (1) is subject to
section 71D.
8 After section 72AB
Insert:
72AC
Deductions from veterans’ pensions and allowances
(1) The Registrar may give a written notice
to the Repatriation Commission (within the meaning of the Veterans’
Entitlements Act 1986) if:
(a) either of the following applies:
(i) a person is a payer of
an enforceable maintenance liability under section 17 of this Act;
(ii) a person owes a child
support debt in relation to a liability under section 17 or 17A of this
Act and an amount of the debt remains unpaid after the day on which the debt
became due and payable under section 66 of this Act; and
(b) the person is receiving:
(i) an age service pension
under Division 3 of Part III of the Veterans’ Entitlements Act
1986; or
(ii) an invalidity service
pension under Division 4 of Part III of that Act; or
(iii) a partner service pension
under Division 5 of Part III of that Act; or
(iv) income support
supplement under Part IIIA of that Act; or
(v) Defence Force Income
Support Allowance under Division 2 of Part VIIAB of that Act.
(2) The notice must:
(a) specify the person’s name; and
(b) set out sufficient particulars to
enable the Repatriation Commission to identify the person; and
(c) if subparagraph (1)(a)(i)
applies—instruct the Repatriation Commission to make periodic deductions
prescribed in the regulations from the person’s pension or allowance from a
specified day; and
(d) if subparagraph (1)(a)(ii)
applies—instruct the Repatriation Commission to make periodic deductions
prescribed in the regulations from the person’s pension or allowance on the day
or days specified.
Veterans’ Entitlements Act 1986
9 At the end of section 58J
Add:
(3) The Commission must, in accordance with a
notice given under section 72AC of the Child Support (Registration and
Collection) Act 1988, for the purpose of enabling the collection of an
amount that is, or may become, payable by a recipient of a pension:
(a) make deductions from instalments
of the pension payable to the recipient; and
(b) pay the amount deducted to the
Child Support Registrar.
Note: The heading to section 58J is altered by
adding at the end “or Child Support Registrar”.
10 After section 122D
Insert:
122E
Deductions of DFISA paid to Child Support Registrar
The Commission must, in accordance with
a notice given under section 72AC of the Child Support (Registration
and Collection) Act 1988, for the purpose of enabling the collection of an
amount that is, or may become, payable by a recipient of DFISA:
(a) make deductions from instalments
of DFISA payable to the recipient; and
(b) pay the amount deducted to the
Child Support Registrar.
Part 2—Application provisions
11 Application
The amendment made by item 1 of this Schedule applies in
relation to parents who become members of the same couple after the
commencement of this Schedule.
12 Application
The amendment made by item 2 of this Schedule applies in
relation to parents that:
(a) the Registrar is notified, or
otherwise becomes aware, have become members of the same couple; and
(b) the Registrar is satisfied have
become members of the same couple;
after the commencement of this Schedule.
13 Application
The amendment made by item 3 of this Schedule applies
in relation to applications made under section 39 of the Registration and
Collection Act after the commencement of this Schedule.
14 Application
The amendment made by item 6 of this Schedule applies in
relation to amounts that are received, after the commencement of this Schedule,
by a third party (as mentioned in subsection 71A(2) of the Registration and
Collection Act as inserted by this Schedule).
15 Application
(1) The amendment made by item 7 of this Schedule
applies in relation to payments, made after the commencement of this Schedule,
of the kind referred to in subsection 71C(1) of the Registration and Collection
Act (as inserted by this Schedule).
(2) To avoid doubt, the amendment does not apply to
payments made before the commencement of this Schedule which have not, at the
time of commencement, been credited under section 71C of that Act.
Schedule 8—Amendments relating to family tax benefit (commencing on
1 July 2008)
Part 1—Regular care children
Division 1—Amendments
A New Tax System (Family Assistance)
Act 1999
1 Subsection 3(1)
Insert:
absent overseas recipient has the meaning
given by section 62.
2 Subsection 3(1)
Insert:
absent overseas regular care child has the
meaning given by section 63AA.
3 Subsection 3(1) (subparagraph (b)(i) of the
definition of FTB child)
Repeal the subparagraph, substitute:
(i) in applying paragraph
22(6A)(b) to child care benefit, the reference in that paragraph to a claim for
payment of family tax benefit is to be read as a reference to a claim for
payment of child care benefit; and
4 Subsection 3(1) (subparagraph (b)(ii) of the
definition of FTB child)
Omit “benefit; and”, substitute “benefit.”.
5 Subsection 3(1) (paragraph (c) of the definition of FTB
child)
Repeal the paragraph.
6 Subsection 3(1)
Insert:
parenting plan has the meaning given by the Family
Law Act 1975.
7 Subsection 3(1) (paragraph (b) of the definition of receiving)
Omit “and 17”, substitute “and 38L”.
8 Subsection 3(1)
Insert:
regular care child of an individual (the adult):
(a) means an individual who:
(i) would be an FTB child
of the adult but for the operation of section 25 (child in individual’s
care for less than 35% of a period); and
(ii) is in the care of the
adult for at least 14% of the period referred to in subsection 22(6A);
and
(b) in relation to child care
benefit—also means a child determined by the Secretary under subsection 42(2),
44(3) or 45(3) to be a regular care child of the adult.
9 Subsection 3(1) (definition of relevant shared carer)
Repeal the definition, substitute:
relevant shared carer means an individual who
has a shared care percentage for each of his or her FTB children.
10 Subsection 3(1) (definition of rent assistance child)
Omit “subclause 12(2)”, substitute “clause 38B”.
11 Subsection 3(1)
Insert:
shared care percentage for an individual for
an FTB child has the meaning given by section 59.
12 Paragraph 6(4)(a)
After “FTB child” (wherever occurring), insert “, or a regular
care child,”.
13 Paragraph 21(1)(a)
Repeal the paragraph, substitute:
(a) the individual:
(i) has at least one FTB
child; or
(ii) is not an absent
overseas recipient and has at least one regular care child who is also a rent
assistance child; and
14 Paragraph 22(3)(b)
Omit “or registered parenting plan”, substitute “, registered
parenting plan or parenting plan”.
15 After subsection 22(6)
Insert:
Determining percentages of care
(6A) If:
(a) the Secretary is satisfied there
has been, or will be, a pattern of care for an individual (the child)
over a period such that, for the whole, or for parts (including different
parts), of the period, the child was, or will be, under subsection (2),
(3), (4), (5) or (6), an FTB child of more than one other individual; and
(b) one of those other individuals
makes, or has made, a claim under Part 3 of the A New Tax System
(Family Assistance) (Administration) Act 1999 for payment of family tax
benefit in respect of the child for some or all of the days in that period; and
(c) that individual is not a partner
of at least one of those other individuals;
then the Secretary must determine the percentage of the
period during which the child was, or will be, in the care of that individual.
Note: The percentage determined under
subsection (6A) for an individual in respect of a child is used to work
out the individual’s shared care percentage for the child in section 59.
(6B) If the percentage determined by the
Secretary under subsection (6A) is not a whole percentage:
(a) if the percentage is greater than
50%—the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than
50%—the percentage is rounded down to the nearest whole percentage.
(6C) For the purposes of subsection (6A), a
child cannot be in the care of more than one of the other individuals referred
to in paragraph (6A)(a) on any particular day.
(6D) For the purposes of subsection (6A),
the Secretary must determine which of the other individuals referred to in
paragraph (6A)(a) has the care of the child on any given day having regard
to the living arrangements of the child.
16 Subsection 22(7)
Repeal the subsection, substitute:
Percentage of care at least 35%
(7) If, under subsection (6A), the
Secretary determines that a child was, or will be, in the care of an individual
for at least 35% of a period, the child is taken to be an FTB child of that
individual for the purposes of this section on each day in that period, whether
or not the child was in that individual’s care on that day.
Note: If the Secretary determines that a child was,
or will be, in the care of an individual for less than 35% of a period, the
child is taken not to be an FTB child (see section 25).
17 Paragraph 23(1)(a)
Omit “(including that subsection in its application by virtue of
subsection 22(7))”.
18 Subsection 23(2)
Omit “(including that subsection in its application by virtue of
subsection 22(7))”.
19 After subsection 23(2)
Insert:
(3) The reference, in paragraph (1)(a)
and subsection (2), to an FTB child of an individual or adult under
subsection 22(2) or (3) includes a reference to:
(a) a child who is an FTB child under
subsection 22(2) or (3) in its application by virtue of subsection 22(7); and
(b) a child who is an FTB child under
subsection 22(2) or (3), but who is taken not to be an FTB child under
section 25.
Note: As a result of subsection (2) of this
section, a child who is taken not to be an FTB child under section 25, but
who is a regular care child, will remain a regular care child for the part of
the qualifying period referred to in subsection (2) of this section.
20 Subsection 23(5) (subparagraph (c)(ii) of the
definition of qualifying period)
Omit “or registered parenting plan”, substitute “, registered
parenting plan or parenting plan”.
21 Subsection 24(1)
Repeal the subsection, substitute:
Absence from Australia of FTB or regular care child
(1) If:
(a) any of the following applies:
(i) an FTB child leaves
Australia;
(ii) a child born outside
Australia is an FTB child at birth;
(iii) a regular care child
leaves Australia;
(iv) a child born outside
Australia is a regular care child at birth; and
(b) the child continues to be absent
from Australia for more than 3 years;
during that absence from Australia, the child is neither
an FTB child, nor a regular care child, at any time after the period of 3 years
beginning on the first day of the child’s absence from Australia.
22 Paragraph 24(2)(a)
After “FTB child”, insert “, or a regular care child,”.
23 Subsection 24(3)
Omit “not an FTB child” (wherever occurring), substitute “neither
an FTB child nor a regular care child”.
24 Section 25
Repeal the section, substitute:
25
Effect of FTB child being in individual’s care for less than 35% of a period
If, under subsection 22(6A), the
Secretary determines that a child was, or will be, in the care of an individual
for less than 35% of a period, the child is taken, despite section 22, not
to be an FTB child of that individual for any part of the period.
25 Subsection 26(1)
After “FTB children”, insert “or regular care children”.
26 Section 27
Repeal the section, substitute:
27
Extension of meaning of FTB or regular care child in a blended family case
(1) This section applies if:
(a) 2 individuals are members of the
same couple; and
(b) either or both of the individuals
have a child (the qualifying child) from another relationship
(whether before or after the 2 individuals became members of that couple).
(2) While the 2 individuals are members of
that couple:
(a) each qualifying child that is an
FTB child, or regular care child, of one member of the couple is taken also to
be an FTB child, or regular care child, (as the case requires) of the other
member of the couple; and
(b) if, under subsection 22(6A), the
Secretary determines (whether before or after the 2 individuals became members
of that couple) a percentage of a period during which the qualifying child was,
or will be, in the care of one member of the couple—the Secretary is taken to
have determined that the child was, or will be, in the care of both members of
the couple during that percentage of the period.
27 Paragraph 31(1)(a)
After “FTB children”, insert “or regular care children”.
Note: The heading to section 31 is altered by
inserting “or regular care” after “FTB”.
28 Paragraph 31(1)(b)
Omit “the FTB children”, substitute “the children”.
29 Paragraph 31(1)(c)
Omit “one FTB child immediately before the child died”,
substitute “one child immediately before the child mentioned in
paragraph (1)(b) died”.
30 Subsection 31(4)
After “FTB children”, insert “, or regular care children,”.
Note: The heading to section 32 is altered by
inserting “or regular care” after “FTB”.
31 Paragraph 33(1)(a)
After “FTB child”, insert “or a regular care child”.
Note: The heading to subsection 33(1) is altered by
inserting “or regular care” after “FTB”.
32 Subparagraphs 33(2)(b)(i) and (ii)
After “FTB child”, insert “or regular care child,”.
Note: The heading to subsection 33(2) is altered by
inserting “or regular care” after “FTB”.
33 After paragraph 36(2)(a)
Insert:
(aa) the child is an FTB child of the
individual; and
34 Subparagraph 36(2)(b)(i)
Omit “in respect of the child”, substitute “in respect of the FTB
child”.
35 After paragraph 36(3)(c)
Insert:
(ca) the child is an FTB child of the
individual; and
36 Subparagraph 36(3)(d)(i)
Omit “in respect of the child”, substitute “in respect of the FTB
child”.
37 After paragraph 36(4)(a)
Insert:
(aa) if the child had been born alive,
the child would have been an FTB child of the individual at birth; and
38 Subparagraph 36(4)(b)(i)
Omit “in respect of the child”, substitute “in respect of the FTB
child”.
39 After paragraph 36(5)(ba)
Insert:
(bb) the child is an FTB child of the
individual; and
40 Subparagraph 36(5)(c)(i)
Omit “in respect of the child”, substitute “in respect of the FTB
child”.
41 After paragraph 39(2)(a)
Insert:
(aa) the child is an FTB child of the
individual; and
42 Subparagraph 39(2)(b)(iii)
Omit “in respect of the child”, substitute “in respect of the FTB
child”.
43 Subsection 39(4)
Repeal the subsection, substitute:
Child dies within 2 years of birth
(4) Third, an individual is eligible for
maternity immunisation allowance in respect of a child who is born alive but
dies within 2 years if, on the day of the child’s death:
(a) the child is an FTB child of the
individual; and
(b) the individual either:
(i) is eligible for family
tax benefit in respect of the FTB child; or
(ii) would be so eligible
except that the individual’s rate of family tax benefit, worked out under
Division 1 of Part 4, is nil.
44 Paragraph 42(1)(a)
After “FTB child”, insert “, or a regular care child,”.
45 Paragraph 42(1)(c)
Omit “FTB child”, substitute “child”.
46 Subsection 42(2)
Repeal the subsection, substitute:
Secretary may determine that child is a regular care
child
(2) The Secretary may determine that a child
who is neither an FTB child, nor a regular care child, of an individual at a
particular time is taken to be a regular care child of the individual at that
time for the purposes of paragraph (1)(a).
47 Paragraph 44(1)(a)
After “FTB child”, insert “, or a regular care child,”.
48 Subsection 44(3)
Repeal the subsection, substitute:
Secretary may determine that child is a regular care
child
(3) The Secretary may determine that a child
who is neither an FTB child, nor a regular care child, of an individual during
the session of care is taken to be a regular care child of the individual
during that session for the purposes of paragraph (1)(a).
49 Paragraph 45(1)(a)
After “FTB child”, insert “, or a regular care child,”.
50 Paragraph 45(1)(c)
Omit “not an FTB child”, substitute “neither an FTB child, nor a
regular care child,”.
51 Subsection 45(3)
Repeal the subsection, substitute:
Secretary may determine that child is a regular care
child
(3) The Secretary may determine that a child
who is neither an FTB child, nor a regular care child, of an individual during
the period of care is taken to be a regular care child of the individual during
that period for the purposes of paragraph (1)(a).
52 Paragraph 54(4)(a)
After “FTB child”, insert “, or a regular care child,”.
53 Subparagraph 54(5)(b)(i)
After “FTB child”, insert “, or a regular care child,”.
54 Paragraphs 54(6)(a) and (7)(b)
After “FTB child”, insert “, or a regular care child,”.
55 Section 59
Repeal the section, substitute:
59
Shared care percentages where individual is FTB child of more than one person
who are not members of the same couple
(1) An individual has a shared care
percentage under this section for an FTB child of the individual if the
Secretary has determined, under subsection 22(6A), a percentage of the period
mentioned in that subsection during which the child was, or will be, in the
care of the individual.
Note: The Secretary is taken to have made a
determination under subsection 22(6A) in a blended family case (see paragraph
27(2)(b)).
(2) The individual’s shared care
percentage for the FTB child is the relevant percentage specified in
column 2 of the table.
|
Shared care percentages
|
|
Item
|
Column 1
Individual’s percentage
determined under subsection 22(6A)
|
Column 2
Shared care percentage
|
|
1
|
35% to less than 48%
|
25% plus 2% for each percentage point over 35%
|
|
2
|
48% to 52%
|
50%
|
|
3
|
more than 52% to 65%
|
51% plus 2% for each percentage point over 53%
|
|
4
|
more than 65% to 100%
|
100%
|
(3) If the shared care percentages, specified
in the table, of all of the individuals of whom the child is an FTB child add
to less than 100%, then the Secretary may determine a different whole
percentage for one or more of those individuals for the FTB child. Despite
subsection (2), the individual’s shared care percentage for
the child is the percentage so determined for that individual.
59A
Multiple birth allowance where individual is FTB child of more than one person
who are not members of the same couple
(1) If the Secretary is satisfied that:
(a) an individual is an FTB child of
an individual (person A); and
(b) the FTB child is also an FTB child
of one or more other individuals who are not person A’s partner; and
(c) the FTB child is one of 3 or more
FTB children who were born during the same multiple birth;
the Secretary may determine the manner in which multiple
birth allowance under Division 2 of Part 5 of Schedule 1 is to
be dealt with.
(2) Without limiting subsection (1), the
Secretary may specify that the whole of the multiple birth allowance is to be
paid to one of the individuals involved.
56 Subsections 63(2) and (3)
Repeal the subsections, substitute:
(2) If:
(a) one of the following applies:
(i) an FTB child leaves
Australia;
(ii) a child born outside
Australia is an FTB child at birth;
(iii) a regular care child
leaves Australia;
(iv) a child born outside
Australia is a regular care child at birth; and
(b) the child continues to be absent
from Australia for more than 13 weeks; and
(c) at the end of the period of 13
weeks beginning on the first day of the child’s absence from Australia the
child is an FTB child;
the child is an absent overseas FTB child for
any period that occurs:
(d) during that absence from
Australia; and
(e) after the end of the period
mentioned in paragraph (c); and
(f) during which the child continues
to be an FTB child.
(3) If:
(a) a regular care child is an absent
overseas regular care child because of the application of subsection 63AA(1),
(2) or (3); and
(b) during the period that the child
is absent from Australia, the child becomes an FTB child of an individual;
the child is an absent overseas FTB child for
any period that occurs:
(c) during the absence from Australia
referred to in paragraph (b) after the child becomes an FTB child; and
(d) during which the child continues
to be an FTB child.
(3A) If:
(a) either:
(i) an FTB child is an
absent overseas FTB child because of the application of subsection (2) or
(3) or a previous application of this subsection; or
(ii) a regular care child
is an absent overseas regular care child because of the application of
subsection 63AA(1), (2) or (3); and
(b) the child comes to Australia; and
(c) the child leaves Australia less
than 13 weeks after coming to Australia; and
(d) at the time the child leaves
Australia, the child is an FTB child;
the child is an absent overseas FTB child for
any period that occurs:
(e) during the absence from Australia
referred to in paragraph (c); and
(f) during which the child continues
to be an FTB child.
57 After section 63
Insert:
63AA
Regular care child’s absence from Australia—meaning of absent overseas
regular care child
(1) If:
(a) one of the following applies:
(i) a regular care child
leaves Australia;
(ii) a child born outside
Australia is a regular care child at birth;
(iii) an FTB child leaves
Australia;
(iv) a child born outside
Australia is an FTB child at birth; and
(b) the child continues to be absent
from Australia for more than 13 weeks; and
(c) at the end of the period of 13
weeks beginning on the first day of the child’s absence from Australia the
child is a regular care child;
the child is an absent overseas regular care child for
any period that occurs:
(d) during that absence from
Australia; and
(e) after the end of the period
mentioned in paragraph (c); and
(f) during which the child continues
to be a regular care child.
Note: Generally, an absent overseas regular care
child cannot be a rent assistance child (see clause 38B of
Schedule 1).
(2) If:
(a) an FTB child is an absent overseas
FTB child because of the application of subsection 63(2), (3) or (3A); and
(b) during the period that the child
is absent from Australia, the child becomes a regular care child of an
individual;
the child is an absent overseas regular care child for
any period that occurs:
(c) during the absence from Australia
referred to in paragraph (b) after the child becomes a regular care child;
and
(d) during which the child continues
to be a regular care child.
(3) If:
(a) either:
(i) a regular care child
is an absent overseas regular care child because of the application of
subsection (1) or (2) or a previous application of this subsection; or
(ii) an FTB child is an
absent overseas FTB child because of the application of subsection 63(2), (3)
or (3A); and
(b) the child comes to Australia; and
(c) the child leaves Australia less
than 13 weeks after coming to Australia; and
(d) at the time the child leaves
Australia, the child is a regular care child;
the child is an absent overseas regular care child
for any period that occurs:
(e) during the absence from Australia
referred to in paragraph (c); and
(f) during which the child continues
to be a regular care child.
58 Subsection 63A(1)
Omit “62(2) or 63(2) if the Secretary is satisfied that the
individual mentioned in subsection 62(2) or the FTB child mentioned in
subsection 63(2)”, substitute “62(2), 63(2) or 63AA(1) if the Secretary is
satisfied that the individual mentioned in subsection 62(2), or the child
mentioned in subsection 63(2) or 63AA(1),”.
59 Subsection 63A(3)
Omit “or 63(2)”, substitute “, 63(2) or 63AA(1)”.
60 Subsection 63A(3)
Omit “the FTB child mentioned in subsection 63(2)”, substitute
“the child mentioned in subsection 63(2) or 63AA(1)”.
61 Paragraph 64(a)
After “FTB child”, insert “, or a regular care child, (as the
case requires)”.
Note: The heading to section 64 is altered by inserting
“or regular care” after “FTB”.
62 Paragraph 64(b)
After “FTB child”, insert “, or a regular care child,”.
63 Subsection 65(1) (method statement, step 1,
paragraph (a))
After “FTB child”, insert “, or a regular care child, (as the
case requires)”.
Note: The heading to section 65 is altered by
inserting “or regular care” after “FTB”.
64 Subsection 65(1) (method statement, step 1,
paragraph (b))
Omit “FTB children—that each of those children is an FTB child”,
substitute “FTB children or regular care children—that each of those children
is an FTB child, or a regular care child, (as the case requires)”.
65 Subsection 65(1) (method statement, step 2,
paragraph (a))
After “FTB child”, insert “, or a regular care child, (as the
case requires)”.
66 Section 68
Repeal the section, substitute:
68
When the maternity immunisation allowance is shared
If:
(a) apart from this section, more than
one individual is eligible for maternity immunisation allowance under
subsection 39(2) or (4) in respect of the same child; and
(b) each individual has a shared care
percentage for the child;
each individual is eligible instead only for a percentage
of the allowance equal to that individual’s shared care percentage of family
tax benefit for the child.
67 Paragraph 1(1)(a) of Schedule 1
Omit “or Part 3 (clauses 25 to 28)”, substitute “,
Part 3 (clauses 25 to 28) or Part 3A (clause 28A)”.
68 Paragraphs 1(2)(a) and (b) of Schedule 1
Omit “if:”, substitute “if the individual has at least one FTB
child and:”.
69 After paragraph 1(2)(b) of Schedule 1
Insert:
; and (c) use Part 3A (clause 28A)
if the individual has no FTB children.
70 Clause 3 of Schedule 1
Omit “4A, 4B and 5”, substitute “5, 38J and 38K”.
71 Clause 3 of Schedule 1 (method statement, step
1, paragraph (d))
Omit “Division 3 of this Part (clauses 12 to 16)”,
substitute “Subdivision A of Division 2B of Part 5 (clauses 38B
to 38H)”.
72 Clause 3 of Schedule 1 (method statement, step
2)
Omit “Division 4 of this Part (clauses 17 to 19)”,
substitute “Division 2C of Part 5 (clauses 38L to 38N)”.
73 Clauses 4A and 4B of Schedule 1
Repeal the clauses.
74 Subclause 5(1) of Schedule 1
Omit “4A and 4B”, substitute “38J and 38K”.
75 Clause 11 of Schedule 1
Repeal the clause, substitute:
11
Sharing family tax benefit (shared care percentages)
If an individual has a shared care
percentage for an FTB child of the individual, the FTB child rate for the
child, in working out the individual’s standard rate, is the individual’s
shared care percentage of the FTB child rate that would otherwise apply to the
child.
76 Divisions 3 and 4 of Part 2 of Schedule 1
Repeal the Divisions.
77 Clause 27 of Schedule 1
Repeal the clause, substitute:
27 Sharing
family tax benefit (shared care percentages)
If an individual has a shared care
percentage for an FTB child of the individual, the FTB child rate for the
child, in working out the individual’s standard rate under clause 26, is
the individual’s shared care percentage of the FTB child rate that would
otherwise apply to the child.
78 After Part 3 of Schedule 1
Insert:
Part 3A—Part A rate (Method 3)
28A
Method of calculating Part A rate
Subject to the operation of
clauses 38J and 38K, if the individual’s Part A rate is to be calculated
using this Part, it is calculated as follows:
Method statement
Step 1. Work out the
individual’s rent assistance (if any) under Subdivision A of Division 2B
of Part 5 (clauses 38B to 38H). The result is the individual’s maximum
rate.
Step 2. Apply the income
test in Division 2C of Part 5 (clauses 38L to 38N) to work out
any reduction for adjusted taxable income. Take any reduction away from the
individual’s maximum rate: the result is the individual’s income tested
rate.
Step 3. The
individual’s Part A rate is the individual’s income tested
rate.
79 Paragraph 29B(4)(a) of Schedule 1
Repeal the paragraph, substitute:
(a) on the day on which the other
individual or his or her partner returns to paid work, the other individual has
a shared care percentage for the child; and
80 Clause 31 of Schedule 1
Repeal the clause, substitute:
31
Sharing family tax benefit (shared care percentages)
(1) If:
(a) an individual has a shared care
percentage for an FTB child of the individual; and
(b) the child is the individual’s only
FTB child;
the individual’s standard rate is the individual’s shared
care percentage of the standard rate that would otherwise apply.
(2) If:
(a) an individual has a shared care
percentage for an FTB child of the individual; and
(b) the child is not the individual’s
only FTB child;
the individual’s standard rate is to be worked out as
follows:
(c) for each of the individual’s FTB
children for whom the individual does not have a shared care percentage, work
out the rate that would be the individual’s standard rate under clause 30
if that child were the individual’s only FTB child;
(d) for each of the individual’s FTB
children for whom the individual has a shared care percentage, work out the
rate that would be the individual’s standard rate under clause 30 if:
(i) that child were the
individual’s only FTB child; and
(ii) subclause (1) of
this clause applied to the child;
(e) the individual’s standard rate is
the highest of the rates obtained under paragraphs (c) and (d).
81 Subclause 31A(1) of Schedule 1
Repeal the subclause, substitute:
(1) The amount of the FTB Part B supplement
to be added in working out an individual’s Part B rate under clause 29 or
29A is:
(a) if the individual has one FTB
child, or more than one FTB child, and the individual does not have a shared
care percentage for that child, or for at least one of those children—the FTB
(B) gross supplement amount; or
(b) if the individual has only one FTB
child and the individual has a shared care percentage for the child—the shared
care percentage of the FTB (B) gross supplement amount; or
(c) if the individual has more than
one FTB child and the individual has a shared care percentage for each of those
children—the highest of those percentages of the FTB (B) gross supplement
amount.
82 Clause 38 of Schedule 1
Repeal the clause, substitute:
38
Sharing multiple birth allowance (determinations under section 59A)
If the Secretary has made a
determination under section 59A in respect of an FTB child of the individual,
multiple birth allowance under this Division is to be dealt with in accordance
with the determination.
83 Paragraph 38A(2)(a) of Schedule 1
Repeal the paragraph, substitute:
(a) if the individual has a shared
care percentage for the FTB child—the individual’s shared care percentage of
the FTB gross supplement amount; or
84 After Division 2A of Part 5 of Schedule 1
Insert:
Division 2B—Rent assistance
Subdivision A—Rent assistance
38B
Rent assistance children
(1) An individual’s eligibility for, and rate
of, rent assistance is affected by whether an FTB child, or a regular care
child, of the individual is also a rent assistance child of the individual.
(2) An FTB child of an individual is a rent
assistance child of the individual if the FTB child rate for the child:
(a) exceeds the base FTB child rate
(see clause 8); or
(b) would exceed the base FTB child
rate but for clause 11.
(3) A regular care child of an individual is
a rent assistance child of the individual if:
(a) the regular care child is under 16
years of age; and
(b) the regular care child is not an
absent overseas regular care child.
38C
Eligibility for rent assistance
(1) An amount by way of rent assistance for a
period is to be added in working out an individual’s maximum rate if:
(a) the individual has at least one
rent assistance child; and
(b) the individual’s claim for family
tax benefit is not a claim to which subclause (2) applies; and
(ba) neither the individual nor the
individual’s partner is receiving payments of incentive allowance under
clause 36 of Schedule 1A to the Social Security Act 1991; and
(c) the individual is not an
ineligible homeowner; and
(d) the individual is not an aged care
resident; and
(e) the individual pays, or is liable
to pay, rent (other than Government rent); and
(f) if the individual has at least
one FTB child and is not a relevant shared carer—the rent is payable at a rate
of more than:
(i) if the individual is
not a member of a couple—$3,073.30 per year; or
(ii) if the individual is a
member of a couple but is not partnered (partner in gaol) or a member of an
illness separated couple, a respite care couple or a temporarily separated
couple—$4,547.90 per year; or
(iii) if the individual is
partnered (partner in gaol) or is a member of an illness separated couple or a
respite care couple—$3,073.30 per year; or
(iv) if the individual is a
member of a temporarily separated couple—$3,073.30 per year; and
(fa) if the individual is a relevant
shared carer, or has only one or more regular care children (but no FTB
children)—the rent is payable at a rate of more than:
(i) if the individual is
not a member of a couple—$2,332.35 per year; or
(ii) if the individual is a
member of a couple but is not partnered (partner in gaol) or a member of an
illness separated couple, a respite care couple or a temporarily separated
couple—$3,806.95 per year; or
(iii) if the individual is
partnered (partner in gaol) or is a member of an illness separated couple or a
respite care couple—$2,332.35 per year; or
(iv) if the individual is a
member of a temporarily separated couple—$2,332.35 per year; and
(g) if the individual is outside
Australia:
(i) the person was paying
rent (other than Government rent) for accommodation in Australia immediately
before the individual left Australia; and
(ii) the person continues
to pay rent for the same accommodation while outside Australia.
(2) This subclause applies to an individual’s
claim for family tax benefit if:
(a) the claim is for family tax benefit
for a past period that occurs in the first or second income year before the one
in which the claim is made; and
(b) when the claim is made the
individual:
(i) is eligible for family
tax benefit; and
(ii) is not prevented by
section 9 of the A New Tax System (Family Assistance) (Administration)
Act 1999 from making an effective claim for payment of family tax benefit
by instalment; and
(c) the claim is not accompanied by a
claim for family tax benefit by instalment.
38D
Rate of rent assistance payable to individual who has at least one FTB child
and who is not a relevant shared carer
The rate of
rent assistance payable to an individual who has at least one FTB child and who
is not a relevant shared carer is worked out using the following table. Work
out the individual’s family situation and calculate Rate A for the individual
using the corresponding formula in column 2. This will be the individual’s rate
of rent assistance but only up to the individual’s maximum rent assistance
rate. The individual’s maximum rent assistance rate is Rate B, worked out using
column 3.
|
Rent assistance payable to individual who has at least
one FTB child and who is not a relevant shared carer
(Part A—Method 1 or 3)
|
|
|
Column 1
Family situation
|
Column 2
Rate A
|
Column 3
Rate B
|
|
|
|
|
Column 3A
|
Column 3B
|
|
|
|
|
1 or 2 rent assistance children
|
3 or more rent
assistance children
|
|
1
|
Not member of a couple
|
|
$3,084.25
|
$3,485.75
|
|
2
|
Member of a couple other than a person who is partnered
(partner in gaol) or a member of an illness separated couple, a respite care
couple or a temporarily separated couple
|
|
$3,084.25
|
$3,485.75
|
|
3
|
Person who is partnered (partner in gaol) or a member of
an illness separated couple or a respite care couple
|
|
$3,084.25
|
$3,485.75
|
|
4
|
Member of a temporarily separated couple
|
|
$3,084.25
|
$3,485.75
|
38E
Rate of rent assistance payable to individual who is a relevant shared carer or
who has only one or more regular care children
The rate of rent assistance payable to
an individual who is a relevant shared carer, or who has only one or more
regular care children (but no FTB children), is the higher of:
(a) the rate of rent assistance that
would be payable to that individual if that individual’s rate were worked out
using clause 38D; and
(b) the rate of rent assistance worked
out using the following table.
In working out rent assistance, work out the individual’s
family situation using column 1 and calculate Rate A for the individual using
the corresponding formula in column 2. This will be the individual’s rate of
rent assistance in accordance with the table but only up to Rate B specified in
column 3.
|
Rent assistance payable to individual who is a
relevant shared carer or who has only one or more regular care children
(Part A—Method 1 or 3)
|
|
|
Column 1
Family situation
|
Column 2
Rate A
|
Column 3
Rate B
|
|
1
|
Not member of a couple
|
|
$2,638.95
|
|
2
|
Member of a couple other than a person who is partnered
(partner in gaol) or a member of an illness separated couple, a respite care
couple or a temporarily separated couple
|
|
$2,478.35
|
|
3
|
Person who is partnered (partner in gaol) or a member of
an illness separated couple or a respite care couple
|
|
$2,638.95
|
|
4
|
Member of a temporarily separated couple
|
|
$2,478.35
|
38F
Annual rent
Annual rent in the tables
in clauses 38D and 38E is the annual rate of rent paid or payable by the
individual whose rate is being calculated.
38G
Rent paid by a member of a couple
If an individual is a member of a couple
and is living with his or her partner in their home, any rent paid or payable
by the partner is to be treated as paid or payable by the individual.
38H
Rent paid by a member of an illness separated, respite care or temporarily
separated couple
If an individual is a member of an
illness separated, respite care or temporarily separated couple, any rent that
the individual’s partner pays or is liable to pay in respect of the premises
occupied by the individual is to be treated as paid or payable by the
individual.
Subdivision B—Offsetting for duplicate rent assistance
38J
Offsetting for duplicate rent assistance under family assistance and social
security law
When this clause applies
(1) This clause applies if:
(a) a decision (the social
security decision) was made that rent assistance was to be included
when calculating an individual’s, or an individual’s eligible partner’s, rate
of social security payment for a day; and
(b) when the social security decision
was made, no decision (the family assistance decision) to make a
determination that includes, or to vary a determination to include, rent
assistance when calculating the individual’s Part A rate of family tax benefit
for that day had been made; and
(c) after the social security decision
was made, the family assistance decision was made; and
(d) the day mentioned in
paragraphs (a) and (b) comes before the day on which the family assistance
decision was made.
Note: For the definition of eligible partner
see subclause (5).
Part A rate to be reduced
(2) The individual’s Part A rate for that day
(as calculated or recalculated because of the making of the family assistance
decision) is to be reduced:
(a) first, by the individual’s annual
social security RA amount for that day (see subclause (3)); and
(b) then, by the individual’s eligible
partner’s annual social security RA amount for that day (see
subclause (4)).
However, it is not to be reduced to less than:
(c) if it has been calculated for the
first time under clause 3 or 28A because of the making of the family
assistance decision—nil; and
(d) if it has been recalculated under
clause 3 or 28A because of the making of the family assistance
decision—the Part A rate as it was immediately before the recalculation.
(3) The individual’s annual social
security RA amount for that day is the amount worked out as follows:
Method statement
Step 1. Work out the rate
(if any) of social security payment (the actual payment) that was
payable to the individual for that day.
Step 2. Work out the rate
(if any) of social security payment (the notional payment) that
would have been payable to the individual for that day if rent assistance were
not included when calculating the rate of the individual’s social security
payment for that day.
Step 3. Subtract the
notional payment from the actual payment. The difference is the individual’s
daily social security RA amount for that day.
Step 4. Multiply the
individual’s daily social security RA amount for that day by 365. The result is
the individual’s annual social security RA amount for that day.
(4) The individual’s eligible partner’s
annual social security RA amount for that day is the amount worked out
as follows:
Method statement
Step 1. Work out the rate
(if any) of social security payment (the actual payment) that was
payable to the individual’s eligible partner for that day.
Step 2. Work out the rate
(if any) of social security payment (the notional payment) that
would have been payable to the eligible partner for that day if rent assistance
were not included when calculating the rate of the eligible partner’s social
security payment for that day.
Step 3. Subtract the
notional payment from the actual payment. The difference is the eligible
partner’s daily social security RA amount for that day.
Step 4. Multiply the
eligible partner’s daily social security RA amount for that day by 365. The
result is the individual’s eligible partner’s annual social security RA
amount for that day.
(5) For the purposes of this clause, an
individual is the eligible partner of another individual if both
individuals are members of a couple (other than an illness separated couple, a
respite care couple or a temporarily separated couple).
38K
Offsetting for duplicate rent assistance under family assistance and veterans’
entitlements law
When this clause applies
(1) This clause applies if:
(a) a decision (the veterans’
entitlements decision) was made that rent assistance was to be included
when calculating an individual’s, or an individual’s eligible partner’s, rate
of service pension or income support supplement for a day; and
(b) when the veterans’ entitlements
decision was made, no decision (the family assistance decision)
to make a determination that includes, or to vary a determination to include,
rent assistance when calculating the individual’s Part A rate of family tax
benefit for that day had been made; and
(c) after the veterans’ entitlements
decision was made, the family assistance decision was made; and
(d) the day mentioned in
paragraphs (a) and (b) comes before the day on which the family assistance
decision was made.
Note: For the definition of eligible partner
see subclause (5).
Part A rate to be reduced
(2) The individual’s Part A rate for that day
(as calculated or recalculated because of the making of the family assistance
decision and as reduced (if at all) under clause 38J) is to be reduced:
(a) first, by the individual’s annual
veterans’ entitlements RA amount for that day (see subclause (3)); and
(b) then, by the individual’s eligible
partner’s annual veterans’ entitlements RA amount for that day (see
subclause (4)).
However, it is not to be reduced to less than:
(c) if it has been calculated for the first
time under clause 3 or 28A because of the making of the family assistance
decision—nil; and
(d) if it has been recalculated under
clause 3 or 28A because of the making of the family assistance
decision—the Part A rate as it was immediately before the recalculation.
(3) The individual’s annual veterans’
entitlements RA amount for that day is the amount worked out as
follows:
Method statement
Step 1. Work out the rate
(if any) of service pension or income support supplement (the actual
payment) that was payable to the individual for that day.
Step 2. Work
out the rate (if any) of service pension or income support supplement (the notional
payment) that would have been payable to the individual for that day if
rent assistance were not included when calculating the rate of the individual’s
service pension or income support supplement for that day.
Step 3. Subtract the
notional payment from the actual payment. The difference is the individual’s
provisional veterans’ entitlements RA amount for that day.
Step 4. Divide the
individual’s provisional veterans’ entitlements RA amount for that day by 364,
then multiply it by 365. The result is the individual’s annual veterans’
entitlements RA amount for that day.
(4) The individual’s eligible partner’s
annual veterans’ entitlements RA amount for that day is the amount
worked out as follows:
Method statement
Step 1. Work out the rate
(if any) of service pension or income support supplement (the actual
payment) that was payable to the individual’s eligible partner for that
day.
Step 2. Work out the rate
(if any) of service pension or income support supplement (the notional
payment) that would have been payable to the eligible partner for that
day if rent assistance were not included when calculating the amount of the eligible
partner’s service pension or income support supplement for that day.
Step 3. Subtract the
notional payment from the actual payment. The difference is the eligible
partner’s provisional veterans’ entitlements RA amount for that day.
Step 4. Divide the
eligible partner’s provisional veterans’ entitlements RA amount for that day by
364, then multiply it by 365. The result is the individual’s eligible
partner’s annual veterans’ entitlements RA amount for that day.
(5) For the purposes of this clause, an
individual is the eligible partner of another individual if both
individuals are members of a couple (other than an illness separated couple or
a respite care couple).
Division 2C—Income test
38L
Application of income test to pension and benefit recipients and their partners
If an individual, or an individual’s
partner, is receiving a social security pension, a social security benefit, a
service pension or income support supplement:
(a) the individual’s income excess is
nil; and
(b) the individual’s income tested
rate is the same as the individual’s maximum rate.
38M
Income test
This is how to
work out an individual’s reduction for adjusted taxable income if
clause 38L does not apply to the individual:
Method statement
Step 1. Work out the
individual’s income free area using clause 38N.
Step 2. Work out whether
the individual’s adjusted taxable income exceeds the individual’s income free
area.
Step 3. If the
individual’s adjusted taxable income does not exceed the individual’s income
free area, the individual’s income excess is nil.
Step 4. If the
individual’s adjusted taxable income exceeds the individual’s income free area,
the individual’s income excess is the individual’s
adjusted taxable income less the individual’s income free area.
Step 5. The individual’s reduction
for adjusted taxable income is 20% of the income excess.
38N
Income free area
An
individual’s income free area is $40,000.
85 Paragraph 39(2)(e) of Schedule 1
Omit “the income year that commenced on 1 July 2000 and
every succeeding income year”, substitute “an income year that commenced on or
after 1 July 2000 until 1 July 2007 (inclusive)”.
86 After paragraph 39(2)(e) of Schedule 1
Insert:
(ea) the individual’s adjusted taxable
income for the purposes of this Act (other than Part 4 of this Schedule)
for the income year that commenced on 1 July 2008 and every succeeding
income year has exceeded the individual’s income free area under
clause 38N of this Schedule; and
87 Paragraph 39(2)(f) of Schedule 1
Omit “or 3”, substitute “, 3 or 3A”.
88 Paragraph 39(7)(a) of Schedule 1
Omit “or 3”, substitute “, 3 or 3A”.
89 Clause 2 of Schedule 4 (table items 4 and
5)
Repeal the items, substitute:
|
4
|
Rent threshold rate for rent assistance for family tax
benefit (Part A—Methods 1 and 3)
|
FTB RA rent threshold (A1 and A3)
|
[Schedule 1—subparagraphs 38C(1)(f)(i), (ii), (iii)
and (iv)]
[Schedule 1—subparagraphs 38C(1)(fa)(i), (ii), (iii)
and (iv)]
[Schedule 1—clause 38D—table—column 2—all
amounts]
[Schedule 1—clause 38E—table—column 2—all
amounts]
|
|
5
|
Maximum rent assistance for family tax benefit (Part
A—Methods 1 and 3)
|
FTB RA maximum (A1 and A3)
|
[Schedule 1—clause 38D—table—column 3—all
amounts]
[Schedule 1—clause 38E—table—column 3—all
amounts]
|
90 Clause 2 of Schedule 4 (table item 13)
Repeal the item, substitute:
|
13
|
Income free area for family tax benefit (Part A—Methods 1
and 3)
|
FTB free area (A1 and A3)
|
[Schedule 1—clause 38N]
|
91 Subclause 3(1) of Schedule 4 (table items 4, 5
and 13)
Omit “(A1)”, substitute “(A1 and A3)”.
A New Tax System (Family Assistance)
(Administration) Act 1999
92 Paragraph 28B(1)(b)
Repeal the paragraph, substitute:
(b) the individual is any of the
following:
(i) an FTB child of the
claimant;
(ii) a regular care child
who is also a rent assistance child of the claimant;
(iii) an individual in
respect of whom an approved care organisation is the claimant; and
Note: The headings to subsections 16(5) and (6) are
altered by inserting “or regular care” after “FTB”.
93 Paragraph 28B(2)(b)
Omit “the only FTB child”, substitute “the only individual who is
either an FTB child, or a regular care child who is a rent assistance child,”.
Note: The heading to subsection 28B(2) is altered by
inserting “or regular care” after “FTB”.
94 Paragraph 28B(3)(a)
Omit “the FTB child”, substitute “an FTB child, or a regular care
child who is also a rent assistance child,”.
Note: The heading to subsection 28B(3) is altered by
inserting “or regular care” after “FTB”.
95 Paragraph 28B(3)(b)
After “FTB child”, insert “, or regular care child who is also a
rent assistance child”.
96 Paragraph 30B(1)(b)
After “an FTB child”, insert “, or a regular care child who is
also a rent assistance child,”.
Note: The heading to section 30B is altered by
inserting “or regular care” after “FTB”.
97 Paragraphs 30B(1)(b) and (c)
Omit “the FTB child”, substitute “the child”.
98 Paragraphs 30B(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) has the effect that the claimant
is not entitled to be paid family tax benefit, if the conditions in
paragraphs (1)(b) and (c) are met in relation to:
(i) each FTB child of the
claimant; and
(ii) each regular care
child who is also a rent assistance child of the claimant; or
(b) has the effect that the daily rate
of family tax benefit for which the claimant is entitled under the
determination does not take into account the FTB child or regular care child, if
the conditions in paragraphs (1)(b) and (c) are not met in relation to:
(i) each FTB child of the
claimant; and
(ii) each regular care
child who is also a rent assistance child of the claimant.
99 Paragraph 30B(3)(b)
After “FTB child”, insert “or regular care child”.
100 Paragraph 32D(1)(c)
Omit “clause 17”, substitute “clause 38L”.
101 Paragraph 32J(1)(b)
After “FTB child”, insert “, or regular care child,”.
102 Paragraph 32K(1)(d)
After “FTB child”, insert “, or a regular care child who is also
a rent assistance child,”.
103 Paragraph 32P(1)(b)
Omit “clause 17”, substitute “clause 38L”.
104 Paragraph 32P(1)(d)
After “FTB child”, insert “, or a regular care child who is also
a rent assistance child,”.
105 After paragraph 33(1)(aa)
Insert:
(ab) the individual has at least one
FTB child; and
106 Subparagraphs 71E(1)(a)(i) and (2)(a)(i)
After “FTB child”, insert “, or a regular care child,”.
107 Subsection 228(3)
After “one FTB child”, insert “, or one regular care child who is
also a rent assistance child,”.
108 Paragraph 228(3)(b)
Omit “not an FTB child”, substitute “neither an FTB child, nor a
regular care child,”.
109 Paragraph 228(4)(a)
After “FTB child”, insert “, and each regular care child who is
also a rent assistance child,”.
Child Support (Registration and
Collection) Act 1988
110 Paragraph 72AB(1)(b)
Repeal the paragraph, substitute:
(b) the child, or at least one of the
children, for whom the person is eligible for family tax benefit is a
designated child support child of the person and:
(i) an FTB child; or
(ii) a regular care child
who is also a rent assistance child.
111 Subsection 72AB(2)
Omit “An FTB”, substitute “A”.
112 Subsection 72AB(5)
Insert:
regular care child has the same meaning as in
the Family Assistance Act.
113 Subsection 72AB(5)
Insert:
rent assistance child has the same meaning as
in the Family Assistance Act.
Social Security Act 1991
114 Subsection 6A(1) (after paragraph (b) of the second
and third definitions of dependant)
Insert:
or (c) a regular care child;
115 Subsection 6A(2)
After “FTB child” (first occurring), insert “, or a regular care
child,”.
116 Paragraph 6A(2)(a)
After “FTB child”, insert “, or a regular care child, (as the
case requires)”.
117 Subsection 6A(3)
Repeal the subsection.
118 Subsection 23(1) (definition of maximum Part A rate
of family tax benefit)
After “clause 3”, insert “or 28A”.
119 Subsection 23(1)
Insert:
regular care child has the meaning given by
subsection 3(1) of the Family Assistance Act.
120 Subsection 23(1)
Insert:
rent assistance child has the meaning given
by subsection 3(1) of the Family Assistance Act.
121 Paragraphs 992J(1)(c) and 992K(1)(c)
After “FTB child”, insert “, or a regular care child,”.
122 Subsection 1010(1)
Omit “subsections (2) and (3)”, substitute
“subsections (1A) to (3A)”.
123 After subsection 1010(1)
Insert:
(1A) If a person who is qualified for double
orphan pension for a child has, under section 59 of the Family Assistance
Act, a shared care percentage for the child, the rate of double orphan pension
under subsection (1) is the person’s shared care percentage of the rate of
double orphan pension that would otherwise apply under that subsection to the
child.
124 Subsections 1010(2) and (3)
Repeal the subsections, substitute:
Children who became double orphans before 1 July
2000
(2) If:
(a) a child became a double orphan
before 1 July 2000; and
(b) the person who is qualified for
double orphan pension for the child does not, under section 59 of the
Family Assistance Act, have a shared care percentage for the child; and
(c) the current family tax benefit
rate in respect of the child is less than the prior family allowance rate in
respect of the child;
then the rate calculated under subsection (1) in
relation to the child is increased by an amount equal to the difference between
the prior family allowance rate and the current family tax benefit rate.
(2A) If:
(a) a child became a double orphan
before 1 July 2000; and
(b) the person who is qualified for
double orphan pension for the child has, under section 59 of the Family
Assistance Act, a shared care percentage for the child; and
(c) the current family tax benefit
rate in respect of the child is less than the shared care percentage of the
prior family allowance rate in respect of the child;
then the rate calculated under subsections (1) and
(1A) in relation to the child is increased by an amount equal to the difference
between:
(d) the person’s shared care
percentage of the prior family allowance rate; and
(e) the current family tax benefit
rate.
Children who become double orphans on or after
1 July 2000
(3) If:
(a) a child becomes a double orphan on
or after 1 July 2000; and
(b) the person who is qualified for
double orphan pension for the child does not, under section 59 of the
Family Assistance Act, have a shared care percentage for the child; and
(c) the current family tax benefit
rate in respect of the child is less than the prior family tax benefit rate in
respect of the child;
then the rate calculated under subsection (1) in
relation to the child is increased by an amount equal to the difference between
the prior family tax benefit rate and the current family tax benefit rate.
(3A) If:
(a) a child becomes a double orphan on
or after 1 July 2000; and
(b) the person who is qualified for
double orphan pension for the child has, under section 59 of the Family
Assistance Act, a shared care percentage for the child; and
(c) the current family tax benefit
rate in respect of the child is less than the shared care percentage of the
prior family tax benefit rate in respect of the child;
then the rate calculated under subsections (1) and
(1A) in relation to the child is increased by an amount equal to the difference
between:
(d) the person’s shared care
percentage of the prior family tax benefit rate; and
(e) the current family tax benefit
rate.
125 Paragraph 1061ZK(4)(b)
After “Part 2”, insert “or 3A”.
126 Paragraph 1061ZK(4)(c)
Omit “Division 4 of Part 2”, substitute
“Division 2C of Part 5”.
127 After subsection 1061ZK(4)
Insert:
(4A) This section applies to a person on a day
if, on that day:
(a) the person has a regular care child;
and
(b) the person is not entitled, under
the Family Assistance Administration Act, to be paid family tax benefit by
instalment; and
(c) the person’s income excess for the
purposes of Division 2C of Part 5 of Schedule 1 to the Family
Assistance Act is nil.
128 Paragraph 1061ZO(2)(c)
Omit “not an FTB child”, substitute “neither an FTB child, nor a
regular care child,”.
129 Paragraphs 1061ZO(3)(c) and (4)(c)
After “FTB child”, insert “, or a regular care child,”.
130 Subparagraph 1070D(3)(a)(ii)
Omit “clause 4A”, substitute “clause 38J”.
131 Subparagraph 1070D(3)(b)(ii)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
132 Paragraph 1070E(d)
Omit “clause 4A”, substitute “clause 38J”.
133 Subparagraph 1070F(2)(c)(iv)
Omit “clause 4A”, substitute “clause 38J”.
134 Subparagraph 1070F(2)(d)(iv)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
135 Subparagraph 1070F(3)(c)(iv)
Omit “clause 4A”, substitute “clause 38J”.
136 Subparagraph 1070F(3)(d)(iv)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
137 Subparagraph 1070G(1)(c)(iv)
Omit “clause 4A”, substitute “clause 38J”.
138 Subparagraph 1070G(1)(d)(iv)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
139 Subparagraph 1070H(2)(c)(iv)
Omit “clause 4A”, substitute “clause 38J”.
140 Subparagraph 1070H(2)(d)(iv)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
141 Subparagraph 1070J(b)(iv)
Omit “clause 4A”, substitute “clause 38J”.
142 Subparagraph 1070J(c)(iv)
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
Veterans’ Entitlements Act 1986
143 Subparagraph (b)(ii) of point SCH6‑C3A of
Schedule 6
Omit “clause 4B”, substitute “clause 38K”.
144 Subparagraph (b)(ii) of point SCH6‑C3B of
Schedule 6
Omit “clause 4A or 4B”, substitute “clause 38J or 38K”.
Division 2—Application and
saving provisions
145 Application
(1) The amendments to the A New Tax System (Family
Assistance) Act 1999 and the A New Tax System (Family Assistance)
(Administration) Act 1999 made by this Schedule apply in relation to the
2008‑09 income year and later income years.
(2) The amounts referred to in clauses 38C, 38D
and 38E of Schedule 1 to the A New Tax System (Family Assistance) Act
1999 (as inserted by item 84 of this Schedule) are to be indexed in
accordance with Schedule 4 to that Act after 19 September 2006 as if
item 84 had commenced on that day.
Note: Those amounts will first be indexed on
20 September 2006.
(3) The amount referred to in clause 38N of
Schedule 1 to the A New Tax System (Family Assistance) Act 1999 (as
inserted by item 84 of this Schedule) is to be indexed in accordance with
Schedule 4 to that Act after 30 June 2007 as if item 84 had
commenced on that day.
Note: That amount will first be indexed on
1 July 2007.
146 Saving determinations
If a determination that a child is an FTB child is in force under
subsection 42(2), 44(3) or 45(3) of the A New Tax System (Family Assistance)
Act 1999 immediately before this item commences, the determination
continues in force as if it were a determination that the child is a regular
care child made under that subsection, as amended by this Schedule.
147 Saving qualification and rates for double orphan pension
(1) This item applies if:
(a) immediately before 1 July
2008, a person is receiving a double orphan pension for a young person under
the Social Security Act 1991; and
(b) on 1 July 2008:
(i) the person would
(apart from this item) cease to qualify for a double orphan pension for the
young person because of the amendments to the A New Tax System (Family
Assistance) Act 1999 made by this Schedule; or
(ii) the rate of the double
orphan pension payable to the person for the young person would (apart from
this item) be affected by the amendments to the Social Security Act 1991 made
by items 122, 123 and 124 of this Schedule.
Continuation of qualification
(2) If subparagraph (1)(b)(i) applies, then, on
and after 1 July 2008, the person continues to qualify for a double orphan
pension for the young person, despite the amendments to the A New Tax System
(Family Assistance) Act 1999 made by this Schedule.
(3) However, the person ceases to qualify under
subitem (2) for a double orphan pension for the young person if:
(a) the person would cease to qualify
for a double orphan pension for the young person under the Social Security
Act 1991 for a reason other than because of the amendments to the A New
Tax System (Family Assistance) Act 1999 made by this Schedule; or
(b) the rate at which the double
orphan pension would be payable to the person for the young person under the Social
Security Act 1991 (assuming the person continued to qualify for a double
orphan pension for the young person under that Act) becomes equal to or greater
than the rate at which the double orphan pension is payable under
subitem (4).
Continuation of rate
(4) On and after 1 July 2008, while the person
continues to qualify for a double orphan pension for the young person (whether
under subitem (2) or, if subparagraph (1)(b)(ii) applies, under the Social
Security Act 1991), the double orphan pension is payable to the person for
the young person at the lower of the following rates (the saved rate):
(a) the rate at which the double
orphan pension was payable to the person for the young person immediately
before 1 July 2008, despite:
(i) the amendments to the Social
Security Act 1991 made by items 122, 123 and 124 of this Schedule; and
(ii) section 1190 of
that Act (indexation);
(b) if the young person is an FTB
child of the person on or after 1 July 2008—the rate that would be payable
to the person for the young person under section 1010 of the Social
Security Act 1991 as in force immediately before 1 July 2008.
(5) However, the double orphan pension ceases to be
payable to the person for the young person at the saved rate if the rate at
which the double orphan pension would otherwise be payable to the person for
the young person under the Social Security Act 1991 becomes equal to or
greater than the saved rate.
Part 2—Maintenance income test
Division 1—Amendments
A New Tax System (Family Assistance)
Act 1999
148 Subsection 3(1) (at the end of the definition of capitalised
maintenance income)
Add:
Note: Periodic amount is defined in
section 19.
149 Subsection 3(1) (at the end of the definition of maintenance
income)
Add:
Note: This definition is affected by
section 19.
150 Clause 7 of Schedule 1 (table heading)
Omit “Standard rates”, substitute “FTB child rates”.
151 Clause 7 of Schedule 1 (table, heading to
column 2)
Omit “Standard rate”, substitute “FTB child rate”.
152 After clause 19A of Schedule 1
Insert:
19AA
References to applying for maintenance income
A reference in this Division to an
individual being, or not being, entitled to apply for maintenance income
includes an individual who is, or is not, entitled to so apply under the Child
Support (Assessment) Act 1989 or the Family Law Act 1975.
153 Subclause 20(1) of Schedule 1 (method statement, at
the end of step 1)
Add:
; and (d) disregard any
maintenance income that is received by the individual, or the individual’s
partner, from another individual if the income is over the maintenance income
ceiling for the income (see Subdivisions C and D).
154 Clause 22 of Schedule 1
Omit “(other than a child for whom maintenance income is
disregarded under step 1 of the method statement in clause 20).”,
substitute:
, disregarding any child:
(a) for whom maintenance income is disregarded
under paragraph (a) of step 1 of the method statement in clause 20;
or
(b) in respect of whom neither the
individual, nor the individual’s partner, is entitled to apply for maintenance
income.
155 At the end of Division 5 of Part 2 of Schedule 1
Add:
Subdivision C—Maintenance income ceiling for Method 1
24F
Subdivision not always to apply
This Subdivision does not apply if an
individual, and an individual’s partner, between them are entitled to apply for
maintenance income:
(a) from only one other individual;
and
(b) in respect of all of the FTB
children of the individual.
24G
Overall method for working out maintenance income ceiling for Method 1
For the purposes of paragraph (d)
of step 1 of the method statement in clause 20, this is how to work out an
individual’s maintenance income ceiling for maintenance income received by the
individual, or the individual’s partner, from another individual (the maintenance
payer) if the individual’s Part A rate is worked out using this Part
(Method 1):
Method statement
Step 1. Work out the
individual’s above base standard amount for the maintenance
income using clause 24H.
Step 2. Work out the
individual’s RA amount for the maintenance income using
clause 24J.
Step 3. Work out the
individual’s MIFA amount for the maintenance income using
clause 24K.
Step 4. Work out the
individual’s maintenance income ceiling for the maintenance
income using clause 24L.
24H
How to work out an individual’s above base standard amount
The individual’s above base
standard amount for the maintenance income is the difference between:
(a) the individual’s standard rate
under Division 2 of this Part (clauses 7 to 11) for the FTB children
of the individual in respect of whom the individual, or the individual’s
partner, is entitled to apply for maintenance income from the maintenance
payer; and
(b) the individual’s standard rate
under Division 2 of Part 3 (clauses 26 and 27) for those
children (assuming that the individual’s Part A rate were calculated under
Part 3).
24J
How to work out an individual’s RA (rent assistance) amount
This is how to work out the individual’s
RA amount for the maintenance income:
Method statement
Step 1. Work out
the individual’s rent assistance (if any) under Subdivision A of
Division 2B of Part 5.
Step 2. Work out the
amount that would be the individual’s rent assistance (if any) under that
Subdivision if rent assistance were paid for only those children in respect of
whom neither the individual, nor the individual’s partner, is entitled to apply
for maintenance income.
Step 3. If the
individual, and the individual’s partner, between them are entitled to apply
for maintenance income from only one maintenance payer, the difference between
the amount worked out under step 1 and the amount worked out under step 2 is
the individual’s RA amount for the maintenance income.
Step 4. If the
individual, and the individual’s partner, between them are entitled to apply
for maintenance income from more than one maintenance payer, the individual’s RA
amount for maintenance income received from a particular maintenance payer
is worked out using the formula:
24K
How to work out an individual’s MIFA (maintenance income free area) amount
(1) If the individual, and the individual’s
partner, between them are entitled to apply for maintenance income from only
one maintenance payer, then the individual’s MIFA amount for the
maintenance income is the amount of the individual’s maintenance income free
area.
Apportioning the maintenance income free area
(2) If the individual, and the individual’s
partner, between them are entitled to apply for maintenance income from more
than one maintenance payer, the individual’s MIFA amount for
maintenance income received from a particular maintenance payer is worked out
using the following formula:
where:
individual’s no child amount is the amount
worked out using the following formula:
24L
How to work out an individual’s maintenance income ceiling
The individual’s maintenance
income ceiling for the maintenance income is worked out using the
following formula:
Subdivision D—Maintenance income ceiling for purposes of comparison for
Method 2
24M
Subdivision not always to apply
This Subdivision does not apply if an
individual, and an individual’s partner, between them are entitled to apply for
maintenance income:
(a) from only one other individual; and
(b) in respect of all of the FTB
children of the individual.
24N
Overall method for working out maintenance income ceiling for purposes of
comparison for Method 2
For the purposes of the
comparison in step 3 of the method statement in clause 25, this is how to
work out an individual’s maintenance income ceiling for maintenance income
received by the individual, or the individual’s partner, from another
individual (the maintenance payer) if the individual’s Part A
rate is worked out using Part 3 of this Schedule (Method 2):
Method statement
Step 1. Work out the
individual’s standard amount for the maintenance income using
clause 24P.
Step 2. Work out the
individual’s LFS amount for the maintenance income using
clause 24Q.
Step 3. Work out the
individual’s multiple birth allowance (if any) under
Division 2 of Part 5 (clauses 36 to 38) for FTB children of the
individual in respect of whom the individual, or the individual’s partner, is
entitled to apply for maintenance income from the maintenance payer.
Step 4. Work out the
individual’s supplement amount for the maintenance income using
clause 24R.
Step 5. Work out the
individual’s RA amount for the maintenance income using
clause 24J.
Step 6. Work out the
individual’s MIFA amount for the maintenance income using
clause 24K.
Step 7. Work out the
individual’s maintenance income ceiling for the maintenance
income using clause 24S.
24P
How to work out an individual’s standard amount
The individual’s standard amount
for the maintenance income is the individual’s standard rate under
Division 2 of this Part (clauses 7 to 11) for the FTB children of the
individual in respect of whom the individual, or the individual’s partner, is
entitled to apply for maintenance income from the maintenance payer.
24Q
How to work out an individual’s LFS (large family supplement) amount
This is how to work out the individual’s
LFS amount for the maintenance income:
Method statement
Step 1. Work out
the individual’s large family supplement (if any) under Division 1 of
Part 5.
Step 2. Work out the
amount that would be the individual’s large family supplement (if any) under
that Division if large family supplement were paid for only those children in
respect of whom neither the individual, nor the individual’s partner, is
entitled to apply for maintenance income.
Step 3. If the
individual, and the individual’s partner, between them are entitled to apply
for maintenance income from only one maintenance payer, the difference between
the amount worked out under step 1 and the amount worked out under step 2 is
the individual’s LFS amount for the maintenance income.
Step 4. If the
individual, and the individual’s partner, between them are entitled to apply
for maintenance income from more than one maintenance payer, the individual’s LFS
amount for maintenance income received from a particular maintenance
payer is worked out using the formula:
24R
How to work out an individual’s supplement amount
The individual’s supplement amount
for the maintenance income is the individual’s FTB Part A supplement under
Division 2A of Part 5 (clause 38A) for the FTB children of the
individual in respect of whom the individual, or the individual’s partner, is
entitled to apply for maintenance income from the maintenance payer.
24S
How to work out an individual’s maintenance income ceiling
The individual’s maintenance
income ceiling for the maintenance income is worked out using the
following formula:
156 Clause 25 of Schedule 1 (method statement,
step 3, paragraph (a))
After “Part 2”, insert “(but disregarding clause 24G)”.
Division 2—Application provision
157 Application
The amendments made by this Part apply to the 2008‑09
income year and later income years.