An Act to make provision for the collection of certain periodic
maintenance payments, and for other purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Child
Support (Registration and Collection) Act 1988.
2
Commencement [see
Note 1]
This Act shall come into operation on a
day to be fixed by Proclamation.
3
Objects of Act
(1) The principal objects of this Act are to
ensure:
(a) that children receive from their
parents the financial support that the parents are liable to provide; and
(b) that periodic amounts payable by
parents towards the maintenance of their children are paid on a regular and
timely basis; and
(c) that Australia is in a position to
give effect to its obligations under international agreements or arrangements
relating to maintenance obligations arising from family relationship, parentage
or marriage.
(2) It is the intention of the Parliament
that this Act shall be construed and administered, to the greatest extent
consistent with the attainment of its objects, to limit interferences with the
privacy of persons.
3A
Application of the Criminal Code
Chapter 2 of the Criminal Code
(except Part 2.5) applies to all offences against this Act.
4
Interpretation
(1) In this
Act, unless the contrary intention appears:
AAT means the Administrative Appeals
Tribunal.
Account means the Child Support Account
continued in existence by section 73.
administrative assessment has the same
meaning as in the Assessment Act.
affecting event, in relation to an
enforceable maintenance liability, means any event the happening of which
operates, under the terms and conditions of the relevant court order or
maintenance agreement or otherwise by force of law, to vary or otherwise affect
the liability or any of the particulars included in the entry in the Child
Support Register in relation to the liability, and includes a terminating event
in relation to the liability, but does not include:
(a) the making by, or registration in,
a court of an order; or
(b) the registration in, or approval
by, a court of a maintenance agreement.
agency reimbursement liability means a
liability in circumstances where:
(a) a parent or step‑parent of a
child is liable to pay a periodic amount for the maintenance of the child; and
(b) an amount has been paid by an
overseas authority for the maintenance of the child to the person who has the
care of the child; and
(c) the overseas authority seeks
reimbursement of the amount mentioned in paragraph (b) from the parent or
step‑parent.
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.
appealable refusal decision means:
(a) a decision under section 22
or subsection 24(1), 24A(1), or 25(2) refusing to register a registrable
maintenance liability; or
(aaaa) a decision under section 25A
refusing to enter the particulars of a liability; or
(aaa) a decision under subsection 26B(3)
or section 65B refusing to register an elected period; or
(aa) a decision under paragraph
28A(5)(d) or (e); or
(b) a decision under section 36,
37A, 37B, 38A, 39, 39B or 44 refusing to vary particulars entered in the Child
Support Register; or
(ba) a decision under subsection 37B(4)
determining, or refusing to determine, a day; or
(bb) a decision under paragraph
39A(6)(b) or (c); or
(c) a decision under section 71,
71A or 71C refusing to credit an amount against a liability to the
Commonwealth; or
(ca) a decision under subsection
72AB(3).
applicable Rules of Court has the same
meaning as in the Family Law Act 1975.
Assessment Act means the Child Support (Assessment)
Act 1989.
Australia includes the external Territories.
CEO means the Chief Executive Officer of the
Services Delivery Agency.
child of a marriage has the same meaning as
in the Family Law Act 1975.
child support means financial support under
the Assessment Act, including financial support by way of lump sum payment or
by way of transfer or settlement of property.
child support assessment means an assessment
made under the Assessment Act.
child support debt means an amount that is a
debt due to the Commonwealth under section 30.
child support enforcement period, in relation
to a registered maintenance liability, means:
(a) the period commencing on the day
on which the liability first becomes enforceable under this Act and ending on
the day on which the liability first ceases to be so enforceable; and
(b) if the liability ceases to be
enforceable under this Act and again becomes so enforceable (whether on one
occasion or more than one occasion)—each period commencing on a day on which
the liability again becomes so enforceable and ending on the day on which the
liability next ceases to be so enforceable.
Child Support Register means the Child
Support Register established by this Act.
closing day, in relation to a month, means
the day 9 days, or such lesser number of days as is prescribed for the purposes
of this definition, before the first Wednesday in the following month.
collection agency maintenance liability, in
relation to a State or Territory, means a liability:
(a) that is a liability of:
(i) a parent of a child to
pay a periodic amount for the maintenance of the child;
(ii) a step‑parent of
a child to pay a periodic amount for the maintenance of the child; or
(iii) a party to a marriage
to pay a periodic amount for the maintenance of the other party to the
marriage;
whether or not the liability
arises under a court order or court registered maintenance agreement; and
(b) in relation to which collection or
recovery action is being conducted by or under the control or supervision of,
or that has been lodged for collection or recovery action by, an authority, or
the person holding an office, established under the law of the State or
Territory.
Commissioner means the Commissioner of
Taxation.
company includes any body or association,
corporate or unincorporate, but does not include a partnership.
court exercising jurisdiction under this Act
does not include a court exercising jurisdiction in a proceeding under
subparagraph 113(c)(i).
court having jurisdiction under this Act does
not include a court that has jurisdiction under this Act only in relation to
the recovery of amounts of child support.
court order means an order:
(a) that was made by, or registered
in, a court under this Act, the Assessment Act, the Family Law Act 1975,
the Matrimonial Causes Act 1959 or the law of a State or Territory; and
(b) that has not been set aside or
discharged and has not expired or otherwise ceased to be in force.
court registered maintenance agreement means
a maintenance agreement:
(a) that has been:
(i) registered in, or
approved by, a court under the Family Law Act 1975;
(ii) sanctioned by a court
under paragraph 87(1)(k) of the Matrimonial Causes Act 1959; or
(iii) registered in, or
approved by, a court under the law of a State or Territory;
(b) that has not been set aside, and
has not expired or otherwise ceased to be in force; and
(c) the registration, approval or
sanction of which has not been revoked or cancelled, and that has not otherwise
ceased to be in force.
decree has the same meaning as in the Family
Law Act 1975.
Deputy Commissioner means a Deputy
Commissioner of Taxation.
employee:
(a) in relation to the Services
Delivery Agency—has the same meaning as in the Commonwealth Services
Delivery Agency Act 1997; or
(b) in any other case—means a person
who receives, or is entitled to receive, work and income support related
withholding payments.
employer means a person who makes, or is
liable to make, work and income support related withholding payments.
enforceable maintenance liability means a
registered maintenance liability that is enforceable under this Act.
Family Court means the Family Court of
Australia.
Family Court of a State means a court to
which section 41 of the Family Law Act 1975 applies.
Family Law Act 1975 includes regulations
under that Act.
Family Law Magistrate of Western Australia
has the same meaning as in the Family Law Act 1975.
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); and
(c) in relation to a decision of the
Registrar—has the meaning given by subsection 110W(4).
Full Court has the same meaning as in the
Family Law Act 1975.
government body means the Commonwealth, a State,
a Territory or an authority of the Commonwealth or a State or Territory.
income tested pension, allowance or benefit
has the same meaning as in the Family Law Act 1975.
initial period, in relation to a registrable
maintenance liability or a registered maintenance liability, means the period
entered in the Child Support Register under paragraph 26(2)(a).
international maintenance arrangement means:
(a) an international treaty; or
(b) a non‑treaty arrangement
between Australia and a reciprocating jurisdiction that relates to maintenance
obligations arising from family relationship, parentage or marriage.
international treaty means a treaty that
relates to maintenance obligations arising from family relationship, parentage
or marriage and whose parties are:
(a) Australia and a foreign country;
or
(b) Australia and 2 or more foreign
countries.
Judge means a Judge of the Family Court
(including the Chief Judge or a Senior Judge).
maintenance includes child support.
maintenance agreement means an agreement in
writing (whether made within or outside Australia) that makes provision in
relation to the maintenance of a child or a party to a marriage (whether or not
it also makes provision in relation to other matters), and includes such an
agreement that varies an earlier maintenance agreement, and also includes a
financial agreement within the meaning of the Family Law Act 1975.
Note: A parenting plan under the Family Law Act
1975 which deals with the maintenance of a child will come within this
definition (see in particular section 63C of that Act).
Matrimonial Causes Act 1959 includes the
rules made under that Act.
modifications includes additions, omissions
and substitutions.
month means one of the 12 months of the year.
order
includes:
(a) an interim order; and
(b) an order (including an interim
order) made under the law of a foreign country.
overseas authority means a judicial or
administrative authority of a reciprocating jurisdiction that is responsible
for giving effect to an international maintenance arrangement.
overseas maintenance liability means a
liability that arises under:
(a) a maintenance order made by a
judicial authority of a reciprocating jurisdiction; or
(b) a maintenance agreement registered
by a judicial or administrative authority of a reciprocating jurisdiction; or
(c) a maintenance assessment issued by
an administrative authority of a reciprocating jurisdiction.
party to a marriage has the same meaning as
in Part VIII of the Family Law Act 1975.
payee:
(a) means:
(i) in relation to a
registrable maintenance liability or an overseas maintenance liability—the
person who is entitled, or would, but for the registration of the liability
under this Act, be entitled, to receive payments under the liability; and
(ii) in relation to an
agency reimbursement liability—the overseas authority seeking reimbursement under
that liability; and
(b) for the purposes of
section 42C and Parts VII and VIIA, in relation to a registrable overseas
maintenance liability, also includes an overseas authority.
payer, in relation to a registrable
maintenance liability, means the person who is liable to make payments under
the liability.
payment period, except in section 76,
means one of the following periods:
(a) a week;
(b) a fortnight;
(c) a 4 week period;
(d) a month;
(e) a calendar month.
periodic amount means a weekly, monthly,
yearly or other periodic amount.
person includes a company.
protected earnings rate means a weekly rate
prescribed for the purposes of this definition.
reciprocating jurisdiction means:
(a) a foreign country; or
(b) a part of a foreign country;
that is prescribed by the regulations to be a
reciprocating jurisdiction.
reconsideration of a decision has the meaning
given by section 110Q.
registered maintenance liability means a registrable
maintenance liability that is registered under this Act.
registrable maintenance liability means a
liability that is, under section 17, 17A, 18 or 18A, a registrable
maintenance liability.
registrable overseas maintenance liability
means a registrable maintenance liability mentioned in section 18A.
Registrar means the Child Support Registrar.
related Federal Magistrates Rules has the
same meaning as in the Family Law Act 1975.
resident of a reciprocating jurisdiction
means a person who is habitually resident in the reciprocating jurisdiction.
resident of Australia:
(a) means a person who is a resident
of Australia for the purposes of the Income Tax Assessment Act 1936
otherwise than because of subsection 7A(2) of that Act; and
(b) does not include a resident of a
reciprocating jurisdiction.
resumption determination means a
determination made by the Registrar under subsection 79A(3) or 79B(3).
salary or wages means:
(a) work and income support related
withholding payments other than:
(i) payments of an income
tested pension, allowance or benefit; or
(ii) payments prescribed,
or included in a class of payments prescribed, for the purposes of this
paragraph; and
(b) payments prescribed, or included
in a class of payments prescribed, for the purposes of this paragraph.
Second Commissioner means a Second
Commissioner of Taxation.
Secretary means the Secretary to the
Department.
service arrangements has the same meaning as
in the Commonwealth Services Delivery Agency Act 1997.
Services Delivery Agency means the
Commonwealth Services Delivery Agency established by the Commonwealth
Services Delivery Agency Act 1997.
SSAT means the Social Security Appeals
Tribunal.
SSAT Executive Director means the Executive
Director of the SSAT.
standard Rules of Court has the same meaning
as in the Family Law Act 1975.
step‑parent has the same meaning as in
the Family Law Act 1975.
suspension determination means a
determination made by the Registrar under subsection 79A(1) or 79B(1).
terminating event, in relation to an enforceable
maintenance liability, means:
(a) the death of the payer unless,
under the terms and conditions of the relevant court order or maintenance
agreement or otherwise by force of law, the liability is to continue after the
death of the payer;
(b) the death of the person to whose
maintenance the liability relates;
(c) in a case where the liability
relates to the maintenance of a child—the happening of any of the following
events:
(i) the child attaining 18
years of age unless:
(A) under
the terms and conditions of the relevant court order or maintenance agreement
or otherwise by force of law, the liability is to continue after the child
attains that age; or
(B) section 151D
of the Assessment Act applies in relation to the child;
Note: Section 151D of the Assessment Act
modifies the normal rules about terminating events in relation to certain
children who turn 18 during a year in which the child is in full‑time
secondary education.
(ii) the adoption or
marriage of the child unless, under the terms and conditions of the relevant
court order or maintenance agreement or otherwise by force of law, the
liability is to continue after the adoption or marriage of the child;
(ca) in a case where section 151D
of the Assessment Act applies to the child because of an application made under
section 151B of that Act—the last day of the secondary school year (within
the meaning of that Act) to which the application relates; or
Note: Section 151B of the Assessment Act
provides for a person to apply to continue an administrative assessment or
child support agreement under that Act in force after a child’s 18th birthday.
If the application is granted, section 151D of that Act modifies the
normal rules about terminating events.
(cb) if the liability is of a kind
mentioned in section 18A and one only of the payer and payee is a resident
of Australia—the payer or payee ceases to be a resident of Australia; or
(cc) if the liability is of a kind
mentioned in section 18A and both the payer and the payee are residents of
Australia—both cease to be residents of Australia; or
(cd) if the liability is of a kind
mentioned in section 18A and either the payer or the payee is a resident
of a reciprocating jurisdiction—the payer or the payee (as the case may be)
ceases to be a resident of the reciprocating jurisdiction and does not,
immediately after so ceasing, become a resident of another reciprocating
jurisdiction or of Australia; or
(ce) if the liability is of a kind
mentioned in section 18A and either the payer or the payee is a resident
of a reciprocating jurisdiction—the reciprocating jurisdiction is declared in
regulations made for the purposes of section 30A to be an excepted
reciprocating jurisdiction in which enforcement of a liability would be
inconsistent with the international maintenance arrangement with the
jurisdiction; or
(d) in a case where the liability
relates to the maintenance of a party to a marriage—the re‑marriage of
the person unless, under the terms and conditions of the relevant court order
or maintenance agreement or otherwise by force of law, the liability is to
continue after the re‑marriage of the person; or
(e) any other event the happening of
which operates, under the terms and conditions of the relevant court order or
maintenance agreement or otherwise by force of law, to end the liability;
but does not include:
(f) the making by, or registration
in, a court of an order; or
(g) the registration in, or approval
by, a court of a maintenance agreement.
this Act includes the regulations.
transferred maintenance liability means a
collection agency maintenance liability that has, under arrangements made under
section 20 or 21, been transferred to the Child Support Register.
trustee includes:
(a) a person appointed or constituted
trustee by act of parties, by order or declaration of a court, or by operation
of law; or
(b) an executor, administrator or
other personal representative of a deceased person; or
(c) a guardian or committee; or
(d) a receiver or receiver and
manager; or
(e) a liquidator of a company; or
(ea) an administrator, within the
meaning of the Corporations Act 2001, of a company; or
(eb) an administrator of a deed of
company arrangement executed by a company under Part 5.3A of that Act; or
(f) a
person:
(i) having or taking on
himself or herself the administration or control of any real or personal
property affected by any express or implied trust;
(ii) acting in any
fiduciary capacity; or
(iii) having the possession,
control or management of any real or personal property of a person under any
legal or other disability.
vary, in relation to the particulars entered
in the Child Support Register in relation to a registered maintenance
liability, includes the addition of a particular, and the omission of a
particular and the substitution of another particular.
weekly deduction rate, in relation to an
enforceable maintenance liability, means the weekly rate of payment specified
in the particulars of the entry in the Child Support Register in relation to
the liability.
work and income support related withholding payments means:
(a) payments from which an amount must
be withheld under a provision of Subdivision 12‑B (other than
section 12‑55), 12‑C or 12‑D or Division 13 in
Schedule 1 to the Taxation Administration Act 1953 (even if the amount
is not withheld); or
(b) payments from which an amount
would be required to be withheld under a provision mentioned in
paragraph (a) (other than section 12‑55) apart from subsection
12‑1(1A) in Schedule 1 to that Act.
Note: The payments covered are: payments to
employees and company directors, payments to office holders, return to work
payments, payments under labour hire arrangements, payments of annuities,
payments of superannuation benefits, employment termination payments, payments
for unused leave, benefit payments, compensation payments, payments specified
by regulations and alienated personal services payments.
(3) A reference in this Act to the payer or
payee of a registrable maintenance liability is, in relation to an entry in the
Child Support Register that does not relate to a registrable maintenance
liability, a reference to the person named in the entry as payer or payee, as
the case requires.
(4) Where:
(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
(b) the Registrar does not either do
that act or refuse to do that act;
the Registrar shall, for the purposes of that definition,
be deemed:
(c) in a case where the Registrar
within that period, by notice in writing served on a person, requires the
person to provide information necessary to the Registrar to make a decision to
do or refuse to do that act—at the end of the period of 28 days after the
receipt by the Registrar of the information; or
(d) in any other case—at the end of
that period;
to have refused to do that act.
5
Extension and application of Act in relation to maintenance of exnuptial children
Extension of Act to
States (except Western Australia)
(1) Subject to subsections (4) and (5),
this Act in so far as it relates to the maintenance of exnuptial children
extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.
Extension of Act to Western Australia
(2) If:
(a) the Parliament of Western
Australia refers to the Parliament of the Commonwealth the matter of the
maintenance of exnuptial children or matters that include that matter; or
(b) Western Australia adopts this Act
in so far as it relates to the maintenance of exnuptial children;
then, subject to subsections (4), (5), (5A) and (5B),
this Act in so far as it relates to the maintenance of exnuptial children also
extends to Western Australia.
Application of Act to Territories
(3) This Act in so far as it relates to the
maintenance of exnuptial children applies in and in relation to the
Territories.
Limitations on extension of Act to States
(4) This Act extends to a State by virtue of subsection (1)
or (2) only for so long as there is in force:
(a) an Act of the Parliament of the
State by which there is referred to the Parliament of the Commonwealth:
(i) the matter of the
maintenance of exnuptial children; or
(ii) matters that include
that matter; or
(b) a law of the State adopting this
Act in so far as it applies in relation to the maintenance of exnuptial children.
Note: See subsections (5A) and (5B) for the
extension of this Act to Western Australia if the Act is amended in relation to
the maintenance of exnuptial children.
(5) This Act extends to a State at any time
by virtue of subsection (1) or paragraph (2)(a) only in so far as it
makes provision with respect to:
(a) the matters that are at that time
referred to the Parliament of the Commonwealth by the Parliament of the State;
or
(b) matters incidental to the execution
of any power vested by the Constitution of the Parliament of the Commonwealth
in relation to those matters.
(5A) The Parliament of the Commonwealth intends
that this Act, so far as it is amended by one or more other Acts in relation to
the maintenance of exnuptial children, not extend to Western Australia, unless
and until one of the following events occurs:
(a) the Parliament of Western
Australia refers to the Parliament of the Commonwealth the matter of the
maintenance of exnuptial children or matters that include that matter;
(b) Western Australia adopts this Act,
as so amended.
(5B) The Parliament of the Commonwealth also
intends that, unless and until one of those events occurs, this Act continue to
extend to Western Australia in relation to the maintenance of exnuptial
children as if those amendments had not been made.
Note: If this Act is amended by one or more other
Acts in relation to the maintenance of exnuptial children, unless and until one
of the events mentioned in subsection (5A) occurs, there are effectively 2
versions of this Act that apply in Australia. This Act, as amended, applies:
(a) in all States and Territories in relation to
children of marriages; and
(b) in all States and Territories, except Western
Australia, in relation to exnuptial children.
This Act continues to apply in Western
Australia in relation to exnuptial children as if those amendments had not
been made.
(6) Nothing in this section affects the
operation of the provisions of this Act to the extent that they give effect to
an international maintenance arrangement.
6
Additional application of Act in relation to maintenance of children of
marriages
(1) Without prejudice to its effect apart
from this section, this Act in so far as it relates to the maintenance of children
also has effect as provided by this section.
(2) By virtue of this subsection, the
provisions of this Act (other than subparagraph (a)(ii) of the definition
of collection agency maintenance liability in subsection 4(1) or
subparagraph 17(a)(ii)) in so far as they relate to the maintenance of children
have the effect that they would have if:
(a) each reference to a child were, by
express provision, confined to a child of a marriage; and
(b) each reference to the parents of
the child were, by express provision, confined to the parties to the marriage;
and have that effect only in so far as they make provision
with respect to the rights and duties of the parties to the marriage in
relation to the child, including, without limiting the generality of the
foregoing, provision with respect to the rights and duties of those parties in
relation to the maintenance of the child.
(3) Nothing in this section affects the
operation of the provisions of this Act to the extent that they give effect to
an international maintenance arrangement.
7
Corresponding State laws
(1) Where the Minister is satisfied that a
law of a State relating to the collection of periodic amounts payable for the
maintenance of children makes adequate and appropriate provision for the collection
of those amounts on a regular and timely basis, the Minister may, by notice
published in the Gazette, declare the law to be a corresponding State
law for the purposes of this section.
(2) If at any time the Minister becomes
satisfied that the State law no longer makes adequate and appropriate provision
for the collection of periodic amounts payable for the maintenance of children
on a regular and timely basis, the Minister may, by notice published in the
Gazette, revoke the declaration of the law as a corresponding State law for
the purposes of this section.
(3) It is the intention of the Parliament
that the Registrar, the Secretary, the SSAT and the AAT should have and be
subject to the powers, functions, rights, liabilities and duties conferred or
imposed on the Registrar, the Secretary, the SSAT or the AAT, as the case may
be, by a corresponding State law that are additional to those conferred or
imposed by this Act.
8 Act
to bind Crown
(1) This Act binds the Crown in right of the
Commonwealth and of each of the States, the Northern Territory and Norfolk
Island.
(2) Nothing in this Act renders the Crown in
right of the Commonwealth or of a State, the Northern Territory or Norfolk
Island liable to be prosecuted for an offence.
9 External
Territories
(1) This Act extends to each of the external
Territories.
(2) This Act applies in relation to an
external Territory to which the Family Law Act 1975 does not extend with
such modifications as are prescribed.
Part II—Administration
10
Child Support Registrar
(1) There shall be a Child Support Registrar.
(2) The Child Support Registrar is:
(a) the person who holds, or is acting
in, the position known as the General Manager of the Child Support Agency; or
(b) if there is no such position—an SES
employee, or acting SES employee, who holds, or is acting in, a position
specified by the Secretary by written instrument for the purposes of this
paragraph.
11
Secretary to have general administration of Act
The Secretary has the general
administration of this Act.
13
Child Support Register
(1) The Registrar shall keep a register, to
be known as the Child Support Register.
(2) The Child Support Register shall be kept
in such form (whether or not in a documentary form) as the Registrar considers
appropriate.
14
Annual report
(1) The Secretary shall, as soon as
practicable after 30 June in each year, prepare and furnish to the
Minister a report on the working of this Act.
(2) The Minister shall cause a copy of the
report to be laid before each House of the Parliament within 15 sitting days of
that House after the day on which the Minister receives the report.
(3) For the purposes of section 34C of
the Acts Interpretation Act 1901, a report that is required by subsection (1)
to be furnished as soon as practicable after 30 June in a year shall be
taken to be a periodic report relating to the working of this Act during the
year ending on that 30 June.
15
Delegation
(1) The Registrar may, in writing, delegate
all or any of the Registrar’s powers or functions under this Act to an officer
or employee of the Department.
(1A) The Registrar may, in accordance with
service arrangements, delegate, in writing, all or any of his or her powers or
functions under this Act to the CEO or an employee of the Services Delivery
Agency.
(2) A delegation may be made subject to a
power of review and alteration by the Registrar, within a period specified in
the instrument of delegation, of acts done under the delegation.
(3) A delegation continues in force even
though there has been a change in the occupancy of, or there is a vacancy in,
the office of Registrar, but, for the purposes of the application of subsection
33(3) of the Acts Interpretation Act 1901 in relation to such a
delegation, nothing in any law shall be taken to preclude the revocation or
variation of the delegation by the same or a subsequent holder of the office.
16
Secrecy
(1) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
person to whom this section applies means a
person who is or has been:
(a) the Minister; or
(b) appointed or employed by, or a
provider of services for, the Commonwealth; or
(c) a person to whom protected
information has been communicated under subsection (3), (4) or (4G); or
(d) a person to whom protected
information is communicated by:
(i) a person to whom the
information was communicated under subsection (3) or (4); or
(ii) a person mentioned in
this paragraph; or
(e) a person to whom this section
applied immediately before the commencement of Schedule 5 to the Child
Support Legislation Amendment Act 2001.
produce includes permit access to.
protected document means:
(a) a document that:
(i) contains information
that concerns a person; and
(ii) is obtained or made by
another person in the course of, or because of, the other person’s duties under
or in relation to this Act; or
(b) a document to which
paragraph (a) applied that is communicated to a person in circumstances
authorised by this section.
protected information means:
(a) information that:
(i) concerns a person; and
(ii) is disclosed to or
obtained by another person in the course of, or because of, the other person’s
duties under or in relation to this Act; or
(b) information to which
paragraph (a) applied that is communicated to a person in circumstances
authorised by this section.
relevant Minister means:
(a) a Minister who administers this
Act; or
(b) the Prime Minister.
(2) Subject to this section, a person to whom
this section applies must not:
(a) make a record of any protected
information; or
(b) whether
directly or indirectly, communicate to a person any protected information
concerning another person.
Penalty: Imprisonment for 1 year.
(2A) Subsection (2) does not apply if the
record is made, or the information is communicated:
(a) under or for the purposes of this
Act; or
(b) in
the performance of duties, as a person to whom this section applies, under or
in relation to this Act; or
(c) for the purpose for which the
information was communicated under this section.
(3) Subsection (2) does not prevent the
Registrar, or a person authorised by the Registrar, from communicating any
protected information:
(a) to the Secretary, or an officer or
employee of the Department, for the purpose of the administration of this Act;
or
(b) to the Secretary to the Department
or the Department of Veterans’ Affairs, or an officer or employee of either
Department, for the purpose of the administration of any law of the
Commonwealth relating to pensions, allowances or benefits; or
(ba) to the CEO or an employee of the
Services Delivery Agency, for the purpose of the administration of this Act or
of any other law of the Commonwealth relating to pensions, allowances or benefits;
or
(bb) to the Chief Executive Officer or
an employee of Medicare Australia for the purposes of the performance of
functions or the exercise of powers under the Medicare Australia
Act 1973; or
(c) to a person performing, as a
person to whom this section applies, duties under or in relation to this Act or
the Assessment Act, or under regulations made under either Act, for the purpose
of enabling the person to perform the duties; or
(ca) to a person performing, as a
person to whom this section applies, duties under or in relation to an Act of
which the Commissioner has the general administration, or under regulations
made under such an Act, for the purpose of enabling the person to perform those
duties; or
(d) to the Secretary to the Attorney‑General’s
Department, or an officer or employee of that Department, for the purpose of:
(i) the enforcement
outside Australia of registrable maintenance liabilities; or
(ii) the enforcement within
Australia of maintenance liabilities that arose under the law of a foreign
country; or
(e) to any person, if the information
concerns a credible threat to the life, health or welfare of a person and
either of the following applies:
(i) the Registrar, or the
person authorised by the Registrar, believes on reasonable grounds that the
communication is necessary to prevent or lessen the threat;
(ii) there is reason to
suspect that the threat may afford evidence that an offence may be, or has
been, committed against a person and the information is communicated for the purpose
of preventing, investigating or prosecuting such an offence; or
(f) to a person who is authorised to
obtain the information by the person to whom the information relates.
(4) Subsection (2)
does not prevent the Registrar, or a person authorised by the Registrar, from
communicating any protected information to a person if:
(a) the information cannot reasonably
be obtained from a source other than the Department; and
(b) the person to whom the information
will be communicated has sufficient interest, within the meaning of
subsection (4A), in the information; and
(c) the Registrar, or a person
authorised by the Registrar, is satisfied that the communication is for the
purpose of subsection (4B), (4C), (4D), (4E) or (4F).
(4A) A person has sufficient interest
in protected information if:
(a) the Registrar, or the person
authorised by the Registrar, is satisfied that, in relation to the purpose of
the communication, the person has a genuine and legitimate interest in the
information; or
(b) the person is a relevant Minister.
(4B) A communication of protected information is
for the purpose of this subsection if:
(a) the communication is necessary to
correct a mistake of fact in relation to the administration of this Act; and
(b) the integrity of that
administration will be at risk if the mistake of fact is not corrected.
(4C) A communication of protected information is
for the purpose of this subsection if the communication is necessary:
(a) to brief a relevant Minister so
that the Minister can consider or respond to complaints or issues raised with
the Minister by or on behalf of a person (in writing or orally); or
(b) to brief a relevant Minister for a
meeting or forum that the Minister is to attend; or
(c) to brief a relevant Minister in
relation to issues raised or proposed to be raised publicly by or on behalf of
the person to whom the information relates so that the Minister can respond by
correcting a mistake of fact, a misleading perception or impression, a
misleading statement or an incorrectly held opinion; or
(d) to brief a relevant Minister about
a possible error or delay on the part of the Child Support Agency; or
(e) to brief a relevant Minister about
an instance of an anomalous or unusual operation
of this Act.
(4D) A communication of protected information is
for the purpose of this subsection if:
(a) the information is about a missing
person; and
(b) the communication is necessary:
(i) to assist a court,
coronial enquiry, Royal Commission, department or authority, of the Commonwealth,
a State or a Territory, in relation to the whereabouts of the missing person;
or
(ii) to locate a person
(including the missing person); and
(c) there is no reasonable ground to
believe that the missing person would not want the information communicated.
(4E) A communication of protected information
is for the purpose of this subsection if:
(a) the information is about a
deceased person; and
(b) the communication:
(i) is necessary to assist
a court, coronial enquiry, Royal Commission, department or authority, of the
Commonwealth, a State or a Territory, in relation to the death of the person;
or
(ii) is necessary to help a
person locate a relative or beneficiary of the deceased person; or
(iii) is in relation to the
administration of the estate of the deceased person; and
(c) there is no reasonable ground to
believe that the deceased person would not have wanted the information
communicated.
(4F) A communication of protected information
is for the purpose of this subsection if the
information is to establish:
(a) the death of a person; or
(b) the place where the death of a
person is registered.
(4G) Subsection (2) does not prevent the
Registrar, or a person authorised by the Registrar, from communicating any
protected information to a person if:
(a) the person to whom the information
will be communicated is a payee of a registered maintenance liability who has
notified the Registrar, in accordance with section 113A, of the payee’s
intention to institute a proceeding in accordance with that section; and
(b) the information is communicated
for the purpose of the proceeding.
(5) A person to whom this section applies is
not required:
(a) to communicate protected
information to a court; or
(b) to produce a protected document in
court;
except where it is necessary to do so for the purposes of
this Act.
(5A) Subsections (2) and (5) apply to
information communicated under paragraph (3)(d) or (e) as if the purposes
referred to in those paragraphs were purposes of this Act.
(6) Nothing in an Act of which the
Commissioner has the general administration is to be taken to prohibit the
Commissioner, a Second Commissioner, a Deputy Commissioner, or a person
authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner,
from communicating any information to a person performing, as a person to whom
this section applies, duties under or in relation to this Act for the purpose
of enabling the person to perform the duties.
(7) Nothing in an Act of which the
Commissioner has the general administration is to be taken to prohibit the
Commissioner, a Second Commissioner, a Deputy Commissioner, or a person
authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner,
from:
(a) communicating to a court any
information obtained under or for the purposes of such an Act; or
(b) producing in court a document
obtained or made under or for the purposes of such an Act;
where it is necessary to do so for the purpose of carrying
into effect the provisions of this Act.
(8) A person to whom this section applies
must, if and when required by the Registrar to do so, make an oath or
declaration, in a manner and form specified by the Registrar in writing, to
maintain secrecy in accordance with this section.
(9) This section has effect subject to
subsection 67N(10) of the Family Law Act 1975.
16AA
Offence of unauthorised use of information
(1) A person commits an offence if:
(a) the person:
(i) makes a record of
information; or
(ii) communicates
information to a person; or
(iii) otherwise makes use of
information; and
(b) at the time the person does so,
the person is not a person to whom this section applies (within the
meaning of subsection 16(1)); and
(c) the information is relevant
information.
Penalty: Imprisonment for 1 year.
(2) If:
(a) the relevant information was
communicated to a person under subsection 16(4G); and
(b) that person makes a record of, or
communicates, the information for the purpose of a proceeding under
section 113A;
subsection (1) of this section does not apply to any
further recording, communication or use of that information by a person who is
not a person to whom this section applies.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) In this section:
relevant information means:
(a) information about a person
obtained from the records of the Department or the Child Support Agency; or
(b) information to the effect that
there is no information about a person held in the records of the Department or
the Child Support Agency.
16A
Applications, notices, elections to be in the manner specified by the Registrar
(1) The Registrar may specify the manner in
which an application, notice or election required or able to be made or given
under this Act is to be made or given.
(2) Without limiting subsection (1), in
respect of an application, notice or election, the Registrar may specify any or
all of the following matters:
(a) the content of the application,
notice or election;
(b) that the content is to be made or
given in a particular form approved by the Registrar under subsection (4);
(c) that the content is to be made or
given orally;
(d) that specified documents are to
accompany it;
(e) that the content is to be verified
or that a document accompanying it is to be verified;
(f) that it may be given on a
specified kind of data processing device, or by way of electronic transmission,
including specifying that it may be given in accordance with certain software
requirements.
(3) In relation to an application, notice or
election, if the Registrar specifies that it, or a document accompanying it,
must be signed, the Registrar may also specify that, if it is given to the
Registrar on a data processing device, or by way of electronic transmission,
the process may contain the electronic signature of the person concerned.
(4) The Registrar may in writing approve a
form of application, notice or election for the purposes of a particular
section of this Act.
Note: Strict compliance with the form is not
required—see section 25C of the Acts Interpretation Act 1901.
(5) In this section:
electronic signature, in relation to a
person, means a unique identification in an electronic form that is approved by
the Registrar.
16B
Registrar’s power to request tax file numbers
(1) This section applies to a person in Australia
if the person is a payer or a payee in relation to a registrable maintenance
liability.
(2) The Registrar may request, but not
compel, the person:
(a) to give the Registrar a written
statement of the person’s tax file number; or
(b) if the person does not have a tax
file number—to apply to the Commissioner for a tax file number and to give to
the Registrar a written statement of the person’s tax file number after the Commissioner
has issued it.
(3) A person is taken to have complied with a
request under subsection (2) if the person gives to the Registrar a
statement of a kind mentioned in subsection (4) or (5) of this section.
(4) The person may give to the Registrar a
statement that the person:
(a) has a tax file number but does not
know what it is; and
(b) has asked the Commissioner to
inform the person of the person’s tax file number; and
(c) authorises the Commissioner to
tell the Registrar:
(i) whether the person has
a tax file number; and
(ii) if the person has a
tax file number—that number.
(5) The person may give to the Registrar a
statement that the person:
(a) has an application for a tax file
number pending; and
(b) authorises the Commissioner to
tell the Registrar:
(i) if a tax file number
is issued to the person—that number; or
(ii) if the application is
refused—that the application has been refused; or
(iii) if the application is
withdrawn—that the application has been withdrawn.
16C
Registrar may require Commissioner to provide information
(1) The Registrar may require the
Commissioner to provide the Registrar with information about people, including
tax file numbers, being information that is in the possession of the
Commissioner.
(2) Information provided to the Registrar
under a requirement made under subsection (1) may be used only for the
following purposes:
(a) to facilitate the recovery of
debts due to the Commonwealth under this Act;
(b) to identify a person for purposes
related to the purpose mentioned in paragraph (a).
Part III—Registration of maintenance liabilities
Division 1—Registrable maintenance liabilities
17
Liabilities in relation to children that are registrable maintenance
liabilities
(1) Subject to section 19, a liability
is a registrable maintenance liability if:
(a) it is a liability of:
(i) a parent of a child to
pay a periodic amount for the maintenance of the child; or
(ii) a step‑parent of
a child to pay a periodic amount for the maintenance of the child; and
(b) either of the following
subparagraphs applies:
(i) it arises under a
court order or court registered maintenance agreement;
(ii) it is a collection
agency maintenance liability.
(2) Subject to section 19, a liability
is a registrable maintenance liability if it arises under a child support
assessment.
17A
Liabilities in relation to persons who have paid amounts where no liability to
pay because the person is not the parent
(1) 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.
(2) Subsection (1) does not apply to the
extent that a liability to pay an amount is a liability to pay any costs
incurred in respect of proceedings instituted under section 143 of the
Assessment Act.
18
Liabilities in relation to parties to marriages that are registrable
maintenance liabilities
Subject to section 19, a liability
is a registrable maintenance liability if:
(a) it is a liability of a party to a
marriage to pay a periodic amount for the maintenance of the other party to the
marriage; and
(b) either of the following
subparagraphs applies:
(i) it arises under a
court order or court registered maintenance agreement;
(ii) it is a collection
agency maintenance liability.
18A
Liability in relation to registrable overseas maintenance liabilities
(1) A liability is a registrable overseas
maintenance liability if it is:
(a) a liability of a parent or step‑parent
of a child to pay a periodic amount for the maintenance of the child; and
(b) an overseas maintenance liability.
(2) A liability is a registrable overseas
maintenance liability if it is:
(a) a liability of a party to a marriage
to pay a periodic amount for the maintenance of the other party to the
marriage; and
(b) an overseas maintenance liability.
(3) A liability is a registrable overseas
maintenance liability if it is:
(a) an agency reimbursement liability;
or
(b) a penalty, within the meaning of a
provision that is prescribed by the regulations, of an international treaty
that is so prescribed, that is payable under the law of a foreign country that
is a party to the treaty.
(4) A liability is a registrable overseas
maintenance liability if it is an amount that is in arrears under a liability
mentioned in subsection (1) or (2) or paragraph (3)(a).
(5) This section is subject to
section 19.
19
Exclusion of liabilities by regulation
(1) The regulations may provide that
specified liabilities, or liabilities included in specified classes of
liabilities, are not registrable maintenance liabilities.
(2) Without limiting the generality of subsection (1),
the regulations may:
(a) make different provision for the
purposes of section 17, 17A, 18 or 18A; and
(b) specify liabilities, or a class of
liabilities, by reference to all or any of the following:
(i) when the assessments,
orders or agreements under which the liabilities arose were made, registered,
approved or sanctioned, as the case may be;
(ii) characteristics of the
persons to whom the liabilities relate, including:
(A) if those
persons are children, their dates of birth and, if applicable, when their
parents separated;
(B) if those
persons are not children, their ages and whether or not they are in receipt of
an income tested pension, allowance or benefit;
(iii) whether or not the
liabilities are collection agency maintenance liabilities of a State or
Territory;
(iv) whether or not the
liabilities arose under orders made under section 139 of the Assessment
Act or section 66Q or 77 of the Family Law Act 1975.
Division 2—Registration of maintenance liabilities
20
Arrangements with States, Northern Territory and Norfolk Island for
transfer of liabilities
The Governor‑General may make
arrangements with the Governor of a State or the Administrator of the Northern
Territory or Norfolk Island for the transfer to the Child Support Register of
collection agency maintenance liabilities of the State or Territory.
21
Arrangements in relation to Territories (other than the Northern Territory
or Norfolk Island) for transfer of liabilities
The Registrar may make arrangements for
the transfer to the Child Support Register of collection agency maintenance
liabilities of a Territory (other than the Northern Territory or Norfolk Island).
22
Registrar to register transferred liabilities in Child Support Register
Where, under arrangements made under
section 20 or 21, a collection agency maintenance liability is transferred
to the Child Support Register, the Registrar shall, within 28 days after the
transfer of the liability, register the liability under this Act by entering
particulars of liability in the Child Support Register.
23
Payer and payee to notify Registrar when registrable maintenance liability
arises etc.
(1) This section applies where:
(a) under this Act, the Assessment Act,
the Family Law Act 1975 or the law of a State or Territory:
(i) an order is made by,
or registered in, a court; or
(ii) a maintenance
agreement is registered in, or approved by, a court; and
(b) either of the following
subparagraphs applies:
(i) a registrable
maintenance liability arises under the order or agreement;
(ii) the order or agreement
varies or otherwise affects a registrable maintenance liability that is not
registered under this Act.
(1A) This section does not apply to a
registrable overseas maintenance liability.
(2) The payee of the registrable maintenance
liability shall, within 14 days after the day (in subsection (5) called
the relevant day) on which the order is made by, or registered
in, the court or the agreement is registered in, or approved by, the court,
give notice to the Registrar in relation to the order or agreement.
(3) The payee is not required to give the
Registrar notice under subsection (1) if the payee, within that period of
14 days, elects, by giving the Registrar a notice, not to have the registrable
maintenance liability enforced under this Act.
(5) Subject to subsection (6), the payer
of the registrable maintenance liability shall, within 14 days after the
relevant day, give notice to the Registrar in relation to the order or
agreement.
(6) The payer is not required to give the
notice to the Registrar if the payee elects under subsection (3) not to
have the registrable maintenance liability enforced under this Act.
(6A) The notices under subsections (2), (3)
and (5) must be given in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(7) A person who contravenes subsection (2)
or (5) is guilty of an offence punishable on conviction by a fine not exceeding
$1,000.
(7A) Subsection (7) is an offence of strict
liability.
(8) It is a defence to a prosecution for an
offence against subsection (7) if the person charged proves that the
person furnished the relevant form to the Registrar as soon as reasonably
practicable after becoming aware of the making or registration of the relevant
order or of the registration or approval of the relevant maintenance agreement,
as the case may be.
24
Registrar to register liability in Child Support Register on receipt of
notification etc.
(1) Where the Registrar receives under
subsection 23(2) a notice from the payee of a registrable maintenance
liability, the Registrar shall, within 28 days after receipt of the notice,
register the liability under this Act by entering particulars of the liability
in the Child Support Register.
(2) Where the payee of a registrable
maintenance liability who is required by subsection 23(2) to give notice to the
Registrar fails to do so within the period specified in that subsection, the
Registrar may, even though the notice has not been given within that period or
has not been given at all, register the liability under this Act by entering
particulars of the liability in the Child Support Register.
24A
Registrar to register liability in Child Support Register on making of child
support assessment [see
Note 4]
(1) Subject to subsection (2), where the
Registrar makes a child support assessment under which a registrable
maintenance liability arises, the Registrar must immediately register the
liability under this Act by entering particulars of the liability in the Child
Support Register.
(2) Subsection (1) does not apply in
relation to a registrable maintenance liability if:
(b) the payee elected in the relevant
application for assessment of child support or the relevant application for
acceptance of a child support agreement, as the case requires, not to have the
liability enforced under this Act; or
(c) the application giving rise to the
child support assessment was a liable parent application within the meaning of
the Child Support Assessment Act 1989.
Note: Section 25 allows a payee in this
situation to apply for the liability to be registered.
(3) Despite subsection (1), if the
Registrar makes a child support assessment in a case where either the payer or
the payee is a resident of a reciprocating jurisdiction, the Registrar must
register the liability under this Act as soon as practicable, rather than
immediately, after making the assessment.
25
Application for registration of registrable maintenance liability
(1) The payee
of a registrable maintenance liability that is not registered under this Act
may apply to the Registrar, in the manner specified by the Registrar, for the
registration of the liability under this Act.
(1A) If:
(a) the payee is a resident of a
reciprocating jurisdiction; and
(b) the registrable maintenance
liability is a registrable overseas maintenance liability that arises under an
order made by, or registered in, a court of the reciprocating jurisdiction;
an application for the registration of the liability:
(c) made by the payee and given to the
Registrar by an overseas authority of the reciprocating jurisdiction; or
(d) made by such an overseas authority
on behalf of the payee;
is taken to be an application under subsection (1) if
the Registrar is satisfied that it is appropriate to do so.
(1B) If:
(a) the payee is a resident of a
reciprocating jurisdiction; and
(b) the registrable maintenance
liability is a registrable overseas maintenance liability that does not arise
under an order made by, or registered in, a court of the reciprocating
jurisdiction;
an application for the registration of the liability is
not taken to be an application under subsection (1) unless it is:
(c) made by the payee and given to the
Registrar by an overseas authority of the reciprocating jurisdiction; or
(d) made by such an overseas authority
on behalf of the payee.
(1C) If either the payer or the payee of a
registrable maintenance liability that is not registered under this Act is a
resident of a reciprocating jurisdiction, the payer may apply to the Registrar,
in a manner specified by the Registrar, for the registration of the liability
under this Act.
(1D) If the payer is a resident of a
reciprocating jurisdiction, the application mentioned in subsection (1C)
must be either:
(a) made by the payer and given to the
Registrar by an overseas authority of the reciprocating jurisdiction; or
(b) made directly to the Registrar.
(2) Subject to subsection (3), if the
Registrar receives an application from the payee or payer the Registrar must,
within 28 days after receiving the application, register the liability under
this Act by entering particulars of the liability in the Child Support
Register.
(2A) However, if either the payer or the payee
is a resident of a reciprocating jurisdiction, the Registrar has 90 days to
register the liability, instead of 28 days.
(2B) The Registrar may refuse to register a
registrable overseas maintenance liability if the Registrar is satisfied that
the liability arises in a manner that is inconsistent with the international
maintenance arrangement on which the payee relies.
(2C) If:
(a) a registered maintenance liability
relates to a particular child, a particular payer and a particular payee; and
(b) a registrable maintenance
liability:
(i) that relates to the
same child, payer and payee; and
(ii) that arose before the
registered maintenance liability arose;
first comes to the notice of the
Registrar after the registration of the registered maintenance liability;
the Registrar must not register the registrable
maintenance liability except for the purpose of facilitating the recovery of
arrears under it.
(2D) A registrable maintenance liability that is
registered to facilitate the recovery of arrears under it is to be treated for
all other purposes as if it had not been registered.
(3) The Registrar must not register the
liability if the payee has given notice, or is required to give notice, under
subsection 23(2) in relation to the liability.
(4) The regulations may provide that this
section applies in relation to collection agency maintenance liabilities only
if specified conditions or restrictions are complied with or only in specified
circumstances.
Note: In relation to applications made under
subsection (1) or (1C), section 16A provides for the Registrar to
specify the manner in which the application may be made.
25A
Inclusion of certain liabilities in the Child Support Register
(1) A payee may apply to the Registrar for
entry, in the Child Support Register, of the particulars of an overseas
maintenance liability that is not a registrable overseas maintenance liability.
(2) An application must be made in the manner
specified by the Registrar.
(3) In the absence of an application made in
accordance with subsection (2), a document or documents given by the payee
may be taken to be an application for entry of the particulars of an overseas
maintenance liability if the Registrar is satisfied that it is appropriate to
do so.
(4) The Registrar must, within 90 days after
receiving an application, enter the particulars of the liability in the Child
Support Register if the Registrar is satisfied that to do so would be
consistent with the international maintenance arrangement on which the payee
relies.
(5) The Registrar may refuse to register a
maintenance assessment, order or agreement issued, made or registered in a
foreign country that is a party to an international treaty and that is
prescribed by the regulations if the payee is habitually resident in that
country.
(6) For the purposes of this Act, a decision
under this section is taken to be a decision in relation to a registrable
maintenance liability.
25B
Effect of inclusion
(1) If the particulars of an overseas
maintenance liability are entered in the Child Support Register under
section 25A, an amount payable under the maintenance assessment, order or
agreement that gives rise to the liability is a debt due to the payee.
(2) A debt due under this section is
recoverable in a court of competent jurisdiction by the payee from the person
who is liable to make payments under the liability.
25C
Limitation on inclusion of liabilities in Register
Despite anything else in this Division,
the Registrar must not register a liability if neither the payee nor the payer
is a resident of Australia.
26
Particulars of liability to be entered in Child Support Register
Particulars of the child
support assessment, court order or maintenance agreement
(1) The entry in the Child Support Register
in relation to a registered maintenance liability must include particulars from
the child support assessment, court order or maintenance agreement under which
the liability arose. Those particulars are as follows:
(a) the name of the payer;
(b) the name of the payee;
(c) particulars of the child support
assessment, court order or maintenance agreement under which the liability
arose and each assessment, court order and maintenance agreement varying or
otherwise affecting the first‑mentioned assessment, order or agreement,
being particulars that are, in the opinion of the Registrar, sufficient to
adequately identify the basis of the liability;
(d) the name and date of birth of each
child to whose maintenance the entry relates;
(e) the name of any other person to
whose maintenance the entry relates;
(f) the periodic amount, or the
aggregate of the periodic amounts that are:
(i) stipulated in the
child support assessment, court order or maintenance agreement under which the
liability arose; and
(ii) payable by the payer
in relation to the entry;
(g) if the entry relates to the
maintenance of 2 or more persons—the periodic amount attributable to each of
them;
(h) the period specified in the child
support assessment, court order or maintenance agreement as the period at which
amounts are payable under the liability;
(i) particulars of any terms and
conditions of the court order or agreement that the Registrar considers
necessary or desirable to include in the entry to ensure that all the terms and
conditions of the order or agreement relating to the liability are fully given
effect to under this Act.
Particulars as to the payment
period and payment rate
(2) The entry in the Register must also
include particulars relating to the payment rate and payment period in respect
of the liability. Those particulars are as follows:
(a) the initial period (determined
under section 26C) (if any) at which an amount is payable in respect of
the liability;
(b) the payment period (determined
under section 26A, 26B or 42A or Part IV), after the initial period
(if any), at which amounts are payable in respect of the liability, and the
start day of the period;
(c) if employer withholding is to
apply in relation to a liability—a weekly rate of payment in relation to the
periodic amount, or the aggregate of the periodic amounts;
(d) the
rate of payment (weekly, fortnightly, 4 weekly or monthly) in relation to the
periodic amount, or the aggregate of the periodic amounts, payable by the payer
in relation to the entry and the amount of the rate of payment.
Note 1: For payment period see subsection
4(1).
Note 2: Section 28B requires the Registrar to
convert the periodic amount payable in respect of a registrable maintenance
liability to a rate of payment depending upon the payment period determined in
respect of the liability.
Particulars relating to
enforceability of the liability
(3) The entry in the Register must also
include particulars relating to the enforceability of the liability. Those
particulars are as follows:
(a) the day on which the liability
first becomes enforceable under this Act;
(b) if the liability ceases to be
enforceable under this Act (whether on one occasion or more than one
occasion)—each day on which the liability ceases to be so enforceable;
(c) if the liability ceases to be
enforceable under this Act and again becomes so enforceable (whether on one
occasion or more than one occasion)—each day on which the liability again
becomes enforceable under this Act;
(d) particulars of any suspension of
the liability.
Other particulars that
the Register may include
(4) The entry in the Register may also
include the following particulars in relation to the liability:
(a) the daily rate of payment in
relation to the periodic amount, or the aggregate of the periodic amounts,
payable by the payer in relation to the entry;
(b) a statement of whether or not
employer withholding applies in relation to the liability;
(c) such other matters as the
Registrar considers necessary or desirable to be included in the Child Support
Register.
Registrable overseas maintenance liabilities
(5) In the case of a registrable overseas
maintenance liability, the entry in the Child Support Register must include the
particulars mentioned in this section that are relevant to the liability.
26A
Payment period to be entered in Register under paragraph 26(2)(b) if Registrar
to collect by deduction from salary or wages
Application of section
(1) This section applies to a registrable
maintenance liability or an enforceable maintenance liability if the Registrar
is to collect amounts due to the Commonwealth under, or in relation to, the
liability by deduction from the salary or wages of the payer of the liability.
Object of section
(2) This section deals with the
determination, in relation to a liability, of:
(a) the payment period the Registrar
must enter in the Child Support Register under paragraph 26(2)(b) as the period
at which amounts are payable in respect of the liability (see subsection (3));
and
(b) the day that the Registrar must
enter in the Register under paragraph 26(2)(b) as the day from which a payment
period (see subsection (4)) starts.
Note: For payment period see
subsection 4(1).
Period that must be
registered where liability to be collected by deduction from salary or wages
(3) If the Registrar is going to collect
amounts due to the Commonwealth under a liability, or in relation to the liability,
by deduction from the salary or wages of the payer, the period that the
Registrar must enter in the Register is the payment period that reflects the
payer’s pay cycle.
Example: If a payer is paid weekly, the payment period the
Registrar must enter in the Child Support Register will be a week. Similarly,
if the payer is paid monthly, the payment period the Registrar must enter in
the Register will be a month.
Note: Part IV deals with collection by
deduction from salary or wages.
Day from which a payment period starts
(4) The start day of the payment period
referred to in subsection (3) in respect of the liability, is a day
specified by the Registrar. The day that the Registrar must specify is the
first day of the first of the payment periods in which deduction from the
salary or wages of the payer will occur.
26B
Payment period to be entered in Register under paragraph 26(2)(b) if payer
makes voluntary payments
Application of section
(1) This section applies to a registrable
maintenance liability or an enforceable maintenance liability if the Registrar
is not going to collect amounts due to the Commonwealth under, or in relation
to, the liability by deduction from the salary or wages of the payer of the
liability.
Object of section
(2) This section deals with the
determination, in relation to a liability of:
(a) the payment period that the
Registrar must enter in the Child Support Register under paragraph 26(2)(b) as
the period at which amounts are payable in respect of the liability (see subsections (3)
and (5)); and
(b) the day that the Registrar must
enter in the Register under paragraph 26(2)(b) as the day from which an elected
period (see subsection (4)) starts.
Note: For payment period see
subsection 4(1).
Period that must be
registered when liability to be paid voluntarily and election made
(3) If:
(a) the Registrar is not going to
collect amounts due to the Commonwealth under, or in relation to, a liability
by deduction from the salary or wages of the payer of the liability; and
(b) the payer makes an election that a
payment period be entered in the Register as the period at which amounts are
payable in respect of the liability; and
(c) the Registrar is satisfied that
the payment period elected by the payer will be a convenient payment period for
the payer to accrue debts;
the Registrar must enter in the Register the elected
period as the period at which amounts are payable in respect of the liability.
Day from which elected period starts
(4) In making an election under subsection (3),
the payer must specify the day from which the payment period starts. The
Registrar must enter in the Register the specified day as the day from which
the elected period starts.
Example 1: The payer elects a 4 week period as the payment
period. The payer elects that the start day of the period will be 8 July
which is a Wednesday. Therefore the period will end 4 weeks later on a Tuesday.
Example 2: The payer elects a period of a calendar month as
the payment period. The payer elects that the start day will be 16 October.
Therefore the period will end on 15 November. If the payer elects that the
start day will be 31 January the period will end on 28 February.
Period that must be
registered when liability to be paid voluntarily and no election is made or
election is rejected
(5) If:
(a) the Registrar is not going to
collect amounts due to the Commonwealth under, or in relation to, a liability
by deduction from the salary or wages of the payer of the liability; and
(b) either:
(i) the payer does not
make an election under subsection (3); or
(ii) the Registrar is not
satisfied that the payment period elected by the payer will be a convenient
payment period for the payer to accrue debts;
the Registrar must enter in the Register any payment
period determined by the Registrar to be a convenient payment period for the
payer to accrue debts as the period at which amounts are payable in respect of
the liability.
Manner in which election
is to be made
(6) An election made under subsection (3)
must be made in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an election may be made.
26C
Initial period that may be registered under paragraph 26(2)(a)
(1) If the Registrar is about to enter a
period in the Child Support Register under subsection 26A(3) or 26B(3)
in respect of a registrable maintenance liability or an enforceable maintenance
liability, the Registrar may also enter in the Register an initial period under
paragraph 26(2)(a) in respect of the liability.
When will the initial period start and end—Registrar
about to enter liability
(2) If the Registrar is about to register the
liability, the initial period starts on the day on which the liability first
becomes enforceable under this Act and ends:
(a) in the case of the Registrar
entering in the Register a payment period under subsection 26A(3)—on the day
before the start day specified by the Registrar under subsection 26A(4) in
respect of the liability; or
(b) in the case of the Registrar
entering in the Register a payment period under subsection 26B(3)—on the day
before the start day specified by the payer of the liability under
subsection 26B(4).
Note: Section 28 deals with when a liability
first becomes enforceable under this Act.
When will the initial
period start and end—Registrar varies Register under subsection 37B(7) to again
make a registered maintenance liability enforceable
(3) If:
(a) a low‑income non‑enforcement
period in relation to a registered maintenance liability ends; and
(b) the Registrar has varied the
particulars of the Register as required by paragraph 37B(7)(1)(a) by specifying
the end of the low‑income non‑enforcement period as the time at
which the liability again becomes enforceable under this Act;
the initial period, in respect of the liability, starts on
the day the Registrar has entered in the Register as the time at which the
liability again becomes enforceable under this Act and ends:
(c) in the case of the Registrar
entering in the Register a payment period under subsection 26A(3)—on the day
before the start day specified by the Registrar under subsection 26A(4) in
respect of the liability; or
(d) in the case of the Registrar
entering in the Register a payment period under subsection 26B(3)—on the day
before the start day specified by the payer of the liability under
subsection 26B(4).
When will the initial
period start and end—Registrar receives an application under subsection 39(1)
to again make a registered maintenance liability enforceable
(4) If:
(a) the Registrar receives an
application under subsection 39(1) for a registered maintenance liability to
again become enforceable under this Act; and
(b) the Registrar has varied the
particulars of the Child Support Register as required by paragraph 39(6)(a) by
specifying a day as the day on which the liability again becomes enforceable
under this Act;
the initial period, in respect of the liability, starts on
the day the Registrar has entered in the Register as the day on which the
liability again becomes enforceable under this Act and ends:
(c) in the case of the Registrar
entering in the Register a payment period under subsection 26A(3)—on the day
before the start day specified by the Registrar under subsection 26A(4) in
respect of the liability; or
(d) in the case of the Registrar
entering in the Register a payment period under subsection 26B(3)—on the day
before the start day specified by the payer of the liability under
subsection 26B(4).
27
Single entry in relation to all liabilities with same payer and payee
Where the payer and payee of a
registrable maintenance liability are the same as the payer and payee of
another registrable maintenance liability (whether or not the liabilities arise
under the same child support assessment, court order or maintenance agreement
and whether or not the liabilities are in relation to the maintenance of the
same person), the Registrar may include particulars of the liabilities in the
same entry in the Child Support Register.
28 Day
on which liability first becomes enforceable under Act
(1) A registered maintenance liability first
becomes enforceable under this Act on whichever of the following days is
applicable in relation to the liability:
(a) if the liability is a transferred
maintenance liability—the day on which the liability is transferred to the
Child Support Register;
(b) if the liability is registered
under subsection 24(1)—the day on which the liability arose under, or was
varied or otherwise affected by, the court order or maintenance agreement by
virtue of which the liability is registered under that subsection;
(baa) if the liability is registered
under subsection 24(2)—such day as is determined, in writing, by the Registrar
(being a day not earlier than the day on which the liability arose under, or
was varied or otherwise affected by, the court order or maintenance agreement
by virtue of which the liability is registered under that subsection);
(ba) if the liability arose under a
child support assessment and is registered under subsection 24A(1)—the day on
and from which child support is payable under the assessment;
(c) if the liability is registered
under subsection 25(2)—such day as is determined, in writing, by the Registrar
(being a day not later than 60 days after the day on which the Registrar
receives, under subsection 25(1), the relevant duly completed form from the
payee of the liability);
(d) if the liability is of a kind
mentioned in subsection 18A(1), (2) or (3)—the day on which the Registrar
receives the application for the liability to be registered under this Act;
(e) if the liability is an amount in
arrears under a liability mentioned in subsection 18A(1) or (2) or paragraph
18A(3)(a)—the day on which the Registrar received the application for
registration under this Act of the liability to which the arrears relate.
(2) If the Registrar registers a liability
referred to in paragraph (1)(e), this Act has effect as if the amounts in
arrears were payable under the liability in relation to the child support
enforcement period that began on the day on which the liability first became
enforceable under this Act as a result of the operation of that paragraph.
28A
Reversal of subsection 23(3) or 24A(2) election—collection of arrears
When section applies
(1) This section applies if:
(a) a payee applies under subsection
25(1) for registration of a registrable maintenance liability; and
(b) the payee has, at any time before
the making of the application, made an election under subsection 23(3) or
24A(2) in relation to the liability.
(1A) This section applies if:
(a) a payee applies under subsection
25(1) for registration of a registrable maintenance liability; and
(b) the registrable maintenance
liability arises under a child support assessment made because of an
application by the payer.
Maximum arrears period
(2) For the purposes of this section, the maximum
arrears period is the period:
(a) beginning at whichever is latest
of the following times:
(i) 9 months before the
liability first becomes enforceable under this Act as a result of the operation
of paragraph 28(c);
(ii) the beginning of the
period to which the liability relates;
(iii) the commencement of
this section; and
(b) ending at the time when the
liability first becomes enforceable under this Act as a result of the operation
of paragraph 28(c).
Application by payee for enforcement of arrears
(3) The payee may apply to the Registrar, in
the manner specified by the Registrar, for any unpaid amounts payable under the
liability in relation to a specified period to be treated as arrears amounts
for the purposes of this section. The specified period must:
(a) consist of, or be included in, the
maximum arrears period; and
(b) end at the end of the maximum
arrears period.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
Registrar’s
decision—arrears for 3 months or less
(4) If:
(a) the specified period does not
exceed 3 months; and
(b) the Registrar registers the
liability under subsection 25(2);
the Registrar must grant the payee’s application.
Registrar’s
decision—arrears for more than 3 months
(5) If:
(a) the specified period exceeds 3
months; and
(b) the Registrar registers the
liability under subsection 25(2);
then:
(c) if the Registrar is satisfied that
there are exceptional circumstances—the Registrar must grant the payee’s
application; or
(d) if:
(i) the Registrar is not
satisfied that there are exceptional circumstances; and
(ii) unpaid amounts are
payable under the liability in relation to the period of 3 months that ended at
the end of the maximum arrears period;
the Registrar must:
(iii) treat the payee’s
application as if the specified period were the period of 3 months that ended
at the end of the maximum arrears period; and
(iv) grant the payee’s
application; or
(e) if:
(i) the Registrar is not
satisfied that there are exceptional circumstances; and
(ii) no unpaid amounts are
payable under the liability in relation to the period of 3 months that ended at
the end of the maximum arrears period;
the Registrar must refuse to
grant the payee’s application.
Consequences of
successful application
(6) If the Registrar grants the payee’s
application:
(a) this Act has effect as if:
(i) the unpaid amounts
were payable under the liability in relation to the child support enforcement
period that began on the day on which the liability first became enforceable
under this Act as a result of the operation of paragraph 28(c); and
(ii) the unpaid amounts
became child support debts at the time when the liability became enforceable as
a result of the operation of paragraph 28(c); and
(b) the Registrar must make such
variations to the particulars entered in the Child Support Register in relation
to the liability as the Registrar considers necessary or desirable to give
effect to this subsection.
Amounts that would have
been credited under section 71C
(7) To avoid doubt, a reference in this
section to an unpaid amount payable under a liability does not include a
reference to any amount that would have been credited against that liability
under section 71C if the liability had been an enforceable maintenance
liability at all relevant times.
28B
Conversion of periodic amounts into payment rates in respect of payment periods
(1) The Registrar must convert a periodic
amount payable under a registered maintenance liability arising under a court
order or a maintenance agreement to:
(a) a daily rate of payment; and
(b) one of the following rates of
payment:
(i) weekly;
(ii) fortnightly;
(iii) 4 weekly;
(iv) monthly.
Note: An amount payable under a registrable
maintenance liability is entered on the Child Support Register under paragraph
26(1)(f).
(2) The Registrar must convert an amount
payable under a registered maintenance liability arising under a child support
assessment in respect of a day into one of the rates of payment set out in paragraph (1)(b).
(3) If the Registrar is to collect amounts
due to the Commonwealth under, or in relation to, a liability by deduction from
the salary or wages of the payer of the liability, the Registrar must convert
the periodic amount or daily amount (as the case may be) to a weekly rate of
payment.
(4) The rate of payment to which the
Registrar must convert a periodic amount payable under a registered maintenance
liability, is the rate that reflects the payment period entered in the Register
under paragraph 26(2)(b) in respect of the liability.
Note 1: For payment period see subsection
4(1).
Note 2: Sections 26A, 26B and 42A and Part IVA
deal with the determination of the period, and the start day for the period,
that may be entered in the Child Support Register under paragraph 26(2)(b).
Note 3: The particulars entered in the Child Support
Register in respect of a liability must include the rates of payment provided
for in this section (see paragraphs 26(2)(c) and (d)).
29
Conversion of amounts payable under registrable maintenance liability into
daily rates etc.
The regulations may make provision with
respect to the conversion of amounts payable under registrable maintenance
liabilities into daily, weekly, fortnightly, 4 weekly and monthly rates of
payment.
30
Effect of registration
(1) If a registrable maintenance liability is
registered under this Act, amounts payable under the child support assessment,
court order, maintenance agreement, maintenance order or maintenance assessment
under which the liability arises are debts due to the Commonwealth by the payer
in accordance with the particulars of the liability entered in the Child
Support Register.
(2) In particular, the amounts are payable by
the payer at the payment rate entered in the Register under paragraph 26(2)(d)
in respect of the periods entered in the Register under paragraphs 26(2)(a) and
(b).
Note: Section 28B requires the Registrar to
convert the periodic amount payable in respect of a registrable maintenance
liability to a rate of payment depending upon the payment period determined in
respect of the liability.
(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.
30AA
Rule to avoid dual liabilities
(1) If:
(a) a registrable maintenance
liability (the first liability) relating, in whole or in part, to
a particular child, and also relating to a particular payer and a particular
payee, is registered; and
(b) at any time after the registration
of the first liability, a subsequent registrable maintenance liability
relating, in whole or in part, to the same child, and also relating to the same
payer and the same payee, is registered;
the first liability ceases, at the time the subsequent
liability is registered, to have effect to the extent only that it relates to
the particular child.
(2) Despite subsection (1), the first
liability is treated, for the sole purpose of facilitating the recovery of
arrears in respect of any period ending on or before it ceases to have effect,
as if it had not ceased to have effect as provided in subsection (1).
30A
Enforcement of Australian liabilities overseas
(1) A payee may apply to the Registrar to
have a maintenance order or agreement, or a child support assessment, enforced
in a reciprocating jurisdiction (other than an excepted reciprocating
jurisdiction in relation to such an order, agreement or assessment).
(2) For the purpose of having a maintenance
order or agreement, or a child support assessment, enforced in a reciprocating
jurisdiction (other than an excepted reciprocating jurisdiction in relation to
such an order, agreement or assessment) the Registrar may, at any time, and
must, as soon as practicable after a payee makes an application under
subsection (1):
(a) request, in writing, a judicial or
administrative authority in the reciprocating jurisdiction to enforce the
liability; and
(b) in a case where there is an
application by a payee under subsection (1)—give the application to the
authority; and
(c) give the authority such other
documentation and information as is required by the authority for enforcement
proceedings in that jurisdiction.
(3) Without limiting the generality of
paragraph (2)(c), the Registrar must give to the judicial or
administrative authority a certificate signed by the Registrar stating the
amounts that are due or payable under the liability.
(4) In this section:
excepted reciprocating jurisdiction, in
relation to a maintenance order or agreement, or a child support assessment,
means a reciprocating jurisdiction that is declared by the regulations to be an
excepted reciprocating jurisdiction in respect of such an order, agreement or
assessment.
(5) For the purposes of subsection (4),
a jurisdiction may be declared to be an excepted reciprocating jurisdiction, in
relation to a maintenance order or agreement, or a child support assessment,
only if the enforcement in the jurisdiction of such an order, agreement or
assessment would not be permitted by the law of the jurisdiction.
(6) A request under subsection (2) is
not a legislative instrument.
31
Effect of registration on existing garnishment and attachment of earnings
orders
Where, on the day on which a registered
maintenance liability first becomes enforceable under this Act or again becomes
enforceable under this Act, a garnishment or attachment of earnings order made
by a court under the Family Law Act 1975, the Matrimonial Causes Act
1959 or the law of a State or Territory is in force in relation to the
liability, the order ceases to have effect in so far as it relates to amounts
payable under the liability in relation to the child support enforcement
period.
32
Payer and payee to be given copy of entry in Child Support Register on
application
(1) The payer or payee of a registered
maintenance liability may apply to the Registrar requesting that a copy of the
entry in the Child Support Register in relation to the liability be provided to
him or her.
(2) The application must be made in the
manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
(3) The Registrar must comply with the
request.
Division 3—Variations to entries in Child Support Register
33
Payee to notify Registrar of court order varying registered maintenance liability
etc.
(1) Where:
(a) under this Act, the Assessment Act,
the Family Law Act 1975 or the law of a State or Territory:
(i) an order is made by,
or registered in, a court; or
(ii) a maintenance
agreement is registered in, or approved by, a court; and
(b) the order or agreement varies or
otherwise affects a registered maintenance liability (other than a registered
maintenance liability that is not enforceable under this Act because of an
election made under section 38A or a decision of the Registrar under
section 38B);
the payee of the registered maintenance liability shall,
within 14 days after the day on which the order is made by, or registered in,
the court or the agreement is registered in, or approved by, the court, give
notice to the Registrar, in the manner specified by the Registrar, in relation
to the order or agreement.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(2) A person who contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding
$1,000.
(2A) Subsection (2) is an offence of strict
liability.
(3) It is a defence to a prosecution for an
offence against subsection (2) 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 or registration of the relevant order or of the
registration or approval of the relevant maintenance agreement, as the case may
be.
34
Payee to notify Registrar of happening of affecting event
(1) The payee of an enforceable maintenance
liability shall, within 14 days after the happening of an affecting event in
relation to the liability (other than, in a case where the liability relates to
the maintenance of a child, the child attaining 18 years of age), give notice
to the Registrar, in the manner specified by the Registrar, of the affecting
event.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(2) A person who contravenes subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding
$1,000.
(2A) Subsection (2) is an offence of strict
liability.
(3) It is a defence to a prosecution for an
offence against subsection (2) if the person charged proves that the
person notified the Registrar of the happening of the relevant affecting event
as soon as reasonably practicable after becoming aware of the happening of the
event.
(4) This section does not apply in relation
to a liability that arises under a child support assessment.
(5) This section does not apply to an
enforceable maintenance liability that is a registrable overseas maintenance
liability.
35
Payer may apply to Registrar for variation of Child Support Register
(1) The payer of a registered maintenance
liability may apply to the Registrar, in the manner specified by the Registrar,
for the variation of particulars entered in the Child Support Register in
relation to the liability to enable a court order or court registered
maintenance agreement that varies or otherwise affects the liability to be
given effect to under this Act.
(2) The payer of an enforceable maintenance
liability may apply to the Registrar, in the manner specified by the Registrar,
for the variation of particulars entered in the Child Support Register in
relation to the liability to take account of the happening of an affecting
event in relation to the liability.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
(3) This section does not apply in relation
to a liability that arises under a child support assessment.
36
Registrar to vary Child Support Register on receipt of notification or
application
(1) When the Registrar receives under
subsection 33(1), 34(1) or 35(1) or (2) an application or notice (as the case
may be) from the payee or payer of a registrable maintenance liability, the
Registrar must, within 28 days after receipt of the application or notice, make
such variations (if any) to the particulars entered in the Child Support
Register in relation to the liability as the Registrar considers necessary or
desirable to:
(a) enable the relevant order or
maintenance agreement to be given effect to under this Act; or
(b) take account of the happening of
the relevant affecting event;
as the case requires.
(2) However, if either the payer or the payee
is a resident of a reciprocating jurisdiction, the Registrar has 90 days to
make the variations, instead of 28 days.
37
Registrar may vary Child Support Register to give effect to court order etc.
Where the Registrar is of the opinion
(otherwise than because of the receipt of an application or notice (as the case
may be) under subsection 33(1), 34(1) or 35(1) or (2)):
(a) that, under this Act, the Assessment
Act, the Family Law Act 1975 or the law of a State or Territory:
(i) an order has been made
by, or registered in, a court; or
(ii) a maintenance
agreement has been registered in, or approved by, a court;
and the order or agreement
varies or otherwise affects a registered maintenance liability; or
(b) that an affecting event in
relation to an enforceable maintenance liability has happened;
the Registrar shall make such variations (if any) to the
particulars entered in the Child Support Register in relation to the liability
as the Registrar considers necessary or desirable to enable the order or
agreement to be given effect to under this Act or to take account of the
happening of the event, as the case may be.
37A
Registrar to vary Child Support Register on amendment of child support
assessment
Where the Registrar amends a child
support assessment under which a registrable maintenance liability arose, the
Registrar must immediately make such variations (if any) to the particulars
entered in the Child Support Register in relation to the liability as the
Registrar considers necessary or desirable to enable the amendment to be given
effect to under this Act.
37B
Registered maintenance liability not to be enforced if payer is a low‑income
recipient of a social security pension or a social security benefit
Object
(1) The object of this section is to provide
for the non‑enforcement of certain registered maintenance liabilities
during the subsistence of a low‑income non‑enforcement period.
Payer may apply to have liability no longer enforced
under Act
(2) If the payer of an enforceable
maintenance liability covered by subsection 17(1) or arising under a
maintenance order made by, or a maintenance agreement registered by, a judicial
authority of a reciprocating jurisdiction:
(a) is in receipt of a social security
pension or a social security benefit; or
(b) has made a claim for a social
security pension or a social security benefit;
the payer may apply to the Registrar, in the manner
specified by the Registrar, to have the liability no longer enforced under this
Act.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
Court orders etc. dealing with unemployment etc.
(3) The payer is not entitled to make an
application under subsection (2) if:
(a) the liability is covered by
subparagraph 17(1)(b)(i); and
(b) the court order or court
registered maintenance agreement concerned provides, either directly or
indirectly, for the reduction of amounts payable under the liability during
periods when:
(i) the payer is
unemployed; or
(ii) the payer’s income is
substantially reduced.
Start of low‑income non‑enforcement period
(4) For the purposes of this section, if the
payer of a registered maintenance liability:
(a) makes an application under subsection (2);
and
(b) is taken, under the regulations,
to satisfy the prescribed income test in relation to the first instalment of a
social security pension or a social security benefit paid to the payer after
the day on which the application was made;
a low‑income non‑enforcement period
in relation to the liability:
(c) begins on whichever of the
following days is applicable:
(i) the day on which the
application was made;
(ii) an earlier day
determined by the Registrar, being a day that is on or after the day on which
the payer commences to receive a social security pension or a social security
benefit; and
(d) continues until the time worked
out under subsection (5).
End of low‑income non‑enforcement period
(5) For the purposes of this section, a low‑income
non‑enforcement period in relation to a registered maintenance
liability ends at whichever is the earliest of the following:
(a) when the payer of the liability
ceases to receive a social security pension or a social security benefit;
(b) if the payer of the liability is
taken, under the regulations, not to satisfy the prescribed income test in
relation to an instalment of a social security pension or a social security
benefit paid to the payer for a particular fortnight—the beginning of that
fortnight;
(c) when the liability ends.
Non‑enforcement of liability—variation of Child
Support Register
(6) If a low‑income non‑enforcement
period in relation to a registered maintenance liability begins, the Registrar
must, as soon as practicable, vary the particulars entered in the Child Support
Register in relation to the liability by specifying the beginning of the low‑income
non‑enforcement period as the time at which the liability ceases to be
enforceable under this Act. However, this rule does not apply if, immediately
before the low‑income non‑enforcement period, the liability had
already ceased to be enforceable under this Act because of section 38A,
38B or 39B.
Resumption of enforcement of liability—variation of
Child Support Register
(7) If a low‑income non‑enforcement
period in relation to a registered maintenance liability ends, the Registrar:
(a) must, as soon as practicable, vary
the particulars entered in the Child Support Register in relation to the
liability by specifying the end of the low‑income non‑enforcement
period as the time at which the liability again becomes enforceable under this
Act; and
(b) may make such variations (if any)
to those particulars as the Registrar considers necessary or desirable:
(i) to enable a court
order or court registered maintenance agreement that varies or otherwise
affects the liability to be given effect to under this Act; or
(ii) to take account of the
happening of an affecting event in relation to the liability.
However, these rules do not apply if, immediately before
the low‑income non‑enforcement period, the liability had ceased to
be enforceable under this Act because of section 38A, 38B or 39B.
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.
Definitions
(8) In this section:
social security benefit has the same meaning
as in the Social Security Act 1991.
social security pension has the same meaning
as in the Social Security Act 1991.
38
Variation of Register to have enforceable maintenance liability no longer
enforced under Act
The Registrar must vary the particulars
in the Child Support Register in relation to an enforceable maintenance
liability so that the liability is no longer enforced under this Act if:
(a) the payee of the liability makes
an election under section 38A; or
(b) the payee and payer of the liability
jointly make an election under section 38A; or
(c) the Registrar makes a decision
under section 38B.
38A
Election by payee or by payee and payer jointly
(1) The payee of an enforceable maintenance
liability, or the payee and payer jointly, may make an election to have the
liability no longer enforced under this Act.
(2) An election under this section must be
made in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an election may be made.
(3) Within 28 days after receiving the
election, the Registrar must:
(a) vary the particulars relating to
the liability in the Child Support Register by specifying a day (not later than
60 days after the day on which the Registrar received the election) as the day
on which the liability ceases to be enforceable under this Act (the terminating
day); and
(b) if the payee, or the payee and
payer jointly, have elected to have amounts payable under the liability in relation
to the child support enforcement period that are unpaid on the
terminating day also no longer enforced under this
Act—vary the particulars so as to ensure that, in spite of section 30,
those amounts cease to be debts due by the payer to the Commonwealth.
(3A) However, if either the payer or the payee
is a resident of a reciprocating jurisdiction, the Registrar has 90 days to
vary the relevant particulars, instead of 28 days.
(4) The Registrar must not make a variation
under paragraph (3)(a) by specifying a day that is included in a period
that is a low‑income non‑enforcement period under section 37B
in relation to the liability. If that day is included in that period, the
Registrar must not take action under paragraph (3)(b) in relation to that
day.
38B
Decision by Registrar based on payment record and other factors
(1) The Registrar may decide that an
enforceable maintenance liability should no longer be enforced under this Act
if all the following conditions are met:
(a) the payer is taken, under the
regulations, to have a satisfactory payment record in relation to the previous
6 months;
(b) the Registrar is satisfied that
the payer is likely to continue to have a satisfactory payment record;
(c) the Registrar is satisfied that a
decision under this section is appropriate in relation to the liability.
(2) If the Registrar makes a decision under subsection (1),
the Registrar must vary the particulars relating to the liability in the Child
Support Register by specifying a day (not earlier than 28 days after the
day on which the Registrar makes the decision) as the day on which the
liability ceases to be enforceable under this Act.
(3) If, before the day specified in a
variation under subsection (2), the Registrar decides to revoke the
decision that gave rise to the variation, the Registrar must vary the
particulars concerned in the Child Support Register to give effect to the
revocation.
(4) The revocation takes effect on the day
the Registrar varies the particulars concerned.
38C
Election not to enforce—registered maintenance liability
(1) If a registered maintenance liability of
a kind mentioned in section 18A is not enforceable because of an election
under section 38A, an amount unpaid under the relevant maintenance
assessment, order or agreement is a debt due and payable by the payer to the
payee.
(2) A debt due under this section is
recoverable by the payee from the payer in a court of competent jurisdiction.
39
Application for variation to enable liability to again become enforceable under
Act
(1) If a registered maintenance liability is
not enforceable under this Act because of an election made under section 38A
or a decision by the Registrar under section 38B, the payee may apply to
the Registrar for the liability to again become enforceable under this Act.
(2) The application must be made in the
manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
(3) An application cannot be made in relation
to a liability during a period that is a low‑income non‑enforcement
period under section 37B in relation to the liability.
(4) Within 28 days after receiving an
application under subsection (1), the Registrar must grant or refuse the
application.
(4A) However, if either the payer or the payee
is a resident of a reciprocating jurisdiction, the Registrar has 90 days to
grant or refuse the application, instead of 28 days.
(5) The Registrar must grant the application
if:
(a) the payer is taken, under the
regulations, to have an unsatisfactory payment record; or
(b) the Registrar is satisfied that
special circumstances exist in relation to the liability which make it
appropriate to grant the application.
(6) If the Registrar grants the application,
the Registrar must:
(a) vary the particulars relating to
the liability in the Child Support Register by specifying a day (not later than
60 days after the day on which the Registrar received the application) as the
day on which the liability again becomes enforceable under this Act; and
(b) may make any variations to those
particulars that the Registrar considers necessary or desirable:
(i) to enable a court
order or court registered maintenance agreement that varies or otherwise
affects the liability to be given effect under this Act; or
(ii) to take account of the
happening of an affecting event in relation to the liability.
(7) The Registrar must not make a variation
under subsection (6) by specifying a day that is included in a period that
is a low‑income non‑enforcement period under section 37B in
relation to the liability. If that day is included in that period, the
Registrar must not take action under paragraph (6)(b) in relation to that
day.
39A
Reversal of section 38A election or 38B decision—collection of arrears
When section applies
(1) This section applies if a payee applies
under subsection 39(1) for a liability to again become enforceable under this
Act.
Section 38A or 38B non‑enforcement period
(2) For the purposes of this section, the section 38A
or 38B non‑enforcement period is the period:
(a) beginning when the liability
ceased to be enforceable under this Act as a result of the operation of section 38A
or 38B; and
(b) ending when the liability again
becomes enforceable under this Act as a result of the operation of section 39.
Maximum arrears period
(3) For the purposes of this section, the maximum
arrears period is the period:
(a) beginning at whichever is the
latest of the following times:
(i) 9 months before the
end of the section 38A or 38B non‑enforcement period;
(ii) the start of the
section 38A or 38B non‑enforcement period;
(iii) the commencement of
this section; and
(b) ending at the end of the section 38A
or 38B non‑enforcement period.
Application by payee for enforcement of arrears
(4) The payee may apply to the Registrar, in
the manner specified by the Registrar, for any unpaid amounts payable under the
liability in relation to a specified period to be treated as arrears amounts
for the purposes of this section. The specified period must:
(a) consist
of, or be included in, the maximum arrears period; and
(b) end
at the end of the maximum arrears period.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
Registrar’s decision—arrears for 3 months or less
(5) If the specified period does not exceed 3
months, the Registrar must grant the payee’s application.
Registrar’s decision—arrears for more than 3 months
(6) If the specified period exceeds 3 months,
then:
(a) if the Registrar is satisfied that
there are exceptional circumstances—the Registrar must grant the payee’s
application; or
(b) if:
(i) the Registrar is not
satisfied that there are exceptional circumstances; and
(ii) unpaid amounts are
payable under the liability in relation to the period of 3 months that ended at
the end of the maximum arrears period;
the Registrar must:
(iii) treat the payee’s
application as if the specified period were the period of 3 months that ended
at the end of the maximum arrears period; and
(iv) grant the payee’s
application; or
(c) if:
(i) the Registrar is not
satisfied that there are exceptional circumstances; and
(ii) no unpaid amounts are
payable under the liability in relation to the period of 3 months that ended at
the end of the maximum arrears period;
the Registrar must refuse to
grant the payee’s application.
Consequences of successful application
(7) If the
Registrar grants the payee’s application:
(a) this
Act has effect as if:
(i) the unpaid amounts
were payable under the liability in relation to the child support enforcement
period that began immediately after the end of the section 38A or 38B non‑enforcement
period; and
(ii) the unpaid amounts
became child support debts immediately after the end of the section 38A or
38B non‑enforcement period; and
(b) the Registrar must make such
variations to the particulars entered in the Child Support Register in relation
to the liability as the Registrar considers necessary or desirable to give
effect to this subsection.
Amounts that would have been credited under section 71C
(8) To avoid doubt, a reference in this
section to an unpaid amount payable under a liability does not include a
reference to any amount that would have been credited against that liability
under section 71C if the liability had been an enforceable maintenance
liability at all relevant times.
39B
Amounts not enforceable under this Act during periods when the payee is not the
main provider of ongoing daily care for a child
When this section applies
(1) This section applies if:
(a) at a particular time after the
commencement of this section, the payee of an enforceable maintenance liability
covered by subsection 17(1) is the main provider of ongoing daily care for a
particular child covered by the liability; and
(b) at a later time (the cessation
time) the payee ceases to be the main provider of ongoing daily care
for the child.
Overall non‑care period
(2) For the purposes of this section, the overall
non‑care period is the period:
(a) beginning at the cessation time;
and
(b) ending at whichever is the earlier
of the following:
(i) when the payee next
resumes being the main provider of ongoing daily care for the child;
(ii) when the liability
ends.
Joint election by payer and payee
(3) During the overall non‑care period,
the payer and payee may jointly elect, by applying to the Registrar in the
manner specified by the Registrar, to have so much of the liability as is
attributable to the child no longer enforced under this Act. The election takes
effect at whichever of the following times is applicable:
(a) if the election is made within 28
days after the start of the overall non‑care period—the start of the
overall non‑care period;
(b) in any other case—when the
election is made.
However, the election does not take effect if the applicable
time is included in a period that is a low‑income non‑enforcement
period in relation to the liability for the purposes of section 37B.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
Consequences of election under subsection (3)
(4) If an election is made under subsection (3):
(a) if the child is the only child
covered by the liability—the liability ceases to be enforceable under this Act
after the applicable time; or
(b) in any other case—this Act has
effect in relation to the liability, after the applicable time, as if a
reference in this Act to amounts payable under the liability did not include a
reference to an amount attributable to the child.
Note: Paragraph (4)(b) could result in the liability
becoming partially unenforceable under this Act.
Reversal of election
(5) If:
(a) so much of the liability as is
attributable to the child is not enforceable under this Act because of an
election made under subsection (3); and
(b) the overall non‑care period
ends;
the payer or the payee may elect, by applying to the
Registrar in the manner specified by the Registrar, to have so much of the
liability as is attributable to the child again become enforceable under this
Act.
When reversal of election takes effect
(6) An election under subsection (5)
takes effect at whichever of the following times is applicable:
(a) if the election is made within 28
days after the end of the overall non‑care period—the end of the overall
non‑care period;
(b) in any other case—when the
election is made.
However, the election does not take effect if the
applicable time is included in a period that is a low‑income non‑enforcement
period in relation to the liability for the purposes of section 37B.
Consequences of reversal of election
(7) An election under subsection (5) has
effect accordingly.
Registrar to vary Register
(8) If an election is made under this
section, the Registrar must, as soon as practicable, make such variations to
the particulars entered in the Child Support Register in relation to the
liability as the Registrar considers necessary or desirable to give effect to subsection (4)
or (7), as the case requires.
Election form may include declaration
(9) A form of election made by a person or
persons under this section may require the person or persons, as the case
requires, to make a declaration about the circumstances relating to the
beginning or end of the overall non‑care period.
Partial unenforceability
(10) A reference in this Act to a liability
that is enforceable under this Act includes a reference to a liability that is
partially unenforceable under this Act as a result of paragraph (4)(b).
40
Entry wrongly existing in Child Support Register
Where the Registrar is satisfied that an
entry wrongly exists in the Child Support Register, the Registrar shall delete
the entry from the Child Support Register.
41
Obsolete entries in Child Support Register
Where the Registrar is satisfied
(whether because of the happening of a terminating event in relation to an
enforceable maintenance liability or the length of time that has elapsed since
a registered maintenance liability was an enforceable maintenance liability)
that the entry in the Child Support Register in relation to the liability is
obsolete, the Registrar may delete the entry from the Child Support Register.
42
Correction of clerical errors and other mistakes in Child Support Register
Where the Registrar is satisfied that a
clerical error or other mistake exists in particulars entered in the Child
Support Register in relation to a registered maintenance liability, the
Registrar may vary the particulars for the purpose of correcting the error or
mistake.
42A
Registrar may vary Child Support Register to change period entered under
paragraph 26(2)(b) to reflect pay cycle
(1) If:
(a) the Registrar is collecting
amounts due to the Commonwealth under, or in relation to a registered
maintenance liability, by deduction from the salary or wages of the payer of
the liability; and
(b) the Registrar becomes aware, other
than by means of a notice referred to in paragraph 42B(1)(a) or (b), that the
period of the payer’s pay cycle is different from the payment period entered in
the Child Support Register under paragraph 26(2)(b) in respect of the payer;
the Registrar may vary the particulars in the Child
Support Register by deleting the period in the Register and substituting
another payment period and start day of the period.
(2) The period that the Registrar must
register in substitution is the payment period that reflects the payer’s pay
cycle. The start day that the Registrar must register is the day specified by
the Registrar as the start day of the period.
Note: For payment period see
subsection 4(1).
42B
Registrar may vary Child Support Register if payer’s pay cycle changes
(1) If:
(a) the Registrar receives:
(i) a notice under
subsection 47(1) from an employer who is making deduction from a payer’s salary
or wages; or
(ii) a notice from an payer
under subsection 111(1) (Notification of commencement of employment); and
(b) the notice indicates that the
period of the payer’s pay cycle is different from the payment period entered in
the Child Support Register under paragraph 26(2)(b) in respect of the payer;
the Registrar must, within 28 days of receiving the
notice, vary the particulars in the Child Support Register by deleting the
period and start day in the Register and substituting another payment period
and start day.
(2) The period
that the Registrar must register in substitution is the payment period that
reflects the payer’s pay cycle. The start day that the Registrar must register
is the day specified by the Registrar as the start day.
Note: For payment period see
subsection 4(1).
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) Subject to section 42D (notices in
relation to registrable overseas maintenance liabilities), 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.
42D
Content of notices in relation to registration decisions for registrable
overseas maintenance liabilities
(1) In the case of a registrable overseas
maintenance liability, a notice served on a person under section 42C must,
if the reciprocating jurisdiction in which the liability arose provides for
review of the liability, include, or be accompanied by, a statement to the
effect that a person aggrieved by the decision notified under that section may
seek review of the liability by a judicial or administrative authority of the
jurisdiction.
(2) If the registrable maintenance liability:
(a) arises under a maintenance order
made by a judicial authority of a reciprocating jurisdiction (other than a
prescribed reciprocating jurisdiction); or
(b) arises under a maintenance
assessment issued by an administrative authority of a reciprocating
jurisdiction (other than a prescribed reciprocating jurisdiction);
subsections (3) and (4) also apply in relation to the
notice given under section 42C.
(3) The notice served under section 42C
on a person against whom the maintenance order or assessment was made must also
include, or be accompanied by:
(a) if the person:
(i) did not have notice of
the proceedings giving rise to the maintenance order or assessment; and
(ii) did not appear in
those proceedings; and
(iii) did not consent to the
making of the maintenance order or assessment;
a statement to the effect that,
if the person makes an application under subregulation 36(2) of the Family
Law Regulations 1984, the person may raise any matter that the person could
have raised under Part VII or VIII of the Family Law Act 1975 if
the proceedings giving rise to the maintenance order or assessment had been
heard in Australia; or
(b) in any other case—a statement to
the effect that the person may make an application under subregulation 36(2) of
the Family Law Regulations 1984.
(4) The notice served under section 42C
on a person for whose benefit the maintenance order or assessment referred to
in subsection (2) was made must also include, or be accompanied by, a
statement to the effect that the person may make an application under
subregulation 36(2) of the Family Law Regulations 1984.
(5) If the registrable maintenance liability
arises under a maintenance agreement that has been registered by a judicial or
administrative authority of a reciprocating jurisdiction (other than a
prescribed reciprocating jurisdiction), subsection (6) also applies in
relation to the notice given under section 42C.
(6) The notice served under section 42C
on a person who is the payer or payee under a maintenance agreement must also
include, or be accompanied by, a statement to the effect that the person may
make an application under subregulation 36(2) of the Family Law Regulations
1984.
Note: Regulation 38 of the Family Law Regulations
1984 affects the order that may be made under regulation 36 of those
regulations.
Part IV—Collection by deduction from salary or wages
Division 1—Employer withholding
43
General rule of collection by automatic withholding in case of employees
(1) Subject to subsection (2), where the
payer of an enforceable maintenance liability is an employee, the Registrar
shall, as far as practicable, collect amounts due to the Commonwealth under or
in relation to the liability by deduction from the salary or wages of the payer
under this Part.
(2) Subsection (1) applies in relation
to an enforceable maintenance liability whether or not the particulars in the
entry in the Child Support Register in relation to the liability contain a statement
that employer withholding applies in relation to the liability, but does not
apply in relation to the liability if, by virtue of section 44, the
particulars contain a statement that employer withholding does not apply in
relation to the liability.
44
Cases in which employer withholding not applicable
(1) If:
(a) the payer of an enforceable
maintenance liability elects that employer withholding is not to apply in
relation to the liability; and
(b) the Registrar is satisfied that
the payer is likely to make timely payments to the Registrar under the
liability;
the Registrar must, within 28 days after receiving the
election, vary the particulars of the entry in the Child Support Register in
relation to the liability so that they contain a statement that employer
withholding does not apply in relation to the liability.
(2) If:
(a) the Registrar is about to register
a registrable maintenance liability; and
(b) either before or after becoming
the payer, the person who is the payer elected that employer withholding is not
to apply in relation to the liability; and
(c) the Registrar is satisfied that
the payer is likely to make timely payments to the Registrar under the
liability;
the Registrar must, when registering the liability,
include a statement that employer withholding does not apply in relation to the
liability.
(3) An election under subsection (1) or
(2) must be made to the Registrar in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an election may be made.
(5) If:
(a) because of subsection (1) or
(2), the particulars of the entry in the Child Support Register in relation to
an enforceable maintenance liability contain a statement that employer
withholding does not apply in relation to the liability; and
(b) the payer does not make timely
payments to the Registrar under the liability;
the Registrar must vary those particulars so that they
contain a statement that employer withholding applies in relation to the
liability.
(5A) The Registrar is not required to vary
particulars under subsection (5) if the Registrar is satisfied that:
(a) the collection of payments due
under the liability by deduction from the salary or wages of the payer under
this Part would not be an efficient method of collecting those payments; or
(b) the payer is likely to recommence
timely payments to the Registrar under the liability in the near future.
(6) Where the Registrar is satisfied that, in
the special circumstances of a particular case, the collection of payments due
under an enforceable maintenance liability by deduction from the salary or
wages of the payer under this Part would not be an efficient method of
collecting those payments, the Registrar may include in the particulars of the
entry in the Child Support Register in relation to the liability a statement
that employer withholding does not apply in relation to the liability or may
vary those particulars so that they contain such a statement, as the case
requires.
(7) If:
(a) because of subsection (6),
the particulars of the entry in the Child Support Register in relation to an
enforceable maintenance liability contain a statement that employer withholding
does not apply in relation to the liability; and
(b) the payer does not make timely
payments to the Registrar under the liability;
the Registrar must vary those particulars so that they
contain a statement that employer withholding applies in relation to the
liability.
(7A) The Registrar is not required to vary
particulars under subsection (7) if the Registrar is satisfied that:
(a) the collection of payments due
under the liability by deduction from the salary or wages of the payer under
this Part would not be an efficient method of collecting those payments; or
(b) that the payer is likely to
recommence timely payments to the Registrar under the liability in the near
future.
(7B) A payer of an enforceable maintenance
liability may not make an election under subsection (1) if, within the
previous 6 months, employer withholding started to apply in relation to the
liability because of a variation made under subsection (5) or (7).
(7C) If a payer of an enforceable maintenance
liability has made an election under subsection (1) or (2) in relation to
the liability that has been rejected by the Registrar, the payer may not make
an election under subsection (1) in relation to the liability within 2
months after that rejection.
(8) Where:
(a) by virtue of subsection (6),
the particulars of the entry in the Child Support Register in relation to an
enforceable maintenance liability contain a statement that employer withholding
does not apply in relation to the liability; and
(b) the Registrar becomes satisfied
that the collection of payments due under the liability by deduction from the
salary or wages of the payer under this Part would be an efficient method of
collecting those payments;
the Registrar shall vary those particulars so that they
contain a statement that employer withholding applies in relation to the
liability.
(9) In determining for the purposes of subsections (5)
to (8) (inclusive) whether the collection of payments due under an enforceable
maintenance liability by deduction from the salary or wages of the payer under
this Part would be an efficient method of collecting those payments, the
Registrar shall have regard in particular to the need to ensure that the
payments are received by the Registrar on a timely basis.
(10) If the period at which amounts are payable
under an enforceable maintenance liability exceeds one month, the Registrar
shall include in the particulars of the entry in the Child Support Registrar in
relation to the liability a statement that employer withholding does not apply
in relation to the liability.
45
Notification to be given to employer and employee
(1) The Registrar may, for the purpose of
collecting amounts due to the Commonwealth under or in relation to an
enforceable maintenance liability by deduction from the salary or wages of the
payer under this Part, give a notice in writing to an employer of the payer:
(a) specifying the name of the payer
and other particulars of the payer sufficient to enable the payer to be
identified by the employer; and
(b) instructing the employer:
(i) to make in accordance
with section 46, as from a specified day, periodic deductions in
accordance with the specified weekly deduction rate from salary or wages paid
by the employer to the payer; and
(ii) to pay to the
Registrar in accordance with subsection 47(1) amounts so deducted.
(2) Where:
(a) particulars entered in the Child
Support Register in relation to an enforceable maintenance liability are
varied; and
(b) the Registrar is of the opinion
that the revocation or variation of a notice in force under subsection (1)
in relation to the liability is necessary or desirable to take account of the
variations made to those particulars;
the Registrar shall forthwith give a notice in writing to
the employer to whom the notice was given varying or revoking accordingly the
earlier notice given to the employer.
(2A) Where the Registrar thinks that the
variation of a notice in force under subsection (1) in relation to an
enforceable maintenance liability is necessary or desirable for the purpose of
collecting amounts already due to the Commonwealth under or in relation to the
liability by deduction from the salary or wages of the payer under this Part,
the Registrar must immediately give a written notice to the employer to whom
the notice was given varying the notice accordingly.
(3) Where the Registrar gives a notice under subsection (1),
(2) or (2A) to an employer in relation to the payer of an enforceable
maintenance liability, the Registrar shall forthwith give a copy of the notice
to the payer.
46
Duty of employer to make deductions from salary or wages
(1) Subject to this section, where an
employer pays salary or wages to an employee in relation to whom a notice given
to the employer under subsection 45(1) is in force, the employer shall, at the
time of paying the salary or wages, make a deduction from the salary or wages
in accordance with this section.
Penalty: $1,000.
(1A) Subsection (1) is an offence of strict
liability.
(2) Subject to subsection (4), the
amount of the deduction is the amount ascertained by applying the weekly
deduction rate specified in the notice to the period in relation to which the
salary or wages are paid.
(3) Where the amount of the salary or wages
is less than the amount (in subsection (4) called the protected
earnings amount) ascertained by applying the protected earnings rate to
the period in relation to which the salary or wages are paid, no deduction
shall be made.
(4) Where the amount of the salary or wages
exceeds the amount of the deduction that would, but for this subsection, be
required to be made from the salary or wages by less than the protected
earnings amount, the amount of the deduction is the amount by which the amount
of the salary or wages exceeds the protected earnings amount.
(5) Where a person (in this subsection called
the convicted person) is convicted before a court of an offence
against subsection (1) in relation to the refusal or failure of the
convicted person or another person to make a deduction from salary or wages in
accordance with this section, the court may, in addition to imposing a penalty
on the convicted person, order the convicted person to pay to the Registrar, as
a debt due to the Commonwealth, an amount not exceeding the amount of the
deduction.
(6) For the purposes of this section, where
an employer pays an amount of salary or wages to an employee, then:
(a) if the amount is paid in relation
to piece‑work performed by the employee or in relation to services
rendered under a contract that is wholly or principally for the labour of the
employee—the amount shall be taken to be paid in relation to the period:
(i) that began when the
work or services began; and
(ii) that ended when the
work or services ended;
(b) if the amount is paid in relation
to any other work performed or services rendered, but not in relation to a
particular period—the amount shall be taken to be paid in relation to the
period of 52 weeks preceding the day on which the amount is paid; and
(c) if the employee is entitled to be
paid the amount in relation to a period of longer than one week—the employer
shall be deemed to have paid an amount of salary or wages to the employee in
relation to each week or part of a week in the period, being the amount
ascertained by dividing the amount of salary or wages in fact paid by the
number of days in the period and multiplying the resultant amount:
(i) in the case of each
week—by 7; and
(ii) in the case of a part
of a week—by the number of days in the part of the week.
(7) Where salary or wages for a week or part
of a week is or are paid by an employer in 2 or more separate amounts, all the
amounts shall, for the purposes of this section, be aggregated, and the
employer may make the deduction wholly from one amount or partly from 2 or more
amounts.
(8) For the purposes of subsections (3)
and (4), the amount of any salary or wages shall be taken to be the amount of
the salary or wages after amounts (if any) that are required to be withheld
from the salary or wages under Part 2‑5 in Schedule 1 to the Taxation
Administration Act 1953 have been withheld.
(9) Subsection (1) has, and is taken to
have had, no effect to the extent (if any) that it is inconsistent with
paragraph 72(iii) or 103(iii) of the Constitution.
47
Additional duties of employers
(1) An employer who has during any month made
deductions under this Part shall, not later than the seventh day of the
following month:
(a) pay to the Registrar the amounts
so deducted; and
(b) give notice to the Registrar in
the manner specified by the Registrar.
Penalty: $5,000 or imprisonment for 12 months, or both.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(1A) Where:
(a) a notice given to an employer
under subsection 45(1) in relation to an employee is in force at any time
during a month; and
(b) the employer does not during the
month make deductions under this Part in relation to the employee;
the employer must, not later than the seventh day of the
following month, give to the Registrar notice in the manner specified by the
Registrar.
Penalty: $1,000.
(2) When an employer makes a payment of
salary or wages to an employee in relation to whom a notice given to the
employer under subsection 45(1) is in force, the employer shall notify the
employee, in writing:
(a) of the amount of the deduction
made under this Part from the salary or wages; or
(b) that no deduction has been made
under this Part from the salary or wages;
as the case requires.
Penalty: $1,000.
(3) Where, in any month, an employee in
relation to whom a notice given to an employer under subsection 45(1) is in
force ceases to be an employee of the employer, the employer shall, not later
than the seventh day of the following month, notify the Registrar in the manner
specified by the Registrar.
Penalty: $500.
(3A) Subsections (1A), (2) and (3) are
offences of strict liability.
(4) The Registrar may, by notice in writing
served on an employer, vary in relation to the employer, in such instances and
to such extent as the Registrar thinks fit, any of the requirements of subsections (1),
(1A), (2) and (3).
48 Two
or more employers in relation to one employee
Where a person who is the payer of an
enforceable maintenance liability is in receipt of salary or wages from 2 or
more employers, the Registrar may:
(a) treat any one of the employers as
the only employer for the purposes of this Part; or
(b) apply sections 46 and 47 in
relation to any 2 or more of the employers with such modifications as the
Registrar considers appropriate, being modifications made for the purpose of
ensuring that the amounts collected under this Part in relation to the
liability are, in the aggregate, the same as those that would be collected in
relation to the liability if the payer had only one employer.
49
Discharge of payer’s liability to Registrar and employer’s liability to payer
Where an employer deducts an amount
under this Part from the salary or wages of the payer of an enforceable
maintenance liability:
(a) the payer is, to the extent of the
amount deducted, discharged from the payer’s liability to make payments to the
Registrar under or in relation to the liability, as the case requires; and
(b) the employer is discharged from
liability to pay the amount to any person other than the Registrar.
50
Payment by trustees of deducted amounts
(1) Where:
(a) an amount is payable to the
Registrar by an employer under subsection 47(1) (including that subsection as
varied under subsection 47(4)); and
(b) the property of the employer has
become vested in, or the control of the property of the employer has passed to,
a trustee;
the trustee is liable to pay the amount to the Registrar.
(2) Notwithstanding any other law of the
Commonwealth or any law of a State or Territory:
(a) an amount payable to the Registrar
by a trustee under subsection (1) has priority over all other debts (other
than amounts payable under former subsection 221YHZD(3) of the Income Tax
Assessment Act 1936), whether preferential, secured or unsecured;
(b) where an amount is payable by a
trustee to the Registrar under former subsection 221YHZD(3) of the Income
Tax Assessment Act 1936, an amount payable by the trustee under subsection (1)
of this section ranks equally with the amount payable under whichever of those
subsections is applicable in priority to all other debts, whether preferential,
secured or unsecured.
Note: The subsection of the Income Tax Assessment
Act 1936 referred to in paragraphs (a) and (b) do not apply to
liabilities arising after 30 June 1993.
(3) Where a trustee, being a trustee of an
estate of a bankrupt or a liquidator of a company that is being wound up, is
liable to pay an amount to the Registrar under subsection (1), subsection (2)
does not have the effect that the amount is payable in priority to any costs,
charges or expenses of the administration of the estate or of the winding up of
the company (including costs of a creditor or other person on whose petition
the sequestration order or the winding up order (if any) was made and the
remuneration of the trustee) that are lawfully payable out of the assets of the
estate or of the company except where, in the case of the winding up of a
company, the Crown in right of a State or of the Northern Territory or Norfolk
Island or any other creditor is entitled to payment of a debt by the
liquidator, in priority to all or any of those costs, charges and expenses and
has not waived that priority.
Division 2—Penalties
51
Penalty for late remittance of deductions
Where an amount (in this section called
the principal amount) payable to the Registrar by an employer
other than the Commonwealth under subsection 47(1) (including that subsection
as varied under subsection 47(4)) remains unpaid after the time by which it is
required to be paid:
(a) the principal amount continues to
be payable by the employer to the Registrar; and
(b) the employer is liable to pay to the
Registrar, by way of penalty:
(i) in a case where the
employer is a government body—an amount at the rate of 20% per annum on so much
of the principal amount as remains unpaid, computed from that time; and
(ii) in any other case:
(A) an
amount (in this subparagraph called the relevant penalty amount)
equal to 20% of the principal amount; and
(B) an
amount at the rate of 20% per annum on so much of the principal amount as
remains unpaid and so much of the relevant penalty amount as remains unpaid, computed
from that time.
52
Penalty for failure etc. to make deductions from salary or wages
Where an employer other than the
Commonwealth contravenes subsection 46(1) in relation to a payment of salary or
wages, the employer is liable to pay to the Registrar, by way of penalty:
(a) an amount equal to 20% per annum
of so much of the amount that the employer refused or failed to deduct from the
payment (in this section called the undeducted amount) as remains
unpaid, computed from the end of the period within which, had the employer
deducted the undeducted amount, the employer would have been required to pay
the undeducted amount to the Registrar; and
(b) in the case of an employer other
than a government body—an amount equal to the undeducted amount.
53 Penalty
in relation to certain unexplained remittances by employers
Where:
(a) the Registrar receives an amount
under paragraph 47(1)(a) from an employer other than the Commonwealth in
relation to a month;
(b) the employer contravenes paragraph
47(1)(b) in relation to the month; and
(c) an amount (in this section called
the appropriated amount) is required to be credited to the
Account under paragraph 78(3)(d) in relation to the employer in relation to the
month;
the employer is liable to pay to the Registrar, by way of
penalty, an amount equal to the appropriated amount.
54
Remission of certain penalty amounts
(1) Where an amount (in this section called
the late payment penalty) is payable by an employer under
subparagraph 51(b)(i), sub‑subparagraph 51(b)(ii)(B) or paragraph 52(a)
in relation to another amount (in this subsection called the principal
amount) that has not been paid and:
(a) the Registrar is satisfied that:
(i) the circumstances that
contributed to the delay in payment of the principal amount were not due to, or
caused directly or indirectly by, an act or omission of the employer; and
(ii) the employer has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
(b) the Registrar is satisfied that:
(i) the circumstances that
contributed to the delay in payment of the principal amount were due to, or
caused directly or indirectly by, an act or omission of the employer;
(ii) the employer has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
and
(iii) having regard to the
nature of those circumstances, it would be fair and reasonable to remit the
late payment penalty or part of the late payment penalty; or
(c) the Registrar is satisfied that
there are special circumstances by reason of which it would be fair and
reasonable to remit the late payment penalty or part of the late payment
penalty;
the Registrar may remit the late payment penalty or part
of the late payment penalty.
(2) The Registrar may remit the whole or part
of any amount payable by an employer under sub‑subparagraph 51(b)(ii)(A),
paragraph 52(b) or section 53.
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.
55
Reduction of late payment penalty where judgment debt carries interest
(1) Where judgment is given by, or entered
in, a court for the payment of:
(a) the whole or a part of a principal
amount; or
(b) an amount that includes the whole
or a part of a principal amount;
then:
(c) the principal amount or the part
of the principal amount, as the case may be, shall not be taken, for the
purposes of subparagraph 51(b)(i), sub‑subparagraph 51(b)(ii)(B) or
paragraph 52(a), as the case may be, to have ceased to be due and payable
merely because of the giving or entering of the judgment; and
(d) if the judgment debt carries
interest, the amount that would, but for this paragraph, be payable under
whichever of those provisions is applicable in relation to the principal amount
or the part of the principal amount shall, by force of this paragraph, be
reduced by:
(i) in a case to which paragraph (a)
applies—the amount of the interest; or
(ii) in a case to which paragraph (b)
applies—an amount that bears the same proportion to the amount of the interest
as the principal amount, or the part of the principal amount, bears to the amount
of the judgment debt.
(2) In subsection (1), principal
amount means:
(a) an amount of the kind referred to
in section 51 as the principal amount;
(b) an amount of the kind referred to
in subparagraph 51(b)(ii) as the relevant penalty amount; or
(c) an amount of the kind referred to
in section 52 as the undeducted amount.
56
Penalty to be alternative to prosecution for certain offences against Part
(1) Where:
(a) but for this subsection, an amount
is payable, by way of penalty, by a person to the Registrar under this Part
because of an act or omission of the person; and
(b) a prosecution is instituted
against the person for an offence against this Part constituted by the act or
omission;
the amount is not payable unless and until the prosecution
is withdrawn.
(2) Where:
(a) a person is liable to pay, by way
of penalty, an amount (in this subsection called the penalty amount)
to the Registrar under this Part because of an act or omission of the person;
(b) an amount (in this subsection
called the credited amount) is paid, or applied by the Registrar,
in total or partial discharge of the liability; and
(c) a prosecution is instituted
against the person for an offence against this Part constituted by the act or
omission;
the credited amount shall be refunded to the person, or
applied by the Registrar in total or partial discharge of a debt due to the
Commonwealth by the person under this Act, but, if the prosecution is
withdrawn, the person again becomes liable to pay the penalty amount.
Division 3—Provisions applicable to employers
57
Employers not to prejudice employees because of registrable maintenance
liabilities etc.
(1) An employer who:
(a) refuses to employ, or to pay
salary or wages to, another person;
(b) dismisses, or threatens to dismiss,
another person from the other person’s employment;
(c) terminates, or threatens to
terminate, the payment of salary or wages to another person;
(d) prejudices, or threatens to
prejudice, another person in the other person’s employment or otherwise in the
receipt of salary or wages; or
(e) intimidates or coerces, imposes
any pecuniary or other penalty on, or takes any other disciplinary action in
relation to, another person;
because the other person:
(f) is the payer of a registrable
maintenance liability; or
(g) is an employee in relation to whom
a notice has been given to the employer under subsection 45(1);
is guilty of an offence punishable on conviction by a fine
not exceeding $2,000.
(1A) Strict liability applies to the element of
an offence against subsection (1) that a notice is a notice given under
subsection 45(1).
(2) In a prosecution for an offence against subsection (1),
it is not necessary for the prosecutor to prove the reason for the defendant’s
action, but it is a defence to the prosecution if the defendant proves, on the
balance of probabilities, that the action was not motivated (either in whole or
in part) by a reason specified in that subsection.
(3) Where an employer is convicted of an
offence against subsection (1) constituted by an act done in relation to a
person, the court may:
(a) order the payment of compensation
to the person for loss or damage suffered as a result of the act; and
(b) order the taking of action to
remedy or reduce the loss or damage suffered by the person as a result of the
act.
58
Employers not to disclose information etc.
(1) Any person who is or has been:
(a) an employer; or
(b) a person employed by, or
performing services for, an employer;
must not, directly or indirectly, divulge or communicate
to a second person any information in relation to the affairs of a third
person, being information disclosed or obtained under or for the purposes of
this Part and acquired by the person because of, or in the course of, the
performance of the employer’s duties under this Part.
Penalty: $1,000.
(2) Subsection (1) does not apply if the
information is divulged or communicated for the purposes of this Part or
otherwise in connection with the performance of the employer’s duties under
this Part or in connection with the carrying on of the employer’s affairs.
(3) Strict liability applies to the element
of an offence against subsection (1) that a disclosure or obtaining of
information is a disclosure or obtaining under or for the purposes of this
Part.
59 Records
to be kept and preserved by employers
(1) An employer shall:
(a) keep records that record and
explain:
(i) all amounts deducted,
or required to be deducted, from salary or wages under section 46; and
(ii) other acts engaged in
by the employer, or required to be engaged in by the employer, under this Part;
and
(b) retain those records for a period
of 5 years.
(2) The records shall be kept:
(a) in writing in the English language
or so as to enable the records to be readily accessible and convertible into
writing in the English language; and
(b) so as to enable the matters and
acts referred to in paragraph (1)(a) to be readily ascertained.
(3) Nothing in this section shall be taken to
require a person to retain records where:
(a) the Registrar has notified the
person that retention of the records is not required; or
(b) the person is a company that has
gone into liquidation and has been finally dissolved.
(4) Subsections (1) and (2) are offences
of strict liability.
Penalty: $2,000.
60
Incorrectly keeping records etc.
(1) Where an employer who is required by
section 59 to keep records keeps them in such a way that they do not
correctly record and explain the matters or acts to which they relate, the
employer is guilty of an offence punishable on conviction by a fine not
exceeding $2,000.
(1A) Subsection (1) is an offence of strict
liability.
(2) In a prosecution of an employer for an
offence against subsection (1), it is a defence if the employer proves
that the employer:
(a) did not know; and
(b) could not reasonably be expected
to have known;
that the record to which the prosecution relates did not
correctly record and explain the matter or act to which the record relates.
61
Access to premises etc.
(1) For the purposes of the application of
this Part in relation to an employer, an officer authorised in writing by the
Registrar to exercise powers under this section:
(a) may, at all reasonable times,
enter and remain on any land or premises;
(b) is allowed free access at all
reasonable times to all documents; and
(c) may inspect, examine, make copies
of, or take extracts from, any document.
(2) An officer is not entitled to enter or
remain on any land or premises under this section if, on being requested by the
occupier of the land or premises for proof of authority, the officer does not
produce an authority in writing signed by the Registrar stating that the
officer is authorised to exercise powers under this section.
(3) A person is guilty of an offence if:
(a) the person is an occupier of land
or premises entered or proposed to be entered by an officer; and
(b) the person does not provide the
officer with all reasonable facilities and assistance that the occupier is
reasonably capable of providing; and
(c) the person does not do so in
circumstances where the officer is exercising his or her powers under this
section.
Penalty: $1,000.
(4) Strict liability applies to paragraph (3)(c).
62
Public officer of company
(1) The person who is, from time to time, the
public officer of a company for the purposes of the Income Tax Assessment
Act 1936 is the public officer of the company for the purposes of this Act,
and the address for service of the public officer under that Act is the address
for service under this Act.
(2) Service of any document or requisition at
the address for service of the public officer, or on the public officer, is
sufficient service on the company for the purposes of this Act, but, if at any
time there is not a public officer of the company, service on any person acting
or appearing to act in the business of the company is sufficient.
(3) The public officer is answerable for the
doing of all acts required to be done by the company under this Act, and in
case of default is liable to the same penalties.
(4) Everything done by the public officer
that the public officer is required to do in that capacity shall be deemed to
have been done by the company.
(5) If, at any time, there is not a public
officer of the company, this Act applies in relation to the company as if there
were no requirement to appoint a public officer of the company.
(6) Any proceedings under this Act (including
proceedings for an offence against this Act) taken against the public officer
shall be deemed to have been taken against the company, and the company is
liable jointly with the public officer for any penalty imposed on the public
officer.
(7) Notwithstanding subsections (1) to
(6) (inclusive) and without affecting any of the obligations and liabilities of
the public officer, any notice, process or proceeding that under this Act may
be given to, served on or taken against the company or public officer may, if
the Registrar thinks fit, be given to, served on or taken against any director,
secretary or other officer of the company or any attorney or agent of the
company, and the director, secretary, officer, attorney or agent has the same
liability in relation to the notice, process or proceeding as the company or
public officer would have had if it had been given to, served on or taken against
the company or public officer.
63
Public officer of trust estate
(1) The person who is, from time to time, the
public officer of a trust estate for the purposes of section 252A of the Income
Tax Assessment Act 1936 is the public officer of the trust estate for the
purposes of this Act, and the address for service of the public officer under
that Act is the address for service of the public officer under this Act.
(2) Service of any document or requisition at
the address for service of the public officer, or on the public officer, is
sufficient service on the trustee of the trust estate for the purposes of this
Act, but, if at any time there is not a public officer of the trust estate,
service on any person acting or appearing to act on the business of the trust
estate is sufficient.
(3) The public officer is answerable for the
doing of all acts required to be done by the trustee of the trust estate under
this Act, and in case of default is liable to the same penalties.
(4) Everything done by the public officer
that the public officer is required to do in that capacity shall be deemed to
have been done by the trustee of the trust estate.
(5) If, at any time, there is not a public
officer of the trust estate, this Act applies in relation to the trustee of the
trust estate as if there were no requirement to appoint a public officer of the
trust estate.
(6) Any proceedings under this Act (including
proceedings for an offence against this Act) taken against the public officer
shall be deemed to have been taken against the trustee of the trust estate, and
the trustee shall be liable jointly with the public officer for any penalty
imposed on the public officer.
(7) Notwithstanding subsections (1) to
(6) (inclusive) and without affecting any of the obligations and liabilities of
the public officer, any notice, process or proceeding that under this Act may
be given to, served on or taken against the trustee or public officer of the
trust estate may, if the Registrar thinks fit, be given to, served on or taken
against any agent or attorney of the trustee, and the agent or attorney has the
same liability in relation to the notice, process or proceeding as the trustee
or public officer would have had if it had been given to, served on or taken
against the trustee or public officer.
Division 4—Miscellaneous
64
Amounts payable under Part debts due to Commonwealth
An amount payable to the Registrar under
this Part is a debt due to the Commonwealth.
65
Application of amounts paid or credited where 2 or more debts due
Where:
(a) 2 or more debts are due to the
Commonwealth by an employer under this Part;
(b) an amount is paid to or to be
credited by the Registrar, or an amount is paid to and an amount is to be
credited by the Registrar, in relation to all or any of the debts; and
(c) the total amount of the debts
exceeds the amount so paid or to be credited or the sum of the amounts so paid
and to be credited, as the case may be;
the Registrar may, in spite of any direction given by or
on behalf of the employer:
(d) apply the amount, or the sum of
the amounts, in partial discharge of the total amount of the debts; and
(e) recover the amount by which the
total amount of the debts exceeds the amount or the sum of the amounts;
without allocating the amount, or the sum of the amounts,
towards the discharge of any particular debt or debts.
Division 5—Application of this Part to those engaged under a contract
for services
65AA
Application of this Part to those engaged under a contract for services
This Part applies to a person (the independent
contractor) engaged under a contract for services as if:
(a) a reference to an employee
includes a reference to the independent contractor; and
(b) a reference to an employer of the
employee includes a reference to the person who engages the independent
contractor; and
(c) a reference to refusing to employ
a person includes a reference to refusing to engage a person under a contract
for services; and
(d) if a person is an employer and
also engages an independent contractor—the reference in section 65 to an
employer includes the person in both of those capacities.
Part IVA—Election available to payers who make voluntary payments of
maintenance liabilities
65A
Election under this Part
(1) If the Registrar is not going to collect
amounts due to the Commonwealth under, or in relation to, an enforceable
maintenance liability by deduction from the salary or wages of the payer of the
liability, the payer may elect that the payment period entered in the Child
Support Register in respect of the liability under paragraph 26(2)(b) be
changed.
(2) In making the election, the payer must:
(a) specify a payment period; and
(b) specify the day from which the
period starts.
(3) An election made under subsection (1)
must be made in the manner specified by the Registrar.
Example 1: The payer elects a 4 week period as the payment
period. The payer elects that the start day of the period will be 8 July
which is a Wednesday. Therefore the period will end 4 weeks later on a Tuesday.
Example 2: The payer elects a period of a calendar month as
the payment period. The payer elects that the start day will be 16 October.
Therefore the period will end on 15 November. If the payer elects that the
start day will be 31 January, the period will end on 28 February.
Note: Section 16A provides for the Registrar to
specify the manner in which an election may be made.
65B
Registrar to act on election
If:
(a) a payer of an enforceable
maintenance liability makes an election of a kind set out in section 65A;
and
(b) the Registrar is satisfied
that it will be more convenient for the payer to accrue debts in relation to
the elected period instead of the period in the Child Support Register;
the Registrar must, within 28 days of receiving the
election, vary the particulars of the entry in the Register in relation to the
payment period by:
(c) substituting the elected period;
and
(d) entering in the Register the
specified day as the day from which the period starts.
Part V—Payment and recovery of child support debts
66
When child support debts become payable
(1) An amount that becomes a child support
debt in respect of a day in an initial period is due and payable on the seventh
day of the month following that day.
(2) An amount that becomes a child support
debt in respect of a payment period is due and payable on the seventh day after
the end of the period.
Note: For initial period and payment
period see subsection 4(1).
67
Penalty for late payment of child support debts
(1) If a child support debt in respect of a
payment period remains unpaid after the time when it became due and payable,
the person liable to pay the debt is liable to pay to the Registrar, by way of
penalty, whichever of the following amounts applies:
(a) if the payment period is a week—an
amount calculated on the balance outstanding each week at a weekly rate equal
to 1/52 of the relevant annual rate;
(b) if the payment period is a
fortnight—an amount calculated on the balance outstanding each fortnight at a
fortnightly rate equal to 1/26 of the relevant
annual rate;
(c) if the payment period is a 4 week
period—an amount calculated on the balance outstanding each four weeks at a
four weekly rate equal to 4/52 of the relevant
annual rate;
(d) if the payment period is a month
or a calendar month—an amount calculated on the balance outstanding each month
or calendar month at a monthly rate equal to 1/12
of the relevant annual rate.
(1AA) If a child support debt in respect of a day
in an initial period remains unpaid after the time when it became due and
payable, the person liable to pay the debt is liable to pay to the Registrar,
by way of penalty, an amount calculated on the balance outstanding each month
at a monthly rate equal to 1/12 of the relevant
annual rate.
(1A) For the purposes of subsections (1)
and (1AA), the balance outstanding is the total amount of one or more child
support debts remaining unpaid.
(2) An amount payable to the Registrar under subsection (1)
or (1AA) is a debt due to the Commonwealth.
(3) In this section:
relevant annual rate means the annual rate of
the penalty for unpaid income tax for the time being specified in the Income
Tax Assessment Act 1936.
67A
Due date of certain debts for the purposes of calculating penalty
For the purposes of section 67, if:
(a) the Registrar has entered an
initial period in the Register under paragraph 26(2)(a) in respect of a
liability; and
(b) a child support debt in respect of
a payment period for the liability becomes due and payable on a particular day
(the payment period due day); and
(c) the payment period due day occurs
before any day on which a child support debt in respect of a day in the initial
period for the liability is due and payable;
the child support debt in respect of the payment period is
taken to have become due and payable on the day on which a child support debt
in respect of the last day in the initial period is due and payable.
68
Remission of late payment penalty
(1) If an amount (in this section called the late
payment penalty) is payable by a person under section 67 in
relation to a child support debt and:
(a) the
Registrar is satisfied that:
(i) the circumstances that
contributed to the delay in payment of the debt were not due to, or caused
directly or indirectly by, an act or omission of the person; and
(ii) the person has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
or
(b) the Registrar is satisfied that:
(i) the circumstances that
contributed to the delay in payment of the debt were due to, or caused directly
or indirectly by, an act or omission of the person; and
(ii) the person has taken
reasonable action to mitigate, or mitigate the effects of, those circumstances;
and
(iii) having regard to the
nature of those circumstances, it would be fair and reasonable to remit the
late payment penalty or part of the late payment penalty; or
(c) the Registrar is satisfied that
there are special circumstances by reason of which it would be fair and
reasonable to remit the late payment penalty or part of the late payment
penalty;
the Registrar may remit the late payment penalty or part
of the late payment penalty.
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.
69
Reduction of late payment penalty where judgment debt carries interest
Where judgment is given by, or entered
in, a court for payment of:
(a) a child support debt; or
(b) an amount that includes a child
support debt;
then:
(c) the debt shall not be taken, for
the purposes of subsection 67(1), to have ceased to be due and payable merely
because of the giving or entering of the judgment; and
(d) if the judgment debt carries
interest, the amount that would, but for this paragraph, be payable under that
subsection in relation to the debt shall, by force of this paragraph, be
reduced by:
(i) in a case to which paragraph (a)
applies—the amount of the interest; or
(ii) in a case to which paragraph (b)
applies—an amount that bears the same proportion to the amount of the interest
as the amount of the debt bears to the amount of the judgment debt.
70
Apportionment of payment between payees
(1) If:
(a) 2 or more child support debts are
owing by a person; and
(b) the debts relate to 2 or more
enforceable maintenance liabilities with different payees; and
(c) an amount is paid to the Registrar
in relation to all or any of the debts; and
(d) the total amount of the debts
exceeds the amount paid to the Registrar;
the Registrar must, despite any direction given by or on
behalf of the person, apportion the amount of the payment between the payees in
proportion to the amount of the debt owing in relation to each payee, and apply
the amounts so apportioned in partial discharge of each of those debts.
(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.
71
Direct payments to payee
(1) Subject to section 71D, if:
(a) the payee of an enforceable
maintenance liability receives from the payer an amount intended by both the
payer and the payee to be paid in complete or partial satisfaction of an amount
payable under the liability in relation to the child support enforcement
period; and
(b) the payer or the payee applies to
the Registrar to have the amount received by the payee treated as having been
paid to the Registrar;
the Registrar shall, in spite of section 30, credit
the amount received by the payee against the liability of the payer to the
Commonwealth in relation to the amount payable under the liability.
(2) An application must be made in the manner
specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
(3) This section does not apply to an
enforceable maintenance liability of a kind referred to in paragraph 18A(3)(a).
71AA
Registrar may offset child support debts between payer and payee
(1) If:
(a) 2 persons each have a child
support debt arising from a liability referred to in section 17 or 17A;
and
(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;
the Registrar may offset the debts by deducting the
amount, or part of the amount, of the debt of the person who owes the lesser
amount from the amount of the debt of the person who owes the greater amount.
(2) If the amount of the debts is the same,
the Registrar may offset one debt against the other. In this case, the
Commonwealth is taken to have recovered both of the debts.
(3) If the amount of the debts is not the
same, the Commonwealth is taken to have recovered:
(a) so much of the amount of the
smaller debt as is offset against the larger debt; and
(b) so much of the amount of the
larger debt that equals the amount of the smaller debt as is offset.
(4) Any amounts recovered by the Commonwealth
by way of offset are taken to be:
(a) paid by the payer to the Registrar
under the registered maintenance liability concerned; and
(b) paid by the Commonwealth to the
payee as provided for in this Act.
Example: Offset of part of a debt
Helena was previously the payer of a
registrable maintenance liability. Helena’s children have now come to live with
her. Helena has the greater debt of $3,000 from the period when she was a child
support payer. Even though the children are no longer living with Theo, he is
entitled to $3,000 in child support when Helena pays it.
Theo has now been assessed as having a
child support liability. Under that liability, Theo has a debt of $150 in
respect of a month.
The Registrar offsets $100 of the debt
(part of it only) that became due and payable by Theo against the amount owed
by Helena. The effect of the offset is that Helena is taken to have paid $100
per month. Theo is taken to have paid $100 of his liability to pay $150. Under
the liability, Theo must pay $50 for that month.
Each time a debt incurred by Theo under
the liability becomes due and payable it may be offset against the remainder of
Helena’s debt.
71A
Payments to third persons by payer
Subject to section 71D, if:
(a) the payer of an enforceable
maintenance liability pays a third party an amount that partially or completely
satisfies a debt owed by:
(i) the payee of the
enforceable maintenance liability; or
(ii) the payer; or
(iii) both the payer and
payee; and
(b) the payer or the payee applies to
the Registrar, in the manner specified by the Registrar, to have the amount, or
part of the amount, received by the third party treated as having been paid to
the Registrar; and
(c) the amount paid, or a part of the
amount paid, was intended by both the payer and the payee to be paid in
complete or partial satisfaction of an amount payable under the enforceable
maintenance liability in relation to the child support enforcement period;
the Registrar must, in spite of section 30, credit
the amount, or part of the amount, received by the third party against the
liability of the payer to the Commonwealth in relation to the amount payable
under the enforceable maintenance liability.
Note: Section 16A provides for the Registrar to
specify the manner in which an application may be made.
(1A) This section does not apply to an
enforceable maintenance liability of a kind referred to in paragraph 18A(3)(a).
71B
Payments not in money
(1) For the purposes of sections 71 and
71A, if both the payer and the payee of an enforceable maintenance liability so
intend:
(a) a payment in a form, other than
money, by the payer; or
(b) a transfer of any property or
right by the payer;
is taken to be an amount paid in complete or partial
satisfaction of an amount payable under an enforceable maintenance liability.
(2) For the purpose of determining the amount
to be credited under section 71 or 71A, in relation to the payment or
transfer, against the liability of the payer to the Commonwealth, the amount of
the payment or transfer is taken to be:
(a) the amount agreed by the payer and
the payee; or
(b) if no amount is agreed, the amount
determined by the Registrar.
71C
Other payments of up to 30% of child support liability
(1) Subject to subsections (3) and (5)
and section 71D, in relation to any payment period entered in the Register
under paragraph 26(2)(b) or initial period entered in the Register under
paragraph 26(2)(a) for which the payer of an enforceable maintenance liability
has an uncredited amount, the Registrar must, in spite of section 30,
credit:
(a) if the uncredited amount does not
exceed 30% of the payer’s enforceable maintenance liability for the period—that
uncredited amount; or
(b) if it exceeds 30% of that
liability—so much of that uncredited amount as does not exceed 30% of that
liability;
against the liability of the payer to the Commonwealth in
relation to the amount payable under the liability in relation to that period.
(2) If:
(a) the payer has made a payment, to
the payee of the enforceable maintenance liability or to another person, that
is a payment of the kind specified in the regulations; and
(b) the amount of all such payments
made by the payer in respect of the liability exceeds the sum of all the
amounts credited under this section against the liability in relation to all
the payment periods, and any initial period, preceding the period in question;
the payer has an uncredited amount equal to
the amount of that excess.
(3) Subject to subsection (4), the
Registrar must not credit an amount under this section in relation to a period
for which the payer has not paid to the Commonwealth an amount equal to the
difference between:
(a) the amount payable by the payer to
the Commonwealth under the enforceable maintenance liability in relation to
that period; and
(b) the amount that is to be credited
under subsection (1), or that would be so credited but for this
subsection, in relation to that period.
(4) If the payer:
(a) did not pay that difference to the
Commonwealth within the time required under section 66; and
(b) subsequently pays the amount of
that difference to the Commonwealth;
the Registrar may credit against the liability of the
payer in relation to the amount payable under the enforcement maintenance
liability in relation to that period the amount that, but for subsection (3),
would have been credited under subsection (1).
(5) This section does not apply in relation
to a liability covered by section 18.
(6) This section does not apply in relation
to an enforceable maintenance liability of a kind mentioned in
section 18A.
71D
Registrar may refuse to credit amounts in special circumstances
The Registrar may refuse to credit an
amount under section 71, 71A or 71C if satisfied that, in the
circumstances of the particular case, the amount ought not to be credited.
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.
72
Application of certain amounts to child support debts
(1) If, apart from this section:
(a) the Commissioner would be required
under section 8AAZLF of the Taxation Administration Act 1953 to
refund an amount (the refund amount) to a person (the creditor);
and
(b) the creditor owes a child support
debt to the Commonwealth under this Act;
then, despite anything contained in any law of the
Commonwealth apart from this Act (including section 8AAZLF of the Taxation
Administration Act 1953):
(c) the Registrar may require the
Commissioner, at a particular time, to pay an amount to the Registrar not
exceeding the lesser of the refund amount and the child support debt; and
(d) if the Registrar so requires, the
Commissioner must, as soon as practicable, pay the required amount to the
Registrar.
(2) If the Commissioner pays an amount to the
Registrar under subsection (1), the Registrar must:
(a) apply the amount against the child
support debt of the creditor; or
(b) if the child support debt has been
paid in full after the time mentioned in paragraph (1)(c)—pay the amount
to the creditor; or
(c) if the child support debt has been
paid in part after the time mentioned in paragraph (1)(c):
(i) apply the amount
against the child support debt of the creditor; and
(ii) if, after the amount
has been applied, the child support debt has been paid in full, pay any excess
to the creditor.
(3) If the Commissioner pays an amount to the
Registrar under subsection (1), the amount that the Commissioner is
required to refund under section 8AAZLF of the Taxation Administration
Act 1953 to the person is taken to be reduced by the amount paid to the
Registrar immediately after the amount is paid.
72A
Registrar may collect child support related debts from a third person
(1) The Registrar may give written notice to
a person:
(a) by whom money is due or accruing,
or may become due, to a child support debtor; or
(b) who holds, or may subsequently
hold, money for or on account of a child support debtor; or
(c) who holds, or may subsequently
hold money on account of some other person for payment to a child support
debtor; or
(d) who has authority from some other
person to pay money to a child support debtor;
requiring that person to pay to the Registrar:
(e) if the amount of money is more
than the amount specified in the notice as the amount of the debtor’s support
debt—an amount equal to the amount of the support debt; or
(f) if the amount of money is equal
to or less than the amount of the support debt—that amount of money; or
(g) if the notice specifies an amount
of money that is to be paid out of each payment that the notified person
becomes liable, from time to time, to make to the debtor—that amount until the
support debt is satisfied.
(1A) A notice given under subsection (1)
requires the notified person to continue to make payments in accordance with
that subsection until the support debt is satisfied.
(2) A person who refuses or fails to comply
with a notice under subsection (1) is guilty of an offence.
Penalty: $1,000.
(2A) Subsection (2) does not apply if the
person has a reasonable excuse.
(2B) Subsection (2) is an offence of strict
liability.
(3) A notice:
(a) must specify a day, not being a
day before the money becomes due or is held, on or before which the money is to
be paid; and
(b) may be varied by the Registrar
specifying a later day for making a payment under the notice.
(4) Subsection 4K(1) of the Crimes Act
1914 does not apply in relation to anything required to be done under subsection (1).
(5) If the Registrar gives a notice under subsection (1),
the Registrar must provide a copy of the notice to the child support debtor.
(6) A notice is taken to be provided under subsection (5)
if the Registrar sends the notice to the last address of the person known to
the Registrar.
(7) A notice is taken to have been given to
the Commonwealth, a State or a Territory if it is served on a prescribed
person.
(8) If a person is convicted of an offence
against subsection (1), the court may, in addition to imposing a penalty
on the person, order the person to pay to the Registrar an amount that is not
more than the amount, or sum of the amounts (as the case may be), that the
person refused or failed to pay to the Registrar.
(9) A person who makes a payment in
compliance with a notice under subsection (1) is taken to have made the
payment under the debtor’s authority or the authority of any other person
concerned and is indemnified in respect of that payment.
(10) If:
(a) the Registrar gives a notice under
subsection (1); and
(b) before the person to whom the
notice is given complies with it, payment of the amount due by the debtor is
made;
the Registrar must immediately give the person written
notice of that payment.
(11) For the purposes of this section, where:
(a) a person has paid money to a co‑operative
housing society in respect of the issue of withdrawable shares in the capital
of the society; and
(b) the co‑operative housing
society has not repaid the money;
the money is taken to be:
(c) if the money is repayable on
demand—due by the co‑operative housing society to the person; and
(d) in any other case—money that may
become due by the co‑operative housing society to the person.
(12) For the purposes of this section, if,
apart from this subsection, money is not due, or repayable on demand to a
person unless a condition is fulfilled, the money is taken to be due, or
repayable on demand (as the case may be), to the person even though the
condition has not been fulfilled.
(13) In this section:
child support debtor means a person who is
liable to pay a child support debt or a child support related debt.
child support related debt, in relation to a
person, includes:
(a) the amount of penalty (if any)
imposed under section 67 in respect of that debt; and
(b) any costs ordered by a court to be
paid to the Commonwealth in respect of an offence committed by the person
against this Act or the Assessment Act; and
(c) any amount ordered by a court,
upon the conviction of a person for an offence against this Act or the Assessment
Act, to be paid by the person to the Registrar.
co‑operative housing society means a
society registered or incorporated as a co‑operative housing society or
similar society under a law of a State or Territory.
person includes a partnership and any
Commonwealth, State or Territory public authority (whether incorporated or
unincorporated).
support debt means a child support debt or a
child support related debt.
72AA
Deductions from social security pensions and benefits
(1) If the payer of an enforceable
maintenance liability covered by subsection 17(2) is in receipt of a social
security pension or a social security benefit, the Registrar may give a written
notice to the Secretary:
(a) specifying the payer’s name and
setting out sufficient particulars to enable the Secretary to identify the
payer; and
(b) instructing the Secretary to make
the prescribed periodic deduction from the payer’s social security pension or
social security benefit as from the specified day.
(2) If:
(a) a person by whom a child support
debt is due (whether before or after the commencement of this section) has not
paid the debt; and
(b) the person is in receipt of a
social security pension or a social security benefit;
the Registrar may give a written notice to the Secretary:
(c) specifying the person’s name and
setting out sufficient particulars to enable the Secretary to identify the
person; and
(d) instructing the Secretary to make
the prescribed periodic deduction from the person’s social security pension or
social security benefit as from the specified day until the debt is paid.
(3) A notice may be given by electronic
transmission or by any other means.
(4) Subsection (2) does not apply to an
amount due in respect of a liability covered by section 18.
(6) In this section:
social security benefit and social
security pension have the same respective meanings as in the Social
Security Act 1991.
72AB
Deductions from family tax benefit
(1) This section applies to a person if:
(a) the person is entitled to be paid
family tax benefit under a determination under section 16 or 17 of the
Family Assistance Administration Act; and
(b) the FTB child, or at least one of
the FTB children, for whom the person is eligible for family tax benefit is a
designated child support child of the person.
(2) An FTB child of a person is a designated
child support child of the person if:
(a) the person has a registrable
maintenance liability of a kind mentioned in section 17 in respect of the
child; and
(b) an amount payable under the
liability is a child support debt; and
(c) the day on which the debt became
due and payable under section 66 has passed, and the debt remains unpaid
in whole or in part.
(3) If this section applies to a person, the
Registrar may give a written notice to the Secretary directing the Secretary:
(a) to deduct from each instalment
amount of family tax benefit that the person is entitled to be paid under
section 23 of the Family Assistance Administration Act an amount
specified, or worked out as specified, in the notice; or
(b) to deduct from an amount of family
tax benefit that the person is entitled to be paid under section 24 of the
Family Assistance Administration Act an amount specified, or worked out as
specified, in the notice.
(4) A notice under subsection (3) must:
(a) specify the person’s name and the
name of each designated child support child of the person; and
(b) set out sufficient particulars to
enable the Secretary to identify the person and each designated child support
child of the person; and
(c) be in accordance with section 228
of the Family Assistance Administration Act, which sets out the maximum amount
that can be deducted; and
(d) specify the day or days on which
deductions are to be made.
(5) In this section:
Family Assistance Act means the A New Tax
System (Family Assistance) Act 1999.
Family Assistance Administration Act
means the A New Tax System (Family Assistance) (Administration) Act 1999.
family tax benefit has the same meaning as in
the Family Assistance Act.
FTB child means an FTB child in relation to
family tax benefit within the meaning of the Family Assistance Act.
72B
Person receiving or controlling money of a debtor who is outside Australia
(1) If:
(a) a child support debtor is not
physically present in Australia; and
(b) the debtor either:
(i) derives income, or
profits or gains of a capital nature, from a source in Australia; or
(ii) is a shareholder,
debenture holder or depositor in a company deriving income, or profits or gains
of a capital nature, from a source in Australia; and
(c) another person in Australia
receives, controls or disposes of, any of the debtor’s money;
the following provisions apply:
(d) the other person must, when
notified by the Registrar under subsection (2), pay the debtor’s support
debt;
(e) the person is authorised and
required, when notified by the Registrar under subsection (2), to retain
from time to time, out of any money that comes to him or her on behalf of the
debtor, enough to pay the debtor’s support debt or any amount that may become
payable by the debtor as a child support debt;
(f) the person is personally liable
for the debtor’s support debt to the extent of any amount that he or she
retained, or should have retained, under paragraph (e);
(g) the person is taken to be
authorised by the debtor, or any other person concerned, to make any payments
under this section.
(2) If the Registrar requires a person
referred to in paragraph (1)(c) to do a thing referred to in paragraph (1)(d)
or (e), the Registrar must give that person written notice of:
(a) that requirement; and
(b) the amount of the debtor’s support
debt; and
(c) the day by which the person should
pay the amount required to be paid.
(3) If the person who receives, controls or
disposes of any of a debtor’s money is:
(a) the Commonwealth or a Commonwealth
authority; or
(b) a State or a State authority; or
(c) a Territory or a Territory
authority;
paragraph (1)(f) does not apply to or in relation to
that body.
(4) For the purposes of this section:
(a) a person is taken to have control
of a debtor’s money if the person is liable to pay money to the debtor; and
(b) money due by the person to the
debtor is taken to be money that comes to the person on behalf of the debtor,
other than money that is:
(i) a payment of a royalty
referred to in Subdivision 12‑F in Schedule 1 to the Taxation
Administration Act 1953; or
(ii) a payment to which
section 12‑325 of that Schedule applies (natural resource payments).
(5) Words and expressions used in this
section that are defined in:
(a) the Income Tax Assessment Act
1936; or
(b) in section 72A;
have, in this section, the meaning given by that Act or
that section.
72C
Transaction to defeat maintenance liability
(1) The court may, of its own volition or on
application by the Registrar:
(a) set aside an instrument or
disposition that has been made; or
(b) restrain the making of an
instrument or disposition that is proposed to be made;s
by or on behalf of, or by direction or in the interest of,
a payer of an enforceable maintenance liability.
(2) If the court is satisfied that the
instrument or disposition has been made or is proposed to be made (as the case
may be) to reduce or defeat the payer’s ability:
(a) to pay child support; or
(b) if there is an enforceable
maintenance liability in respect of the payer:
(i) to pay any child
support debt under the enforceable maintenance liability; or
(ii) to meet the
enforceable maintenance liability;
the court may set aside the instrument or disposition or
restrain the making of the proposed instrument or disposition as the case
requires.
(3) The court may order:
(a) that any money or any real or
personal property dealt with by any such instrument or disposition may be taken
in execution, or charged with the payment, of such amounts for costs or child
support as the court directs; or
(b) that the proceeds of a sale must
be paid into court to abide by its order.
(4) The court must have regard to the
interests of a bona fide purchaser or other interested person and must make any
order it considers proper for the protection of those persons.
(5) The court may order:
(a) the payer; or
(b) if a person has colluded with the
payer in the making or proposed making of the instrument or disposition—that
person;
to pay the costs incurred by:
(c) the payee of the enforceable
maintenance liability; or
(d) a bona fide purchaser or other
person for whose protection an order is made under subsection (4); or
(e) the Registrar;
in relation to the making, or the proposed making, of the
instrument or disposition or the proceedings under this section.
(6) In this section, disposition
includes a sale and a gift.
Part VA—Departure prohibition orders
Division 1—Registrar may make departure prohibition orders
72D
Registrar may make departure prohibition orders
(1) The Registrar may make an order (a departure
prohibition order) prohibiting a person from departing from Australia
for a foreign country if:
(a) the person has a child support
liability; and
(b) the person has not made
arrangements satisfactory to the Registrar for the child support liability to
be wholly discharged; and
(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
(d) the Registrar believes on
reasonable grounds that it is desirable to make the order for the purpose of
ensuring that the person does not depart from Australia for a foreign country
without:
(i) wholly discharging the
child support liability; or
(ii) making arrangements
satisfactory to the Registrar for the child support liability to be wholly
discharged.
(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.
(3) A departure prohibition order must be in
the approved form.
Note: For approved form see section 72X.
72E
Meaning of child support liability
For the purposes of this Part, a person
has a child support liability if:
(a) the person has a registrable
maintenance liability of a kind mentioned in section 17 or 17A; and
(b) an amount payable under the
registrable maintenance liability is a child support debt; and
(c) the day on which the debt became
due and payable under section 66 has passed, and the debt remains unpaid
in whole or in part.
Division 2—Offence provision
72F
Departure from Australia of certain child support debtors prohibited
A person must not depart from Australia
for a foreign country if:
(a) a departure prohibition order in
respect of the person is in force, and the person knows that the order is in
force, or is reckless as to whether the order is in force; and
(b) the person’s departure is not
authorised by a departure authorisation certificate, and the person knows that
the departure is not authorised by such a certificate, or is reckless as to
whether the departure is authorised by such a certificate.
Maximum penalty: 60 penalty units or imprisonment for 12
months, or both.
Division 3—Administrative requirements
72G
Notification requirements for departure prohibition orders
(1) This section applies if the Registrar
makes a departure prohibition order in respect of a person.
(2) The Registrar must notify the person that
the order has been made.
(3) The notice must be in the approved form
and must be given as soon as practicable after making the order.
Note: For approved form see section 72X.
(4) The Registrar must give to the Secretary
of the Department of Immigration and Multicultural Affairs a copy of the order,
and information likely to facilitate identification of the person, for the
purposes of administering the Migration Act 1958, unless the Registrar
is satisfied that the person is an Australian citizen.
(5) The Registrar must also give a copy of
the order, and information likely to facilitate identification of the person
for the purposes of this Part, to such other persons as the Registrar considers
appropriate in the circumstances, being persons prescribed by the regulations
for the purposes of this subsection.
(6) The Registrar must give a copy of the
order or information under subsection (4) or (5) as soon as practicable
after making the order.
72H
Operation of departure prohibition order
(1) A departure prohibition order comes into
force when it is made, and continues in force until it is revoked, or until it
is set aside by a court.
(2) However, a departure prohibition order in
respect of a person is not in force during any period when a deportation order
in respect of the person is in force under the Migration Act 1958.
72I Revocation
and variation of departure prohibition orders
(1) The Registrar must revoke a departure
prohibition order in respect of a person if:
(a) the person no longer has a child
support liability; or
(b) the person has a child support
liability, but arrangements satisfactory to the Registrar have been made for
the liability to be wholly discharged; or
(c) the person has a child support
liability, but the Registrar is satisfied that the liability is completely
irrecoverable.
(2) However, if the Registrar considers that
the person may later become subject to a child support liability in respect of,
or arising out of, matters that have occurred, the Registrar must not revoke a
departure prohibition order under subsection (1) unless the Registrar is
satisfied:
(a) that the liability will be wholly
discharged; or
(b) that arrangements satisfactory to
the Registrar will be made for the liability to be wholly discharged; or
(c) that the liability will be
completely irrecoverable.
(3) The Registrar may also, at the
Registrar’s discretion, revoke or vary a departure prohibition order in respect
of a person if the Registrar considers it desirable to do so.
(4) The Registrar may revoke or vary a
departure prohibition order under subsection (1) or (3):
(a) on application by the person in
the approved form; or
(b) on the Registrar’s own motion.
72J
Notification of decisions about revocation and variation
(1) The Registrar must notify a person who
has made an application under paragraph 72I(4)(a) for the revocation or
variation of a departure prohibition order of the Registrar’s decision on the
application.
(2) The Registrar must notify a person if the
Registrar decides, on the Registrar’s own motion, to revoke or vary a departure
prohibition order in respect of the person.
(3) The Registrar must also notify each
person to whom a copy of a departure prohibition order was given under
subsection 72G(4) or (5) if the Registrar decides to revoke or vary the order.
(4) A notice under
this section must be in the approved form, and must be given as soon as
practicable after the decision concerned is made.
Note: For approved form see section 72X.
Division 4—Departure authorisation certificates
72K
Application for departure authorisation certificate
(1) A person in respect of whom a departure
prohibition order is in force may apply for a certificate authorising the
person to depart from Australia for a foreign country (a departure
authorisation certificate).
(2) The application must be in the approved
form.
Note: For approved form see section 72X.
72L
When Registrar must issue departure authorisation certificate
(1) This section applies if a person makes an
application under section 72K for a departure authorisation certificate.
(2) The Registrar must issue the departure
authorisation certificate if the Registrar is satisfied:
(a) that, if the certificate is
issued:
(i) it is likely that the
person will depart from Australia and return to Australia within a period that
the Registrar considers appropriate; and
(ii) it is likely that,
within a period that the Registrar considers appropriate, the Registrar will be
required by subsection 72I(1) to revoke the departure prohibition order in
respect of the person; and
(b) that it is not necessary for the
person to give security under section 72M for the person’s return to Australia.
(3) If the Registrar is not satisfied as
mentioned in subsection (2), the Registrar must nevertheless issue the
departure authorisation certificate if:
(a) the person has given security
under section 72M for the person’s return to Australia; or
(b) if the person is unable to give
such security, the Registrar is satisfied:
(i) that the certificate
should be issued on humanitarian grounds; or
(ii) that refusing to issue
the certificate will be detrimental to Australia’s interests.
72M
Security for person’s return to Australia
(1) A person may give such security as the
Registrar considers appropriate by bond, deposit or any other means, for the
person’s return to Australia by such day as is agreed by the person and the
Registrar and is specified in the departure authorisation certificate.
(2) The Registrar may substitute a later day
for the day mentioned in subsection (1), either on the Registrar’s own
motion, or on application by the person in the approved form.
(3) The Registrar may refuse an application
by a person to substitute a later day if:
(a) the person refuses to increase the
value of the security already given to a level that the Registrar considers
appropriate; or
(b) the person refuses to give such
further security as the Registrar considers appropriate; or
(c) the Registrar considers that it
would not be appropriate to substitute the later day.
72N
What departure authorisation certificate must authorise
(1) A departure authorisation certificate in
respect of a person must authorise the departure of the person on or before the
seventh day after a day specified in the certificate.
(2) The day specified in the certificate must
be a day that is after the day on which the certificate is issued, but not more
than 7 days after that day.
72O
Notification requirements for departure authorisation certificates
(1) The Registrar must notify a person who
makes an application for a departure authorisation certificate of the Registrar’s
decision on the application.
(2) The notice must be in the approved form
and must be given as soon as practicable.
Note: For approved form see section 72X.
(3) If the Registrar decides to issue the
departure authorisation certificate, the Registrar must, as soon as
practicable, give a copy of the certificate to the person, and to each person
to whom a copy of the departure prohibition order in respect of the person was
given under subsection 72G(4) or (5).
72P
Notification requirements for substituted days
(1) The Registrar must notify a person who
makes an application under section 72M to have a later day substituted of
the Registrar’s decision on the application.
(2) The Registrar must notify a person in
respect of whom a departure authorisation certificate is in force if the
Registrar decides, on the Registrar’s own motion, to substitute a later day.
(3) If the Registrar decides to substitute a
later day, the Registrar must also notify each person to whom a copy of the
departure prohibition order in respect of the person was given under subsection
72G(4) or (5).
(4) A notice under this section must be given
as soon as practicable.
Division 5—Appeals and review in relation to departure prohibition
orders and departure authorisation certificates
72Q
Appeals to courts against making of departure prohibition orders
(1) A person aggrieved by the making of a
departure prohibition order may appeal to the Federal Court of Australia or the
Federal Magistrates Court against the making of the order.
(2) This section has effect:
(a) subject to Chapter III of the
Constitution; and
(b) despite anything contained in
section 9 of the Administrative Decisions (Judicial Review) Act 1977.
72R
Jurisdiction of courts
The jurisdiction of a court under
section 72Q must be exercised by a single Judge or Justice.
72S
Orders of court on appeal
A court hearing an appeal under section 72Q
against the making of a departure prohibition order may, in its discretion:
(a) make an order setting aside the
order; or
(b) dismiss the appeal.
72T
Applications for review of certain decisions
(1) Applications may be made to the
Administrative Appeals Tribunal for review of a decision of the Registrar under
section 72I, 72L or 72M.
(2) In this section:
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975.
Division 6—Enforcement
72U
Powers of authorised officers
(1) This section applies if an authorised
officer believes on reasonable grounds that:
(a) a person is about to depart from Australia
for a foreign country; and
(b) a departure prohibition order in
respect of the person is in force; and
(c) the person’s departure is not
authorised by a departure authorisation certificate.
(2) The authorised officer may:
(a) take such steps as are reasonably
necessary to prevent the person’s departure, including, but not limited to,
steps to prevent the person going on board, or to remove the person from, a
vessel or aircraft in which the authorised officer believes on reasonable
grounds the departure will take place; and
(b) require the person to answer
questions or produce documents to the authorised officer for the purposes of
ascertaining whether:
(i) a departure
prohibition order in respect of the person is in force; and
(ii) if such an order in
respect of the person is in force—whether the person’s departure is authorised
by a departure authorisation certificate.
(3) A person is guilty of an offence if the
person refuses or fails to answer a question or produce a document.
Maximum penalty: 30 penalty units.
(4) However, a person is not guilty of an
offence under subsection (3) if the person answers the question or
produces the document to the extent that the person is capable of answering the
question or producing the document.
Note: A defendant bears an evidential burden in
relation to the matters mentioned in subsection (4).
(5) A person must not, in answer to a
question under subsection (2), make a statement that the person knows to
be false or misleading in a material particular.
Maximum penalty: 30 penalty units, or imprisonment for 6
months, or both.
72V
Privilege against self‑incrimination
(1) A person is not excused from the
requirement to comply with a requirement under paragraph 72U(2)(b) to answer
questions or produce documents on the ground that doing so might tend to
incriminate the person or expose the person to a penalty.
(2) However, if the person is an individual:
(a) the answer to the question or the
document; or
(b) any other information, document or
thing obtained as a direct or indirect result of complying with the
requirement;
is not admissible in evidence against the individual in
any criminal proceedings other than proceedings under, or arising out of,
subsection 72U(5).
72W
Certain people must produce authority to depart
(1) If:
(a) a departure prohibition order in
respect of a person is in force; and
(b) the person is about to depart from
Australia for a foreign country; and
(c) the person’s departure is
authorised by a departure authorisation certificate;
the person must give a copy of the certificate to an
authorised officer for inspection, if requested to do so by the authorised
officer.
Maximum penalty: 5 penalty units.
(2) Strict liability, within the meaning of
section 6.1 of the Criminal Code, applies to subsection (1).
Division 7—Definitions etc.
72X
Definitions
In this Part:
approved form means a form approved by the
Registrar for the purposes of the provision in which the expression appears.
authorised officer means:
(a) an officer within the meaning of
the Customs Act 1901; or
(b) a member of the Australian Federal
Police.
72Y
Interpretation—departure from Australia for foreign country
A reference in this Part to the
departure of a person from Australia for a foreign country is a reference to
the departure of the person from Australia for a foreign country, whether or
not the person intends to return to Australia.
Part VI—Payments to payees
Division 1—Child Support Account
73
Child Support Account
(1) There is continued in existence the Child
Support Account.
Note: The Account was established by subsection 5(3)
of the Financial Management Legislation Amendment Act 1999.
(2) The Account is a Special Account for the
purposes of the Financial Management and Accountability Act 1997.
74
Credit of amounts to Account
(1) The following amounts must be credited to
the Account:
(a) amounts equal to amounts received
by the Registrar in payment of child support debts (including amounts received
from employers under paragraph 47(1)(a));
(b) amounts equal to amounts received
by the Registrar from payers of enforceable maintenance liabilities as
voluntary payments for transmission to the payees of the liabilities;
(c) amounts equal to amounts that are
to be debited from the Account in making payments mentioned in paragraph
75(1)(c).
(2) If the Registrar receives an amount of
which only part appears to the Registrar to fall within subsection (1),
the Registrar must determine, in writing, the portion of the amount falling
within that subsection, and only that portion is to be credited to the Account
under subsection (1).
(3) If an amount would be credited to the
Account under both section 30 of the Financial Management and
Accountability Act 1997 and paragraph (1)(c) of this section, the
amount is to be credited to the Account under whichever of those provisions
first applies.
75
Purposes of the Account
(1) The purposes of the Account are:
(a) to make payments under subsection
76(1) to payees of registered maintenance liabilities; and
(b) to make payments to the payees of
enforceable maintenance liabilities of amounts received from the payers of the
liabilities as voluntary payments for transmission to the payees; and
(c) to make other payments that the
Registrar has determined for the purposes of this Act are payable to persons in
respect of child support.
(2) Amounts received from employers and
payers of enforceable maintenance liabilities, in relation to cases in which
amounts have been credited to the Account under section 77 or subsection
78(3), may be debited from the Account.
Division 2—Payments to payees
76
Entitlement of payees to be paid collected amounts
(1) Subject to subsection (2) of this
section, subsection 79(2) and sections 79A and 79B, every payee of a
registered maintenance liability is entitled to be paid, on or before the first
Wednesday following the end of each month (in this section called the current
month), an amount equal to the aggregate of:
(a) amounts deducted by an employer
under Part IV in relation to the liability during the month (in this
section called the previous month) preceding the current month;
(b) amounts received by the Registrar
(otherwise than under Part IV) in payment of a child support debt in
relation to the liability during the period (in this section called the payment
period) beginning on the day following the closing day of the previous
month and ending on the closing day of the current month; and
(c) to the extent that they have not
previously been paid to the payee, amounts that were:
(i) deducted by an
employer under Part IV in relation to the liability before the previous
month; or
(ii) received by the
Registrar (otherwise than under Part IV) in payment of a child support
debt in relation to the liability before the payment period;
but excluding (in the case of each of the amounts
mentioned in paragraphs (a), (b) and (c)) any amount that was not due and
payable by the payer on the seventh day of the current month.
(2) Subject to the regulations, where the
amount that a person is, but for this subsection, entitled to be paid at any
time under subsection (1) in relation to a registered maintenance
liability is less than the amount prescribed for the purposes of this
subsection, the person is not entitled to be paid the amount at that time.
77 Unremitted
deductions made by employers
Where:
(a) the Registrar is satisfied that a
deduction has been made under subsection 46(1) in a month by an employer from
the salary or wages of an employee; and
(b) the amount of the deduction is not
paid to the Registrar under paragraph 47(1)(a) on or before the closing day of
the following month;
an amount equal to the amount of the deduction unpaid on
that closing day must be credited to the Account.
78
Unexplained remittances from employers
(1) This section applies where:
(a) on or before the closing day of a
month, the Registrar receives under paragraph 47(1)(a) an amount (in this
section called the received amount) from an employer in relation
to the amounts deducted by the employer under Part IV from the salary or
wages of employees during the preceding month;
(b) the employer contravenes paragraph
47(1)(b) in relation to the preceding month; and
(c) the Registrar is unable to
ascertain to the Registrar’s satisfaction, on or before the closing day, the
portion of the received amount attributable to each of the employees (in this
section called the relevant employees) in relation to whom a
notice given to the employer under subsection 45(1) was in force during the
preceding month.
(2) The Registrar may, for the purposes of
subsection 76(1):
(a) subject to subsection (3),
treat the received amount as the total of the amounts deducted by the employer
under Part IV from the salary or wages of all the relevant employees
during the preceding month; and
(b) apportion the amount between the
relevant employees on the basis that appears to the Registrar to be the most
appropriate in the circumstances.
(3) Where:
(a) the received amount is less than
the amount (in this subsection called the expected amount) that,
according to the records held by the Registrar, should have been received from
the employer under paragraph 47(1)(a) in relation to the preceding month; and
(b) the expected amount does not
exceed the sum of the received amount and the product of the amount prescribed
for the purposes of this subsection and the number of relevant employees;
then:
(c) for the purposes of subsection (2)
of this section, the received amount shall be deemed to be an amount equal to
the expected amount; and
(d) an amount equal to the difference
between the expected amount and the received amount must be credited to the
Account.
79
Overpayments of payees
(1) If:
(a) the payee of a registered
maintenance liability is:
(i) paid an amount under
section 76; or
(ii) because of section 71AA,
taken to have been paid an amount under section 76; and
(b) either of the following situations
apply:
(i) the payee was not
entitled to be paid the amount; or
(ii) the amount is, because
of a subsequent variation to particulars of the entry in the Child Support
Register in relation to the liability, repayable by the Registrar to the payer
of the liability;
the amount is repayable by the payee to the Registrar and
is a debt due by the payee to the Commonwealth.
(2) Where, in a case falling within subsection (1),
the payee is entitled to receive further payments under subsection 76(1), the
amount of the debt due to the Commonwealth by the payee may be recovered by
reducing such of those payments by such amount as is determined in writing by
the Registrar.
Division 3—Suspension determinations
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 (whether under Part VII, VIIA or VIII) in
respect of a decision to accept an application for administrative assessment
under subsection 30(1) of the Assessment Act 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
Registrar, the SSAT or a 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.
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.
(3) For the purposes of subsection (1)
or (2), if the person is a resident of a reciprocating jurisdiction, the
person’s objection must be lodged within 90 days after the time specified in
that subsection, instead of within 28 days.
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).
(1A) However, if the person who made the
application is a resident of a reciprocating jurisdiction, the Registrar has 90
days, instead of 60 days, to act under paragraph (1)(b).
(2) If the Registrar does not either grant or
refuse to grant the application within the period applicable under
subsection (1) or (1A), 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—Requirements relating to objections
84
Grounds of objections
The objection must state fully and in
detail the grounds relied on.
85
Registrar to serve copies of objections and accompanying documents on other
parties
The following table has effect:
|
Recipients of
objections and accompanying documents
|
|
Item
|
If a person objects to
...
|
the Registrar must, as
soon as practicable, serve a copy of the objection, and any document that
accompanied the 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 objection
and any accompanying documents 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 objection and any accompanying
documents.
(2A) However, if the person is a resident of a
reciprocating jurisdiction, the person’s notice must be lodged within 90 days
after that time, instead of within 28 days.
(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.
(1A) However, if either the person objecting, or
a person served with a copy of the objection and any accompanying documents, is
a resident of a reciprocating jurisdiction, the Registrar has 120 days, instead
of 60 days, to act under paragraph (1)(b).
(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 objection and the accompanying documents 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 objection
and any accompanying documents 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 if:
(a) both of the following apply:
(i) the objection was to a
refusal by the Registrar, under section 98E or 98R of the Assessment Act,
to make a determination under Part 6A of that Act in respect of a child
support assessment;
(ii) the Registrar
disallowed the objection; or
(b) both of the following apply:
(i) the objection was to a
decision by the Registrar made in respect of a child support assessment;
(ii) in making a decision
on the objection, the Registrar, under section 98E or 98R of the
Assessment Act, refused to make a determination under Part 6A of that Act
in respect of the assessment.
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
(1) 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.
(2) However, if the person is a resident of a
reciprocating jurisdiction, the application for review must be made within the
period of 90 days starting on the day specified in subsection (1), instead
of within 28 days.
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 applying for review
(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.
(1A) However, if the person applying is a
resident of a reciprocating jurisdiction, the SSAT Executive Director has 90
days, instead of 60 days, to act under paragraph (1)(b).
(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:
(aa) the Registrar must send to the
SSAT Executive Director the statement described in paragraph 95(3)(a), within
28 days after receiving a request for the statement from the SSAT Executive
Director; and
(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) 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) Subject to sections 97 and 98,
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 is entitled to receive 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 95(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 review.
(1A) Subject to section 98, the Registrar
is not required, under subsection 96(1), to give a document, or part of a
document, referred to in paragraph 95(3)(b) while the Registrar is not required
to send the document or the part under subsection (1) of this section.
(2) Subsections (1) and (1A) do not
affect the obligation of the Registrar to comply with paragraph 95(3)(b) or
subsection 95(5) or 96(1) in relation to any document or part of a document to
which subsection (1) or (1A) 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 give
each party to a review, under subsection 96(1), the document or the part of the
document referred to in paragraph 95(3)(b), 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.
(3) The SSAT Executive Director must give a
copy of a direction given under subsection (2) to each party to the
review.
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:
(c) proceed with the application for
review of the decision as varied or the new decision, as the case may be; or
(d) request the SSAT Executive
Director to dismiss the application under section 100; or
(e) notify, under section 100A,
the SSAT that the application is discontinued or withdrawn.
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
request 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.
100A
Dismissal of an application on request of party
(1) An applicant may, in writing lodged with
the SSAT, at any time notify the SSAT that the application for review is
discontinued or withdrawn.
(2) If notification is so given, the SSAT is
taken to have dismissed the application without proceeding to review the
decision.
(3) If the SSAT dismisses an application
under subsection (2), a party to the review may, within 28 days after
receiving notification that the application has been dismissed, request that
the SSAT reinstate the application.
(4) If it considers it appropriate to do so,
the SSAT may reinstate the application and give such directions as appear to it
to be appropriate in the circumstances.
(5) If it appears to the SSAT that an
application has been dismissed under subsection (2) in error, the SSAT
may, on the request of a party to the review or on its own initiative,
reinstate the application and give such directions as appear to it to be
appropriate in the circumstances.
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:
(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.
(4) The SSAT must not make a decision by
consent under subsection (2) or (3) in relation to a departure from
administrative assessment of child support in accordance with Part 6A of the
Act unless it is satisfied that it is just and equitable and otherwise proper
to do so, having regard to the matters set out in subsections 117(4) and (5).
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 original
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.
Part VIII—Court review of certain decisions
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.
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.
104
Jurisdiction of courts under Act
(1) Jurisdiction is conferred on the Family
Court and the Federal Magistrates Court and, subject to subsection (7),
the Supreme Court of the Northern Territory, and each Family Court of a State
is invested with federal jurisdiction in relation to matters arising under this
Act.
(2) Subject to subsections (5) and (7),
each court of summary jurisdiction of each State is invested with federal
jurisdiction, and jurisdiction is conferred on each court of summary
jurisdiction of each Territory, in relation to matters arising under this Act.
(3) The Governor‑General may, by
Proclamation, fix a day as the day on and after which proceedings in relation
to matters arising under this Act may not be instituted in, or transferred to,
a court of summary jurisdiction in a specified State or Territory.
(4) A Proclamation under subsection (3)
may be expressed to apply only in relation to:
(a) proceedings of specified classes;
or
(b) the institution of proceedings in,
or the transfer of proceedings to, a court of summary jurisdiction in a
specified part of a State or Territory.
(5) A court of summary jurisdiction shall not
hear or determine proceedings under this Act otherwise than in accordance with
any Proclamation in force under subsection (3) of this section.
(6) The Governor‑General may, by
Proclamation, declare that a Proclamation under subsection (3) is revoked
on and from a specified day and, on and from the specified day, this Act
(including subsection (3)) has effect as if the revoked Proclamation had
not been made, but without prejudice to the effect of the revoked Proclamation
in relation to the jurisdiction of courts before the specified day.
(7) Jurisdiction in relation to a matter
arising under this Act in relation to which a proceeding is instituted under
this Act is not conferred on a court of a Territory unless at least one of the
parties to the proceeding (not being the Registrar) is, on the day of the
institution of the proceeding or the day of the transfer of the proceeding to
that court, ordinarily resident in the Territory.
(8) The jurisdiction conferred on or invested
in a court by this section includes jurisdiction in relation to matters arising
under this Act in relation to which proceedings are transferred to that court
under another law of the Commonwealth.
(9) The jurisdiction conferred on or invested
in a court by this section is in addition to any jurisdiction conferred on or
invested in the court apart from this section.
105
Application of Family Law Act
(1) The Family Law Act 1975 (other
than Part X of that Act), the standard Rules of Court and the related
Federal Magistrates Rules apply, subject to this Act and with such
modifications as are prescribed by the applicable Rules of Court, to
proceedings under this Act (other than proceedings under subparagraph
113(c)(i)) as if:
(a) the proceedings were proceedings
under that Act;
(b) the proceedings were proceedings
instituted under that Act;
(c) a court having or exercising
jurisdiction in the proceedings were a court having or exercising jurisdiction
under that Act;
(d) a decree made in the proceedings
were a decree made under that Act;
(e) matters arising in the proceedings
were matters arising under that Act; and
(f) any other necessary changes were
made.
(1A) In the application of subsection (1)
to proceedings under this Act in relation to a child, references in paragraphs (1)(a)
to (e) (inclusive) to the Family Law Act 1975 are to be taken to be
references to Part VII of that Act.
(2) Where any difficulty arises in the
application of subsection (1) in or in relation to a particular
proceeding, the court exercising jurisdiction in the proceeding may, on the
application of a party to the proceeding or of its own motion, give such
directions, and make such orders, as it considers appropriate to resolve the
difficulty.
106
Appellate jurisdiction of Family Court under Act
(1) The Family Court has jurisdiction with
respect to matters arising under this Act in relation to which:
(a) applications for leave to appeal
referred to in section 107, 107A or 110 are made; and
(b) appeals referred to in section 107,
107A or 110 are instituted.
(2) Subject to section 110, in an appeal
under section 107, 107A or 110, the Family Court shall have regard to the
evidence given in the proceedings out of which the appeal arose and has power
to draw inferences of fact and, in its discretion, to receive further evidence
on questions of fact.
(3) The further evidence may be given by
affidavit, by oral examination before the Family Court or a Judge or in such
other manner as the Family Court directs.
107
Appeals to Family Court from courts other than the Federal Magistrates
Court and the Magistrates Court of Western Australia
(1) An appeal lies, with the leave of a Full
Court of the Family Court, to a Full Court from:
(a) a decree of the Family Court,
constituted otherwise than as a Full Court, exercising original or appellate
jurisdiction under this Act; or
(b) a decree of:
(i) a Family Court of a
State; or
(ii) the Supreme Court of
the Northern Territory constituted by a single Judge;
exercising original or appellate
jurisdiction under this Act.
(1A) An appeal lies, with the leave of a Full
Court of the Family Court, from a decree or decision of a Judge exercising
original or appellate jurisdiction under this Act rejecting an application that
he or she disqualify himself or herself from further hearing a matter.
(2) An application for leave to appeal under subsection (1)
or (1A) shall be made within the time prescribed by the standard Rules of Court
or within such further time as is allowed in accordance with the standard Rules
of Court.
(3) On an appeal to the Full Court, the Full
Court may affirm, reverse or vary the decree or decision the subject of the
appeal and may make such decree or decision as, in the opinion of the Full
Court, ought to have been made in the first instance, or may, if it considers
appropriate, order a re‑hearing, on such terms and conditions (if any) as
it considers appropriate.
(4) If, in dismissing an appeal under subsection (1)
or (1A), the Full Court is of the opinion that the appeal does not raise any
question of general principle, it may, in accordance with the standard Rules of
Court, give reasons for its decision in short form.
(5) A Full Court of the Family Court, or a
Judge of the Appeal Division or other Judge if there is no Judge of the Appeal
Division available, may:
(a) join or remove a party to an
appeal under subsection (1) or (1A); or
(b) make an order by consent disposing
of an appeal under subsection (1) or (1A) (including an order for costs);
or
(c) give directions about the conduct
of an appeal under subsection (1) or (1A), including directions about the
use of written submissions and limiting the time for oral argument.
(6) The standard Rules of Court may make
provision enabling matters of the kind mentioned in subsection (5) to be
dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(7) Applications:
(a) for an extension of time within
which to institute an appeal under subsection (1) or (1A); or
(b) for leave to amend the grounds of
an appeal under subsection (1) or (1A); or
(c) to reinstate an appeal under subsection (1)
or (1A) that, because of the standard Rules of Court, was taken to have been
abandoned; or
(d) to stay an order of a Full Court
of the Family Court made in connection with an appeal under subsection (1)
or (1A);
may be heard and determined by a Judge of the Appeal
Division or other Judge if there is no Judge of the Appeal Division available,
or by a Full Court of the Family Court.
(8) The standard Rules of Court may make
provision enabling applications of a kind mentioned in subsection (7) to
be dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(9) No appeal lies under this section from an
order or decision made under subsection (5) or (7).
107A
Appeals to Family Court from the Federal Magistrates Court and the
Magistrates Court of Western Australia
(1) An appeal lies, with the leave of the
Family Court, to the Family Court from:
(a) a decree of the Federal
Magistrates Court exercising original jurisdiction under this Act; or
(b) a decree or decision of a Federal
Magistrate exercising original jurisdiction under this Act rejecting an
application that he or she disqualify himself or herself from further hearing a
matter.
However, an appeal does not lie to the Family Court from a
decree of the Federal Magistrates Court exercising jurisdiction under section 72Q.
Note: An appeal from a decree of the Federal
Magistrates Court exercising jurisdiction under section 72Q lies to the
Federal Court of Australia.
(1A) An appeal lies, with the leave of the
Family Court, to the Family Court from:
(a) a decree of the Magistrates Court
of Western Australia constituted by a Family Law Magistrate of Western
Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family
Law Magistrate of Western Australia exercising in the Magistrates Court of
Western Australia original jurisdiction under this Act rejecting an application
that he or she disqualify himself or herself from further hearing a matter.
(2) The jurisdiction of the Family Court in
relation to an appeal under subsection (1) or (1A) is to be exercised by a
Full Court unless the Chief Judge of the Family Court considers that it is
appropriate for the jurisdiction of the Family Court in relation to the appeal
to be exercised by a single Judge.
(3) Subsection (2) has effect subject to
subsections (7) and (9).
(4) An application for leave to appeal under subsection (1)
or (1A) is to be made within:
(a) the time prescribed by the
standard Rules of Court; or
(b) such further time as is allowed
under the standard Rules of Court.
(5) On an appeal under subsection (1) or
(1A), the Family Court may affirm, reverse or vary the decree or decision the
subject of the appeal and may make such decree or decision as, in the opinion
of the court, ought to have been made in the first instance, or may, if it
considers appropriate, order a re‑hearing, on such terms and conditions
(if any) as it considers appropriate.
(6) If, in dismissing an appeal under subsection (1)
or (1A), the Family Court is of the opinion that the appeal does not raise any
question of general principle, it may, in accordance with the standard Rules of
Court, give reasons for its decision in short form.
(7) A single Judge or a Full Court may:
(a) join or remove a party to an
appeal under subsection (1) or (1A); or
(b) make an order by consent disposing
of an appeal under subsection (1) or (1A) (including an order for costs);
or
(c) give directions about the conduct
of an appeal under subsection (1) or (1A), including directions about:
(i) the use of written
submissions; and
(ii) limiting the time for
oral argument.
(8) The standard Rules of Court may make
provision enabling matters of the kind mentioned in subsection (7) to be
dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(9) Applications:
(a) for leave to appeal under subsection (1)
or (1A); or
(b) for an extension of time within
which to make an application for leave to appeal under subsection (1) or
(1A); or
(c) for leave to amend the grounds of
an appeal under subsection (1) or (1A); or
(d) to reinstate an appeal under subsection (1)
or (1A) that, because of the standard Rules of Court, was taken to have been
abandoned; or
(e) to stay an order of the Family
Court made in connection with an appeal under subsection (1) or (1A);
may be heard and determined by a single Judge or by a Full
Court.
(10) The standard Rules of Court may make
provision enabling applications of a kind mentioned in subsection (9) to
be dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(11) An appeal does not lie to a Full Court
from a decision of a single Judge exercising jurisdiction under this section.
(12) The single Judge referred to in subsection (2),
(7) or (9) need not be a member of the Appeal Division of the Family Court.
108
Cases stated
(1) If, in proceedings in a court under this
Act, being proceedings in which a decree to which subsection 107(1) applies
could be made, a question of law arises that the Judge and at least one of the
parties wish to have determined by a Full Court of the Family Court before the
proceedings are further dealt with, the Judge shall state the facts and
question in the form of a special case for the opinion of a Full Court, and a
Full Court shall hear and determine the question.
(2) The Full Court may draw, from the facts
and the documents, any inference, whether of fact or law, that could have been
drawn from them by the Judge.
(3) If, in proceedings in the Federal Magistrates
Court, being proceedings in which a decree to which subsection 107A(1)
applies could be made, a question of law arises which:
(a) the Federal Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family
Court before the proceedings are further dealt with:
(c) the Federal Magistrate must state
the facts and question in the form of a special case for the opinion of a Full
Court; and
(d) a Full Court must hear and
determine the question.
(4) The Full Court may draw, from the facts
and the documents, any inference, whether of fact or of law, that could have
been drawn from them by the Federal Magistrate.
(5) If, in proceedings in the Magistrates
Court of Western Australia constituted by a Family Law Magistrate of Western
Australia, being proceedings in which a decree to which subsection 107A(1A)
applies could be made, a question of law arises which:
(a) the Magistrate; and
(b) at least one of the parties;
wish to have determined by a Full Court of the Family
Court before the proceedings are further dealt with:
(c) the Magistrate must state the
facts and question in the form of a special case for the opinion of a Full
Court; and
(d) a Full Court must hear and
determine the question.
(6) The Full Court may draw, from the facts
and the documents, any inference, whether of fact or of law, that could have
been drawn from them by the Magistrate.
109
Appeals to High Court
Notwithstanding anything contained in
any other Act, an appeal does not lie to the High Court from a decree of a
court exercising jurisdiction under this Act, whether original or appellate,
except:
(a) by special leave of the High
Court; or
(b) on a certificate of a Full Court
of the Family Court that an important question of law or of public interest is
involved.
110
Appeals from courts of summary jurisdiction
(1A) This section does not apply to a decree of
the Magistrates Court of Western Australia constituted by a Family Law
Magistrate of Western Australia.
Note: Appeals from these decrees are dealt with in
section 107A.
(1) Subject to subsections (2) and (5),
an appeal lies from a decree of a court of summary jurisdiction of a State or
Territory exercising jurisdiction under this Act to the Family Court or:
(a) in the case of a court of summary
jurisdiction of a State that has a Family Court of the State—to the Family
Court of the State; or
(b) in the case of a court of summary
jurisdiction of the Northern Territory—to the Supreme Court of the Northern
Territory.
(2) An appeal lies to a court under subsection (1)
only with the leave of the court.
(3) An application for leave to appeal under subsection (1)
shall be made within the time prescribed by the standard Rules of Court or
within such further time as is allowed in accordance with the standard Rules of
Court.
(4) A Family Court of a State is invested
with federal jurisdiction, and jurisdiction is conferred on the Supreme Court
of the Northern Territory, with respect to matters arising under this Act in
relation to which applications for leave to appeal are made under subsection (1)
and appeals are instituted under that subsection.
(5) The Governor‑General may, by
Proclamation, fix a day as the day on or after which applications may not be
made to the Family Court of a State or the Supreme Court of the Northern
Territory for leave to appeal under subsection (1).
(6) A court hearing an appeal under subsection (1):
(a) shall, subject to subsection (7),
proceed by way of a hearing de novo, but may receive as evidence any
record of evidence given, including any affidavit filed or exhibit received in
the court of summary jurisdiction; and
(b) may make such decrees as it
considers appropriate, including a decree affirming, reversing or varying the
decree the subject of the appeal.
(7) Where a court has granted leave to appeal
under subsection (1), the court may refer the appeal to a Full Court of
the Family Court.
(8) Where an appeal is referred to a Full
Court of the Family Court under subsection (7), the Full Court may:
(a) proceed by way of a hearing de
novo, but may receive as evidence any record of evidence given, including
any affidavit filed or exhibit received in the court of summary jurisdiction;
(b) order that questions of fact
arising in the proceedings be tried by a Judge;
(c) determine questions of law arising
in the proceedings and remit the appeal to a Judge for hearing in accordance
with directions given by it; and
(d) make such other decrees as it
considers appropriate, including a decree affirming, reversing or varying the
decree the subject of the appeal.
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 (if the court can
be constituted as a Full Court); or
(b) by a single judge (including a
Federal Magistrate) or by a single magistrate.
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 Constitution
of courts
The jurisdiction of a court to hear and
determine a question of law under this Subdivision may be exercised by the
court constituted:
(a) as a Full Court (if the court can
be constituted as a Full Court); or
(b) by a single judge (including a
Federal Magistrate) or by a single magistrate.
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, the SSAT
Executive Director must cause to be sent to the court all documents:
(a) that were before the SSAT in
relation to the proceeding to which the appeal or the reference relates; and
(b) that are relevant to the appeal or
the reference.
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.
Registrar
(4) For the
purposes of the Assessment Act and this Act, if:
(a) a decision is a decision of the
Registrar under the Assessment Act or this Act; and
(b) any of the following applies:
(i) an objection to the
decision may be lodged with the Registrar under Part VII of this Act;
(ii) an application may be
made to the SSAT under Part VIIA of this Act for review of that decision;
(iii) an appeal may be made
to a court under Subdivision B of Division 3 of Part VIII of this Act
in respect of the decision; and
(c) an objection, application or
appeal (as the case requires) 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 (other than the Registrar); or
(ii) a person (other than
the Registrar) 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 (other than by
reference to the Registrar).
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.
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.
• A court may dismiss, or
make orders in respect of, a frivolous or vexatious 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.
• A court order might cease
to be in effect because a terminating event happens.
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; or
(d) under Part 6A or 7 of the
Assessment Act.
(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.
111CA
Frivolous or vexatious proceedings
(1) A court having jurisdiction under this
Act may, at any stage of a proceeding instituted in the court under this Act,
if it is satisfied that the proceeding is frivolous or vexatious, do one or
more of the following:
(a) dismiss the proceeding;
(b) make such order as to costs as the
court considers just;
(c) if the court considers it
appropriate, on the application of a party to the proceeding—order that the
person who instituted the proceeding must not, without leave of a court having
jurisdiction under this Act, institute a proceeding under this Act or the
Assessment Act of the kind or kinds specified in the order.
(2) An order made by a court under
paragraph (1)(c) has effect notwithstanding any other provision of this
Act or the Assessment Act.
(3) A court may discharge or vary an order
made by that court under subsection (1).
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
(1) 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 payment must be made to the Registrar.
(2) The Registrar must, as soon as
practicable after receiving a payment in accordance with subsection (1),
pay the amount received by the Registrar to the payee.
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.
111H
Cessation of orders under Act
(1) An order made under this Act that varies
a child support assessment in relation to a child ceases to be in force if:
(a) a terminating event happens in
relation to the child; or
(b) a terminating event happens in
relation to the payee or payer of the registered maintenance liability that
relates to the child, or all 3 of them.
(2) Nothing in this section affects the
recovery of arrears due under an order when the order ceases to be in force.
Part IX—Miscellaneous
111
Duties of payers
(1) The payer of an enforceable maintenance
liability shall, within 14 days after each occasion on which the payer
commences to be an employee of an employer, notify the Registrar of the
commencement in the manner specified by the Registrar.
Note: Section 16A provides for the Registrar to
specify the manner in which a notice may be given.
(1A) For the purposes of subsection (1),
if:
(a) on a particular day (the application
day), the payer of a registered maintenance liability makes an
application under subsection 37B(2); and
(b) as a result of that application,
there is a low‑income non‑enforcement period in relation to the
liability for the purposes of section 37B;
the liability is taken to be an enforceable maintenance
liability throughout so much of the period as occurs on or after the application
day.
(2) The payer of an enforceable maintenance
liability shall, within 14 days after the payer changes his or her name or
address, notify the Registrar of the change in the manner specified by the
Registrar.
(3) A person who contravenes subsection (1)
or (2) is guilty of an offence punishable on conviction by a fine not exceeding
$1,000.
(3A) Subsection (3) is an offence of strict
liability.
(4) It is a defence to a prosecution for an
offence against subsection (3) if the person charged proves that the
person notified the Registrar of the happening of the relevant event as soon as
reasonably practicable after the happening of the event.
112
Copies of maintenance orders and agreements to be forwarded to Registrar
(1) Where:
(a) under the Family Law Act 1975 or
the law of a State or Territory:
(i) an order is made by,
or registered in, a court; or
(ii) a maintenance
agreement is registered in, or approved by, a court; and
(b) the order or agreement makes
provision in relation to:
(i) the maintenance of a
child; or
(ii) the maintenance by a
party to a marriage of the other party to the marriage;
the registrar or other responsible officer of the court
shall, within 28 days after the day on which the event referred to in subparagraph (a)(i)
or (ii) occurs, send a certified or sealed copy of the order or agreement to
the Child Support Registrar.
(2) The Child Support Registrar may, by
notice in writing served on the registrar or other responsible officer of a
court, vary, in relation to the court, in such instances and to such extent as
the Child Support Registrar thinks fit, the requirement of subsection (1).
113
Recovery of debts etc.
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.
Registrar to keep payee informed of action taken to
recover debt
(2) The Registrar may take such steps as the
Registrar considers appropriate to keep the payee of a registered maintenance
liability informed of action taken by the Registrar to recover debts due to the
Commonwealth under this Act in relation to the liability.
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
(2) A payee of a registered maintenance
liability who has instituted a proceeding in a court to recover a debt in
accordance with subsection (1) must give notice to the Registrar, in the
manner specified by the Registrar, of 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, within 14 days of the order being made.
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) the court makes an order in
relation to the payee and the debt due in relation to the liability; and
(b) the payee fails to notify the
Registrar under subsection (2) of the order being made.
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.
114
Application of payments
The regulations may, subject to section 70,
make provision with respect to the application of payments received by the
Registrar.
115
Substituted service
Where:
(a) a document is required to be
served on a person for the purposes of proceedings against the person for the
recovery of a debt due to the Commonwealth under this Act (other than under
section 79); and
(b) the Registrar is satisfied, after
reasonable inquiry, that the person:
(i) is absent from Australia
and has no attorney or agent in Australia on whom service of process can be
effected; or
(ii) cannot be found;
service of the document on the person may be effected,
without leave of a court, by posting the document or a sealed copy of it in a
letter addressed to the person at the person’s last known place of business or
residence in Australia.
116
Evidence
(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.
(2) The mere production of a certificate in
writing signed by the Registrar, certifying that an amount specified in the
certificate was, on the date of the certificate, due and payable by a specified
person to the Commonwealth in relation to a specified registrable maintenance
liability or under a specified provision of Part IV, is prima facie evidence
of the matters stated in the certificate.
(3) Without limiting the generality of subsection (2),
a certificate under that subsection may specify the amount of the outstanding
balance of one or more child support debts as described in section 67.
117
Appearance by Registrar etc.
(1) In any action, prosecution or other
proceeding under, or arising out of, this Act instituted by or on behalf of the
Registrar, to which the Registrar is a party or in which the Registrar is a
party or in which the Registrar intervenes or seeks to intervene, the Registrar
may appear personally or may be represented by:
(a) a person enrolled as a barrister,
solicitor, barrister and solicitor or legal practitioner of a federal court or
of the Supreme Court of a State or Territory; or
(b) a person authorised by the
Registrar, in writing, to appear.
(2) The appearance of a person, and the
statement of the person that the person appears by authority of the Registrar,
is prima facie evidence of that authority.
118
Judicial notice of signature
All courts and tribunals, and all judges
and persons acting judicially or authorised by law or consent of parties to
hear, receive and examine evidence, shall take judicial notice of the signature
of a person who holds or has held the office of Registrar.
119
False or misleading statements
(1) A person who:
(a) makes a statement to an officer
that is false or misleading in a material particular; or
(b) omits from a statement made to an
officer any matter or thing without which the statement is misleading in a
material particular;
is guilty of an offence punishable on conviction by a fine
not exceeding $2,000.
(2) In a prosecution of a person for an
offence against subsection (1), it is a defence if the person proves that
the person:
(a) did not know; and
(b) could not reasonably be expected
to have known;
that the statement to which the prosecution relates was
false or misleading.
(3) A reference in subsection (1) to a
statement made to an officer is a reference to a statement made to a person
exercising powers under or in relation to this Act, whether the statement is
made orally, in a document or in any other form and, without limiting the
generality of the foregoing, includes a statement:
(a) made in an application, form, notification,
objection or other document made, given, lodged or furnished, or purporting to
be made, given, lodged or furnished, under this Act;
(b) made in answer to a question asked
of the person under this Act; or
(c) made in any information furnished,
or purporting to be furnished, under this Act.
120
Obtaining of information and evidence
(1) The Registrar may, for the purposes of
this Act, by notice in writing, require a person:
(a) to furnish to the Registrar,
within a reasonable period, and in a reasonable manner, specified in the
notice, such information as the Registrar requires;
(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.
(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).
(2) The regulations shall prescribe scales of
expenses to be allowed to persons required to attend under this section.
(3) A person who refuses or fails to comply
with a requirement made under subsection (1), or by a court in accordance
with subsection (1A), is guilty of an offence punishable on conviction by
a fine not exceeding $2,000.
(4) Subsection (3) applies only to the
extent to which the person is capable of complying with the requirement.
(5) Subsection (3) is an offence of
strict liability.
(6) This section does not apply in relation
to a person:
(a) in respect of whom an
international maintenance arrangement applies; and
(b) who is a resident of a
reciprocating jurisdiction.
121
Order to comply with requirement
(1) Where:
(a) a person is convicted before a
court of an offence against paragraph 47(1)(b) or subsection 120(3); or
(b) a court makes an order under
section 19B of the Crimes Act 1914 in relation to a person in
relation to an offence against paragraph 47(1)(b) or subsection 120(3);
in relation to the refusal or failure of the person to
comply (whether in whole or in part) with a requirement made by or under this
Act, the court may, in addition to imposing a penalty on the person or making
such an order in relation to the person, as the case may be, and even though
the time for complying with the requirement or any other such requirement has
passed, order the person to comply with:
(c) the requirement; and
(d) such other requirements made, or
that could be made, in relation to the person by or under this Act as the court
considers necessary to ensure the effectiveness of the first‑mentioned
requirement;
within a specified time or at a specified place and time.
(2) Where an order under subsection (1)
is not given orally by the court to the person to whom the order is addressed,
the proper officer of the court shall cause a copy of the order to be served on
the person in the prescribed manner.
(3) A person who contravenes an order under subsection (1)
is guilty of an offence punishable on conviction by a fine not exceeding $5,000
or imprisonment for a period not exceeding 12 months, or both.
(4) Strict liability applies to the element
of an offence against subsection (3) that an order is an order under subsection (1).
121A
Obtaining of information and evidence in relation to residents of reciprocating
jurisdictions
The Registrar may, for the purposes of
this Act, by notice in writing, request a person who is or was a resident of a
reciprocating jurisdiction, or request an overseas authority of the
reciprocating jurisdiction:
(a) to give to the Registrar within a
reasonable period, and in a reasonable manner, specified in the notice, such
information as the Registrar requests; 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 to 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.
121B
Giving information to overseas authorities
If:
(a) the Registrar receives a request
from an overseas authority for information about a person; and
(b) the request is made in reliance on
an international maintenance arrangement;
the Registrar must give the information requested to the
overseas authority if it is necessary or convenient to do so for the purposes
of the arrangement.
121C
Regulations may prescribe manner of giving notices or other communications
The regulations may provide for how a
notice or other communication may be given to a payer or payee who is a
resident of a reciprocating jurisdiction.
122
Right of contribution
Where:
(a) 2 or more persons are jointly or
jointly and severally liable to pay a debt due to the Commonwealth under this
Act; and
(b) one of those persons has paid the
debt or part of the debt;
the person referred to in paragraph (b) may, in a
court of competent jurisdiction, recover by way of contribution, and as a debt,
from any of the other persons referred to in paragraph (a) such part of
the amount paid as the court considers just and equitable.
124
Application of Act to overseas orders and agreements
(1) This Act applies, with such modifications
as are prescribed, in relation to orders (including interim orders) made under
a law of a foreign country, being orders that are, under the Family Law Act
1975 or the law of a Territory, registered in a court.
(2) This Act applies, with such modifications
as are prescribed, in relation to maintenance agreements made under a law of a
foreign country, being agreements that are, under the Family Law Act 1975
or the law of a Territory, registered in or approved by a court.
124A
Regulations in relation to overseas‑related maintenance obligations etc.
(1) The regulations may make provision for,
and in relation to, giving effect to international maintenance arrangements.
(2) Regulations
made for the purposes of this section may:
(a) confer jurisdiction on a federal
court (other than the High Court) or a court of a Territory; or
(b) invest a court of a State with
federal jurisdiction.
125
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing
penalties not exceeding a fine of $500 for offences against the regulations.