An Act to make
provision for determining the financial support payable by parents for their
children, and for other purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Child
Support (Assessment) Act 1989.
2
Commencement [see
Note 1]
(1) Subject to subsection (2), this Act
commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1)
within the period of 6 months beginning on the day on which it receives the
Royal Assent, it commences on the first day after the end of that period.
3 Duty
of parents to maintain their children
(1) The parents of a child have the primary
duty to maintain the child.
(2) Without limiting subsection (1), the
duty of a parent to maintain a child:
(a) is not of lower priority than the
duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments
of the parent other than commitments necessary to enable the parent to support:
(i) himself or herself;
and
(ii) any other child or
another person that the parent has a duty to maintain; and
(c) is not affected by:
(i) the duty of any other
person to maintain the child; or
(ii) any entitlement of the
child or another person to an income tested pension, allowance or benefit.
4
Objects of Act
(1) The principal object of this Act is to
ensure that children receive a proper level of financial support from their
parents.
(2) Particular objects of this Act include
ensuring:
(a) that the level of financial
support to be provided by parents for their children is determined according to
their capacity to provide financial support and, in particular, that parents
with a like capacity to provide financial support for their children should
provide like amounts of financial support; and
(b) that the level of financial
support to be provided by parents for their children should be determined in
accordance with the costs of the children; and
(c) that persons who provide ongoing
daily care for children should be able to have the level of financial support to
be provided for the children readily determined without the need to resort to
court proceedings; and
(d) that children share in changes in
the standard of living of both their parents, whether or not they are living
with both or either of them; and
(e) 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.
(3) It is the intention of the Parliament
that this Act should be construed, to the greatest extent consistent with the
attainment of its objects:
(a) to permit parents to make private
arrangements for the financial support of their children; and
(b) to limit interferences with the
privacy of persons.
4A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
5
Interpretation—definitions
(1) In this
Act, unless the contrary intention appears:
AAT means the Administrative Appeals
Tribunal.
adjusted taxable income has the meaning given
by section 43.
administrative assessment means assessment (other
than assessment for the purposes of a notional assessment) under Part 5.
annualised MTAWE figure has the meaning given
by section 5A.
annual rate includes an annual rate of nil.
applicable Rules of Court has the same
meaning as in the Family Law Act 1975.
binding child support agreement has the
meaning given by section 80C.
care period has the meaning given by section 48.
carer entitled to child support, in relation
to a child, means:
(a) in the case of an administrative
assessment—a parent, or non‑parent carer, of the child who, under the
administrative assessment, is entitled to be paid child support in relation to
the child; and
(b) in the case of a child support
agreement—has the meaning given by subsection 93(1).
child eligible for administrative assessment
means a child in relation to whom an application may, under section 24, be
made to the Registrar for administrative assessment of child support.
child support means financial support under
this Act, including financial support under this Act by way of lump sum payment
or by way of transfer or settlement of property.
child support agreement has the meaning given
by section 81.
child support case, in relation to a child,
is the administrative assessments for child support for all children who are
children of both of the parents of the child.
child support income has the meaning given by
section 41.
child support percentage has the meaning
given by section 55D.
child support period has the meaning given by
subsection 7A(1).
child support terminating event has the
meaning given by section 12.
child support year
means:
(a) the period starting on the
commencing day and ending on the next 30 June; or
(b) a subsequent financial year.
claimant, in relation to family tax benefit,
means a person who has made a claim for the benefit, if the claim has not been
determined.
combined child support income has the meaning
given by section 42.
commencing day means the day on which this
Act commences.
cost percentage has the meaning given by
section 55C.
costs of a child has the meaning given by
section 55H or 55HA (as the case requires).
Costs of the Children Table means the table
in clause 1 of Schedule 1 to this Act.
court exercising jurisdiction under this Act
does not include a court exercising jurisdiction in proceedings under paragraph
79(a).
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, in Division 4 of Part 5,
has the meaning given by section 47B.
eligible carer has the meaning given by
section 7B.
eligible child has the meaning given by Part 3
(Children who may be covered by Act).
Family Assistance Act means the A New Tax
System (Family Assistance) Act 1999.
Family Law Act 1975 includes regulations
under that Act.
family tax benefit has the meaning given by
the Family Assistance Act.
final, in relation to a decision of a court,
has the meaning given by section 144.
full‑time secondary education, in
relation to a child, means education that is determined by the secondary school
at which the child is receiving the education to be full‑time secondary
education.
income amount order means:
(a) a determination under Part 6A
(departure determinations), or an order under Division 4 of Part 7
(departure orders), that:
(i) varies the annual rate
of child support payable by a parent for a child or for all the children in a
child support case by setting that annual rate; or
(ii) varies the adjusted
taxable income, or the child support income, of a parent by setting that
adjusted taxable income or child support income by setting that adjusted
taxable income or child support income; or
(b) provisions of a child support
agreement that has been accepted by the Registrar that have effect, for the
purposes of Part 5, as if they were such an order made by consent.
income percentage has the meaning given by
section 55B.
income support payment has the meaning given
by subsection 66(9).
Income Tax Assessment Act means the Income
Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
income tested pension,
allowance or benefit has the same meaning as in the Family Law Act
1975.
index number for a quarter has the meaning
given by subsection 153A(2).
last day, in
relation to a child’s secondary school year, means:
(a) if the child is not required to
sit an examination—the day determined by the secondary school to be the last
day of classes for the school year; and
(b) if the child is required to sit an
examination—the later of:
(i) the day determined by
the secondary school to be the last day of the period of examinations for the
child’s year level; and
(ii) the day determined by
the secondary school to be the last day of classes for the school year.
last relevant year of income in relation to a
child support period means the last year of income that ended before the start
of the period.
Note: For example, in working out Philippe’s last
relevant year of income for the child support period that began on 1 January 2008, the last relevant year of income is 2006‑07.
liable parent, in relation to a child, means:
(a) in the case of an administrative
assessment—a parent by whom child support is payable for the child under the
administrative assessment; and
(b) in the case of a child support
agreement—has the meaning given by subsection 93(1).
limited child support agreement has the
meaning given by section 80E.
lump sum payment provisions has the meaning
given by paragraph 84(1)(e).
member of a couple
means:
(a) a person who is legally married to
another person and is not living separately and apart from the other person on
a permanent or indefinite basis; or
(b) a person who is living with
another person of the opposite sex as the partner of the other person on a
genuine domestic basis although not legally married to the other person.
minimum annual rate of child support in
respect of a child support period has the meaning given by subsection 66(5).
multi‑case allowance has the meaning
given by section 47.
multi‑case cap has the meaning given by
section 55E.
multi‑case child costs has the meaning
given by step 3 of the method statement in section 47.
named month means one of the 12 named months
of the year.
non‑parent carer of a child means an
eligible carer of the child who is not a parent of the child.
non‑periodic payment provisions has the
meaning given by paragraph 84(1)(d).
notional assessment has the meaning given by
section 146E.
otherwise than in the form of periodic amounts,
in relation to child support, means child support that is not paid as periodic
amounts, and includes child support paid in the form of:
(a) a lump sum payment; and
(b) a transfer or settlement of
property.
Note: Periodic amount is defined in
section 4 of the Registration and Collection Act.
overseas income, in relation to a parent,
means income determined under Subdivision BA of Division 7 of Part 5
to be the overseas income of that parent.
parent means:
(a) when used in relation to a child
who has been adopted—an adoptive parent of the child; and
(b) when used in relation to a child
born because of the carrying out of an artificial conception procedure—a person
who is a parent of the child under section 60H of the Family Law Act 1975.
parenting plan has the meaning given by
section 63C of the Family Law Act 1975.
partner, in relation to a person who is a
member of a couple, means the other member of the couple.
pension PP (single) maximum basic amount is
the sum of:
(a) the amount that would have been a
person’s maximum basic rate under Module B of the Pension PP (Single) Rate
Calculator if the person was receiving parenting payment under the Social
Security Act 1991; and
(b) the amount that would have been
the person’s pension supplement under Module BA of the Pension PP (Single) Rate
Calculator if the person was receiving parenting payment under that Act.
percentage of care has the meaning given by
section 48.
provisional notional assessment means a
provisional notional assessment made under section 146B.
Registrar means the Child Support Registrar.
Registration and Collection Act means the Child
Support (Registration and Collection) Act 1988.
regular care has the meaning given by subsection (2).
related Federal Magistrates Rules has the
same meaning as in the Family Law Act 1975.
relevant dependent child, in relation to a
parent, means a child or step‑child of the parent, but only if:
(a) the parent has at least shared
care of the child or step‑child during the relevant care period; and
(b) either:
(i) the child or step‑child
is under 18; or
(ii) if the child or step‑child
is not under 18—a child support terminating event has not happened under
subsection 151D(1) in relation to the child; and
(c) the
child or step‑child is not a member of a couple; and
(d) in the case of a step‑child:
(i) an order is in force
under section 66M of the Family Law Act 1975 in relation to the
parent and the step‑child; or
(ii) the parent has the
duty, under section 124 of the Family Court Act 1997 of Western
Australia, of maintaining the step‑child; and
(e) in the case of a child—the parent
is not assessed in respect of the costs of the child (except for the purposes
of step 4 of the method statement in section 46).
relevant dependent child amount has the
meaning given by section 46.
relevant September quarter has the meaning
given by subsection 5A(2).
remaining period, in relation to a parent who
has made an election under section 60, means the period that the parent
used as the remaining period in applying the method in subsection 60(5).
reportable fringe benefits total for a year
of income for a person who is an employee (for the purposes of the Fringe
Benefits Tax Assessment Act 1986, whether it applies of its own force or
because of the Fringe Benefits Tax (Application to the Commonwealth) Act
1986) means the employee’s reportable fringe benefits total (as defined in
the Fringe Benefits Tax Assessment Act 1986) for the year of income.
resident of Australia has the
meaning given by section 10.
secondary school means a school, technical
and further education institution or any other educational institution
at which full‑time secondary education is provided.
self‑support amount has the meaning
given by section 45.
separated has the meaning given by section 9.
shared care has the meaning given by subsection (3).
standard Rules of Court has the same meaning
as in the Family Law Act 1975.
target foreign income has the meaning given
by section 5B.
taxable income has the meaning given by
sections 56 and 57.
tax free pension or benefit means any of the
following pensions or benefits:
(a) a disability support pension under
Part 2.3 of the Social Security Act 1991;
(b) a wife pension under Part 2.4
of the Social Security Act 1991;
(c) a carer payment under Part 2.5
of the Social Security Act 1991;
(d) an invalidity service pension
under Division 4 of Part III of the Veterans’ Entitlements Act
1986;
(e) a partner service pension under
Division 5 of Part III of the Veterans’ Entitlements Act 1986;
(f) income support supplement under
Part IIIA of the Veterans’ Entitlements Act 1986;
(g) Defence Force Income Support
Allowance under Part VIIAB of the Veterans’ Entitlements Act 1986;
to the extent to which the payment:
(h) is exempt from income tax; and
(i) is not a payment by way of
bereavement payment, pharmaceutical allowance, rent assistance, language,
literacy and numeracy supplement or remote area allowance.
termination agreement has the meaning given
by section 80D.
this Act includes the regulations.
year of income, in relation to a person,
means:
(a) a year of income (within the
meaning of the Income Tax Assessment Act 1936); or
(b) an income year (within the meaning
of the Income Tax Assessment Act 1997).
Definitions of regular care and shared care
(2) A person has regular care of
a child if the person has:
(a) at least 14%; but
(b) less than 35%;
of the care of the child during a care period.
(3) A person
has shared care of a child if the person has:
(a) at least 35%; but
(b) no more than 65%;
of the care of the child during a care period.
5A
Definition of annualised MTAWE figure
(1) The annualised MTAWE
figure for a relevant September quarter means the figure that is 52
times the amount set out for the reference period in the quarter under the
headings “Average Weekly Earnings—Trend—Males—All Employees Total Earnings” in
a document published by the Australian Statistician entitled “Average Weekly
Earnings, Australia”.
(2) The relevant September quarter,
in relation to a child support period, means the quarter ending
on 30 September of the last calendar year ending before the child support
period begins.
(3) If at any time (whether before or after
the commencement of this section), the Australian Statistician publishes the
amount referred to in subsection (1):
(a) under differently described
headings (the new headings); or
(b) in a document entitled otherwise
than as described in subsection (1) (the new document);
then the annualised MTAWE figure is to be calculated in
accordance with subsection (1) as if the references to:
(c) “Average Weekly
Earnings—Trend—Males—All Employees Total Earnings”; or
(d) “Average Weekly Earnings, Australia”;
were references to the new headings and/or the new
document, as the case requires.
(4) For the purposes of this section, the reference
period in a particular quarter is the period described by the
Australian Statistician as the pay period ending on or before a specified day
that is the third Friday of the middle month of that quarter.
5B
Definition of target foreign income
(1) A parent’s
target foreign income for a year of income is:
(a) the amount of the parent’s foreign
income (as defined in section 10A of the Social Security Act 1991)
for the year of income that is neither:
(i) taxable income; nor
(ii) received in the form
of a fringe benefit (as defined in the Fringe Benefits Tax Assessment Act
1986, as it applies of its own force or because of the Fringe Benefits
Tax (Application to the Commonwealth) Act 1986) in relation to the parent
as an employee (as defined in the Fringe Benefits Tax Assessment Act 1986)
and a year of tax; and
(b) any amount of income that is not
covered by paragraph (a) that is exempt from tax under section 23AF
or 23AG of the Income Tax Assessment Act 1936, reduced (but not below
nil) by the total amount of losses and outgoings (except capital losses and
outgoings) incurred by the parent in deriving that exempt income.
(1A) In working out a parent’s target foreign
income under subsection (1), exclude any overseas income that was
determined for the purpose of working out the parent’s adjusted taxable income.
(2) If it is necessary, for the purposes of
this Act, to work out an amount of foreign income expressed in a foreign
currency received in a year of income, the amount in Australian currency is to
be worked out using the market exchange rate for 1 July in that year of
income.
(3) If there is no market exchange rate for 1 July
in the year of income (for example, because of a national public holiday), the
market exchange rate to be used is the market exchange rate that applied on the
last working day immediately before that 1 July.
(4) For the purposes of this section, the
appropriate market exchange rate on a particular day for a foreign currency is:
(a) if there is an on‑demand
airmail buying rate for the currency available at the Commonwealth Bank of
Australia at the start of business in Sydney on that day and the Secretary
determines that it is appropriate to use that rate—that rate; or
(b) in any other case:
(i) if there is another
rate of exchange for the currency, or there are other rates of exchange for the
currency, available at the Commonwealth Bank of Australia at the start of
business in Sydney on that day and the Secretary determines that it is
appropriate to use the other rate or one of the other rates—the rate so
determined; or
(ii) otherwise—a rate of
exchange for the currency available from another source at the start of
business in Sydney on that day that the Secretary determines it is appropriate
to use.
6
Interpretation—expressions used in Registration and Collection Act
Unless the contrary intention appears,
expressions used in this Act, and in the Registration and Collection Act, have
the same respective meanings as in that Act.
7
Interpretation—expressions used in Part VII of Family Law Act
Unless the contrary intention appears,
expressions used in this Act, and in Part VII of the Family Law Act
1975, have the same respective meanings as in that Part.
7A
Meaning of child support period
What is a child support period?
(1) A child support period is a
period that:
(a) starts at a time described in subsection (2);
and
(b) ends at the time described in subsection (3)
that occurs soonest after the start of the period.
Note: Subsections (6), (7), (8) and (9) provide
some examples of child support periods. The examples are not exhaustive or
definitive: see section 15AD of the Acts Interpretation Act 1901.
When does a child support period start?
(2) Each of
the following times is the start of a child support period:
(a) the beginning of the day on which
an application for an administrative assessment of the child support payable
for a child is properly made under Part 4;
(b) the beginning of the day mentioned
in paragraph 93(1)(g) (child support payable under a child support agreement
accepted by Registrar);
(c) the start of the first day for
which a child support agreement described in section 34B is to affect the
rate of child support payable for a child;
(d) immediately after the end of the preceding
child support period that relates to child support payable for the child
(whether it was a period starting as described in paragraph (a), (b) or
(c) or this paragraph).
Note: Despite paragraph (2)(a), a child support
period might not start if a non‑parent carer applies for an
administrative assessment of child support during a child support period (see
section 40B).
End of the child support period
(3) The child support period ends at
whichever of the following times occurs soonest after the start of the period:
(a) the time 15 months after the
period started;
(b) the end of the named month during
which the Registrar makes an assessment relating to the annual rate of child
support payable for the child as required by section 34A (assessment when new
tax figure is available);
(c) the time immediately before the
day mentioned in paragraph 93(1)(g) (child support payable under a child
support agreement accepted by Registrar);
(d) the end of the day immediately
before the first day for which a child support agreement described in section 34B
is to affect the rate of child support payable for the child.
Examples
(4) Subsections (5), (6), (7) and (8)
merely give a series of examples of the operation of the rules in subsections (1),
(2) and (3). The examples involve Mary and Peter. Mary cares for their child
and, on 8 June 2000, makes an application under Part 4 and receives a
child support assessment for Peter to pay her child support for the child.
Example—initial child support period resulting from application
under Part 4
(5) On 20 October 2000, the Registrar makes a new administrative assessment based on an assessment under the
income tax law of Peter’s taxable income for the 1999‑2000 year of income
(as required by section 34A). The first child support period starts on 8 June 2000 and ends at the end of 31 October 2000, and the second starts on 1 November 2000.
Example—end of child support period if new taxable
income not available within 15 months
(6) If no assessment of the taxable income of
Mary or Peter for the 1999‑2000 or the 2000‑2001 year of income had
been made under the income tax law before the end of 7 September 2001, the
first child support period would start on 8 June 2000 and end at the end
of 7 September 2001 (15 months after it started).
Example—child support agreement ends existing child
support period and starts a new one
(7) If Mary and Peter make a child support
agreement to influence the annual rate of child support on and after 15 September 2000:
(a) the child support period that
started on 8 June 2000 ends at the end of 14 September 2000; and
(b) a new child support period starts
on 15 September 2000.
Example—child support period for child support
agreement setting child support rate lasts 15 months
(8) If the child support agreement set the
rate of child support payable for the next 2 years (so section 34A did not
require the Registrar to make an administrative assessment on 20 October
2000 as described in subsection (5)), the child support period that
started on 15 September 2000 would end 15 months later at the end of 14 December
2001 (unless Mary and Peter made another child support agreement to affect the
rate of child support payable for a day before 15 December 2001).
7B
Meaning of eligible carer
(1) In this Act, eligible carer,
in relation to a child, means a person who has at least shared care of the
child.
(2) Despite subsection (1), if:
(a) a person cares for a child; and
(b) the person is neither a parent nor
a legal guardian of the child; and
(c) a parent or legal guardian of the
child has indicated that he or she does not consent to the person caring for
the child;
then the person is not an eligible carer in relation to
the child unless it would be unreasonable in the circumstances for a parent or
legal guardian of the child to care for the child.
(3) For the purposes of subsection (2),
it is unreasonable for a parent or legal guardian to care for a child if:
(a) the Registrar is satisfied that
there has been extreme family breakdown; or
(b) the Registrar is satisfied that
there is a serious risk to the child’s physical or mental wellbeing from
violence or sexual abuse in the home of the parent or legal guardian concerned.
9
Interpretation—meaning of separated
For the purposes of this Act, the
parents of a child are to be taken to have separated in circumstances in which
the parties to a marriage are, under the Family Law Act 1975, taken to
have separated.
10
Interpretation—meaning of resident of Australia
For the purposes of this Act, a person
is a resident of Australia on a day if on that day the person 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.
12
Interpretation—happening of child support terminating events
(1) A child support terminating event happens
in relation to a child if:
(a) the child dies; or
(b) the child ceases to be an eligible
child under regulations made under subsection 22(1); or
(c) the child turns 18; or
(d) the child is adopted; or
(e) the child becomes a member of a
couple; or
(f) none of the following
subparagraphs applies any longer in relation to the child:
(i) the child is present
in Australia;
(ii) the child is an
Australian citizen;
(iii) the child is
ordinarily resident in Australia; or
(g) the circumstances described in
subsection 30AA(1) of the Registration and Collection Act apply in relation to
the child.
Note: Paragraph (1)(c) may be affected by
section 151C (which deals with continuing administrative assessments and
child support agreements beyond a child’s 18th birthday in certain situations).
(2) A child support terminating event happens
in relation to a person who is a carer entitled to child support in relation to
a child if the person dies.
(2AA) A child support terminating event happens in
relation to a child if:
(a) both of the parents of the child
are not eligible carers of the child; and
(b) there are no non‑parent
carers entitled to be paid child support in relation to the child.
(2A) A child support terminating event happens
in relation to a person who is a carer entitled to child support in relation to
a child if:
(a) an international maintenance
arrangement applies in respect of the person and the child; and
(b) the person is a resident of a
reciprocating jurisdiction; and
(c) the person ceases to be a resident
of the reciprocating jurisdiction; and
(d) the person does not, immediately
after so ceasing, become a resident of another reciprocating jurisdiction or of
Australia.
(3) A child support terminating event happens
in relation to a person who is a liable parent in relation to a child if:
(a) the person dies; or
(b) the person ceases to be a resident
of Australia.
(3A) A child support terminating event happens
in relation to a person who is a liable parent in relation to a child if:
(a) an international maintenance
arrangement applies in respect of the person and the child; and
(b) the person is a resident of a
reciprocating jurisdiction; and
(c) the person ceases to be a resident
of the reciprocating jurisdiction; and
(d) the person does not, immediately
after so ceasing, become a resident of another reciprocating jurisdiction or of
Australia.
(3B) A child support terminating event happens
in relation to a person who is a liable parent in relation to a child if:
(a) an international maintenance
arrangement applies in respect of the person and the child; and
(b) the person is a resident of a
reciprocating jurisdiction; and
(c) the reciprocating jurisdiction
becomes specified in regulations made for the purposes of section 30A as a
reciprocating jurisdiction for a resident of which an application for:
(i) an administrative
assessment of child support for a child; or
(ii) acceptance of a child
support agreement;
may not be accepted.
(4) A child support terminating event happens
in relation to a child and the persons who are respectively a carer entitled to
child support and a liable parent in relation to the child if:
(a) either of the following
subparagraphs applies in relation to the child and those persons:
(i) the carer entitled to
child support elects by a notice that complies with section 151 (Election
by carer entitled to child support to end administrative assessment) that the
liability of the liable parent to pay or provide child support for the child to
the carer entitled to child support is to end from a specified day;
(ii) the Registrar accepts
a child support agreement made in relation to the child between the carer
entitled to child support and the liable parent, and the agreement includes
provisions under which the liability of the liable parent to pay or provide
child support for the child to the carer entitled to child support is to end
from a specified day; and
(b) the specified day arrives.
(4A) Subject to
subsection (4B):
(a) if an international maintenance
arrangement applies in respect of a child—a circumstance set out in
paragraph (1)(f) is not a child support terminating event in relation to
the child; and
(b) if an international maintenance
arrangement applies in respect of a person who is a liable parent in respect of
a child—a circumstance set out in paragraph (3)(b) is not a child support
terminating event in relation to the person.
(4B) Subsection (4A) does not apply if:
(a) where one only of the carer
entitled to child support in relation to a child and the liable parent in
relation to the child is a resident of Australia—that carer or that liable
parent ceases to be a resident of Australia; or
(b) where both the carer entitled to
child support in relation to a child and the liable parent in relation to the
child are residents of Australia—that carer and that liable parent both cease
to be residents of Australia.
(5) A child support terminating event happens
in relation to a child and the child’s parents if the parents become members of
the same couple for a period of 6 months or more.
13
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 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 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 because 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 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
because of subsection (1) or paragraph (2)(a) only 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 in 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.
14
Additional application of Act in relation to maintenance of children of
marriages
(1) Without prejudice to its effect apart
from this section, this Act so far as it relates to the maintenance of children
also has effect as provided by this section.
(2) This Act so far as it relates to the
maintenance of children has, because of this section, the effect that it 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 has that effect only so far as it makes provision with
respect to the rights and duties of the parties to the marriage in relation to
the child, including, for example, provision with respect to the rights and
duties of the 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.
15
Corresponding State laws
(1) If the Minister is satisfied that a law
of a State makes adequate and appropriate provision for determining the
financial support payable for children, the Minister may, by Gazette notice,
declare the law to be a corresponding State law.
(2) If the Minister becomes satisfied that
the State law no longer makes adequate and appropriate provision for
determining the financial support payable for children, the Minister may, by Gazette
notice, revoke the declaration of the law as a corresponding State law.
(3) It is the intention of the Parliament
that the Registrar should have and be subject to the powers, functions, rights,
liabilities and duties conferred or imposed on the Registrar by a corresponding
State law that are additional to those conferred or imposed by this Act.
16 Act
to bind Crown
(1) This Act
binds the Crown in right of the Commonwealth, of each of the States, of the Australian
Capital Territory, of the Northern Territory and of Norfolk Island.
(2) Nothing in this Act permits the Crown to
be prosecuted for an offence.
Part 2—Counselling
17
Court counselling facilities to be made available
(1) A parent of an eligible child, or an
eligible carer of an eligible child who is not a parent of the child, may seek
the assistance of the counselling facilities of the Family Court or a Family
Court of a State.
(2) The Principal Director of Court
Counselling of the Family Court or an appropriate officer of the Family Court
of the State must, as far as practicable, make the counselling facilities
available.
Part 3—Children who may be covered by Act
18 Act
applies only in relation to eligible children
This Act applies only in relation to
children who are eligible children.
19 Children
born on or after commencing day are eligible children
A child born on or after the commencing
day is an eligible child.
20
Children of parents who separate on or after commencing day are eligible
children
(1) Where:
(a) the parents of a child born before
the commencing day have cohabited; and
(b) the
parents separate on or after the commencing day;
the child is an eligible child.
(2) Subsection (1) applies in relation
to the child whether or not the parents:
(a) are or were at any time legally
married; or
(b) have separated on an earlier
occasion; or
(c) have resumed cohabitation.
21
Children with a brother or sister who is an eligible child are eligible
children
Where:
(a) a child would, apart from this
section, not be an eligible child; and
(b) another
child is born to the parents of the first‑mentioned child on or after the
commencing day;
the first‑mentioned child is an eligible child.
22
Exclusion of certain children from coverage of Act
(1) The
regulations may provide that children who are under the care (however
described) of a person under a child welfare law are not eligible children.
(2) Sections 19, 20 and 21 have effect
subject to any regulations made under subsection (1).
Part 4—Applications to Registrar for administrative assessment of
child support
Division 1—Application requirements
23
Application requirements generally
An application for administrative
assessment of child support is properly made if it complies with the following
provisions:
(a) section 24 (Children in
relation to whom applications may be made);
(b) section 25 (Persons who may
apply—parents);
(c) section 25A (Persons who may
apply—non‑parent carers);
(d) Section 27 (Formal
requirements for applications).
24
Children in relation to whom applications may be made
(1) Application may be made to the Registrar
for administrative assessment of child support for a child only if:
(a) the child is:
(i) an eligible child; and
(ii) under 18 years of age;
and
(iii) not a member of a
couple; and
(b) except in a circumstance referred
to in subsection (2), either or both of the following subparagraphs
applies or apply in relation to the child:
(i) the child is present
in Australia on the day on which the application is made;
(ii) the child is an
Australian citizen, or ordinarily resident in Australia, on that day.
(2) Paragraph (1)(b) does not apply to
an application for administrative assessment of child support if:
(a) all of the following apply:
(i) the application is
made under section 25 for a parent to be assessed in respect of the costs
of the child;
(ii) the parent of the
child is a resident of a reciprocating jurisdiction;
(iii) the Registrar has not
determined under section 29A that child support is reasonably likely to be
payable by the parent; or
(b) both of the following apply:
(i) the application is
made under section 25A by a non‑parent carer;
(ii) the non‑parent
carer is a resident of a reciprocating jurisdiction.
25
Persons who may apply—parents
A parent (the applicant)
of a child may apply to the Registrar under this section for administrative
assessment of child support for the child if:
(a) the applicant applies for both
parents to be assessed in respect of the costs of the child; and
(b) the applicant is not living with
the other parent as his or her partner on a genuine domestic basis (whether or
not legally married to the other parent); and
(c) the applicant complies with any
applicable requirements of section 26 (dealing with joint care situations)
and section 26A (dealing with children cared for under child welfare
laws); and
(d) if either parent of the child is
not a resident of Australia on the day on which the application is made—the
application meets the requirements of sections 29A and 29B.
25A
Persons who may apply—non‑parent carers
A person who is not a parent of a child
(the applicant) may apply to the Registrar under this section for
administrative assessment of child support for the child if:
(a) the applicant is an eligible carer
of the child; and
(b) one of the following also applies:
(i) the applicant applies
for both parents to be assessed in respect of the costs of the child;
(ii) if one parent of the
child is neither a resident of Australia nor a resident of a reciprocating
jurisdiction—the applicant applies for the other parent to be assessed in
respect of the costs of the child;
(iii) if the Registrar is
satisfied that there are special circumstances—the applicant applies for the
other parent to be assessed in respect of the costs of the child;
(iv) if one parent of the
child is dead—the applicant applies for the other parent to be assessed in
respect of the costs of the child; and
(c) the applicant is not living with
either parent as the partner of that parent on a genuine domestic basis
(whether or not legally married to that parent); and
(d) the applicant complies with any
applicable requirements of section 26 (dealing with joint care situations)
and section 26A (dealing with children cared for under child welfare
laws); and
(e) if a parent of the child who is to
be assessed in respect of the costs of the child is not a resident of Australia
on the day on which the application is made—the application meets the
requirements of sections 29A and 29B.
26
Requirements of applications where there are joint carers
If 2 or more persons (joint carers)
jointly have care of a child, then only one of the joint carers may apply for
administrative assessment of child support for the child. If one of those joint
carers is a parent of the child, the joint carer who applies must be that
parent.
26A
Requirements of application if child is cared for under child welfare law
If a non‑parent carer has care
(however described) of a child under a child welfare law, the non‑parent
carer may apply for child support for the child only if the non‑parent
carer is a relative of the child.
27
Application for administrative assessment
An application for administrative
assessment of child support must be made to the Registrar in the manner
specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which an application may be made.
28
Application for child support for 2 or more children made in same form
If application is made in the same form
for administrative assessment of child support for 2 or more children, the form
may be treated as if it contained separate applications made for administrative
assessment for each of the children.
Note: This provision applies even if the children
are in different child support cases.
Division 2—Decision on application
29 How
decision is to be made
(1) Subject to this section, in determining
whether an application for administrative assessment of child support complies
with sections 24, 25 and 25A, the Registrar may act on the basis of the application
and the documents accompanying the application, and is not required to conduct
any inquiries or investigations into the matter.
(2) The Registrar is to be satisfied that a
person is a parent of a child only if the Registrar is satisfied:
(a) that the person is or was a party
to a marriage and the child was born to the person, or the other party to the
marriage, during the marriage; or
(b) that the person’s name is entered
in a register of births or parentage information, kept under the law of the
Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a
parent of the child; or
(c) that, whether before or after the
commencement of this Act, a federal court, a court of a State or Territory or a
court of a prescribed overseas jurisdiction has:
(i) found expressly that
the person is a parent of the child; or
(ii) made a finding that it
could not have made unless the person was a parent of the child;
and the finding has not been
altered, set aside or reversed; or
(d) that, whether before or after the
commencement of this Act, the person has, under the law of the Commonwealth or
of a State, Territory or prescribed overseas jurisdiction, executed an
instrument acknowledging that the person is the father or mother of the child,
and the instrument has not been annulled or otherwise set aside; or
(e) that the child has been adopted by
the person; or
(f) that the person is a man and the
child was born to a woman within 44 weeks after a purported marriage to which
the man and the woman were parties was annulled; or
(g) that the person is a man who was a
party to a marriage to a woman and:
(i) the parties to the
marriage separated; and
(ii) after the parties to
the marriage separated, they resumed cohabitation on one occasion; and
(iii) within 3 months after
the resumption of cohabitation, they again separated and afterwards lived
separately and apart; and
(iv) the child was born to
the woman within 44 weeks after the period of cohabitation but after the
dissolution of the marriage; or
(h) that the person is a man and:
(i) the child was born to
a woman who cohabited with the man at any time during the period beginning 44
weeks and ending 20 weeks before the birth; and
(ii) no marriage between
the man and the woman subsisted during any part of the period of cohabitation.
(3) If:
(a) 2 or more paragraphs of subsection (2)
are relevant to a particular application; and
(b) those
paragraphs, or some of them, conflict with each other;
the paragraph that appears to the Registrar to be the more
or most likely to be the correct presumption prevails.
29A
Person by whom child support is payable must be Australian resident or resident
of reciprocating jurisdiction
(1) This section applies if:
(a) an application is made under
section 25 or 25A for a parent to be assessed in respect of the costs of
the child; and
(b) the parent is not a resident of Australia
on the day on which the application is made.
(2) The Registrar must determine whether
child support is reasonably likely to be payable by the parent.
(3) If the Registrar determines that child
support is reasonably likely to be payable by the parent, the application is
taken to have been properly made only if:
(a) subsection 24(2) does not apply in
relation to the child (payee of child support resident in reciprocating
jurisdiction); and
(b) the parent is a resident of a
reciprocating jurisdiction on the day on which the application is made.
Note: If an application is not properly made, the
Registrar must refuse the application under section 30.
29B
Applications by residents of reciprocating jurisdictions
(1) If a person applying under
section 25 or 25A is a resident of a reciprocating jurisdiction, the
application must be made:
(a) by the person and given to the
Registrar by an overseas authority of the reciprocating jurisdiction; or
(b) if an overseas authority of the
reciprocating jurisdiction believes that child support is reasonably likely to
be payable to the person in respect of a child—by the overseas authority on
behalf of the person; or
(c) if the person believes that child
support is reasonably likely to be payable by him or her to another person in
respect of a child—directly to the Registrar by the person.
(2) If an application is made by an overseas
authority of a reciprocating jurisdiction on behalf of a person, the
regulations may prescribe actions the overseas authority may take for the
person.
(3) If an application is made by a person and
given to the Registrar by an overseas authority of a reciprocating jurisdiction,
the regulations may prescribe actions the overseas authority may take for the
person with the person’s consent.
30
Decision on application
(1) If the Registrar is satisfied that an
application has been properly made for administrative assessment of child
support for a child, the Registrar must accept the application.
(2) If the Registrar is not so satisfied, the
Registrar may refuse to accept the application.
(3) This section is subject to
sections 30A and 30B.
30A No
administrative assessment or acceptance of agreement if contrary to
international maintenance arrangement
(1) An application for:
(a) an administrative assessment of
child support for a child; or
(b) acceptance of a child support
agreement;
is taken not to have been properly made by a parent by
whom, under a determination made under section 29A, child support is
reasonably likely to be payable and who is a resident of a reciprocating
jurisdiction specified in regulations made for the purposes of this section.
(2) A reciprocating jurisdiction may be
specified in regulations made for the purposes of this section if the
acceptance of an application for:
(a) an administrative assessment of
child support for a child; or
(b) a child support agreement;
in relation to a parent by whom, under a determination
made under section 29A, child support is reasonably likely to be payable
who is a resident of the jurisdiction would not be permitted by the law of the
jurisdiction.
(3) This section has effect despite subsection
29A(3).
30B
Registrar may refuse application for administrative assessment if overseas
liability already registered
If:
(a) a registered maintenance liability
of a kind mentioned in section 18A of the Registration and Collection Act
relates to a particular child, a liable parent and a carer entitled to child
support; and
(b) after the registration of the
liability, an application is made for an administrative assessment of child
support in relation to the child, the liable parent and the carer entitled to
child support; and
(c) either the liable parent or the
carer entitled to child support is a resident of a reciprocating jurisdiction;
then the Registrar may determine that the application is
taken not to have been properly made.
31
Requirement to assess child support on acceptance of application
(1) If the Registrar accepts an application
for administrative assessment of child support for a child, the Registrar must,
as quickly as possible:
(a) either:
(i) if the application is
made under section 25—assess both parents in respect of the costs of the
child under Part 5; or
(ii) if the application is
made under section 25A (non‑parent carer applications)—assess both
parents, or the relevant parent, (as the case requires) in respect of the costs
of the child under Part 5; and
(b) assess under Part 5 the
annual rate of child support payable by a parent for the child for the days in
the child support period that starts:
(i) if child support is
payable by a parent who is a resident of a reciprocating jurisdiction—on the
first day on which all prior requirements (if any) under the applicable
international maintenance arrangement, and under the laws of the reciprocating
jurisdiction, have been complied with; and
(ii) otherwise—on the day
on which the application is made.
Example: Some reciprocating jurisdictions require that
notice be given about the making and substance of the application for
administrative assessment of child support and how the person may object to the
application, or require that a person have an opportunity to be heard before
making a decision on an application.
Note: Part 4A deals with assessments for later
child support periods.
(2) Child support is payable until the day
immediately before the day on which a child support terminating event happens in
relation to the child, the carer entitled to child support, the liable parent
or all 3 of them.
32
Withdrawal of application by applicant
(1) Where:
(a) a person has made an application
to the Registrar for administrative assessment of child support for a child;
and
(b) the
Registrar has not accepted, or refused to accept, the application;
the person may, by notice given to the Registrar, withdraw
the application.
(2) The notice must be given in the manner
specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
(4) Where a notice that complies with subsections (2)
is given to the Registrar in relation to an application for administrative
assessment, the application is to be taken not to have been made.
Division 3—Notice of decision
33
Notice to be given to unsuccessful applicant
(1) If the Registrar refuses to accept an
application for administrative assessment of child support for a child, the
Registrar must immediately notify the applicant in writing.
Refusals on ground that Registrar not satisfied that
person a parent
(3) If one of the reasons the Registrar
refused to accept the application was because the Registrar was not satisfied
under section 29 that a person who was to be assessed in respect of the
costs of the child is a parent of the child, the notice must include, or be
accompanied by:
(a) a statement that the Registrar was
not satisfied under section 29 that the person is a parent of the child;
and
(b) a statement to the effect that an
application may be made to a court having jurisdiction under this Act for a
declaration under section 106A that the person should be assessed in
respect of the costs of a child because the person is a parent of the child.
Refusals on other grounds
(4) If subsection (3) does not apply,
the notice must include, or be accompanied by, a statement to the effect that:
(a) the applicant may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) the applicant may, if aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), subject to that Act, apply to the SSAT for review of the later
decision.
Validity of decisions
(5) A contravention of subsection (3) or
(4) in relation to a decision does not affect the validity of the decision.
34 Giving
notice of successful application
(1) If the Registrar accepts an application
for administrative assessment of child support for a child, the Registrar must
notify the applicant and any parent who is to be assessed in respect of the
costs of the child.
(2) The notice must include, or be
accompanied by, a statement to the effect that:
(a) an application may be made to a
court having jurisdiction under this Act for a declaration under
section 107 that a person should not be assessed in respect of the costs
of the child because the person is not a parent of the child; and
(b) in any case:
(i) the applicant or a
parent who is to be assessed in respect of the costs of the child, may, subject
to the Registration and Collection Act, object to the decision (the original
decision) (other than because a person is not a parent of the child);
and
(ii) the applicant or a
parent who is to be assessed in respect of the costs of the child, if aggrieved
by a later decision on an objection in relation to the original decision (no
matter who lodges the objection), may, subject to that Act, apply to the SSAT
for review of the later decision.
Part 4A—Assessments of child support for later child support periods
34A
Registrar must make assessment when new tax figure is available
Application of section
(1) This section requires the Registrar to
assess the annual rate of child support payable in some cases if:
(a) child support is payable by a
liable parent for a child for a day in a child support period (the earlier
period); and
(b) during the earlier period, an
assessment (the tax assessment) is made under an Income Tax
Assessment Act of the taxable income, or any other component of the adjusted
taxable income, of the liable parent or the other parent, for the latest year
of income (the last year) that ended after the start of the
earlier period.
Registrar must make assessment using new tax figures
(2) As soon as practicable after the tax
assessment is made, the Registrar must assess the annual rate of child support
payable for the child for days in a child support period starting on the first
day of the next named month (after the named month in which the Registrar makes
the assessment).
When new assessment is not required
(3) This section does not require the
Registrar to make an assessment if:
(a) the Registrar calculates that the
tax assessment for the last year could not affect the annual rate of child
support payable for the child for a day in a child support period; or
(b) the annual rate of child support
payable for the child for the first day of the next named month is to be worked
out without reference to the actual taxable income of the parent mentioned in paragraph (1)(b)
because of:
(i) a child support
agreement between the parents of the child; or
(ii) a determination under
Part 6A (departure determination); or
(iii) an order made by a
court under this Act or the Registration and Collection Act; or
(c) the earlier period will end before
the end of the earliest named month in which it is practicable for the
Registrar to make the assessment mentioned in subsection (2).
Note: In the case of paragraph (3)(c), the
Registrar must use the information from the tax assessment to make an
assessment for the period starting immediately after the end of the earlier
period (unless the information is not relevant to an assessment, because of an
agreement, determination or order) (see section 34C).
34B
Administrative assessment for child support period started by new agreement
when support already payable
(1) The Registrar must assess the annual rate
of child support payable for a child for a day in a child support period if:
(a) the Registrar accepts a child
support agreement made in relation to the child; and
(b) child support is already payable
by a parent for the child under an administrative assessment; and
(c) the agreement is to affect the
annual rate of child support payable for the child.
The Registrar must assess the annual rate immediately
after accepting the agreement.
Note 1: Section 95 explains how the provisions of
the agreement affect the assessment.
Note 2: If the Registrar makes an assessment under this
section, the Registrar must make a provisional notional assessment under
section 146B.
(2) The child support period starts:
(a) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement states
that child support is to be payable from a specified day; and
(iii) the day specified is
not earlier than the day on which child support first became payable under the
administrative assessment;
on the specified day; or
(b) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement states
that child support is to be payable from a specified day; and
(iii) the day specified is
earlier than the day on which child support first became payable under the
administrative assessment;
on the day on which child
support first became payable under the administrative assessment; or
(c) if:
(i) the application for
acceptance of the agreement was made to the Registrar within 28 days after the
day on which the agreement was signed; and
(ii) the agreement does not
specify a day from which child support is to be payable;
on the day on which the
agreement was signed; or
(d) otherwise—on the day on which the
application was made to the Registrar for acceptance of the agreement.
(3) However, if the applicant for acceptance
of the agreement is a resident of a reciprocating jurisdiction,
subsection (2) applies as if the references in subparagraphs (2)(a)(i),
(b)(i) and (c)(i) were references to 90 days instead of 28 days.
34C
Administrative assessments for child support periods not started by application
or new agreement
The Registrar must assess under this Act
the annual rate of child support payable for a child for days in a child
support period either before, or as soon as practicable after, the start of the
period unless:
(a) the period starts when the
application is made under Part 4; or
(b) the period starts on a day
mentioned in paragraph 93(1)(g); or
(c) an assessment of the child support
payable for the child for days in the period has already been made as required
by section 34A; or
(d) the period starts on the first day
for which a child support agreement described in subsection 34B(1) is to affect
the annual rate of child support payable for the child.
Note 1: Section 31 requires the Registrar to make
an assessment of child support payable as quickly as possible after accepting
an application under Part 4.
Note 2: Subsection 93(2) requires the Registrar to make
an assessment of child support payable as soon as practicable after accepting
certain child support agreements.
Note 3: If a child support agreement has effect for the
purposes of the child support period, it will affect the assessment (see
section 95).
Part 5—Administrative assessment of child support
Division 1—Preliminary
35A
Simplified outline
The following is a simplified outline of
this Part:
• This Part includes the
formulas used for assessing the annual rate of child support payable by a
parent for a child for a day in a child support period (other than in cases
where that rate is worked out in accordance with a child support agreement, a
Registrar’s determination under Part 6A or a court order).
• The Costs of the Children
Table published by the Secretary each year (based on the table in Schedule 1
to this Act) sets out the costs to parents of raising children in various age
ranges.
• Those costs are to be met
by both parents (by paying child support or by caring for their children)
according to each parent’s capacity to meet the costs.
• To determine each parent’s
capacity to meet those costs, the parents are assessed in respect of the costs
of the child.
• Generally, both parents’
income is taken into account in determining each parent’s capacity to meet the
costs of their children.
• The formulas also allow
child support payable to non‑parent carers of children to be worked out.
Division 2—The formulas
Subdivision A—Preliminary
35B
Simplified outline
The following is a simplified outline of
this Division:
• The Costs of the Children
Table published by the Secretary each year (based on the table in Schedule 1
to this Act) sets out the costs to parents of raising children in various age
ranges.
• These costs are to be met
by both parents (by paying child support or by caring for their children)
according to each parent’s capacity to meet the costs.
• To determine each parent’s
capacity to meet the costs, the parents are assessed in respect of the costs of
the child.
• Formulas 1 and 2 apply if
both parents’ incomes are taken into account in determining each parent’s
capacity to meet the costs of their children, and each parent only has one
child support case.
• Formulas 3 and 4 apply if
both parents’ incomes are taken into account in determining each parent’s
capacity to meet the costs of their children, and at least one of the parents
has multiple child support cases.
• Formulas 5 and 6 apply if
only one parent’s income is taken into account in determining the parent’s capacity
to meet the costs of his or her children (such as because the other parent is
not a resident of Australia).
• Formulas 2, 4, 5 and 6 also
allow child support payable to non‑parent carers of children to be worked
out.
• In some cases, the annual
rate of child support payable by a parent is assessed under Subdivision B of
Division 8 (low income parents and minimum annual rates of child support).
35C
Application of Part to determine annual rate of child support
This Part applies in relation to the assessment
of child support payable by a parent for a child, subject to:
(a) any determination made by the
Registrar under Part 6A (departure determinations); and
(b) any order made by a court under
Division 4 of Part 7 (departure orders); and
(c) any provisions of a child support
agreement that have effect, for the purposes of this Part, as if they were such
an order made by consent.
Subdivision B—Working out annual rates of child support using incomes of
both parents in single child support case
35D Application
of Subdivision
(1) The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if:
(a) both parents of the child are to
be assessed in respect of the costs of the child; and
(b) both parents are to be assessed
only in respect of the costs of:
(i) that child; and
(ii) any other child in the
child support case that relates to that child.
(2) Subsection (1) does not apply if at
least one of the parents is liable to pay child support for a child under an
administrative assessment under the law of a reciprocating jurisdiction.
35
Formula 1: Method statement using incomes of both parents in single child
support case with no non‑parent carer
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if no
non‑parent carer has a percentage of care for the child for the day.
Method
statement
Step 1. Work out each parent’s
child support income for the child for the day (see section 41).
Step 2. Work out the parents’
combined child support income for the child for the day (see section 42).
Step 3. Work out each parent’s
income percentage for the child for the day (see section 55B).
Step 4. Work out each parent’s
percentage of care for the child for the day (see section 48).
Step 5. Work out each parent’s
cost percentage for the child for the day (see section 55C).
Step 6. Work out each parent’s
child support percentage for the child for the day (see section 55D).
Step 7. Work out the costs of
the child for the day under sections 55G and 55H.
Step 8. If a parent has a
positive child support percentage under step 6, the annual rate of child
support payable by the parent for the child for the day is worked out
using the formula:
Note: If a parent’s percentage of care for a child
is more than 65%, the parent’s annual rate of child support for the child is
nil (see section 40C).
36
Formula 2: Working out annual rates of child support using incomes of both
parents in single child support case with a non‑parent carer
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if one
or more non‑parent carers have a percentage of care for the child for the
day.
(2) Follow steps 1 to 8 of the method
statement in section 35 for each parent (disregarding subsection 55D(2)
(negative child support percentages)).
Annual rate payable by parent
(3) If a parent’s (the first parent’s)
child support percentage under step 6 of the method statement in section 35
is positive, then the annual rate of child support payable by the
first parent for the child for the day is the annual rate of child support for
the child worked out under step 8 of the method statement.
Annual rate payable only to non‑parent carers
(4) If:
(a) the second parent’s child support
percentage is also positive; or
(b) the second parent’s child support
percentage is nil or negative, and the second parent does not have at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (3) to the non‑parent carer or carers in
accordance with section 40A.
Note 1: If both parents have a positive child support
percentage, then the non‑parent carer or carers are entitled to be paid
the total of the 2 annual rates of child support that are payable by the
parents for the child.
Note 2: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
Annual rate payable to parent and non‑parent
carer
(5) If the second parent’s child support
percentage is negative, and the second parent has at least shared care of the
child during the relevant care period, then:
(a) the first parent must pay to the
second parent the annual rate of child support for the child worked out under
step 8 of the method statement using the second parent’s negative child support
percentage (expressed as a positive); and
(b) subject to section 40B, the
first parent must pay to the non‑parent carer an annual rate of child
support for the child that is the difference between:
(i) the annual rate of
child support payable by the first parent for the child under subsection (3);
and
(ii) the rate referred to
in paragraph (a) of this subsection.
Subdivision C—Working out annual rates of child support using incomes of
both parents in multiple child support cases
36A
Application of Subdivision
(1) The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if:
(a) both parents of the child are to
be assessed in respect of the costs of that child; and
(b) at least one of the parents of the
child is to be assessed in respect of the costs of another child in another
child support case.
(2) For the purposes of
paragraph (1)(b), a parent is taken to be assessed in respect of the costs
of another child in another child support case if the parent is liable to pay
child support for that child under an administrative assessment under the law
of a reciprocating jurisdiction.
37
Formula 3: Method statement using incomes of both parents in multiple child
support cases with no non‑parent carer
This is how to work out the annual rate
of child support payable for a child for a day in a child support period if no
non‑parent carer has a percentage of care for the child for the day.
Method
statement
Step 1. Follow
steps 1 to 6 in the method statement in section 35 for each parent.
Step 1A. Work out the costs of the
child for the day under section 55HA.
Step 1B. If a parent has a
positive child support percentage under step 6 of the method statement in section 35,
work out the following rate:
Step 2. Work out each parent’s
multi‑case cap (if any) for the child for the day (see section 55E).
Step 3. If a parent has a
positive child support percentage under step 6 of the method statement in
section 35, the annual rate of child support payable by the
parent for the child for the day is the lower of:
(a) the
rate worked out under step 1B of the method statement in this section; and
(b) the parent’s
multi‑case cap (if any) for the child for the day.
Note: If a parent’s percentage of care for a child
is more than 65%, the parent’s annual rate of child support for the child is
nil (see section 40C).
38
Formula 4: Working out annual rates of child support using incomes of both
parents in multiple child support cases with a non‑parent carer
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if one
or more non‑parent carers have a percentage of care for the child for the
day.
(2) Follow steps 1 to 6 of the method
statement in section 35 for each parent (disregarding subsection 55D(2)
(negative child support percentages)).
(2A) Work out the costs of the child for the day
under section 55HA.
(2B) If a parent has a positive child support
percentage under step 6 of the method statement in section 35, work out
the following rate:
(3) Work out each parent’s multi‑case
cap (if any) for the child for the day (see section 55E).
Annual rate payable by parent
(4) If a parent’s (the first parent’s)
child support percentage under step 6 of the method statement in section 35
is positive, then the annual rate of child support payable by the
first parent for the child for the day is the lower of:
(a) the rate worked out under
subsection (2B); and
(b) the first parent’s multi‑case
cap (if any) for the child for the day.
Annual rate payable only to non‑parent carers
(5) If:
(a) the second parent’s child support
percentage is also positive; or
(b) the second parent’s child support
percentage is nil or negative, and the second parent does not have at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (4) to the non‑parent carer or carers in
accordance with section 40A.
Note 1: If both parents have a positive child support
percentage, then the non‑parent carer or carers are entitled to be paid
the total of the 2 annual rates of child support that are payable by the
parents for the child.
Note 2: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
Annual rate payable to parent and non‑parent
carer
(6) If:
(a) the second parent’s child support
percentage is negative; and
(b) the second parent has at least
shared care of the child during the relevant care period;
then, subject to section 40B, the first parent must
pay the annual rate of child support that is payable by the first parent for
the child under subsection (4) to the second parent and the non‑parent
carer in accordance with section 40A.
Subdivision D—Working out annual rates of child support using income of
one parent
38A
Application of Subdivision
The annual rate of child support payable
for a child for a day in a child support period is assessed under this
Subdivision if only one parent of the child is to be assessed in respect of the
costs of the child.
39
Formula 5: Method statement using income of one parent where other parent not a
resident of Australia or in special circumstances
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if a non‑parent
carer of the child has applied for a parent of the child to be assessed in
respect of the costs of the child because of subparagraph 25A(b)(ii) or (iii)
(non‑resident of Australia or special circumstances).
Method
statement
Step 1. Work out the parent’s
child support income for the day (see section 41) and double that income.
Step 2. Work
out the parent’s percentage of care for the child for the day (see section 48).
Step 3. Work out the parent’s
cost percentage for the child for the day (see section 55C).
Step 4. If
the parent is assessed in respect of the costs of another child who is in
another child support case, work out the costs of the child for the day under
section 55HA. Otherwise, work out the costs of the child for the day under
sections 55G and 55H. Assume, in applying section 55G or 55HA and
Schedule 1, that the reference to the child support income of the parent
in the Costs of the Children Table is a reference to the amount worked out
under step 1.
Step 5. Work out the following
rate:
Step 6. If the parent is not
assessed in respect of the costs of another child who is in another child
support case, the annual rate of child support payable by the
parent for the child for the day is the rate worked out under step 5.
Step 7. If the parent is
assessed in respect of the costs of another child who is in another child
support case, work out the parent’s multi‑case cap for the child for the
day (see section 55E).
Step 8. The
annual rate of child support payable by the parent for the child
for the day is the lower of:
(a) the
rate worked out under step 5; and
(b) the parent’s
multi‑case cap for the child for the day.
Step 9. If
there is only one non‑parent carer who has a percentage of care for the
child for the day, the parent must pay the annual rate of child support that is
payable for the child under step 5 or 8 to the non‑parent carer. If there
are 2 non‑parent carers who have a percentage of care for the child for
the day, then, subject to section 40B, the parent must pay the annual rate
of child support that is payable for the child under step 5 or 8 to the non‑parent
carers in accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
(2) For the purposes of steps 4, 6 and 7 of
the method statement in subsection (1), a parent is taken to be assessed
in respect of the costs of another child who is in another child support case if
the parent is liable to pay child support for that child under an
administrative assessment under the law of a reciprocating jurisdiction.
40
Formula 6: Method statement using income of one parent where other parent
deceased
(1) This is how to work out the annual rate
of child support payable for a child for a day in a child support period if a
non‑parent carer of the child has applied for a parent of the child to be
assessed in respect of the costs of the child because of subparagraph
25A(b)(iv) (deceased parent).
Method
statement
Step 1. Work out the parent’s
child support income for the day (see section 41).
Step 2. Work out the parent’s
percentage of care for the child for the day (see section 48).
Step 3. Work out the parent’s
cost percentage for the child for the day (see section 55C).
Step 4. If the parent is
assessed in respect of the costs of another child who is in another child
support case, work out the costs of the child for the day under
section 55HA. Otherwise, work out the costs of the child for the day under
sections 55G and 55H.
Step 5. Work
out the following rate:
Step 6. If the parent is not
assessed in respect of the costs of another child who is in another child
support case, the annual rate of child support payable by the
parent for the child for the day is the rate worked out under step 5.
Step 7. If the parent is
assessed in respect of the costs of another child who is in another child
support case, work out the parent’s multi‑case cap for the child for the
day (see section 55E).
Step 8. The annual rate
of child support payable by the parent for the child for the day is the
lower of:
(a) the rate
worked out under step 5; and
(b) the parent’s
multi‑case cap for the child for the day.
Step 9. If
there is only one non‑parent carer who has a percentage of care for the
child for the day, the parent must pay the annual rate of child support that is
payable for the child under step 5 or 8 to the non‑parent carer. If there
are 2 non‑parent carers who have a percentage of care for the child for
the day, then, subject to section 40B, the parent must pay the annual rate
of child support that is payable for the child under step 5 or 8 to the non‑parent
carers in accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
(2) For the purposes of steps 4, 6 and 7 of
the method statement in subsection (1), a parent is taken to be assessed
in respect of the costs of another child who is in another child support case
if the parent is liable to pay child support for that child under an
administrative assessment under the law of a reciprocating jurisdiction.
Subdivision E—General provisions
40A
Cases where there is more than one person entitled to child support
(1) If, in applying:
(a) subsection 36(4) or 38(5) or (6);
or
(b) step 9 in the method statement in subsection
39(1) or 40(1); or
(c) subsection 65A(5);
child support is payable to:
(d) a parent and a non‑parent
carer of a child; or
(e) 2 non‑parent carers of a
child;
then, the annual rate of child support for the child for a
day in the child support period that each parent or non‑parent carer (as
the case requires) is, subject to section 40B, entitled to be paid is:
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
(2) In applying subsection (1), even if
a non‑parent carer is not entitled to be paid an annual rate of child
support because of section 40B, the non‑parent carer’s cost
percentage is taken into account.
40B
Non‑parent carer must have applied for child support
(1) A non‑parent carer of a child is
not, under section 36, 38, 39, 40, 65A or 66, entitled to be paid an
annual rate of child support for the child for a day in a child support period
unless the non‑parent carer has made an application under section 25A
in relation to the child.
(2) If a non‑parent carer is not
entitled to be paid child support for a child for a day in a child support
period under subsection (1), the annual rate of child support payable
by the parent for the child for the day is reduced by the amount that is not
payable because of subsection (1).
(3) If:
(a) a non‑parent carer of a
child has not so applied at the time the administrative assessment of child
support for the child for the child support period is made; but
(b) the non‑parent carer does so
during the child support period;
then:
(c) the non‑parent carer is
entitled to be paid an annual rate of child support for the child worked out
under this Part from the day on which the non‑parent carer makes the
application under section 25A; and
(d) despite paragraph 7A(2)(a), a new
child support period is not started by that application.
40C
Parents with more than 65% care
The annual rate of child support payable
by a parent for a child for a day in a child support period is nil if:
(a) the parent’s annual rate of child
support for the child is worked out under section 35 or 37 (income of both
parents, no non‑parent carer); and
(b) the parent’s percentage of care
determined for the purposes of the administrative assessment of child support
for the child is more than 65%.
40D
Parents with nil child support percentage
The annual rate of child support payable
by a parent for a child for a day in a child support period is nil if the
parent’s child support percentage for the child for the day is nil.
Division 3—Child support income
Subdivision A—Preliminary
40E
Simplified outline
The following is a simplified outline of
this Division:
• The income used in
determining a parent’s capacity to meet the costs of his or her children might
be reduced by the following amounts:
(a) the self‑support
amount (to take account of the parent’s need to support himself or herself);
(b) a relevant
dependent child amount (if the parent cares for a relevant dependent child or
step‑child of the parent);
(c) a multi‑case
allowance (if the parent has multiple child support cases).
• The relevant dependent
child amount and the multi‑case allowance take account of the costs of
relevant dependent children, and children in other child support cases, in a
similar way to the way in which the costs of the children are worked out for
children in a child support case.
• A parent’s adjusted taxable
income for a year of income can be reduced under section 44 in respect of
a particular child if the parent earns additional income during the first 3
years after separating from the other parent of the child.
Subdivision B—Child support income and combined child support income
41
Working out parent’s child support income
Single child support case—no relevant dependent
children
(1) If:
(a) a parent is to be assessed in
respect of the costs of a child in only one child support case; and
(b) the parent does not have a
relevant dependent child;
the parent’s child support income for the
child for a day in a child support period is the amount worked out using the formula:
Single child support case—relevant dependent children
(2) If:
(a) a parent is to be assessed in
respect of the costs of a child (the particular child) in only
one child support case; and
(b) the parent has at least one
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Multiple child support cases—no relevant dependent
children
(3) If:
(a) a parent is to be assessed in
respect of the costs of a child (the particular child); and
(b) the parent is also to be assessed
in respect of the costs of another child in another child support case; and
(c) the parent does not have a
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Multiple child support cases—relevant dependent
children
(4) If:
(a) a parent is to be assessed in
respect of the costs of a child (the particular child); and
(b) the parent is also to be assessed
in respect of the costs of another child in another child support case; and
(c) the parent has at least one
relevant dependent child;
the parent’s child support income for the
particular child for a day in a child support period is the amount worked out
using the formula:
Negative result taken to be nil
(5) A parent’s child support income
for a day in a child support period is taken to be nil if the amount worked out
using a formula in this section is negative.
Administrative assessments under laws of reciprocating
jurisdictions
(6) Subsection (1) or (2) does not apply
if the parent is liable to pay child support for a child under an
administrative assessment under the law of a reciprocating jurisdiction.
(7) For the purposes of
paragraphs (3)(b) and (4)(b), a parent is taken to be assessed in respect
of the costs of another child in another child support case if the parent is
liable to pay child support for that child under an administrative assessment
under the law of a reciprocating jurisdiction.
42
Working out parents’ combined child support income
Work out the parents’ combined
child support income for a child for a day in a child support period by
adding together each parent’s child support income for the child for the day.
Subdivision C—Working out the components of child support income
43
Working out parent’s adjusted taxable income
(1) Subject to subsection (2), a
parent’s adjusted taxable income for a child for a day in a child
support period is the total of the following components:
(a) the parent’s taxable income for
the last relevant year of income in relation to the child support period;
(b) the parent’s reportable fringe
benefits total for that year of income;
(c) the parent’s target foreign income
for that year of income;
(d) the parent’s total net investment
loss (within the meaning of the Income Tax Assessment Act 1997) for that
year of income;
(e) the total of the tax free pensions
or benefits received by that parent in that year of income;
(f) the parent’s reportable
superannuation contributions (within the meaning of the Income
Tax Assessment Act 1997) for that year of income.
Note 1: Other provisions that relate to a person’s
adjusted taxable income are section 34A and Subdivisions B and C of
Division 7.
Note 2: The components of the definition of adjusted
taxable income are defined in section 5.
(2) If the Registrar amends an assessment
under section 44, then for the purposes of the assessment, the person’s adjusted
taxable income for a child to whom the assessment relates, for a day in
the child support period, is the amount determined by the
Registrar.
44
Post‑separation costs
Application for post‑separation income to be
excluded
(1) A parent (the applicant) of
a child may apply to the Registrar to amend an administrative assessment of
child support payable by or to the parent for the child for part of a child
support period if:
(a) the applicant and the other parent
of the child lived together on a genuine domestic basis for at least 6 months;
and
(b) the separation, following that 6
month period, of the applicant from the other parent occurred:
(i) within the last 3
years; and
(ii) before the application
for administrative assessment of child support for the child was made under
section 25 or 25A; and
(c) at the time of the application
under this section, the applicant and the other parent remain separated; and
(d) in the last relevant year of
income, or in the remaining period (if the parent has made an election under
section 60), the applicant earns, derives or receives income:
(i) in accordance with a
pattern of earnings, derivation or receipt that is established after the
applicant and the other parent first separate; and
(ii) that is of a kind that
it is reasonable to expect would not have been earned, derived or received in
the ordinary course of events.
(2) If the applicant makes an application
under this section, the Registrar may determine that the applicant’s adjusted
taxable income for the child for a day in the child support period is a
specified amount that excludes the income referred to in paragraph (1)(d).
(3) However, the Registrar may make a
determination under subsection (2) only if the determination:
(a) reduces the applicant’s adjusted
taxable income for the child for a day in the child support period by 30% or
less; and
(b) applies in respect of a day in the
child support period, being a day that is less than 3 years after the last
separation referred to in paragraph (1)(b).
Registrar to implement determinations
(4) The Registrar is to take such action as
is necessary to give effect to the determination by amending any administrative
assessment that has been made in relation to the child support period.
Notice to be served if Registrar refuses application
(5) If the Registrar refuses to make a
determination under subsection (2), the Registrar must serve written
notice of the decision on the applicant.
(6) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the applicant may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the applicant sought to make the application;
and
(b) that if the applicant is aggrieved
by the decision on the objection, he or she may, subject to that Act, apply to
the SSAT for review of the decision.
(7) This section does not prevent the
Registrar from making a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
45
Working out the self‑support amount
A parent’s self‑support
amount for a day in a child support period is:
Note: A parent’s self‑support amount can be
varied by a determination or order under section 98S or 118.
46
Working out parent’s relevant dependent child amount
A parent’s relevant dependent
child amount for a day in a child support period is the total of
the amounts worked out for each relevant dependent child of the parent using
this method statement.
Method statement
Step 1. Work out the difference
between the parent’s adjusted taxable income for the child for the day and the
parent’s self‑support amount for the day (see sections 43 and 45).
Step 2. Work out the parent’s
percentage of care for the child for the day (see section 48).
Step 3. Work out the parent’s
cost percentage for the child for the day (see section 55C).
Step 4. Work
out the costs of the child for the day under sections 55G and 55H as if:
(a) the parent’s
annual rate of child support were assessed under Subdivision D of Division 2;
and
(b) the
reference in subsection 55G(2) to the parent’s child support income were a
reference to the amount worked out under step 1; and
(c) references
in sections 55G and 55H to children in the child support case that relates
to the child were references to all of the parent’s relevant dependent
children.
Step 5. Work out the following
amount for the child for a day in the child support period:
Note: Section 73A deals with the Registrar
discovering, after making an administrative assessment, that a parent has a
relevant dependent child.
47
Working out multi‑case allowances
(1) A parent’s multi‑case
allowance for a child (the particular child) for a day in
a child support period is worked out using this method statement.
Method statement
Step 1. Work out the following
amount:
Step 2. If the parent has a
relevant dependent child, take the parent’s relevant dependent child amount
(see section 46) for the day from the amount worked out under step 1.
Step 3. For
each of the children (the multi‑case children) for whom the
parent is assessed in respect of the costs of the child for the day, work out
the multi‑case child costs for the particular child for the
day under section 55HA, as if:
(a) the parent’s
annual rate of child support were assessed under Subdivision D of
Division 2; and
(b) the
reference in subsection 55HA(2) to the parent’s child support income were a
reference to the amount worked out under step 1 or 2 (as the case requires);
and
(c) references
in section 55HA to children in the child support case that relates to the
child were references to all of the parent’s multi‑case children.
Step 4. The parent’s multi‑case
allowance for the particular child for the day is the sum of the multi‑case
child costs for each of the other multi‑case children (excluding the
particular child and any other children in the child support case that relates
to the particular child).
(2) For the purposes of step 3 of the method
statement, a parent is taken to be assessed in respect of the costs of a child
if the parent is liable to pay child support for the child under an
administrative assessment under the law of a reciprocating jurisdiction.
Division 4—Percentage of care
Subdivision A—Preliminary
47A
Simplified outline
The following is a simplified outline of
this Division:
• A person’s (whether the
person is a parent or a non‑parent carer of a child) percentage of care
for the child for a day in a child support period is the percentage of care of
the child that the person is likely to have during a 12 month period.
• A percentage of care for a
child is as determined by an oral agreement or a parenting plan made by the
parents of the child (or a parent and a non‑parent carer), or as
determined by a court order.
• The Registrar can make a
determination of a person’s percentage of care for a child in certain cases
(such as if there is no such agreement, plan or order, or if care of the child
changes).
• A parent’s percentage of
care for a child is used in section 55C to work out the parent’s cost
percentage for the child.
• A non‑parent carer’s
percentage of care is used in section 40A to work out how much child
support the non‑parent carer is entitled to be paid for the child.
47B
Meaning of court order
In this Division:
court order means:
(a) a family violence order within the
meaning of section 4 of the Family Law Act 1975; or
(b) a parenting order within the
meaning of section 64B of the Family Law Act 1975; or
(c) a State child order registered in
accordance with section 70D of the Family Law Act 1975; or
(d) an overseas child order registered
in accordance with section 70G of the Family Law Act 1975.
Subdivision B—Determining percentages of care
48
Working out percentage of care
(1) A person’s percentage of care for
a child for a day in a child support period is the percentage of care of the
child that the person is likely to have during the period (the care
period) of 12 months from:
(a) the day on which an application is
made under section 25 or 25A for a parent to be assessed in respect of the
costs of the child; or
(b) if one of the following events
occurs:
(i) there is a change of
less than 7.1% in the percentage of care for the child that the person has
because of an agreement, plan or order mentioned in paragraph 49(a) or (b)
(including a variation of such an agreement, plan or order);
(ii) there is a change of
at least 7.1% in the percentage of care for the child that the person has, and
the change alters the person’s cost percentage for the child;
(iii) the person’s
percentage of care for the child falls below 14%;
(iv) the person’s percentage
of care for the child increases to 14%, or above 14%;
(v) the person’s percentage
of care for the child falls below 35%;
(vi) the person’s percentage
of care for the child increases to 35%, or above 35%;
whichever of the following days
is applicable:
(vii) if the Registrar is
notified, or otherwise becomes aware, of the event within 28 days after the day
on which the event occurs—the day on which the event occurs;
(viii) in any other case—the
day on which the Registrar is notified, or otherwise becomes aware, of the
event; or
(c) if the child is a relevant
dependent child in respect of whom section 73A applies—the day specified
in that section as the first day on which the parent is taken to have had the
child.
Note: The Registrar is not entitled to amend an
administrative assessment in respect of a person’s percentage of care unless the
Registrar becomes aware of an event mentioned in paragraph (1)(b) (see
subsection 75(2)).
(2) The percentage of care is to be worked
out in accordance with this Subdivision.
Note: Generally, a person’s percentage of care for a
child is worked out based on the number of nights that the child is likely to
be in the care of the person during the care period.
(3) If a
person’s percentage of care worked out in accordance with this Subdivision is
not a whole percentage:
(a) if the percentage is greater than 50%—the
percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than
50%—the percentage is rounded down to the nearest whole percentage.
49
Agreements, parenting plans and court orders may determine percentage of care
The percentage (if any) of care of a
child that a parent or non‑parent carer is likely to have during a care
period is determined in accordance with the following agreement, plan or order
if the Registrar is satisfied that the agreement, plan or order allows such a
percentage to be determined:
(a) if the relevant application for
administrative assessment for child support for the child is made under
subparagraphs 25A(b)(ii) to (iv) (application by non‑parent carer in
relation to one parent):
(i) an oral or written
agreement, or parenting plan, between the parent and a non‑parent carer
of the child that the Registrar is satisfied has been made; or
(ii) a court order that
relates to the parent and a non‑parent carer of the child, or that
relates to the child;
(b) otherwise:
(i) an oral agreement
between the parents of the child that the Registrar is satisfied has been made;
or
(ii) a parenting plan for
the child that has been entered into by the parents; or
(iii) a court order that
relates to the parents, or that relates to the child.
50
Registrar determinations where no agreement, plan or order
(1) The Registrar must determine the
percentage (if any) of care of a child that a parent or non‑parent carer
of the child is likely to have during the relevant care period if there is no
agreement, plan or order that allows such a percentage to be determined under
section 49.
(2) In making the determination, the
Registrar must take into account such period as is required in order for the
Registrar to be satisfied that there is, has been, or will be, a pattern of
care for the child.
(3) The Registrar may revoke or vary a
determination made under this section.
Subdivision C—Changes to percentages of care
51
Person no longer agrees with oral agreement
If:
(a) an oral agreement determines,
under section 49, a percentage of care of a child that a parent or non‑parent
carer is likely to have during a care period; and
(b) the Registrar becomes aware that a
parent or non‑parent carer of the child no longer agrees with that
percentage of care; and
(c) immediately before the oral
agreement was made, a parenting plan or court order determined the
percentage of care of the child that each parent or non‑parent carer
would have during the care period;
the percentage of care of the child that a parent or non‑parent
carer is likely to have during the care period is as determined in accordance
with the parenting plan or court order.
52
Interim Registrar determinations where parent or non‑parent carer does
not agree with percentages of care
(1) The Registrar may determine the
percentage (if any) of care of a child that a parent or non‑parent carer
of the child is likely to have during the relevant care period if:
(a) there is an agreement, plan or
order that allows such a percentage to be determined under section 49; and
(b) a parent or non‑parent carer
of the child does not agree that the care of the child that is actually taking
place is in accordance with the percentage so determined; and
(c) in the circumstances of the case,
the percentage so determined would result in an unjust and inequitable
determination of the level of financial support to be provided by a parent for
the child; and
(d) a parent or non‑parent carer
of the child has taken reasonable action:
(i) to seek to reach
agreement; or
(ii) to seek a court order;
or
(iii) to enforce a court
order;
about the care of the child; and
(e) a parent or non‑parent carer
of the child applies for the determination.
Note: If the Registrar refuses to make a determination
under this section, the Registrar must give the applicant a notice under
section 54.
(2) In making the determination, the
Registrar must take into account such period as is required in order for the
Registrar to be satisfied that there is, has been, or will be, a pattern of
care for the child.
(3) The Registrar may revoke or vary a
determination made under this section.
(4) Before the end of 6 months after a
determination is made under this section, the Registrar:
(a) must review the determination; and
(b) may make another determination
under this section.
(5) However, the Registrar is not required to
review a determination as mentioned in subsection (4) if the Registrar is
satisfied that there are special circumstances that justify the Registrar in
not doing so.
53
Registrar determination where parent’s care falls below 14%
Making a determination
(1) The Registrar may determine the
percentage (if any) of care of a child that a parent or non‑parent carer
is likely to have during a care period if:
(a) a parent (the first parent)
was to have at least regular care of the child during the relevant care period
under an oral agreement, parenting plan or court order; and
(b) the first parent has no care, or
has a pattern of care that is less than regular care, of the child despite the
other parent or a non‑parent carer making the child available to the
first parent; and
(c) the other parent or a non‑parent
carer of the child applies for the determination.
Note: If the Registrar refuses to make a determination
under this section, the Registrar must give the applicant a notice under
section 54.
Day on which determination commences
(2) The determination must specify, in
accordance with subsections (4) and (5), the first day in the child
support period to which the determination is to apply.
(3) The determination applies to the day
specified, and later days in the child support period.
(4) If the Registrar is satisfied that the
other parent or the non‑parent carer who applied for the determination
failed, within a reasonable period, to notify the Registrar that the first
parent had no care, or less than regular care, of the child during the relevant
care period, the day specified must be the day on which the determination is
made.
(5) Otherwise, the day specified must be:
(a) if the first parent never
established a pattern of care in accordance with the oral agreement, parenting
plan or court order—the day on which the plan or court order was entered into
or made; or
(b) if the first parent established a
pattern of care in accordance with the oral agreement, parenting plan or court
order, but later ceased the established pattern of care—the day on which the
parent ceased the previously established pattern.
(6) To avoid doubt, a parent never
establishes a pattern of care if:
(a) the parent could not have
established the pattern of care until a particular period that occurs later in
the child support period; and
(b) the parent does not establish that
pattern during that particular period.
(7) The Registrar may revoke or vary a
determination made under this section.
Registrar to make determination under this section (and
not interim determination)
(8) If the Registrar could make a
determination under section 52 and this section in respect of the percentage
of care for a child, the Registrar must make a determination under this section
and not section 52.
54
Notice to be served if Registrar refuses application
(1) If the Registrar refuses to make a
determination under section 52 or 53, the Registrar must serve written
notice of the decision on the person who made the application.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the person sought to make the application; and
(b) that if the person is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
Subdivision D—Where there is more than one agreement, plan, order or
determination
55
Where there is more than one agreement, plan, order or determination
(1) If more than one agreement, plan, order
or determination applies, under section 49, 50, 52 or 53, to a day in a
child support period, then the percentage of care of a child that a parent or
non‑parent carer is likely to have during the care period is as
determined by the most recent agreement, plan, order or determination.
(2) However, the most recent agreement, plan
or determination is subject to any court order made in respect of the
percentage of care of a child that specifies that the order cannot be altered
by agreement between the persons in respect of whom the order is made.
Division 5—Working out other elements for the formulas
Subdivision A—Preliminary
55A
Simplified outline
The following is a simplified outline of
this Division:
• A parent’s income
percentage represents the parent’s capacity to meet the costs of the child.
• A parent’s cost percentage
represents the extent to which the parent is taken to have met the costs of the
child through care.
• A parent’s child support
percentage is the difference between the parent’s income percentage and his or
her cost percentage. Generally, if the parent has a positive child support
percentage, the annual rate of child support payable by the parent is that
percentage of the costs of the child.
• If a parent has multiple
child support cases, the annual rate of child support payable by the parent for
a child is capped by the parent’s multi‑case cap for the child.
Subdivision B—Working out other elements for the formulas
55B
Working out income percentages
Work out each parent’s income
percentage for a child for a day in a child support period using the
formula (worked out to 2 decimal places, rounding up if the third decimal place
is 5 or more):
55C
Working out cost percentages
A parent’s or non‑parent carer’s cost
percentage for a child for a day in a child support period is the
percentage worked out using the table based on the parent’s or non‑parent
carer’s (as the case requires) percentage of care for the child for the day.
|
Cost percentages
|
|
Item
|
Column 1
Percentage of care
|
Column 2
Cost percentage
|
|
1
|
0 to less than 14%
|
Nil
|
|
2
|
14% to less than 35%
|
24%
|
|
3
|
35% to less than 48%
|
25% plus 2% for each percentage point over 35%
|
|
4
|
48% to 52%
|
50%
|
|
5
|
more than 52% to 65%
|
51% plus 2% for each percentage point over 53%
|
|
6
|
more than 65% to 86%
|
76%
|
|
7
|
more than 86% to 100%
|
100%
|
55D
Working out child support percentages
(1) Work out each parent’s child
support percentage for a child for a day in the child support period
using the formula:
(2) A parent’s child support percentage
for a day in a child support period is taken to be nil if the amount
worked out using the formula is negative.
55E
Working out the multi‑case cap
(1) Work out a parent’s multi‑case cap
for a child (the particular child) for a day in a child support
period in accordance with subsection (2) if:
(a) the parent’s annual rate of child
support for the particular child is assessed for the day under section 37,
38, 39 or 40; and
(b) if section 37 or 38
applies—the parent has a positive child support percentage for the particular
child under step 6 of the method statement in section 35; and
(c) in any case—the parent is assessed
for the day in respect of the costs of another child who is in another child
support case.
(2) The parent’s multi‑case cap
for the particular child for the day is worked out using the formula:
(3) For the purposes of
paragraph (1)(c), a parent is taken to be assessed for a day in respect of
the costs of another child who is in another child support case if the parent
is liable to pay child support for that child for the day under an
administrative assessment under the law of a reciprocating jurisdiction.
Division 6—The costs of the child
Subdivision A—Preliminary
55F
Simplified outline
The following is a simplified outline of
this Division:
• The costs of the children
are worked out using the rules in this Division and the Costs of the Children
Table in Schedule 1.
• The costs of the children
are based on the number of children in a child support case and the ages of
those children.
• The costs of the child are
the costs of the children divided by the number of children in the child
support case.
• The Costs of the Children
Table is updated every year to reflect changes to the annualised MTAWE figure.
Subdivision B—The costs of the child
55G
Working out the costs of the children
(1) If an annual rate of child support for a
day in a child support period is assessed for a child under section 35 or
36 (Formulas 1 and 2), identify the column in the Costs of the Children Table
for that child support period that covers the combined child support income of
the parents of the child.
Note: The Secretary publishes the updated Costs of
the Children Table in the Gazette each year for child support periods
that begin in the next year (see section 155).
(2) If:
(a) an annual rate of child support
for a day in a child support period is assessed for a child under Subdivision D
of Division 2 (Formulas 5 and 6); and
(b) the parent of the child is not
assessed in respect of the costs of another child who is in another child
support case;
identify the column in the Costs of the Children Table for
that child support period that covers the child support income of the parent of
the child.
Note: This subsection also applies in working out
the relevant dependent child amount (see step 4 of the method statement in
section 46).
(3) Identify the number of children (the child
support children) in the child support case that relates to the child.
(4) Identify the ages of the child support
children on the day. If there are more than 3 child support children, use the
ages of the 3 oldest children.
(5) Identify the item in the relevant column
in the Costs of the Children Table that covers that number of child support
children of those ages.
(6) The amount worked out for the item in
accordance with Schedule 1 to this Act is the costs of the children.
(7) For the purposes of
paragraph (2)(b), a parent is taken to be assessed in respect of the costs
of another child who is in another child support case if the parent is liable
to pay child support for that child under an administrative assessment under
the law of a reciprocating jurisdiction.
55H
Working out the costs of the child
For the purposes of section 55G,
the costs of a child for a day in a child support period is:
(a) if there is only one child support
child—the costs of the children; and
(b) otherwise—the costs of the
children divided by the number of child support children.
55HA
Working out the costs of the child if parents have multiple child support cases
(1) If an annual rate of child support for a
day in a child support period is assessed for a child under section 37 or
38 (Formulas 3 and 4), identify the column in the Costs of the Children Table
for that child support period that covers the combined child support income of
the parents of the child.
Note: The Secretary publishes the updated Costs of
the Children Table in the Gazette each year for child support periods
that begin in the next year (see section 155).
(2) If:
(a) an annual rate of child support
for a day in a child support period is assessed for a child under Subdivision D
of Division 2 (Formulas 5 and 6); and
(b) the parent of the child is
assessed in respect of the costs of another child who is in another child
support case;
identify the column in the Costs of the Children Table for
that child support period that covers the child support income of the parent of
the child.
Note: This subsection also applies in working out
the multi‑case allowance (step 3 of the method statement in
section 47).
(3) Identify the number of children (the child
support children) in the child support case that relates to the child.
(4) Identify the ages of the child support
children on the day.
(5) In respect of each of the child support
children:
(a) assume that all of the child
support children are the same age as that child; and
(b) identify the item in the relevant
column in the Costs of the Children Table that covers that number of child
support children of that age.
(If there are more than 3 child support children, use the
row for 3 children.)
(6) For the purposes of this section, the costs
of the child for a day in a child support period, in respect of each
child, is the amount worked out, in accordance with Schedule 1 to this
Act, for the item identified for that child divided by the number of child
support children.
(7) For the purposes of
paragraph (2)(b), a parent is taken to be assessed in respect of the costs
of another child who is in another child support case if the parent is liable
to pay child support for that child under an administrative assessment under
the law of a reciprocating jurisdiction.
Division 7—Assessments and estimates of adjusted taxable income
Subdivision A—Preliminary
55J
Simplified outline
The following is a simplified outline of
this Division:
• A parent’s taxable income
is generally the amount of taxable income that is assessed under an Income Tax
Assessment Act.
• The Registrar might make a
determination of a parent’s adjusted taxable income if the parent has not
lodged a tax return.
• There are limits on the
Registrar’s ability to amend an assessment for past periods if the parent later
lodges his or her tax return.
• A parent can estimate the
amount of his or her adjusted taxable income for days in a child support
period.
Subdivision B—Adjusted taxable income determined by reference to taxable
income for last relevant year of income
56
Taxable income is as assessed under Income Tax Assessment Act
Meaning of taxable income
(1) For the purposes of assessing a parent in
respect of the costs of a child in relation to a child support period, if the
parent’s taxable income has been assessed under an Income Tax Assessment Act
for the last relevant year of income in relation to the child support period,
the parent’s taxable income for that year is the amount as so
assessed.
Note: Sections 34A and 57 are also relevant to
a person’s taxable income.
When amended tax assessment may be taken into account
(2) If, after an administrative assessment of
child support is made, the assessment (the tax assessment) of a
parent’s taxable income is amended (whether or not because of an objection,
appeal or review), the Registrar must not amend the administrative assessment
to take account of the amendment to the tax assessment unless one of the
following applies:
(a) the amendment to the tax
assessment is made under item 5 of the table in subsection 170(1) of the
Income Tax Assessment Act 1936 (amendment due to fraud or evasion);
(b) the amendment to the tax
assessment is made under provisions of an Income Tax Assessment Act that are
prescribed by the regulations for the purposes of this paragraph;
(c) the amendment is made in
circumstances prescribed for the purposes of this paragraph;
(d) the amendment is made solely for
the purposes of working out the parent’s adjusted taxable income for the last
relevant year of income for the purposes of subsection 60(3) of this Act (first
estimate must be lower than adjusted taxable income).
Date of assessment of a parent’s taxable income taken
to be date of notice of the assessment
(3) For the purposes of this section, if:
(a) notice of an assessment (including
an amended assessment) of a parent’s taxable income under an Income Tax
Assessment Act has been served on the parent under the Income Tax Assessment
Act 1936; and
(b) the notice is dated;
then the assessment is taken to have been made on the date
of the notice.
Section not to affect determinations, court orders or
consent orders
(4) This section does not prevent:
(a) the Registrar from making any
determination under Part 6A (departure determinations); or
(b) a court from making any order
under Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
57
Taxable income for child support purposes where taxable income determined to be
nil under Income Tax Assessment Act
(1) This section does not apply to a parent
for a year of income if the parent has a component of adjusted taxable income
mentioned in paragraphs 43(1)(b) to (e) for the year of income.
Determinations that taxable income nil or no tax
payable
(2) A parent’s taxable income for
a year of income is nil if the parent’s taxable income for that year has been
determined to be nil under an Income Tax Assessment Act.
(3) A parent’s taxable income for
a year of income is also nil if:
(a) the Commissioner has determined
under an Income Tax Assessment Act that no tax was payable (before the
allowance of any rebate or credit) under that Act on the parent’s taxable
income for the year of income; and
(b) either of the following
subparagraphs applies in relation to the person:
(i) Part 1 of
Schedule 7 to the Income Tax Rates Act 1986 (or any other law
prescribed by the regulations for the purposes of this paragraph in relation to
the year of income) applied in relation to the parent for the year of income;
(ii) no
tax would have been payable (before the allowance of any rebate or credit)
under that Act by the person on his or her taxable income if Part 1 of
Schedule 7 to the Income Tax Rates Act 1986 (or any other law
prescribed by the regulations for the purposes of this paragraph in relation to
the year of income) had applied in relation to the parent for the year of
income.
(4) Subsections (2) and (3) do not apply
in relation to an administrative assessment made in relation to a parent if:
(a) before the administrative
assessment is made; but
(b) after the most relevant notice
mentioned in subsection (5) or (6) is made;
an assessment is issued under the Income Tax Assessment
Act 1936 of the person’s taxable income for the year of income under an
Income Tax Assessment Act.
Notices issued under the Income Tax Assessment Act 1936
(5) If a parent has been served a notice
under the Income Tax Assessment Act 1936 to the effect that the taxable
income of the parent under an Income Tax Assessment Act for a year of income is
nil, then:
(a) the parent’s taxable income for
that year is taken to have been determined to be nil under an Income Tax
Assessment Act; and
(b) if the notice was dated—the
determination is taken to have been made on the date of the notice.
(6) If a parent has been served a notice
under the Income Tax Assessment Act 1936 to the effect that no tax is
payable (before the allowance of any rebate or credit) under an Income Tax
Assessment Act on the taxable income of the parent for a year of income, then:
(a) the Commissioner is taken to have
determined under the Income Tax Assessment Act that no tax was payable (before
the allowance of any rebate or credit) under that Act on the parent’s taxable
income for the year of income; and
(b) if the notice was dated—the
determination is taken to have been made on the date of the notice.
When amended tax assessment may be taken into account
(7) If, after an administrative assessment of
child support is made, the assessment (the tax assessment) of the
parent’s taxable income is amended (whether or not because of an objection,
appeal or review), the Registrar must not amend the administrative assessment
to take account of the amendment to the tax assessment unless either of the
following applies:
(a) the subsequent assessment was made
because the parent had not made to the Commissioner a full and true disclosure
of all the material facts necessary for the Commissioner’s assessment, or in
other circumstances prescribed for the purposes of this subsection;
(b) the amendment is made solely for
the purposes of working out the parent’s adjusted taxable income for the last
relevant year of income for the purposes of subsection 60(3) (first estimate
must be lower than adjusted taxable income).
Date of assessment of a parent’s taxable income taken
to be date of notice of the assessment
(8) For the purposes of this section, if:
(a) notice of an assessment (including
an amended assessment) of a parent’s taxable income under an Income Tax
Assessment Act has been served on the parent under the Income Tax Assessment
Act 1936; and
(b) the notice is dated;
then the assessment is taken to have been made on the date
of the notice.
Section not to affect determinations, court orders or
consent orders
(9) This section does not prevent:
(a) the Registrar from making any
determination under Part 6A (departure determinations); or
(b) a court from making any order
under Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
58
Registrar determination of adjusted taxable income
(1) For the purposes of assessing a parent in
respect of the costs of a child in relation to a child support period, the
Registrar may determine, in accordance with this section, that an amount that he
or she considers appropriate is the parent’s adjusted taxable income for a year
of income.
Note: The Registrar is required to amend an
administrative assessment made on the basis of such a determination if the
parent’s adjusted taxable income is subsequently ascertained or the Registrar
makes a later determination under this section (see section 58A).
Determinations where parent fails to comply with
requirement
(2) The Registrar may make a determination
if:
(a) a parent has not, under an Income
Tax Assessment Act, lodged a tax return for the year of income; and
(b) the Registrar or the Commissioner
of Taxation is unable to readily ascertain the parent’s adjusted taxable income
for the year of income on the basis of the documents and information in his or
her possession; and
(c) the Registrar or the Commissioner
has, for the purposes of ascertaining that adjusted taxable income, required
the parent:
(i) to give a return; or
(ii) to give information
(whether orally or in writing); or
(iii) to produce a document;
and
(d) the parent has refused or failed
to comply with the requirement.
(3) If the parent also has not lodged a tax
return for the year of income before the year of income referred to in subsection (1),
the amount determined for the parent’s adjusted taxable income for the year of
income must be determined to be at least two‑thirds of the annualised
MTAWE figure for the relevant September quarter.
Determination if tax return lodged 2 years ago
(3A) The Registrar may make a determination if:
(a) a parent has not, under an Income
Tax Assessment Act, lodged a tax return for the year of income; and
(b) the parent lodged a tax return
under that Act for the previous year of income; and
(c) the amount determined by the
Registrar under subsection (1) is the amount based on the tax return for
the previous year of income multiplied by a factor specified in the regulations
for the purposes of this subsection.
Determination if Registrar given taxable income or
total
(4) The Registrar may make a determination
if:
(a) a parent has not, under an Income
Tax Assessment Act, lodged a tax return for the year of income; and
(c) the Registrar or the Commissioner
has, for the purposes of ascertaining that adjusted taxable income, been given:
(i) information (whether
orally or in writing); or
(ii) a document; and
(d) either:
(i) an amount was
specified in that information or document as the parent’s adjusted taxable
income for the last relevant year of income; or
(ii) that information or
document allowed the parent’s adjusted taxable income for the last relevant
year of income to be worked out; and
(e) the amount determined by the
Registrar under subsection (1) was the amount specified or worked out
under paragraph (d) of this subsection.
58A
Subsequently ascertaining components of a parent’s adjusted taxable income
(1) The Registrar must immediately amend an
administrative assessment of child support payable by or to a parent in
relation to a child support period if:
(a) the assessment was made on the basis
of a determination under section 58; and
(b) either:
(i) the Registrar
subsequently ascertains the amount of the parent’s adjusted taxable income for
the last relevant year of income; or
(ii) the Registrar makes a
later determination under section 58; and
(c) either:
(i) if subparagraph (b)(i)
applies—the amount that was subsequently ascertained is different from the
amount that was determined under section 58; or
(ii) if subparagraph (b)(ii)
applies—the later amount that the Registrar determines is different from the
earlier amount determined under section 58.
Retrospective determinations
(2) If:
(a) at the time the Registrar is to
amend the administrative assessment under this section, the parent could lodge
his or her tax return by the date required under Part IV of the Income
Tax Assessment Act 1936 (taking into account any deferral under section 388‑55
in Schedule 1 to the Taxation Administration Act 1953); or
(b) paragraph (a) of this
subsection does not apply and:
(i) the amount subsequently
ascertained, as mentioned in subparagraph (1)(b)(i), is higher than the
amount that was determined under section 58; or
(ii) the later amount that
the Registrar determines, as mentioned in subparagraph (1)(b)(ii), is
higher than the earlier amount determined under section 58; or
(c) neither paragraph (a) nor (b)
applies, but circumstances prescribed by the regulations for the purposes of
this section apply in relation to the parent;
then the Registrar must immediately amend the
administrative assessment for the child support period on the basis that the
parent’s adjusted taxable income for that year of income is, and has always
been, the amount that was subsequently ascertained or later determined (as the
case requires).
Prospective determinations
(3) If subsection (2) does not apply,
then the Registrar must immediately amend the administrative assessment for the
child support period on the basis that for each later day in the period the
parent’s adjusted taxable income for that year of income is the amount that was
subsequently ascertained or later determined (as the case requires).
No taxation assessment required
(4) This section applies whether or not the
Commissioner of Taxation has made an assessment under an Income Tax Assessment
Act of the parent’s taxable income for that year of income.
Subdivision BA—Overseas income
58B
Inclusion of overseas income in working out a parent’s adjusted taxable income
For the purposes of working out a
parent’s adjusted taxable income for a child for a day in a child support
period if the parent is a resident of a reciprocating jurisdiction, a reference
in this Division to the parent’s taxable income includes a reference to the
parent’s overseas income as determined under this Subdivision.
58C
Determination of overseas income if information and documents in Registrar’s
possession are sufficient
(1) This section applies if the Registrar
possesses sufficient information and documents to determine a parent’s overseas
income (whether as a result of seeking information or documents under
section 162A or not).
(2) In making an administrative assessment in
relation to the parent and a child support period, the Registrar may determine,
from the information and documents in the Registrar’s possession, an amount to
be the parent’s overseas income for the year of income for the purpose of
working out the person’s adjusted taxable income.
58D
Determination of overseas income if information and documents in Registrar’s
possession are insufficient
(1) This section applies if:
(a) the Registrar does not possess
sufficient information and documents to determine a parent’s overseas income;
and
(b) despite requesting, under
section 162A, information or documents from the parent or from an overseas
authority that are necessary to determine the parent’s overseas income, the
information or documents requested have not been supplied.
(2) In making an administrative assessment of
the child support in relation to the parent and a child support period, the
Registrar may determine that the parent’s overseas income for the year of
income, for the purpose of working out the parent’s adjusted taxable income, is
an amount that the Registrar considers appropriate of at least two‑thirds
of the annualised MTAWE figure for the relevant September quarter.
Subdivision C—Child support income determined by reference to estimate of
adjusted taxable income for rest of current child support period
60
Choosing adjusted taxable income for remainder of child support period
Election that adjusted taxable income is estimated
amount
(1) Before or during a child support period,
a parent may elect that the parent’s adjusted taxable income for assessing the
parent in respect of the costs of a child of the parent for the remaining days
in a child support period is to be the amount the parent works out using the
method in subsection (5) (with the modification in subsection (6), if
appropriate).
Election prohibited if income amount order in force
(2) However, a parent may not make an
election relating to a child support period if an income amount order is in
force in relation to the parent and any part of the child support period
remaining after the election would have been made (apart from this subsection).
First election must be for amount less than adjusted
taxable income for last relevant year of income
(3) The parent may make a first election
relating to a child support period only if the amount that he or she works out
under this section is not more than 85% of:
(a) the total of the parent’s adjusted
taxable income determined in accordance with section 43 for the last
relevant year of income for the child support period; or
(b) an amount that:
(i) the parent declares is
the total of the parent’s adjusted taxable income for the last relevant year of
income for the child support period; and
(ii) the Registrar is
satisfied is correct.
Other elections may be made at intervals of at least 2
months
(4) The parent may make one or more later
elections relating to the child support period at intervals of at least 2
months if:
(a) the parent revokes the immediately
preceding election under section 62 when making each later election; and
(b) the amount worked out under this
section for each later election is greater or less than the amount of the first
election relating to the period.
Method of estimation of adjusted taxable income
(5) The method is as follows:
Method statement
Step 1. Work out the length of
the period (the remaining period):
(a) starting on
the day the parent makes the estimate or the day the child support period
starts, whichever is later (or either day if they are the same); and
(b) ending 15
months after the start of the child support period.
Step 2. Estimate the amount
that would be the parent’s adjusted taxable income for the remaining period if
that period were a year of income.
Step 3. If the remaining period
is shorter or longer than 12 months:
(a) divide the
total from step 2 by the number of days in the remaining period; and
(b) multiply the
quotient by 365.
Parent may treat remaining period as 12 months even if
it is longer
(6) If the remaining period is more than 12
months, the parent may apply the method in subsection (5) as if the
remaining period were exactly 12 months, starting on the day worked out under paragraph (a)
of step 1 of the method statement in subsection (5).
How election is made
(7) The parent makes the election by giving
notice of it to the Registrar in the manner specified by the Registrar. The
notice must specify:
(a) the amount that the parent elects
is to be his or her adjusted taxable income; and
(b) the amount the parent estimated at
step 2 of the method statement in subsection (5); and
(c) that the remaining period was
treated as being 12 months, if the parent chose to do so under subsection (6).
60A
Registrar may refuse to accept election
(1) The Registrar may refuse to accept the
parent’s election if the Registrar is satisfied that the amount the parent
estimated at step 2 of the method statement in subsection 60(5) is likely to be
less than the actual amount that would be the parent’s adjusted taxable income
for the remaining period if that period were a year of income.
(2) In making the decision as to whether to
refuse the election, the Registrar:
(a) may act on the basis of
information that the Registrar has received or obtained as to the financial
circumstances of the parent; and
(b) may, but is not required to,
conduct an inquiry into the matter.
(3) Except for the purposes of Parts VII,
VIIA and VIII of the Registration and Collection Act (dealing with objections
and appeals), if the Registrar refuses to accept an election, the election is
taken never to have been made.
60B
Notice to be given if Registrar refuses to accept election
(1) If the Registrar refuses to accept an
election under section 60A, the Registrar must serve written notice of the
decision on the parent who sought to make the election.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the parent sought to make the election; and
(b) that if the parent is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
61
Effect of election
(1) If a parent makes an election under
section 60 relating to a child support period, then for the purposes of
assessing the parent in respect of the costs of a child of the parent for each
later day in the child support period, the parent’s adjusted taxable income is
the amount the parent elected.
(2) Subsection (1) has effect subject to
an income amount order that is made after the making of the election that
applies in relation to the parent and any part of the child support period.
(3) The Registrar must immediately take such
action as is necessary to give effect to subsection (1) in relation to any
administrative assessment that has been made in relation to the parent and the
child support period (whether by amending the assessment or otherwise).
(4) Subject to section 63, in
subsequently making any administrative assessment in relation to the parent and
the child support period, the Registrar must act in accordance with this
section.
(5) This section does not prevent:
(a) the Registrar making any
determination under Part 6A (departure determinations); or
(b) a court making any order under
Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
62
Revocation of election
(1) Subject to subsection (3), a parent
who has made an election under section 60 in relation to a child support
period may, by notice given to the Registrar, revoke the election, but the
revocation has no effect unless, at the same time, the parent substitutes a new
election for that period under section 60.
(2) The notice must be given in the manner
specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
(3) The parent may not revoke the election if
an income amount order made after the making of the election is in force in
relation to the parent and the child support period.
63
Effect of revocation
(1) If:
(a) a parent makes an election under
section 60 relating to a child support period; and
(b) the parent revokes the election
and substitutes a new election;
then for the purposes of assessing the parent in respect
of the costs of a child of the parent for each later day in the child support
period, the parent’s adjusted taxable income is the amount the parent elected
in the new election.
(2) Subsection (1) does not apply in
relation to any day in the child support period in relation to which an income
amount order made after the making, but before the revocation, of the election applies
in relation to the parent.
(3) The Registrar must immediately take such
action as is necessary to give effect to subsection (1) in relation to any
administrative assessment that has been made in relation to the parent and any
part of the child support period (whether by amending the assessment or
otherwise).
(4) Subject to any further election made
under section 60, in subsequently making any administrative assessment in
relation to the parent and the child support period, the Registrar must act in
accordance with subsection (1).
(5) This section does not prevent:
(a) the Registrar making any
determination under Part 6A (departure determinations); or
(b) a court making any order under
Division 4 of Part 7 (departure orders); or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect for the purposes of this Part as if they were such an order made by
consent.
63A
Amendment of assessment based on election if event affecting accuracy of
estimate occurs
(1) This section allows the Registrar to
amend an assessment of child support payable by or to a parent for some days in
a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the Registrar has given the parent
a notice under section 160 or subsection 162A(2) requiring or requesting
the parent to notify the Registrar of the occurrence of an event that may
affect the accuracy of an estimate on which the election is based.
(2) If the parent gives notice of the event as
required or requested under section 160 or subsection 162A(2), the
Registrar may amend the assessment to affect the annual rate of child support
payable by or to the parent for the days in the child support period on or
after the day the parent gives notice.
(3) If the parent does not give notice of the
event as required or requested under section 160 or subsection 162A(2),
the Registrar may amend the assessment to affect the annual rate of child
support payable by or to the parent for the days in the child support period on
or after the day the event occurred.
(4) This section does not:
(a) affect the operation of section 160
or 162A; or
(b) prevent the Registrar from making
a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
63B
Amendment of assessment based on election if Registrar asks for information
supporting estimate
(1) This section allows the Registrar to
amend an assessment of child support payable by or to a parent for some days in
a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the Registrar has given the parent
a notice under section 161 or subsection 162A(1) or (4) requiring or
requesting the parent to:
(i) give the Registrar
information; or
(ii) attend before a person
and answer questions; or
(iii) produce documents
containing information;
relevant to determining the
accuracy of an estimate on which the election is based.
(2) If the parent complies with section 161
or subsection 162A(1) or (4) (in relation to the notice), the Registrar may
amend the assessment to affect the annual rate of child support payable by or
to the parent for the days in the child support period on or after the day the
parent complies.
(3) If the parent does not comply with
section 161 or subsection 162A(1) or (4) (in relation to the notice), the
Registrar may amend the assessment to affect the annual rate of child support
payable by or to the parent for the days in the child support period on or
after:
(a) the day the election was made; or
(b) if:
(i) before the Registrar
gave the notice but after the election was made, the Registrar had given the
parent another notice (the earlier notice) of the kind described
in paragraph (1)(b); and
(ii) the parent complied
with section 161 or subsection 162A(1) or (4) in relation to the earlier
notice;
the day on which the parent
complied with section 161 or subsection 162A(1) or (4) in relation to the
earlier notice.
(4) This section does not:
(a) affect the operation of section 161
or 162A; or
(b) prevent the Registrar from making
a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
63C
Amendment of assessment in minimum rate cases
(1) This section allows the Registrar to
amend an assessment of child support payable by a parent for all the children
in a child support case for some days in a child support period if:
(a) the parent has made an election
under section 60 relating to the period; and
(b) the period has ended; and
(c) the annual rate of child support
payable by the parent for all the children in the child support case for
the days in the period was the minimum annual rate for the period or lower.
(2) The Registrar may amend the assessment to
affect the annual rate of child support payable by the parent for the days in
the child support period.
(3) This section does not prevent the
Registrar from making a new assessment for part of the child support period.
Note: This section does not limit the power under
section 75 to amend assessments (see subsection 75(5)).
64
Reconciliation of estimated and actual adjusted taxable income after end of
child support period
(1) This
section applies if:
(a) an election made by a parent under
section 60 in relation to a child support period has not been revoked at
the end of the period; and
(b) the parent’s real remaining period
adjusted taxable income is more than the amount the parent estimated at step 2
of the method statement in subsection 60(5) for the purposes of making the
election; and
(c) the annual rate of child support
payable by the parent for all the children in a child support case for a
day in the child support period is greater than the minimum annual rate for the
period.
(2) For the purposes of assessing the parent
in respect of the costs of a child of the parent for days on or after the
election was made but before the end of the child support period, subject to
subsections (2A) and (3), the parent’s adjusted taxable income is taken to
be (and always to have been):
(a) if the remaining period was 12
months—the parent’s real remaining period adjusted taxable income; and
(b) otherwise, the amount worked out
by:
(i) dividing the parent’s
remaining period adjusted taxable income by the number of days in the remaining
period; and
(ii) multiplying the
quotient by 365.
(2A) If, under section 63A, 63B or 63C, the
Registrar amends an assessment of child support payable by or to a parent,
subsection (2) only applies in respect of the parent if the Registrar
determines that subsection (2) should apply.
(3) Subsection (2) does not apply in relation
to any day in the child support period in relation to which an income amount
order made before the making of the election applies in relation to the parent.
(4) Where an income amount order made after
the making of the election applies in relation to the parent and any part of
the child support period, subsection (2) has effect subject to the order.
(5) The Registrar is to take such action as
is necessary to give effect to this section in relation to the parent (whether
by amending any administrative assessment that has been made in relation to the
child support period or otherwise).
(6) In this section:
real remaining period adjusted taxable income of
a parent who made an election under section 60 is the amount that would
have been the parent’s adjusted taxable income for the remaining period had the
remaining period been a year of income.
64A
Penalty for underestimating adjusted taxable income
(1) A parent is liable to pay the Registrar a
penalty of the amount worked out under subsection (2) if:
(a) the parent made an election under
section 60 relating to a child support period; and
(b) the total of the parent’s real
remaining period adjusted taxable income is at least 110% of the amount the
parent estimated at step 2 of the method statement in subsection 60(5) for the
purposes of making the election.
(2) The amount of the penalty is 10% of the
difference between:
(a) the administrative assessment of
child support that would have been made if it were based entirely on the amount
of adjusted taxable income in the election; and
(b) the administrative assessment of
child support made under section 64.
(3) The penalty is due and payable upon the
issue of the administrative assessment under section 64 and is a debt due
to the Commonwealth.
(4) The Registrar may remit the whole or a
part of the penalty if:
(a) paragraph (1)(b) applies
because of an amendment of an Income Tax Assessment Act, or because of a ruling
or determination under an Income Tax Assessment Act; or
(b) paragraph (1)(b)
applies for some other reason, and the Registrar is satisfied that it would be
fair and reasonable in the circumstances to remit the whole or that part of the
penalty.
(5) If the Registrar makes a decision to
remit only part of a penalty payable under this section, or not to remit any
part of the penalty, the Registrar must serve written notice of the decision on
the parent by whom the penalty is, or but for the remission would be, payable.
(6) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the parent is aggrieved by
a later decision on an objection to the original decision, he or she may,
subject to that Act, apply to the SSAT for review of the later decision.
(7) A contravention of subsection (6) in
relation to a decision does not affect the validity of the decision.
(8) In this
section:
real remaining period adjusted taxable income of
a parent who made an election under section 60 has the meaning given by
subsection 64(6).
Division 8—Provisions relating to the making of assessments
Subdivision A—Preliminary
64B
Simplified outline
The following is a simplified outline of
this Division:
• In making an administrative
assessment, the Registrar may act on the basis of the documents and information
in his or her possession.
• In some cases, the
Registrar may assess, under this Division, the annual rate of child support for
a child that is payable by a parent who is not receiving an income support
payment.
• The Registrar may also
assess, under this Division, the annual rate of child support payable by a
parent for all the children in a child support case as the minimum annual rate
of child support.
• Subdivision C contains
rules relating to making administrative assessments (such as when the Registrar
can amend an administrative assessment and when the Registrar needs to give a
notice of assessment).
Subdivision B—Annual rates of child support for low income parents and
minimum annual rates of child support
65A
Annual rate of child support for low income parents not on income support
Assessment of annual rate
(1) The Registrar must assess an annual rate
of child support payable by a parent for a child for a day in a child support
period as the rate specified in subsection (2) if:
(a) the parent did not receive an
income support payment during the last relevant year of income; and
(b) the following amount is less than
the pension PP (single) maximum basic amount:
(i) the parent’s adjusted
taxable income for the last relevant year of income;
(ii) if an election by the
parent under section 60 is in force for the day—the amount worked out for
the parent under step 2 of the method statement in subsection 60(5) using the
parent’s estimate; and
(c) the parent does not have at least
shared care of the child during the relevant care period.
How much is the annual rate
(2) The annual rate of child support payable
is $1060.
Note: The annual rate of child support specified in subsection (2)
is indexed under section 153A.
(3) The Registrar must not assess the total
annual rate of child support payable by a parent under subsection (1)
(including any child support that is not actually payable because of subsection
40B(1)) for a day in a child support period as more than 3 times the rate
specified in subsection (2).
(4) If an annual rate of child support is
payable by a parent under subsection (1) (including any child support that
is not actually payable because of subsection 40B(1)) for more than 3 children
for a day in a child support period, then the annual rate of child support
payable by the parent for each child for a day in the child support period is:
(4A) For the purposes of subsection (4), if
a parent is liable to pay child support for one or more children under an
administrative assessment under the law of a reciprocating jurisdiction, then
that child support is taken to be payable by the parent for those children
under subsection (1).
Paying the annual rate to more than one person
(5) If, (disregarding section 40B) the
rate under subsection (2) or (4) would be payable for a child to:
(a) a parent and a non‑parent
carer of the child; or
(b) 2 non‑parent carers of the
child;
then, subject to section 40B, the annual rate of
child support for the child worked out under this section is payable in
accordance with section 40A.
Note: Under section 40B, a non‑parent
carer of a child is not entitled to be paid child support unless he or she
applies under section 25A in relation to the child.
65B
Application for section 65A not to apply
(1) If the Registrar makes an assessment of
an annual rate of child support payable by a parent for a day in a child
support period under section 65A:
(a) the parent may apply to the
Registrar for the section not to apply; or
(b) the parent is taken to have
applied to the Registrar for the section not to apply if, immediately before
the end of the previous child support period, the section did not apply because
of a determination under this section.
(2) The parent making the application must
provide evidence to the Registrar concerning the parent’s income (within the
meaning of subsection 66A(4)) to demonstrate that his or her current income is:
(a) less than the pension PP (single)
maximum basic amount; and
(b) that it would be unjust and
inequitable to expect him or her to pay the amount assessed under this section.
(3) An assessment issued by the Commissioner
of Taxation for the last relevant year of income shall not be sufficient
evidence of the income of the parent for the purposes of this section.
(4) If the parent makes an application, the
Registrar may determine in writing that the section not apply to the parent if
the parent’s current income (within the meaning of subsection 66A(4)) is less
than the pension PP (single) maximum basic amount and it would be unjust and
inequitable to expect him or her to pay the amount assessed under this section.
Note: If the Registrar refuses to grant an
application under this section, the Registrar must serve a notice on the
applicant under section 66C.
(5) The Registrar must specify the day in the
child support period on which the section ceases to apply to the parent. The
day may be any day from the first day of the child support period on which an
annual rate of child support under section 65A became payable by the
parent.
66
Minimum annual rate of child support
Assessment of annual rate
(1) The Registrar must assess the total of
the annual rates of child support payable by a parent for all the children in a
child support case for a day in a child support period as the minimum annual
rate of child support for the child support period if:
(a) the parent does not have at least
regular care of at least one of the children in the child support case for the
day; and
(b) the total payable by the parent
for all the children in the child support case would (apart from this section)
be assessed as less than the minimum annual rate of child support for the child
support period.
Note: The Registrar must not make an assessment
under this subsection in certain cases (see subsections (2) and (8)).
(2) To avoid doubt, the Registrar must not
make an assessment in respect of a parent whose annual rate of child support
could be assessed under section 65A (low income parents not on income
support) unless the Registrar has determined under section 65B that
section 65A does not apply.
When assessment applies
(4) An assessment in respect of a parent
covered by paragraph (1)(b) applies to each day in the period:
(a) beginning on the first day in the
child support period on which the total payable by the parent in respect of the
child support case would (apart from this section) be assessed as less than the
minimum annual rate of child support for the child support period; and
(b) ending:
(i) if the parent would be
so assessed until the end of the child support period—at the end of the child
support period; or
(ii) otherwise—28 days
after the day on which the person would cease to be so assessed (even if that
day is after the end of the child support period).
How much is the minimum annual rate
(5) The minimum annual rate of
child support is $320.
Note: The minimum annual rate of child support
specified in subsection (5) is indexed under section 153A.
(6) If:
(a) the Registrar makes an assessment
in respect of a parent under subsection (1); and
(b) the parent is assessed (whether
under subsection (1) or otherwise) for a day in a child support period in
respect of the costs of children in more than 3 child support cases;
then the annual rate of child support payable
by the parent for a day in the child support period for a particular child
support case is:
(6A) For the purposes of subsection (6), if
a parent is liable to pay child support for one or more children for a day
under an administrative assessment under the law of a reciprocating
jurisdiction, then the parent is taken to be assessed for the day in respect of
the costs of children in a child support case.
Paying the minimum annual rate to more than one person
for a single child support case
(7) If the rate worked out under subsection (5)
or (6) is payable by a parent for a child support case to:
(a) the parent of the children to whom
the case relates and to one or more non‑parent carers of those children;
or
(b) 2 or more non‑parent carers
of those children;
then:
(c) if 2 or more persons have equal
percentages of care of the children, and those percentages are the highest
percentages—each of those persons is entitled to be paid an equal proportion of
the annual rate of child support that is payable by the parent; and
(d) otherwise—only the person who has
the highest percentage of care of the children is entitled to be paid the
annual rate of child support that is payable by the parent.
Registrar not to make minimum rate assessment in
certain cases
(8) The Registrar must not make an assessment
under subsection (1) in relation to the child support payable by a parent:
(a) in accordance with a determination
made under Part 6A (departure determinations); or
(b) in accordance with an order made
under Division 4 of Part 7 (departure orders); or
(c) in accordance with provisions of a
child support agreement that have effect, for the purposes of this Part, as if
they were such an order made by consent.
Definition of income support payment
(9) In this Act:
income support payment:
(a) has the meaning given by
subsection 23(1) of the Social Security Act 1991; and
(b) includes a payment under the
ABSTUDY scheme that includes an amount identified as living allowance, being an
allowance that is paid at the maximum basic rate.
66A
Registrar may reduce an assessment to nil in certain cases
(1) If the Registrar has made an assessment
under section 66 in respect of the annual rate of child support payable by
a parent for all the children in a child support case for a day in a child
support period, the Registrar may, on an application made by the parent that:
(a) is in accordance with the
regulations; and
(b) either:
(i) nominates the whole
(the nominated period) of that child support period (if the first
day of that child support period is the day referred to in paragraph 66(4)(a));
or
(ii) nominates a part (the nominated
period) of that child support period, being a part that is at least 2
months and that begins on or after the day referred to in paragraph 66(4)(a);
reduce the annual rate of child support payable by the
parent for those children for the nominated period to nil. This subsection is
subject to subsection (3C).
Note: If the Registrar refuses to grant an
application under this section, the Registrar must serve a notice on the
applicant under section 66C.
(2) The Registrar must not grant an
application under subsection (1) unless the Registrar is satisfied that
the amount worked out under subsection (3) is less than the amount worked
out under subsection (3A).
(2A) For the purposes of subsection (2), a
parent is taken to have a child support case if the parent is liable to pay
child support for one or more children under an administrative assessment under
the law of a reciprocating jurisdiction.
(3) The amount for the purposes of this
subsection is:
(3A) The amount for the purposes of this
subsection is:
(3B) For the purposes of subsection (3A), a
parent is taken to have a child support case if the parent is liable to pay
child support for one or more children under an administrative assessment under
the law of a reciprocating jurisdiction.
(3C) A reduction under subsection (1) has
no effect in relation to a day to which the assessment under section 66
does not apply.
Note: Subsection 66(4) deals with when an assessment
under section 66 applies.
(4) In this section:
income, in relation to a person, means:
(a) any money earned, derived or
received by the parent for his or her own use or benefit, other than money
earned, derived or received in a manner, or from a source, prescribed by the
regulations for the purposes of this paragraph; or
(b) a periodical payment by way of a
gift or allowance, other than a payment of a kind prescribed by the regulations
for the purposes of this paragraph.
66B
Amendment of assessment made under section 65B or 66A
The Registrar may amend an assessment at
any time if:
(a) either:
(i) under
section 65B, the Registrar has determined that section 65A does not
apply to a parent; or
(ii) under
section 66A, the Registrar has reduced an annual rate of child support
payable by a parent to nil; and
(b) the Registrar becomes satisfied
that the parent does not satisfy the condition in subsection 65B(4) or 66A(2)
(as the case requires).
66C
Notice to be given to unsuccessful applicant
(1) If the Registrar refuses to grant an
application under section 65B or 66A, or amends an assessment in
accordance with section 66B, the Registrar must serve written notice of
the decision on the parent.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the parent may, subject to
the Registration and Collection Act, object to the particulars of:
(i) the assessment in
relation to which the unsuccessful application was made; or
(ii) the assessment that
was amended;
(as the case requires); and
(b) that if the parent is aggrieved by
the decision on the objection, he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
Subdivision C—Making administrative assessments
66D
How assessment is to be made
In making an administrative assessment,
the Registrar may act on the basis of the documents and information in his or
her possession, and is not required to conduct any inquiries or investigations
into the matter or to require (whether under this Act or otherwise) the
giving of any information or the production of any document.
67
Assessment to relate to all children for whom child support is payable by
parent
(1) If child support is payable by a parent
to a person for 2 or more children for a day in a child support period, any
administrative assessment of the child support payable by the parent in
relation to the day is to relate to all of the children and not to any of the
children separately.
(2) Subsection (1) applies whether or
not the child support is payable because of:
(a) the acceptance by the Registrar of
2 or more separate applications for administrative assessment made otherwise
than in the same form; or
(b) the acceptance by the Registrar of
2 or more child support agreements made otherwise than in the same document; or
(c) the acceptance by the Registrar of
an application for administrative assessment and of an application for
acceptance of a child support agreement.
(3) Subsection (1) does not require a
single administrative assessment to be made of the child support payable by a
parent to 2 or more other persons.
67A
Offsetting of child support liabilities
The annual rate of child support that
would, apart from this section, be payable for a child or children in a child
support case, for a day in a child support period, by one parent to the other
parent is to be reduced (but not below nil) by the annual rate of child support
that would, apart from this section, be payable to that parent in relation to
that day by the other parent for the child or the children in the child support
case.
68
Assessment to relate to whole or part of single child support period
(1) An administrative assessment of child
support is to relate to all the days, or some of the days, of a single child
support period.
(2) Subsection (1) does not prevent a
single notice of assessment under section 76 dealing with more than one
administrative assessment.
69
Conversion of annual rates into daily rates of payment
If the Registrar assesses the annual
rate of child support payable by a parent for a child or children in a child
support case, for a day in a child support period, the Registrar must, in
accordance with the regulations, convert that annual rate into a daily rate and
specify both the annual and daily rates in the notice of assessment given under
section 76 in relation to the assessment.
70
Evidence relating to assessments
(1) The production of a notice of
administrative assessment, or of a document signed by the Registrar that
appears to be a copy of a notice of administrative assessment, is prima facie
evidence of:
(a) the proper making of the
assessment; and
(b) except in proceedings under Part VIIA,
or under Subdivision B of Division 3 of Part VIII, of the
Registration and Collection Act on an appeal relating to the assessment, that
all the particulars of the notice of assessment are correct.
(2) The production of a document signed by
the Registrar that appears to be a copy of, or an extract from, any return or
notice of administrative assessment is evidence of the matters in the document
to the same extent as the original would be if it were produced.
71
Assessment for part of a child support period
In making an administrative assessment
of the annual rate of child support payable for days in a period (the part
period) that is not a whole child support period, the Registrar may
apply this Act as if the beginning and end of the part period were the
beginning and end respectively of a child support period.
72
Validity of assessments
Except in an appeal under Part VIIA,
or under Subdivision B of Division 3 of Part VIII, of the
Registration and Collection Act, the validity of an assessment is not affected
because any of the provisions of this Act have not been complied with.
73
Assumptions as to future events
In assessing the annual rate at which child
support is payable for a day in the future, the Registrar may act on the
assumption that the state of affairs known to the Registrar at the time the
assessment is made will remain unchanged on that day.
73A
Registrar becoming aware of relevant dependent child
(1) If:
(a) an administrative assessment of
child support is in force in relation to a parent; and
(b) the Registrar is later notified,
or otherwise becomes aware, of the fact that the parent has a relevant
dependent child who was not taken into account for the purposes of making the
assessment;
then, for the purposes of working out the parent’s
relevant dependent child amount under section 46, the parent is taken to
have the relevant dependent child:
(c) if the Registrar was notified, or
otherwise became aware, of the fact that the child is a relevant dependent
child of the parent within 28 days after the day on which the child became such
a child—on and from the day the child became such a child; or
(d) if paragraph (c) does not
apply and the Registrar was notified, or otherwise became aware, of the fact
within 28 days after giving a notice under section 34 (giving notice of
successful application)—on and from the day on which the application was made;
or
(e) if neither paragraph (c) nor
(d) applies—on and from the day the Registrar was notified, or otherwise became
aware, of the fact that the child is a relevant dependent child of the parent.
(2) If the parent is a resident of a
reciprocating jurisdiction, subsection (1) has effect as if the references
in paragraphs (1)(c) and (d) to 28 days were references to 90 days.
74
Registrar to give effect to happening of child support terminating events etc.
(1) If:
(a) child support is payable for a
child; and
(b) the Registrar is notified of, or
otherwise becomes aware of:
(i) the happening of a
child support terminating event in relation to the child, a liable parent, or a
carer entitled to child support, or all 3; or
(ii) the
happening of an event or change of circumstances that affects the annual rate
at which the child support is payable under this Act;
the Registrar must immediately take such action as is
necessary to take account of the happening of the event or change of
circumstances (whether by amending any administrative assessment or otherwise).
(2) Nothing in subsection (1) is to be
taken to prevent the Registrar from taking such action as the Registrar
considers appropriate to take account of the likely happening of an event or
change of circumstances of which the Registrar is notified or otherwise becomes
aware (whether by amending any administrative assessment or otherwise).
74A
Date of effect of change in care
If:
(a) child support is payable for a
child; and
(b) the Registrar is notified, or
otherwise becomes aware, that:
(ia) a person’s percentage
of care for the child has changed by less than 7.1%, and the change is because
of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a
variation of such an agreement, plan or order); or
(i) a person’s percentage
of care for the child has changed by at least 7.1%, and the change alters the
person’s cost percentage for the child; or
(ii) a person’s percentage
of care for the child has fallen below 14%; or
(iii) a person’s percentage
of care for the child has increased to 14%, or above 14%; or
(iv) a person’s percentage
of care for the child has fallen below 35%; or
(v) a person’s percentage
of care for the child has increased to 35%, or above 35%; and
(c) as a result, the Registrar amends
an administrative assessment under section 75 to alter the annual rate at
which the child support is payable for the child; and
(d) section 53 (Registrar
determinations if care less than 14%) does not apply in respect of the child;
the altered annual rate is to apply on and from whichever
of the following days is applicable:
(e) if the Registrar is notified, or
otherwise becomes aware, of the change of percentage referred to in
paragraph (b) within 28 days after the day on which the change occurs—the
day on which the change occurs;
(f) in any other case—the day on
which the Registrar is notified, or otherwise becomes aware, of the change of
percentage referred to in paragraph (b).
Note 1: 7.1% is one night per fortnight.
Note 2: If the Registrar becomes aware of a relevant
dependent child who was not taken into account for the purposes of making an
assessment, the Registrar must take action in accordance with section 73A.
75
Amendment of assessments
(1) The Registrar may, at any time, amend any
administrative assessment by making such alterations and additions as the
Registrar considers necessary to give effect to this Act or the Registration
and Collection Act.
(2) However, if the amendment relates to a
person’s percentage of care for a child, the Registrar must not amend an
administrative assessment unless:
(aa) the change to the person’s
percentage of care is less than 7.1%, and the change is because of an
agreement, plan or order mentioned in paragraph 49(a) or (b) (including a
variation of such an agreement, plan or order); or
(a) the change to the person’s
percentage of care is at least 7.1%, and the change alters the person’s cost
percentage for the child; or
(b) the person’s percentage of care
falls below 14%; or
(c) the person’s percentage of care
increases to 14%, or above 14%; or
(ca) the person’s percentage of care
falls below 35%; or
(cb) the person’s percentage of care
increases to 35%, or above 35%; or
(d) the child is a relevant dependent
child and the Registrar has become aware that the child was not taken into
account for the purpose of making the assessment.
Note: 7.1% is one night per fortnight.
(3) Subsection (1) has effect despite
the fact that:
(a) child support has been paid under
the administrative assessment; or
(b) the child support period, or the
part of the child support period, to which the administrative assessment
relates has ended; or
(c) proceedings are pending in a court
having jurisdiction under this Act or the Registration and Collection Act, or
in the SSAT, against or in relation to the administrative assessment.
(4) Without limiting subsection (1), the
Registrar may amend any administrative assessment for the purpose of:
(a) correcting any error or mistake
(whether or not made by the Registrar); or
(b) correcting the effect of any false
or misleading statement made to the Registrar; or
(c) giving effect to the happening of
a child support terminating event in relation to a child, the liable parent,
the carer entitled to child support, or all 3; or
(d) giving effect to the happening of
an event or change of circumstances that, under this Act or the Registration
and Collection Act, affects the annual rate at which child support is or was
payable; or
(e) giving effect to the acceptance of
a child support agreement by the Registrar; or
(f) giving effect to a decision or
order of a court having jurisdiction under this Act or the Registration and
Collection Act, or of the SSAT.
(5) Where a provision of this Act or the
Registration and Collection Act expressly authorises the Registrar to amend an
administrative assessment, that provision does not by implication limit the
power of the Registrar (whether under this section or otherwise) to amend the
assessment.
(6) Except as otherwise expressly provided in
this Act or the Registration and Collection Act, every amended administrative
assessment is to be taken to be an administrative assessment for all the
purposes of this Act and the Registration and Collection Act.
76
Notice of assessment to be given
(1) When the Registrar makes an
administrative assessment, the Registrar must immediately give written notice
of the assessment to the liable parent and the carer entitled to child support.
(2) The notice must (in addition to
specifying the matters that section 69 (daily rate conversion) requires to
be specified in the notice) specify at least the following matters:
(a) the adjusted taxable income, and
child support income, of any parent (the assessed parent) who was
assessed in respect of the costs of the children in the child support case to
which the assessment relates;
(b) the names and dates of birth of
those children;
(c) the number and age ranges of the
relevant dependent children (if any) of an assessed parent;
(d) the number and age ranges of the
other children in other child support cases (if any) of an assessed parent;
(e) an assessed parent’s, and non‑parent
carer’s, percentage of care for each child in the child support case to which
the assessment relates;
(g) the costs of each child in the
child support case to which the assessment relates;
(ga) if a child support agreement
includes lump sum payment provisions, or if a court has made an order under
section 123A, in respect of the children in the child support case to
which the assessment relates:
(i) the amount of the lump
sum payment specified in the agreement or order; and
(ii) the amount of any
remaining lump sum payment (within the meaning of the Registration and
Collection Act); and
(iii) any annual rate and
daily rate of child support that remains payable under section 78 of this
Act after taking into account any remaining lump sum payment that will be
credited under section 69A of the Registration and Collection Act;
(h) such other matters as are
prescribed.
(2AA) For the purposes of paragraph (2)(d), a
parent is taken to have a child support case if the parent is liable to pay
child support for one or more children under an administrative assessment under
the law of a reciprocating jurisdiction.
(2A) Despite subsection (2), if an
administrative assessment is affected either:
(a) by an order made by a court under
Division 4 of Part 7; or
(b) by the provisions of a child
support agreement;
the Registrar is not required to specify any matter
referred to in that subsection that is not relevant to the making of the
assessment.
(3) The notice
must also include, or be accompanied by, statements of the following kinds:
(a) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right:
(i) to object, subject to
the Registration and Collection Act, to particulars of the assessment; and
(ii) if aggrieved by the
decision on an objection to particulars of the assessment (no matter who lodges
the objection but subject to that Act), to apply to the SSAT for review of the
decision;
(b) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right, if aggrieved by a decision of the SSAT in relation to the
percentage of care of the liable parent or the carer entitled to child support,
to apply to the AAT for review of the decision;
(c) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right to apply to the Registrar for a determination under Part 6A
having the effect that the provisions of this Act relating to administrative
assessment of child support will be departed from in relation to a child in the
special circumstances of the case;
(ca) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right to apply to a court having jurisdiction under this Act for
an order under section 123A that the liable parent provide child support
for the child in the form of a lump sum payment to be credited against the
amount payable under the liability of the liable parent under any relevant
administrative assessment;
(d) a statement that specifically
draws the attention of the liable parent and the carer entitled to child
support to the right, subject to the Family Law Act 1975, to apply to a
court having jurisdiction under this Act for an order under section 124
that a parent provide child support for the child otherwise than in the form of
periodic amounts.
Division 9—Liability to pay child support as assessed
76A
Simplified outline
The following is a simplified outline of
this Division:
• The amount of child support
payable for a child or children for a day in a child support period is the
daily rate specified in the notice of assessment.
77
Effect of assessment
(1) This section applies if the Registrar:
(a) assesses the annual rate of child
support payable for a child or children in a child support case, for a day in a
child support period, by a liable parent to a carer entitled to child support;
and
(b) converts
the annual rate into a daily rate and specifies both rates in a notice of
assessment given under section 76 in relation to the assessment.
(2) Child support is payable for the child or
children by the liable parent to the carer entitled to child support for
each day in the child support period.
(3) The amount of child support payable for
the child or children for the day by the liable parent to the carer entitled to
child support is the amount of the daily rate specified in the notice of
assessment.
78
When amounts of child support due and payable
(1) An amount of child support payable by a
liable parent in relation to a day in any month is due and payable on the later
of the following days:
(a) the seventh day of the following
month;
(b) the
30th day after the liable parent was given a notice of assessment under section 76
specifying the annual and daily rates of child support in relation to that day.
Note: Section 66 of the Registration and
Collection Act deals with when child support debts become due and payable.
(2) An amount payable under subsection (1),
in relation to a day in a month in a year of income, is taken to be paid at the
time that the amount becomes due and payable, to the extent that a remaining
lump sum payment will be credited, under section 69A of the Registration
and Collection Act, at the end of the year of income against that amount.
79
Recovery of amounts of child support
An amount of child support due and
payable by a liable parent to a carer entitled to child support is a debt due
and payable by the liable parent to the carer, and may be sued for and
recovered in:
(a) a court having jurisdiction for
the recovery of debts up to the amount of the child support; or
(b) a court having jurisdiction under
this Act.
Note: Amounts covered by section 30 of the
Registration and Collection Act are debts due to the Commonwealth.
Part 6—Consent arrangements
Division 1—Preliminary
80A
Simplified outline
The following is a simplified outline of
this Part:
• Parents (and non‑parent
carers) of a child can, using a child support agreement, agree between
themselves the child support that is to be payable for the child.
• There are 2 sorts of
agreements. The first is a binding child support agreement. Each party to the
agreement must have received legal advice before entering the agreement, and
must also receive legal advice before terminating the agreement.
• The second sort of
agreement is a limited child support agreement. An administrative assessment
must be in place before a limited child support agreement can be accepted by
the Registrar. The annual rate of child support payable under the agreement
must be at least the annual rate of child support otherwise payable under this
Act.
• Agreements may include
provisions that state that child support is to be payable otherwise than in the
form of periodic amounts. There are 2 main kinds of such provisions:
(a) non‑periodic
payment provisions, under which lump sum payments and other non‑periodic
payments (such as school fees) may be made; and
(b) lump sum
payment provisions, under which lump sum payments may be made.
• Payments made under non‑periodic
payment provisions reduce the annual rate of child support payable.
• Payments made under lump
sum payment provisions are credited against the amount payable under the
liability of a party to the agreement (rather than reducing the annual rate of
child support payable).
80B
Cases in relation to which Part applies
This Part applies where the parents of
an eligible child, or a parent or the parents of an eligible child and a non‑parent
carer of the child, want to give effect to an agreement between themselves in
relation to child support payable for the child.
Division 1A—Binding and limited child support agreements
Subdivision A—Binding child support agreements
80C
Making binding child support agreements
(1) An agreement is a binding child
support agreement if:
(a) the agreement is binding on the
parties to the agreement in accordance with subsection (2); and
(b) the agreement complies with
subsection 81(2).
(2) For the purposes of subsection (1),
an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the
parties to the agreement; and
(c) the agreement contains, in
relation to each party to the agreement, a statement to the effect that the
party to whom the statement relates has been provided, before the agreement was
signed by him or her, as certified in an annexure to the agreement, with
independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(d) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(e) the agreement has not been
terminated under section 80D; and
(f) after the agreement is signed,
either the original agreement or a copy of the agreement is given to each
party.
Note: For the manner in which the contents of a
binding child support agreement may be proved, see section 48 of the Evidence
Act 1995.
80CA
No variation of binding child support agreements
(1) A binding child support agreement must
not be varied.
Note: A binding child support agreement can be
terminated and replaced with a new binding child support agreement.
(2) However, subsection (1) does not
prevent a binding child support agreement between parties from incorporating by
reference the provisions of a previous child support agreement between the
parties.
80D
Terminating binding child support agreements
(1) A binding child support agreement (the previous
agreement) may be terminated only by:
(a) a provision being included in a
new binding child support agreement made by the parties to the previous
agreement to the effect that the previous agreement is terminated; or
(b) the parties to the previous
agreement making a written agreement (a termination agreement):
(i) that is binding on the
parties in accordance with subsection (2); and
(ii) to the effect that the
agreement is terminated; or
(c) a court order setting aside the previous
agreement under section 136.
(2) For the purposes of subparagraph (1)(b)(i),
an agreement is binding on the parties if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the
parties to the agreement; and
(c) the agreement contains, in
relation to each party to the agreement, a statement to the effect that the
party to whom the statement relates has been provided, before the agreement was
signed by him or her, as certified in an annexure to the agreement, with independent
legal advice from a legal practitioner as to the following matters:
(i) the effect of the
agreement on the rights of that party;
(ii) the advantages and
disadvantages, at the time that the advice was provided, to the party of making
the agreement; and
(d) the annexure to the agreement
contains a certificate signed by the person providing the independent legal
advice stating that the advice was provided; and
(e) the agreement has not been set
aside by a court under section 136; and
(f) after the agreement is signed,
either the original agreement or a copy of the agreement is given to each
party.
Note: For the manner in which the contents of a
termination agreement may be proved, see section 48 of the Evidence Act
1995.
(3) A binding child support agreement is
terminated:
(a) if paragraph (1)(a)
applies—on the day set out in the following paragraph:
(i) if the new binding
child support agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the new binding child support agreement is signed; and
(b) if paragraph (1)(b)
applies—on the day set out in the following paragraph:
(i) if the termination
agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the termination agreement is signed; and
(c) if paragraph (1)(c)
applies—on the day on which the court order takes effect.
Subdivision B—Limited child support agreements
80E
Making limited child support agreements
(1) An agreement is a limited child
support agreement if:
(a) it is in writing; and
(b) it is signed by the parties to the
agreement; and
(c) it complies with subsection 81(2);
and
(d) either:
(i) it meets the
conditions in subsection (2), (3) or (4), as the case requires, (assuming
the agreement is accepted by the Registrar); or
(ii) it has been accepted
by the Registrar under section 98U.
Note: In addition to the requirements in this
section, there must be an administrative assessment in force in relation to the
child in respect of whom the agreement is made (see subsection 92(3)).
Child support payable on day application for acceptance
of agreement is made to Registrar
(2) An agreement meets the condition in this
subsection if:
(a) child support is to be payable
under the agreement, by one party to the agreement to the other party or
parties, on the day on which the application is made to the Registrar for
acceptance of the agreement; and
(b) the annual rate of child support
that is so payable under the agreement on that day is at least the annual rate
of child support that would otherwise be payable under this Act on that day.
Note: If the child support payable under the
agreement is not a periodic amount, the regulations can prescribe the method by
which that amount is to be converted into an annual rate (see subsection (5)).
Child support payable on day agreement commences
(3) An agreement meets the condition in this
subsection if:
(a) child support is not to be payable
under the agreement, by one party to the agreement to the other party or
parties, on the day on which the application is made to the Registrar for
acceptance of the agreement; but
(b) the annual rate of child support
that is payable under the agreement, by one party to the agreement to
the other party or parties, on the day on which the agreement commences is at
least the annual rate of child support that would otherwise be payable under
this Act on that day.
Child support payable for past period
(4) An agreement meets the condition in this
subsection if:
(a) child support is payable under the
agreement, by one party to the agreement to the other party or parties,
for a period before the day on which the application is made to the Registrar
for acceptance of the agreement; and
(b) the amount of child support that
is so payable under the agreement for that period is at least the amount of
child support that would otherwise be payable under this Act for that period.
Regulations
(5) The regulations may, for the purposes of subsections (2),
(3) and (4), provide a method of converting an amount of child support that is
payable under an agreement otherwise than in the form of periodic amounts into
an annual rate of child support.
80F No
variation of limited child support agreements
(1) A limited child support agreement must
not be varied.
Note: A limited child support agreement can be
terminated and replaced with a new limited child support agreement.
(2) However, subsection (1) does not
prevent a limited child support agreement between parties from incorporating by
reference the provisions of a previous child support agreement between the
parties.
80G
Terminating limited child support agreements
(1) A limited child support agreement (the previous
agreement) may be terminated only by:
(a) a provision being included in:
(i) a new limited child
support agreement made by the parties to the previous agreement; or
(ii) a binding child
support agreement made by the parties to the previous agreement;
to the effect that the previous
agreement is terminated; or
(b) the parties to the previous agreement
making a written agreement that is signed by those parties to the effect that
the previous agreement is terminated; or
(c) a court order setting aside the
previous agreement under section 136; or
(d) if the notional assessment of the
amount of child support that would have been payable by one party to the
previous agreement to another party is varied by more than 15% from the
previous notional assessment in circumstances not contemplated by the previous
agreement—a party to the previous agreement giving the Registrar written notice
of the termination of the agreement within 60 days of that party receiving
notice of the variation; or
(e) if the previous agreement was made
3 or more years earlier—a party to the previous agreement giving the Registrar
written notice of the termination of the previous agreement.
(1A) If the parent is a resident of a
reciprocating jurisdiction, subsection (1) has effect as if the reference
in paragraph (1)(d) to 60 days were a reference to 90 days.
(2) A limited child support agreement is
terminated:
(a) if paragraph (1)(a)
applies—on the day set out in the following paragraph:
(i) if the new limited
child support agreement, or binding child support agreement, specifies a day on
which it takes effect—that day;
(ii) otherwise—the day on
which the new limited child support agreement or binding child support
agreement is signed; and
(b) if paragraph (1)(b)
applies—on the day set out in the following paragraph:
(i) if the written
agreement specifies a day on which it takes effect—that day;
(ii) otherwise—the day on
which the written agreement is signed; and
(c) if paragraph (1)(c)
applies—on the day on which the court order takes effect; and
(d) if paragraph (1)(d) or (e)
applies—28 days after the notice is given.
(3) If a limited child support agreement is
terminated under paragraph (1)(d) or (e), the Registrar must notify in
writing the other parties to the agreement of the termination.
(4) The notice under subsection (3) must
include, or be accompanied by, a statement that specifically draws the
attention of the parties to the previous agreement to the right:
(a) to object, subject to the
Registration and Collection Act, to the decision (the original decision)
to terminate the agreement; and
(b) if aggrieved by a later decision
on an objection to the original decision (no matter who lodges the objection
but subject to that Act), to apply to the SSAT for review of the later
decision.
Division 2—Child support agreement requirements
81 Child
support agreement definition and general requirement
(1) An agreement is a child support
agreement if:
(a) the agreement is a binding child
support agreement; or
(b) the agreement is a limited child
support agreement.
Note: For the definitions of binding child
support agreement and limited child support agreement,
see sections 80C and 80E.
(2) An agreement is a binding child support
agreement or a limited child support agreement if it complies with the
following provisions:
(a) section 82 (children in
relation to whom agreements may be made);
(b) section 83 (persons who may
be parties to agreements);
(c) section 84 (provisions that
may be included in agreements).
Note: A parenting plan under the Family Law Act
1975 may, subject to the requirements of this Division, be a child
support agreement.
82
Children in relation to whom agreements may be made
(1) An agreement is a child support agreement
only if it is made in relation to a child in relation to whom an application
for administrative assessment is, under section 24, entitled to be made on
the day the agreement is entered into.
(2) If the agreement is also made in relation
to another child in relation to whom subsection (1) does not apply, the
other child is to be disregarded for the purposes of this Act.
(3) Subsection (2) does not affect the
operation of the agreement in relation to the other child for any other
purpose.
83
Persons who may be parties to agreements
(1) An agreement is a child support agreement
only if it is made between:
(a) 2 parents of a child who, under
section 25, would be able to properly make an application for
administrative assessment of child support for the child in relation to whom
the agreement is made on the day on which the agreement is entered into; or
(b) one or both parents of a child,
and a non‑parent carer of the child, who, under sections 25 and 25A,
would be able to properly make an application for administrative assessment of
child support for the child in relation to whom the agreement is made on the
day on which the agreement is entered into.
(2) If there is a party to the agreement in
relation to whom subsection (1) does not apply, that party is to be
disregarded for the purposes of this Act.
(3) Subsection (2) does not affect the
operation of the agreement in relation to that party for any other purpose.
84
Provisions that may be included in agreements
Provisions that may be included
(1) An agreement is a child support agreement
only if it includes one or more of the following kinds of provisions:
(a) provisions under which a party is
to pay child support for a child to another party in the form of periodic
amounts paid to the other party;
(b) provisions under which the rate at
which a party is already liable to pay child support for a child to another
party in the form of periodic amounts paid to the other party is varied;
(c) provisions agreeing between
parties any other matter that may be included in an order made by a court under
Division 4 of Part 7 (departure orders);
(d) provisions (the non‑periodic
payment provisions) that state:
(i) that a party (the liable
party) is to provide child support for a child to another party
otherwise than in the form of periodic amounts; and
(ii) that the annual rate
of child support payable for the child by the liable party under any relevant
administrative assessment is to be reduced, in the manner specified under subsection (6),
by the amount of child support to be provided by the liable party;
(e) provisions (the lump sum
payment provisions) that meet the requirements of subsection (7)
and that state:
(i) that a party (the liable
party) is to provide child support for a child to another party in the
form of a lump sum payment (including by way of transfer or settlement of
property); and
(ii) that the lump sum
payment is to be credited against the amount payable under the liable party’s
liability under the relevant administrative assessment;
(f) provisions under which a party is
to provide child support for a child to another party otherwise than in the
form of periodic amounts and that are not non‑periodic payment provisions
or lump sum payment provisions;
(g) provisions under which the
liability of a party to pay or provide child support for a child to another
party is to end from a specified day.
(2) The agreement may include more than one
kind of provision in relation to different parts of a child support period and
different child support periods.
Other kinds of provisions not to have effect
(3) If the agreement also includes provisions
of a kind not referred to in subsection (1), those provisions do not have
effect for the purposes of this Act.
(4) Subsection (3) does not affect the
operation of provisions of the kind referred to in that subsection for any
other purpose.
Agreement may also be parenting plan, maintenance
agreement or financial agreement
(5) Without limiting subsection (4),
nothing in this Part is to be taken to prevent the same document being both a
child support agreement and:
(a) a parenting plan; or
(b) a maintenance agreement or
financial agreement under the Family Law Act 1975; or
(c) a Part VIIIAB financial
agreement (within the meaning of that Act).
Additional requirements of agreements with non‑periodic
payment provisions
(6) If an agreement includes provisions of
the kind referred to in paragraph (1)(d), the statement referred to in subparagraph (1)(d)(ii)
must specify either:
(a) that the annual rate of child
support payable under the administrative assessment is to be reduced by a
specified amount that represents an annual value of the child support payable;
or
(b) that the annual rate of child
support payable under the administrative assessment is to be reduced by 100% or
another specified percentage that is less than 100%.
Note: Non‑periodic payment provisions are
taken to have effect as if they were a statement made by a court under section 125
in an order made under section 124 (see subsection 95(3)).
Additional requirements etc. of agreements with lump
sum payment provisions
(7) If an agreement includes provisions of
the kind referred to in paragraph (1)(e), the provisions meet the
requirements of this subsection if:
(a) the agreement is a binding child
support agreement; and
(b) an administrative assessment, in
relation to the child in respect of whom the agreement is made, is in force
immediately before the application for acceptance of the agreement is made; and
(c) the amount of the lump sum
payment:
(i) is specified in the
agreement; and
(ii) equals or exceeds the
annual rate of child support payable for the child under the administrative
assessment.
Note: If an agreement includes provisions of the
kind referred to in paragraph (1)(e) (lump sum payment provisions), the
lump sum payment is credited under section 69A of the Registration and
Collection Act against the amount payable under the liable party’s liability
(rather than reducing the annual rate of child support payable under the
administrative assessment).
(8) An agreement that includes lump sum
payment provisions may also state that the lump sum payment is to be credited
against 100%, or another specified percentage that is less than 100%, of the
amount payable under the liability.
Note: If an agreement does not specify a percentage,
the lump sum payment is credited against 100% of the amount payable under the
liability (see section 69A of the Registration and Collection Act).
87
Agreement may be made in relation to 2 or more children etc.
(1) If an agreement is made in the same
document in relation to 2 or more children, the document may be treated as if
it contained separate agreements for each of the children.
(2) If:
(a) agreement is made in the same
document in relation to a child or 2 or more children; and
(b) child
support is to be payable to or by 2 or more parties to the agreement for the
child or any of the children;
the document may be treated as if it contained separate
agreements made in relation to the child or each of the children by each of the
parties to or by whom child support is to be payable.
Division 3—Applications to Registrar for acceptance of child support
agreements
88
Application requirements generally
An application for acceptance by the
Registrar of an agreement made in relation to a child is properly made if:
(a) either:
(i) the agreement is a
child support agreement; or
(ii) the agreement is a
termination agreement or a written agreement referred to in paragraph
80G(1)(b); and
(b) the application complies with
section 89.
89
Formal requirement for applications
An application for acceptance by the
Registrar of an agreement made in relation to a child must be made in the
manner specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which an application may be made.
90
Application for 2 or more separate agreements may be made in same form
If application is made in the same form
for acceptance of 2 or more agreements made in relation to a child or 2 or more
children (whether or not the agreements have been made in the same document),
the form may be treated as if it contained separate applications for each of
the agreements.
Division 4—Decisions on applications
91 How
decision is to be made
In determining whether an agreement made
in relation to a child is an agreement referred to in paragraph 88(a), the
Registrar may act on the basis of the application made to the Registrar for
acceptance of the agreement, the documents accompanying the application and the
agreement itself, and is not required to conduct any inquiries or
investigations into the matter.
92
Decision on application
(1) Subject to this section, if the Registrar
is satisfied that an application made to the Registrar for acceptance of an
agreement made in relation to a child has been properly made, the Registrar
must accept the agreement.
(2) If the Registrar is not so satisfied, the
Registrar may refuse to accept the agreement.
(3) The Registrar must refuse to accept a
limited child support agreement if, immediately before the application for
acceptance of the agreement is made, no administrative assessment is in force in
relation to the child.
(5) The Registrar must refuse to accept the
agreement if:
(a) immediately before the application
is made, an administrative assessment is in force in relation to the child and
the 2 parties to the agreement; and
(b) the application for administrative
assessment was made, in accordance with paragraph 29B(1)(b), by an overseas
authority of a reciprocating jurisdiction on behalf of the one of the parties
to the agreement; and
(d) the overseas authority does not
approve the acceptance of the agreement.
93
Liability to pay child support arises on acceptance of application where child
support not already payable etc.
(1) If:
(a) the
Registrar accepts a child support agreement made in relation to a child; and
(b) either:
(i) child support is not
already payable for the child; or
(ii) child
support is already payable by a person to another person for the child, but
child support is to be paid or provided under agreement for the child otherwise
than by the first‑mentioned person to the other person;
then:
(c) the acceptance of the agreement by
the Registrar has the same effect (as provided by this section) as the
acceptance by the Registrar of an application for administrative assessment of
child support for the child; and
(d) a person to whom child support is
to be paid or provided under the agreement is a carer entitled to child
support in relation to the child; and
(e) a person by whom child support is
to be paid or provided under the agreement to the carer entitled to child support
is a liable parent in relation to the child and the carer
entitled to child support; and
(f) child support is payable for the
child by the liable parent to the carer entitled to child support; and
(g) the child support is payable from
the day on which the application was made to the Registrar for acceptance of
the agreement; and
(h) the child support is payable until
the earlier of the following days:
(i) the day immediately
before the day on which a child support terminating event happens in relation
to the child, the carer entitled to child support, the liable parent or all 3
of them;
(ii) the day on which the
agreement is terminated under section 80D or 80G.
(2) The Registrar must assess under this Act
the annual rate of the child support payable by the liable parent to the carer
entitled to the child support for the child for the days in the child support
period that starts on the day on which the application was made to the
Registrar for acceptance of the agreement. The Registrar must do so as quickly
as practicable.
Note 1: The Registrar must assess, under section 34B,
the annual rate of child support payable under an agreement if an annual rate
of child support is already payable and the agreement is to affect that annual
rate.
Note 2: If the Registrar makes an assessment under this
section, the Registrar must make a provisional notional assessment under
section 146B.
(3) In making any administrative assessment
in relation to the child, the carer entitled to child support and the liable
parent, the Registrar must act in accordance with section 95 (Effect of
certain provisions of accepted child support agreements).
94
Registrar to take action to give effect to accepted child support agreement or
termination agreement etc.
(1) After the Registrar accepts a child
support agreement made in relation to a child, the Registrar must immediately
take such further action (if any) as is necessary to give effect to the
agreement.
Note: After accepting the agreement, section 34B
or 93 or Part 5 might require the Registrar to assess an annual rate of
child support payable.
(2) In making any administrative assessment
in relation to the child, the Registrar must act in accordance with section 95
(effect of certain provisions of accepted child support agreements).
(3) After the Registrar accepts a termination
agreement, or a written agreement referred to in paragraph 80G(1)(b), the
Registrar must immediately take such further action (if any) as is necessary to
give effect to the agreement.
95
Effect of certain provisions of accepted child support agreements
(1) This section applies in relation to a
child support agreement that has been accepted by the Registrar.
(2) If the agreement includes:
(a) provisions under which a party is
to pay child support for a child to another party in the form of periodic
amounts paid to the other party; or
(b) provisions under which the rate at
which a party is already liable to pay child support for a child to another
party in the form of periodic amounts paid to the other party is varied; or
(c) provisions
agreeing between parties any other matter that may be included in an order made
by a court under Division 4 of Part 7 (Orders for departure from
administrative assessment in special circumstances);
the provisions have effect, for the purposes of Part 5,
as if they were an order made by consent by a court under Division 4 of
Part 7.
(3) If the agreement includes non‑periodic
payment provisions:
(a) the provisions have effect, for
the purposes of this Act, as if they were a statement made by a court under
section 125 in an order made under section 124; and
(b) if the provisions or the agreement
is registered in a court having jurisdiction under Part VII of the Family
Law Act 1975—Division 13A of Part VII, and Parts XIII and XIIIB,
of that Act apply in relation to the provisions as if the provisions were an
order made by the court under Part VII of that Act.
Note 1: The effect of paragraph (3)(a) is that the
Registrar must make any subsequent administrative assessment on the basis of
the annual rate of child support as reduced by the amount or percentage
specified in the child support agreement (see section 127).
Note 2: This section does not deal with lump sum
payment provisions (see paragraph 84(1)(e) of this Act and section 69A of
the Registration and Collection Act).
(5) The provisions of the agreement have
effect despite any inconsistency with a court order made before the agreement
was entered into.
(6) Where any difficulty arises in the
application of this section 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.
Division 5—Notice of the decision
96
Notice of decision to be given
(1) If the Registrar accepts or refuses to
accept an agreement made in relation to a child, the Registrar must immediately
notify each party to the agreement of the decision.
(2) The notice must include, or be
accompanied by, a statement that specifically draws the attention of the
parties to the agreement to the right:
(a) to object, subject to the
Registration and Collection Act, to the decision (the original decision);
and
(b) if aggrieved by a later decision
on an objection to the original decision (no matter who lodges the objection
but subject to that Act), to apply to the SSAT for review of the later
decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
(4) If a child support agreement includes
lump sum payment provisions, the notice must specify:
(a) the amount of the lump sum payment
specified in the agreement; and
(b) any annual rate and daily rate of
child support that remains payable after taking into account any remaining lump
sum payment (within the meaning of the Registration and Collection Act) that
will be credited under section 69A of that Act.
Part 6A—Departure from administrative assessment of child support
(departure determinations)
Division 1—Preliminary
98A
Simplified outline
The following is a simplified outline of
this Part:
• The Registrar can make a
determination under this Part to depart from the provisions of this Act relating
to administrative assessment of child support for a child.
• A liable parent or a carer
entitled to child support can apply for such a determination, or the Registrar
can make a determination on his or her own initiative.
• The Registrar must not make
a determination in respect of a day that is more than 18 months earlier without
leave of a court under section 112.
• The grounds for deciding
whether to make a determination are the same as a court uses in deciding
whether to make an order under Division 4 of Part 7.
• If the Registrar is
considering making a determination, the parties can make a child support
agreement in relation to child support payable for the child instead of the
Registrar making the determination.
• Under section 80 of
the Registration and Collection Act, certain persons can object to a decision
to make or refuse to make a determination under this Part.
Division 2—Departures initiated by a liable parent or carer
98B
Application for determination under Part
(1) If, at any time when an administrative
assessment is in force in relation to a child:
(a) the liable parent concerned; or
(b) the
carer entitled to child support concerned;
is of the view that, because of special circumstances that
exist, the provisions of this Act relating to administrative assessment of
child support should be departed from in relation to the child, the liable
parent or carer may, by written application, ask the Registrar to make a
determination under this Part.
Note 1: For the determinations that the Registrar may
make under this Part see section 98S.
Note 2: The Registrar may only make a determination
under this Part in respect of a day that is more than 18 months earlier than
the day on which the relevant application is made with a court’s leave under section 112
(see subsection 98S(3B)).
(2) The parties to the proceedings under this
Division are the liable parent and the carer entitled to child support.
98C
Matters as to which Registrar must be satisfied before making determination
(1) Subject to this Part, if:
(a) an application is made to the
Registrar under section 98B; and
(b) the Registrar is satisfied:
(i) that one, or more than
one, of the grounds for departure referred to in subsection (2) exists;
and
(ii) that
it would be:
(A) just and
equitable as regards the child, the liable parent, and the carer entitled to
child support; and
(B) otherwise
proper;
to
make a particular determination under this Part;
the Registrar may make the determination.
(2) For the
purposes of subparagraph (1)(b)(i):
(a) the grounds for departure from the
provisions of this Act relating to administrative assessment of child support
in relation to the child are the same as the grounds for departure set out in
subsection 117(2); and
(b) subparagraph 117(2)(b)(ib) has
effect subject to subsections 117(3A) to (3C).
(3) Subsections 117(4) to (9) (inclusive)
apply to the Registrar in the exercise of his or her powers under this Division
as if:
(a) any reference in those subsections
to the court were a reference to the Registrar; and
(b) any reference to an order were a
reference to a determination.
98D
Formal requirements for application
An application made under section 98B
must be in the manner specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which an application must be made.
98E
Registrar may refuse to make determination because issues too complex
If the Registrar is satisfied, after
considering the application, that the issues raised by the application are too
complex to be dealt with under this Part, the Registrar may:
(a) refuse to make the determination,
without taking any further action under this Part; and
(b) recommend that application be made
to a court having jurisdiction under this Act for an order under Division 4
of Part 7.
98F
Application disclosing no grounds etc. for making determination—how dealt with
If the
Registrar is satisfied, after considering the application, that:
(a) there are no grounds for departing
from the provisions of this Act relating to administrative assessment of child
support in relation to the child concerned; or
(b) that
it would not be:
(i) just or equitable as
regards the child or either party to the application; or
(ii) otherwise
proper;
to
make the determination;
the Registrar may refuse to make the determination without
taking any further action under this Part.
98G
Other party to be notified
(1) If section 98E or 98F or subsection
98J(2) does not apply, the Registrar must cause a copy of:
(a) the application; and
(b) any
document accompanying it;
to be served on the other party to the proceedings.
(2) The Registrar must, at the same time,
inform the other party to the proceedings in writing that he or she may make
any representation (a reply) regarding the application that he or
she considers relevant.
(3) If the other party to the proceedings
makes a reply, the Registrar must serve a copy of the reply and any
accompanying documents on the applicant for the determination.
98H
Procedure for dealing with application
(1) In making a decision under this Division
in relation to an application, the Registrar:
(a) may act on the basis of:
(i) the application and
the documents accompanying it; and
(ii) if action has been
taken under section 98G—the reply (if any) to the application and the
documents (if any) accompanying it; and
(b) may, but is not required to,
conduct any inquiry or investigation into the matter.
(2) Except where the Registrar refuses to
make a determination under section 98E or 98F or subsection 98J(2) in
respect of an application, the Registrar must give an opportunity to the
applicant and the other party to appear before the Registrar, and be heard by
him or her, if they so wish.
Note: Sections 98E and 98F and subsection
98J(2) provide that the Registrar may refuse to make a determination in the
circumstances set out in those provisions without taking any further action
under this Part.
(3) Nothing in subsection (2) empowers
the Registrar to compel a party to the proceeding to appear before the
Registrar in the presence of the other party.
(4) Any hearing before the Registrar, and any
inquiry or investigation carried out by the Registrar, is to be carried out as
the Registrar thinks fit and the Registrar is not bound by any rules of
evidence.
(5) A party to the proceedings must not be
represented by another person before the Registrar.
98J
Subsequent applications
(1) A person who has made an application for
a determination under this Part in respect of an administrative assessment of
child support is not, for that reason, precluded from subsequently making
another application in respect of that assessment if, because of circumstances
existing at the time when the subsequent application is made, there are grounds
for departing from the administrative assessment.
(2) If:
(a) a person has made an application
for a determination under this Part; and
(b) the Registrar has refused to make
a determination on the application; and
(c) the person subsequently makes an
application for a determination under this Part; and
(d) the Registrar is satisfied, after
considering:
(i) the application last
made and the documents (if any) accompanying it; and
(ii) the
previous application and the documents (if any) accompanying it and any matter
taken into account by the Registrar in refusing to make a determination in
relation to that application;
that
no new matter has been submitted in support of the claim that there are grounds
for departing from the provisions of this Act relating to administrative
assessment of child support in relation to the child;
the Registrar may refuse to make a determination, without
taking any further action under this Part.
98JA
Notice of refusal to be served on parties
(1) If the Registrar refuses to make a
determination under this Division, the Registrar must serve notice in writing
of the decision on each of the parties to the proceeding.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may:
(i) if the original
decision was made under section 98E (issues too complex)—apply to a court
having jurisdiction under this Act for an order under Division 4 of Part 7;
or
(ii) otherwise—apply,
subject to the Registration and Collection Act, to the SSAT for review of the
later decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
Division 3—Departures initiated by the Registrar
98K
Registrar may initiate a determination under this Part
(1) If, at any time when an administrative
assessment is in force in relation to a child, the Registrar is of the view
that, because of special circumstances that exist, the provisions of this Act
relating to administrative assessment of child support should be departed from
in relation to the child, the Registrar may make a determination under this
Part.
Note 1: For the determinations that the Registrar may
make under this Part see section 98S.
Note 2: The Registrar may only make a determination
under this Part in respect of a day that is more than 18 months earlier than
the day on which the relevant parties are notified under section 98M with
a court’s leave under section 112 (see subsection 98S(3B)).
(2) The parties to the proceedings under this
Division are the liable parent and the carer entitled to child support.
98L
Matters as to which Registrar must be satisfied before making determination
(1) Subject to this Part, the Registrar may
make the determination if:
(a) the Registrar is satisfied that,
in the special circumstances of the case, application in relation to a child of
the provisions of this Act relating to administrative assessment of child
support would result in an unjust and inequitable determination of the level of
financial support to be provided by the liable parent for the child because of
the income, earning capacity, property and financial resources of either
parent; and
(b) that it would be:
(i) just and equitable as
regards the child, the liable parent, and the carer entitled to child support;
and
(ii) otherwise proper;
to make a particular determination under this Part.
(2) Subsections
117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her
powers under this section as if:
(a) any reference in those subsections
to the court were a reference to the Registrar; and
(b) any reference to an order were a
reference to a determination.
98M
Parties to be notified
(1) The Registrar must, in writing, notify
the parties to the proceedings that the Registrar is considering the making of
a determination under section 98S in relation to the child concerned.
(2) The Registrar must also cause to be
served on each of the parties to the proceedings a summary of the information
that the Registrar used to form the view that the Registrar should make a
determination under this Division.
(3) At the same time, the Registrar must
inform each party to the proceedings in writing that the party may make any
representation (a reply) regarding the summary that the party
considers relevant.
98N
Replies
(1) Any reply made by a party to proceedings
under this Division must:
(a) be in the manner specified by the
Registrar; and
(b) be made to the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in a reply may be made.
(2) If a party to the proceedings makes a
reply, the Registrar must serve a copy of the reply and any accompanying
documents on the other party to the proceedings.
98P
Parties may jointly elect that Registrar discontinue proceedings
(1) In respect of proceedings under this
Division, the liable parent and the carer entitled to child support may jointly
elect that the Registrar discontinue the proceedings if the carer is not in
receipt of an income tested pension, benefit or allowance.
(2) The
election must be:
(a) in the manner specified by the
Registrar; and
(b) given to the Registrar.
(3) If the parties to the proceedings make an
election as set out in subsection (1), the Registrar must:
(a) discontinue the proceedings; and
(b) notify the parties to the proceedings
that the Registrar has discontinued them because of the election under subsection (1).
98Q
Procedure
(1) In making a decision under this Division,
the Registrar:
(a) may act on the basis of:
(i) the information that
the Registrar used to form the view that because of special circumstances that
exist, the provisions of this Act relating to administrative assessment of
child support should be departed from in relation to the child concerned; and
(ii) if action has been
taken under section 98N—the replies (if any) and the documents (if any)
accompanying them; and
(b) may, but is not required to,
conduct any inquiry or investigation into the matter.
(2) Except where the Registrar refuses to
make a determination under section 98R in respect of proceedings, the
Registrar must give an opportunity to parties to the proceedings to
appear before the Registrar, and be heard by him or her, if they so wish.
Note: Section 98R provides that the Registrar
may refuse to make a determination in the circumstances set out in that
provision without taking any further action under this Part.
(3) Nothing in subsection (2) empowers
the Registrar to compel the parties to the proceedings to appear before
the Registrar in the presence of the other party.
(4) Any hearing before the Registrar, and any
inquiry or investigation carried out by the Registrar, is to be carried out as
the Registrar thinks fit and the Registrar is not bound by any rules of
evidence.
(5) A party must not be represented by
another person before the Registrar.
98R
Registrar may refuse to make determination because issues too complex
If the Registrar is satisfied, after
considering the information before him or her and the representations (if any),
that the issues involved are too complex to be dealt with under this Part, the
Registrar may:
(a) decide not to make the
determination, without taking any further action under this Part; and
(b) recommend that application be made
to a court having jurisdiction under this Act for an order under Division 4
of Part 7.
98RA
Notice of refusal to be served on parties
(1) If, after having notified parties under
section 98M, the Registrar refuses to make a determination under this
Division, the Registrar must serve notice in writing of the decision on each of
the parties to the proceeding.
(2) The notice must include, or be
accompanied by, a statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may:
(i) if the original
decision was made under section 98R (issues too complex)—apply to a court
having jurisdiction under this Act for an order under Division 4 of Part 7;
or
(ii) otherwise—apply,
subject to the Registration and Collection Act, to the SSAT for review of the
later decision.
(3) A contravention of subsection (2) in
relation to a decision does not affect the validity of the decision.
Division 4—Determinations that may be made under this Part
98S
Determinations that may be made under Part
(1) The determinations the Registrar may make
under this Part are as follows:
(a) a determination varying the annual
rate of child support payable by a parent;
(b) a determination varying a parent’s
or non‑parent carer’s cost percentage for a child;
(c) a determination varying a parent’s
child support income;
(d) a determination varying the
parents’ combined child support income;
(e) a determination that:
(i) the column in the
Costs of the Children Table that covers a parent’s child support income or
combined child support income that is, or is determined to be, greater than 2.5
times the annualised MTAWE figure for the relevant September quarter, is the
column headed “2 to 2.5”; and
(ii) the column is to apply
as if the second dollar amount in the heading to that column did not apply;
(f) a determination varying a
parent’s child support percentage;
(g) a determination varying a parent’s
adjusted taxable income;
(h) a determination varying a parent’s
relevant dependent child amount or multi‑case allowance;
(i) a determination varying a
parent’s self‑support amount;
(j) a determination varying the costs
of the children.
Note: There are limitations on the Registrar making
a determination that varies an annual rate of child support payable in respect
of a child support case below the minimum annual rate (see section 98SA).
(2) In proceedings under Division 2, the
determinations under subsection (1) that the Registrar may make are not
limited by the terms of the application.
(3) A determination under this Division may
make different provision in relation to different child support periods and in
relation to different parts of a child support period.
(3B) The Registrar may only make a determination
under this Part in respect of a day in a child support period, being a day that
is more than 18 months earlier than:
(a) the day on which the application
for the determination is made under section 98B; or
(b) the day on which the Registrar
notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for
the determination to be made.
(3C) If a court has granted leave under section 112,
the Registrar may only make a determination under this Part in respect of a day
in a child support period if the day is within the period specified by the
court, under subsection 112(6), in the order granting the leave.
(4) The Registrar must give, in writing, the
reasons for making the determination (including the reasons for which the
Registrar is satisfied as required by paragraph 117(1)(b)).
(5) A contravention of subsection (4) in
relation to a determination does not affect the validity of the determination.
98SA
Variation not to be below minimum annual rate of child support
The Registrar must not make a
determination under this Part that varies, or that has the effect of varying,
the annual rate of child support payable, for a day in a child support period,
by a liable parent for all of the children in the child support case that
relates to the child in respect of whom the determination is made to a rate
below the minimum annual rate of child support for the child support period,
unless the liable parent has at least regular care of at least one of the
children in that child support case.
Division 5—Child support agreements
98T
Parties may enter into child support agreement
The parties to proceedings under this
Part may, at any time before a determination is made in relation to the
proceedings, enter into an agreement, purporting to be a child support
agreement, in relation to the child support payable for the child in relation
to whom the determination may be made.
98U
Decision on child support agreement
(1) Subject to subsection (2), if the
Registrar is satisfied that an agreement entered into by the parties to
proceedings is a child support agreement, the Registrar must accept the
agreement.
(1A) In working out whether an agreement is a
limited child support agreement for the purposes of subsection (1),
disregard:
(a) paragraph 80E(1)(d); and
(b) subsections 80E(2) to (5).
(2) For an agreement (other than a binding
child support agreement), the Registrar must not accept the agreement unless he
or she is also satisfied that it would be just and equitable, as regards the
child, the liable parent and the carer entitled to child support, to accept the
agreement.
(3) Subsections 117(4) to (9) (inclusive)
apply to the Registrar in the exercise of his or her functions under subsection (2)
as if:
(a) any reference in those subsections
to the court were a reference to the Registrar; and
(b) any reference to the making of a
particular order under Division 4 of Part 7 were a reference to the
acceptance of an agreement.
(4) If the Registrar accepts the agreement:
(a) whichever of sections 34B and
93 is appropriate applies; and
(aa) sections 95 and 96 apply; and
(b) the Registrar may not make a
determination under this Part in relation to the proceedings.
(5) If the Registrar is not satisfied as
required by subsections (1) and (2), the Registrar must refuse to accept
the agreement.
(6) If the Registrar refuses to accept the
agreement:
(a) section 96 applies; and
(b) the Registrar must proceed to make
a determination under this Part.
Division 6—Pending applications
98V
Pending application not to affect assessment
Subject to section 111C of the
Registration and Collection Act (Stay orders), the fact that proceedings are
pending under this Part in relation to a person does not, in the meantime,
interfere with, or affect, any administrative assessment made in relation to
the person. Any such assessment may be registered under the Registration and
Collection Act, and amounts of child support and other amounts recovered in
relation to the assessment, as if no proceedings were pending.
Part 7—Court review of certain decisions
Division 1A—Preliminary
98W
Simplified outline [see
Note 3]
The following is a simplified outline of
this Part:
• Jurisdiction under this Act
is conferred on certain federal and State courts.
• Generally, a person may
apply for an order under this Part without having first obtained internal
review under Part VII of the Registration and Collection Act.
• A court may declare that a
person is, or is not, entitled to administrative assessment of child support
for a child because that person or another person is, or is not, a parent of
the child.
• A court may grant leave for
the making of a departure determination under Part 6A, or a departure
order under Division 4 of this Part, in relation to a period more than 18
months but less than 7 years earlier.
• In special circumstances, a
court may make an order equivalent to a departure determination.
• A court may order that
child support be paid in a form other than periodic amounts paid to a carer
(including in the form of a lump sum payment).
• A court may set aside a
child support agreement or termination agreement in certain circumstances (such
as fraud, undue influence or change of circumstance).
• A
court may make an order for the payment of child support if a child is in
urgent need of financial assistance.
Division 1—Jurisdiction of
courts
98X
Simplified outline
The following is a simplified outline of
this Division:
• Jurisdiction under this Act
is conferred on the Family Court, the Federal Magistrates Court and certain
State and Territory courts.
• This Division also provides
for appeals to the Family Court from other courts.
99
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 must not
hear or determine proceedings under this Act otherwise than in accordance with
any Proclamation in force under subsection (3).
(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 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 (other than the Registrar) is, on the day on which
the proceeding is instituted in or transferred 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.
100
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 paragraph 79(a)) as
if:
(a) the proceedings were proceedings
under Part VII of that Act; and
(b) the proceedings were proceedings
instituted under Part VII of that Act; and
(c) a court having or exercising
jurisdiction in the proceedings were a court having or exercising jurisdiction
under Part VII of that Act; and
(d) a decree made in the proceedings
were a decree made under Part VII of that Act; and
(e) matters arising in the proceedings
were matters arising under Part VII of that Act; and
(f) any other necessary changes were
made.
(2) Without limiting subsection (1),
Division 13A of Part VII (Consequences of failure to comply with
orders, and other obligations, that affect children), Part XIII
(Enforcement of decrees), and Part XIIIB (Contempt of court), of the Family
Law Act 1975 apply to any decree made by a court under this Act as if the
decree were a decree made by a court under Part VII of that Act.
(3) Where any difficulty arises in the
application of subsection (1) or (2) 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.
101
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 102, 102A or 105 are made; and
(b) appeals referred to in section 102,
102A or 105 are instituted.
(2) Subject to section 105, in an appeal
under section 102, 102A or 105, the Family Court must 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.
102
Appeals to Full Court of 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.
(2) An appeal
lies, with the leave of a Full Court of the Family Court, to a Full 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 of a matter.
(3) An application for leave to appeal under subsection (1)
or (2) must be made within the time prescribed by the standard Rules of Court
or within such further time as is allowed under the standard Rules of Court.
(4) 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.
(5) If, in dismissing an appeal under subsection (1)
or (2), 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.
(6) 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 (2); or
(b) make an order by consent disposing
of an appeal under subsection (1) or (2) (including an order for costs);
or
(c) give directions about the conduct
of an appeal under subsection (1) or (2), including directions about the
use of written submissions and limiting the time for oral argument.
(7) The standard Rules of Court may make
provision enabling matters of the kind mentioned in subsection (6) to be
dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(8) Applications:
(a) for an extension of time within
which to institute an appeal under subsection (1) or (2); or
(b) for leave to amend the grounds of
an appeal under subsection (1) or (2); or
(c) to reinstate an appeal under subsection (1)
or (2) 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 (2);
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.
(9) The standard Rules of Court may make
provision enabling applications of a kind mentioned in subsection (8) to
be dealt with, subject to conditions prescribed by the standard Rules of Court,
without an oral hearing.
(10) No appeal lies under this section from an
order or decision made under subsection (6) or (8).
102A
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.
(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.
103
Cases stated
(1) If, in proceedings in a court under this
Act, being proceedings in which a decree to which subsection 102(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 102A(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 102A(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.
104
Appeals to High Court
Despite 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.
105
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 102A.
(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)
must be made within the time prescribed by the standard Rules of Court or
within such further time as is allowed under 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) subject to subsection (7), is
to 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;
and
(b) order that questions of fact
arising in the proceedings be tried by a Judge; and
(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 2—Declarations relating to whether persons should be assessed
in respect of the costs of the child
106
Simplified outline
The following is a simplified outline of
this Division:
• A court may declare that a
person should be assessed in respect of the costs of a child because the person
is a parent of the child.
• A court may declare that a
person should not be assessed in respect of the costs of the child because the
person is not a parent of the child.
106A
Declaration that a person is entitled to administrative assessment [see Note 3]
(1) This section applies if:
(a) the Registrar refuses to accept
from an applicant an application for administrative assessment of child support
for a child under subsection 30(2); and
(b) one of the reasons for the
Registrar so refusing was that the Registrar was not satisfied under section 29
that a person who was to be assessed in respect of the costs of the child is a
parent of the child.
Applications for declarations
(2) An application may be made to a court
having jurisdiction under this Act for a declaration that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—a person should be assessed in respect of the costs of the
child because the person is a parent of the child; and
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the Registrar should reconsider the application under
Division 2 of Part 4 because a person who was to be assessed in
respect of the costs of the child is a parent of the child.
(3) The application must be made within:
(a) the time prescribed by the
applicable Rules of Court; or
(b) such further time as is allowed
under the applicable Rules of Court.
Parties
(4) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding are:
(a) if the application for administrative
assessment was made under section 25—each person who was to be assessed in
respect of the costs of the child; and
(b) if the application for
administrative assessment was made under section 25A—the non‑parent
carer who made the application and the person in respect of whom the
declaration is sought.
Declarations
(5) The court may grant the declaration if
the court is satisfied that:
(a) if the reason referred to in
paragraph (1)(b) was the only reason for the Registrar refusing to accept
the application—the person should be assessed in respect of the costs of the
child because the person is a parent of the child; or
(b) if the reason referred to in
paragraph (1)(b) was one of the reasons for the Registrar refusing to
accept the application—the Registrar should reconsider the application under
Division 2 of Part 4 because the person who was to be assessed in
respect of the costs of the child is a parent of the child.
(6) If the court grants the declaration:
(a) if the reason referred to in paragraph (1)(b)
was the only reason for the Registrar refusing to accept the application—the
Registrar is taken to have accepted the application for administrative
assessment of child support; and
(b) if the reason referred to in paragraph (1)(b)
was one of the reasons for the Registrar refusing to accept the application—the
Registrar must reconsider the application under Division 2 of Part 4.
107 Declaration
that a person should not be assessed in respect of the costs of the child
(1) If the Registrar accepts an application
for administrative assessment of child support for a child, an application may
be made, subject to subsection (1A), to a court having jurisdiction under
this Act for a declaration that a person should not be assessed in respect of
the costs of the child because the person is not a parent of the child.
(1A) However, an application must not be made in
respect of a child and a person if a court has already declared under
section 106A that the person should be assessed in respect of the costs of
the child because the person is a parent of the child.
Note: In that case, an appeal may be made against
the declaration under Division 1 of Part 7.
(2) The application must be made within the
time prescribed by the applicable Rules of Court or within such further time as
is allowed under the applicable Rules of Court.
(3) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding are the person who
was assessed in respect of the costs of the child and the applicant for
administrative assessment of child support.
(4) The court may grant the declaration if
the court is satisfied that the person should not be assessed in respect of the
costs of the child because the person is not a parent of the child.
(5) If the court grants the declaration, the
application for administrative assessment of child support is to be taken never
to have been accepted by the Registrar.
(6) If the court grants the declaration, the
court must, as soon as practicable, consider making an order under section 143.
108
Implementation of decisions
When a decision of a court under this
Division becomes final, the Registrar must immediately take such action as is
necessary to give effect to the decision.
109
Pending application not to affect assessment
(1) Subject to section 111C of the
Registration and Collection Act (Stay orders), the fact that a proceeding is
pending under this Division in relation to a person does not, in the meantime,
interfere with, or affect, any administrative assessment made in relation to
the person, and any such assessment may be registered under the Registration
and Collection Act, and amounts of child support and other amounts recovered in
relation to the assessment, as if no proceeding were pending.
(2) Subsection (1) does not apply in
relation to a person in relation to a child if:
(a) the person has made an application
under section 107 in relation to the child; and
(c) there is not a decision of a court
determining that ground of the application that has become final.
(3) Subsection (2) does not apply in or
in relation to the Territories and only extends to a State at a particular time
if this Act does not, at that time, extend to the State because of subsection
13(1) or (2).
Division 3—Application for amendment of administrative assessment that
is more than 18 months old
110
Simplified outline
The following is a simplified outline of
this Division:
• Normally, the Registrar
cannot make a departure determination under Part 6A, and a court cannot
make a departure order under Division 4 of this Part, in respect of a day
in a child support period that is more than 18 months earlier.
• Under this Division, a
liable parent, a carer entitled to child support or the Registrar can apply to
certain courts for leave for a determination or order to be made in respect of
a day in a child support period that is more than 18 months earlier.
• A court must not grant
leave for such a determination or order to be made in respect of a day in a
child support period that is more than 7 years earlier.
• If a court grants leave,
the court can decide whether the Registrar should make such a determination or
the court should make such an order.
111
Application for amendment of administrative assessment that is more than 18
months old
Parent or carer applications
(1) A liable parent, or a carer entitled to
child support, (the applicant) may apply to a court having
jurisdiction under this Act for leave for:
(a) the Registrar to make a
determination under section 98S; or
(b) the court to make an order under
section 118;
in respect of a day in a child support period, being a day
that is more than 18 months, and less than 7 years, earlier than the day on
which the application under this section is made.
(2) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the proceeding under subsection (1)
are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to
child support.
Registrar application
(3) The Registrar (the applicant)
may apply to a court having jurisdiction under this Act for leave for the
Registrar to make a determination under section 98S in respect of a day in
a child support period, being a day that is more than 18 months, and less than
7 years, earlier than the day on which the application under this section is
made.
(4) The parties to the proceeding under subsection (3)
are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child
support.
112
Court may grant leave to amend administrative assessment that is more than 18
months old
(1) If an application is made to a court
under section 111, the court may grant leave for:
(a) the Registrar to make a
determination under section 98S; or
(b) the court to make an order under
section 118.
(2) The court may grant leave for an order to
be made under section 118 if the court is satisfied that it would be in
the interest of the parties to the proceeding for the court to consider, at the
same time as it hears the application under section 111, whether an order
should be made under section 118. If the court does so, the applicant is
taken to have made an application to the court under section 116 for such
an order.
(3) Otherwise, the court may grant leave for
the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave
for the Registrar to make a determination under section 98S, or for the
court to make an order under section 118, irrespective of what the
applicant applied for under section 111.
Matters to be considered
(4) In considering whether to grant leave
under subsection (1), the court must have regard to:
(a) any responsibility, and reason,
for the delay in:
(i) making an application
under section 98B or 116; or
(ii) making a determination
under section 98S;
as the case requires; and
(b) the hardship to the applicant
(other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or
parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other
relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this
section must specify the period in respect of which the Registrar may make a
determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child
support period if the day is more than 7 years earlier than the day on which
the application under section 111 was made; and
(b) is not limited by the terms of
that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1)
does not imply that:
(a) the Registrar is required to make
a determination under section 98S; or
(b) the court is required to make an
order under section 118.
113
Implementation of decisions
When a decision of a court under this
Division is made, the Registrar must immediately take such action (if any) as
is necessary to give effect to the decision.
113A
Pending application not to affect assessment
Subject to section 111C of the
Registration and Collection Act (stay orders), the fact that a proceeding is
pending under this Division in relation to a person does not, in the meantime,
interfere with, or affect, any administrative assessment made in relation to
the person, and any such assessment may be registered under the Registration
and Collection Act, and amounts of child support and other amounts recovered in
relation to the assessment, as if no proceeding were pending.
Division 4—Orders for departure from administrative assessment in
special circumstances (departure orders)
113B
Simplified outline
The following is a simplified outline of
this Division:
• Certain courts can make an
order under this Division to depart from the provisions of this Act relating to
administrative assessment of child support for a child.
• A person can apply for such
an order in certain limited circumstances. (If a person cannot apply for an
order under this Division, the person might instead be able to apply for a
determination by the Registrar under Part 6A.)
• A court can also make such
an order without an application in some circumstances (such as after setting
aside a child support agreement).
• A court must not make an
order in respect of a day in a child support period that is more than 18 months
earlier without leave of the court under section 112.
114
Additional particular objects of Division
Additional particular objects of this
Division include ensuring:
(a) that children have their proper
needs met from reasonable and adequate shares in the income, earning capacity,
property and financial resources of both of their parents; and
(b) that parents share equitably in
the support of their children.
116
Application for order under Division
(1) A liable parent or a carer entitled to
child support may, in respect of an administrative assessment of child support
for a child, apply to a court having jurisdiction under this Act for an order
under this Division in relation to the child in the special circumstances of
the case if:
(a) all of the following apply:
(i) the Registrar has,
under section 98E or 98R, refused to make a determination under
Part 6A in respect of the administrative assessment;
(ii) an objection to the
refusal has been lodged;
(iii) the Registrar has
disallowed the objection; or
(aa) all of the following apply:
(i) a decision has been
made in respect of the administrative assessment;
(ii) an objection to the
decision has been lodged;
(iii) in making a decision
on the objection, the Registrar has, under section 98E or 98R, refused to
make a determination under Part 6A in respect of the administrative
assessment; or
(ab) the SSAT has, under
section 98E or 98R, refused to make a determination under Part 6A in
respect of the administrative assessment; or
(b) both of the following apply:
(i) the liable parent or
carer entitled to child support is a party to an application pending in a court
having jurisdiction under this Act;
(ii) the court is satisfied
that it would be in the interest of the liable parent and the carer entitled to
child support for the court to consider whether an order should be made under
this Division in relation to the child in the special circumstances of the
case; or
(c) in the case of a liable parent—the
administrative assessment of child support payable by the liable parent for the
child is made under subsection 66(1).
Note 1: For the orders that a court may make under this
Division see section 118.
Note 2: With a court’s leave, a court may make an order
under this Division in respect of a day that is more than 18 months earlier
than the day on which the relevant application was made (see subsection
118(2B)). A person is taken to have applied under this section if leave is
granted.
Note 3: A court may make an order under this Division if
the court sets aside a child support agreement under section 136.
(2) An application may be made by the carer
entitled to child support, or the liable parent, in relation to the child.
(3) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the application are the liable
parent and the carer entitled to child support.
117
Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court
having jurisdiction under this Act for an order under this Division in relation
to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of
the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and
equitable as regards the child, the carer entitled to child support and the
liable parent; and
(B) otherwise
proper;
to
make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i),
the grounds for departure are as follows:
(a) that, in the special circumstances
of the case, the capacity of either parent to provide financial support for the
child is significantly reduced because of:
(i) the duty of the parent
to maintain any other child or another person; or
(ii) special needs of any
other child or another person that the parent has a duty to maintain; or
(iii) commitments
of the parent necessary to enable the parent to support:
(A) himself
or herself; or
(B) any
other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in
enabling a parent to spend time with, or communicate with, any other child or
another person that the parent has a duty to maintain;
(aa) that, in the special circumstances
of the case, the capacity of either parent to provide financial support for the
child is significantly reduced because of the responsibility of the parent to
maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances
of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs
involved in enabling a parent to spend time with, or communicate with, the
child; or
(ia) because of special
needs of the child; or
(ib) because of high child
care costs in relation to the child; or
(ii) because the child is
being cared for, educated or trained in the manner that was expected by his or
her parents;
(c) that, in the special circumstances
of the case, application in relation to the child of the provisions of this Act
relating to administrative assessment of child support would result in an
unjust and inequitable determination of the level of financial support to be
provided by the liable parent for the child:
(i) because of the income,
earning capacity, property and financial resources of the child; or
(ia) because of the income,
property and financial resources of either parent; or
(ib) because of the earning
capacity of either parent; or
(ii) because of any
payments, and any transfer or settlement of property, made or to be made
(whether under this Act, the Family Law Act 1975 or otherwise) by the
liable parent to the child, to the carer entitled to child support or to any
other person for the benefit of the child.
High costs involved in enabling parent to care for a
child
(2B) A parent’s costs involved in enabling the
parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv)
or (2)(b)(i) if the costs that have been or will be incurred, during a child
support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted
taxable income for the period by 365; and
(b) multiplying the quotient by the
number of days in the period.
(2C) If a parent has at least regular care of a
child, then the only costs that can be taken into account for the purposes of subsection (2B)
are costs related to travel to enable the parent to spend time with, or
communicate with, the child.
High child care costs
(3A) The ground for departure mentioned in subparagraph (2)(b)(ib)
is taken not to exist unless:
(a) the costs are incurred by a parent
or a non‑parent carer; and
(b) the child is younger than 12 at
the start of the child support period.
(3B) Child care costs for a parent can only be
high for the purposes of subparagraph (2)(b)(ib) if, during a child
support period, they total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted
taxable income for the period by 365; and
(b) multiplying the quotient by the
number of days in the period.
(3C) Child care costs for a non‑parent
carer can only be high for the purposes of subparagraph (2)(b)(ib) if,
during a child support period, they total at least 25% of the costs of the
child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and the
liable parent to make a particular order under this Division, the court must
have regard to:
(a) the nature of the duty of a parent
to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property
and financial resources of the child; and
(d) the income, property and financial
resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each
parent who is a party to the proceeding; and
(e) the commitments of each parent who
is a party to the proceeding that are necessary to enable the parent to
support:
(i) himself or herself; or
(ii) any other child or
another person that the person has a duty to maintain; and
(f) the direct and indirect costs
incurred by the carer entitled to child support in providing care for the
child; and
(g) any hardship that would be caused:
(i) to:
(A) the
child; or
(B) the
carer entitled to child support;
by the making of, or
the refusal to make, the order; and
(ii) to:
(A) the
liable parent; or
(B) any
other child or another person that the liable parent has a duty to support;
by the making of, or
the refusal to make, the order; and
(iii) to any resident child
of the parent (see subsection (10)) by the making of, or the refusal to
make, the order.
(5) In determining whether it would be
otherwise proper to make a particular order under this Division, the court must
have regard to:
(a) the nature of the duty of a parent
to maintain a child (as stated in section 3) and, in particular, the fact
that it is the parents of a child themselves who have the primary duty to
maintain the child; and
(b) the effect that the making of the
order would have on:
(i) any entitlement of the
child, or the carer entitled to child support, to an income tested pension,
allowance or benefit; or
(ii) the rate of any income
tested pension, allowance or benefit payable to the child or the carer entitled
to child support.
Proper needs of the child
(6) In having regard to the proper needs of
the child, the court must have regard to:
(a) the manner in which the child is
being, and in which the parents expected the child to be, cared for, educated
or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial
resources
(7) In having regard to the income, earning
capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the
child to earn or derive income, including any assets of, under the control of,
or held for the benefit of, the child that do not produce, but are capable of
producing, income; and
(b) disregard:
(i) the income, earning
capacity, property and financial resources of any person who does not have a
duty to maintain the child, or who has such a duty but is not a party to the
proceeding, unless, in the special circumstances of the case, the court
considers that it is appropriate to have regard to them; and
(ii) any entitlement of the
child or the carer entitled to child support to an income tested pension,
allowance or benefit.
(7A) In having regard to the income, property
and financial resources of a parent of the child, the court must:
(a) have regard to the capacity of the
parent to derive income, including any assets of, under the control of, or held
for the benefit of, the parent that do not produce, but are capable of
producing, income; and
(b) disregard:
(i) the income, earning
capacity, property and financial resources of any person who does not have a
duty to maintain the child, or who has such a duty but is not a party to the
proceeding, unless, in the special circumstances of the case, the court
considers that it is appropriate to have regard to them; and
(ii) any entitlement of the
child or the carer entitled to child support to an income tested pension,
allowance or benefit.
(7B) In having regard to the earning capacity of
a parent of the child, the court may determine that the parent’s earning
capacity is greater than is reflected in his or her income for the purposes of
this Act only if the court is satisfied that:
(a) one or more of the following
applies:
(i) the parent does not
work despite ample opportunity to do so;
(ii) the parent has reduced
the number of hours per week of his or her employment or other work below the
normal number of hours per week that constitutes full‑time work for the
occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed
his or her occupation, industry or working pattern; and
(b) the parent’s decision not to work,
to reduce the number of hours, or to change his or her occupation, industry or
working pattern, is not justified on the basis of:
(i) the parent’s caring
responsibilities; or
(ii) the parent’s state of
health; and
(c) the parent has not demonstrated
that it was not a major purpose of that decision to affect the administrative
assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8) In having regard to the direct and
indirect costs incurred by the carer entitled to child support in providing
care for the child, the court must have regard to the income and earning
capacity foregone by the carer entitled to child support in providing that
care.
Subsections not to limit consideration of other matters
(9) Subsections (4) to (8) (inclusive)
do not limit other matters to which the court may have regard.
Definition of resident child
(10) For the purposes of this section, a child
is a resident child of a person only if:
(a) the child normally lives with the
person, but is not a child of the person; and
(b) the person is, or was, for 2
continuous years, a member of a couple; and
(c) the other member of the couple is,
or was, a parent of the child; and
(d) the child is aged under 18; and
(e) the child is not a member of a
couple; and
(f) one or more of the following
applies in respect of each parent of the child:
(i) the parent has died;
(ii) the parent is unable
to support the child due to the ill‑health of the parent;
(iii) the parent is unable
to support the child due to the caring responsibilities of the parent; and
(g) the court is satisfied that the
resident child requires financial assistance.
118
Orders that may be made under Division
(1) The orders that a court may make under
this Division are as follows:
(a) an order varying the annual rate
of child support payable by a parent;
(b) an order varying a parent’s or non‑parent
carer’s cost percentage for a child;
(c) an order varying a parent’s child
support income;
(d) an order varying the parents’
combined child support income;
(e) an order that:
(i) the column in the
Costs of the Children Table that covers a parent’s child support income or
combined child support income that is, or is ordered to be, greater than 2.5
times the annualised MTAWE figure for the relevant September quarter, is the
column headed “2 to 2.5”; and
(ii) the column is to apply
as if the second dollar amount in the heading to that column did not apply;
(f) an order varying a parent’s child
support percentage;
(g) an order varying a parent’s
adjusted taxable income;
(h) an order varying a parent’s
relevant dependent child amount or multi‑case allowance;
(i) an order varying a parent’s self‑support
amount;
(j) an order varying the costs of the
children.
(2) An order under this section may make
different provision in relation to different child support periods and in
relation to different parts of a child support period.
(2B) A court may only make an order under this
Division in respect of a day in a child support period, being a day that is
more than 18 months earlier than the day on which the application for the order
is made under section 116, if the court has granted leave under section 112
for the order to be made.
(2C) If the court has granted leave under
section 112, the court may only make an order under this Division in
respect of a day in a child support period if the day is within the period
specified by the court, under subsection 112(6), in the order granting the
leave.
(3) If the
court makes an order under this section, the court must:
(a) give reasons for making the order
(including reasons for its satisfaction as required by paragraph 117(1)(b));
and
(b) cause the reasons to be entered in
the records of the court.
(4) Subsection (3) does not apply in
relation to an order if:
(a) it is an order made by consent;
and
(b) the carer entitled to child
support concerned is not in receipt of an income tested pension, allowance or
benefit.
(5) A contravention of subsection (3) in
relation to an order does not affect the validity of the order.
119
Implementation of orders
(1) When a decision of a court making an
order under this Division becomes final, the Registrar must immediately take
such action as is necessary to give effect to the decision in relation to any
administrative assessment that has been made in relation to the child, the
carer entitled to child support and the liable parent concerned (whether by
amending the assessment or otherwise).
(2) In subsequently making an administrative
assessment in relation to the child, the carer entitled to child support and
the liable parent concerned while the order is in force, the Registrar must act
on the basis of the provisions of this Act as modified by the order.
120
Pending proceeding not to affect assessment
Subject to section 111C of the
Registration and Collection Act (Stay orders), the fact that a proceeding is
pending under this Division in relation to a person does not, in the meantime,
interfere with, or affect, any administrative assessment made in relation to
the person, and any such assessment may be registered under the Registration
and Collection Act, and amounts of child support and other amounts recovered in
relation to the assessment, as if no proceeding were pending.
Division 5—Orders for provision of child support otherwise than in form
of periodic amounts paid to carer
121
Additional particular objects of Division
Additional particular objects of this
Division include ensuring:
(a) that children have their proper
needs met from reasonable and adequate shares in the income, earning capacity,
property and financial resources of both their parents; and
(b) that parents share equitably in
the support of their children.
122
Cases in relation to which Division applies
This Division applies where a carer
entitled to child support wants a liable parent to provide, or a liable parent
wants to provide, child support for a child otherwise than in the form of
periodic amounts paid to the carer entitled to child support.
123
Application for order under Division
(1) An application may be made to a court
having jurisdiction under this Act for:
(a) an order that a liable parent
provide child support otherwise than in the form of periodic amounts paid to
the carer entitled to child support; or
(b) an order that a liable parent
provide child support in the form of a lump sum payment to be credited against
the amount payable under the liability under the relevant administrative
assessment.
(2) An application under subsection (1):
(a) may only be made if an administrative
assessment is in force in relation to the child, the carer entitled to child
support and the liable parent; and
(b) may be made by the carer entitled
to child support or the liable parent.
(3) Before hearing the application, the court
must hear and determine any pending application made to the court for an order
under Division 3 (administrative assessments more than 18 months old) or
Division 4 (departure orders) in relation to the child, the carer entitled
to child support and the liable parent.
(4) Subject to section 145 (Registrar
may intervene in proceedings), the parties to the application are the carer
entitled to child support and the liable parent.
123A
Orders for provision of child support in the form of lump sum payment to be credited
against amounts payable under liability
(1) The court may make an order that a liable
parent provide child support for a child to a carer entitled to child support
in the form of a lump sum payment to be credited against the amount payable
under the liability under the relevant administrative assessment if:
(a) the carer entitled to child
support or the liable parent makes an application to a court under paragraph
123(1)(b); and
(b) the court is satisfied that it
would be:
(i) just and equitable as
regards the child, the carer entitled to child support and the liable parent;
and
(ii) otherwise proper;
to make an order under this
section; and
(c) the amount of the lump sum payment
equals or exceeds the annual rate of child support payable for the child under
the administrative assessment.
Note: If the court makes such an order, the lump sum
payment is credited under section 69A of the Registration and Collection
Act against the amount payable under the liable parent’s liability (rather than
reducing the annual rate of child support payable under the administrative
assessment).
(2) A lump sum payment may include a payment
by way of transfer or settlement of property.
(3) An order under subsection (1):
(a) must specify the amount of the
lump sum payment; and
(b) must specify that the lump sum
payment is to be credited against 100%, or another specified percentage that is
less than 100%, of the amounts payable under the liability.
(4) In determining the application made under
paragraph 123(1)(b), the court must have regard to:
(a) the administrative assessment; and
(b) any determination in force under
Part 6A (departure determinations) in relation to the child, the carer
entitled to child support and the liable parent; and
(c) any order in force under Division 4
of this Part (departure orders) in relation to the child, the carer entitled to
child support and the liable parent; and
(d) whether the carer entitled to
child support is in receipt of an income tested pension, allowance or benefit;
and
(e) if the carer entitled to child
support is not in receipt of such a pension, allowance or benefit—whether the
circumstances of the carer are such that, taking into account the effect of the
order proposed to be made by the court, the carer would be unable to support
himself or herself without an income tested pension, allowance or benefit.
(5) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and the
liable parent to make an order under subsection (1), the court must have
regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(6) In having regard to the earning capacity
of a parent of the child under paragraph 117(4)(da), the court may determine
that the parent’s earning capacity is greater than is reflected in his or her
income for the purposes of this Act only if the court is satisfied as mentioned
in subsection 117(7B).
(7) In determining whether it would be
otherwise proper to make an order under subsection (1), the court must
have regard to the matters mentioned in subsection 117(5).
(8) Subsections (4), (5), (6) and (7) do
not limit the matters to which the court may have regard.
124
Orders for provision of child support otherwise than in form of periodic amounts
paid to carer entitled to child support
(1) Where:
(a) a carer entitled to child support
or a liable parent makes an application under paragraph 123(1)(a); and
(b) the court is satisfied that it
would be:
(i) just and equitable as
regards the child, the carer entitled to child support and the liable parent;
and
(ii) otherwise
proper;
to
make an order that the liable parent provide child support for the child
otherwise than in the form of periodic amounts paid to the carer entitled to
child support;
the court may make the order.
(2) In determining the application, the court
must have regard to:
(a) the administrative assessment in
force in relation to the child, the carer entitled to child support and the
liable parent; and
(aa) any determination in force under
Part 6A (departure determinations) in relation to the child, the carer
entitled to child support and the liable parent; and
(b) any order in force under Division 4
(departure orders) in relation to the child, the carer entitled to child support
and the liable parent; and
(c) whether the carer entitled to
child support is in receipt of an income tested pension, allowance or benefit
or, if the carer entitled to child support is not in receipt of such a pension,
allowance or benefit, whether the circumstances of the carer are such that,
taking into account the effect of the order proposed to be made by the court,
the carer would be unable to support himself or herself without an income
tested pension, allowance or benefit.
(3) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and the
liable parent to make an order under subsection (1), the court must have
regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(3A) In having regard to the earning capacity of
a parent of the child under paragraph 117(4)(da), the court may determine that
the parent’s earning capacity is greater than is reflected in his or her income
for the purposes of this Act only if the court is satisfied as mentioned in
subsection 117(7B).
(4) In determining whether it would be
otherwise proper to make an order under subsection (1), the court must
have regard to the matters mentioned in subsection 117(5).
(5) Subsections (2), (3), (3A) and (4)
do not limit the matters to which the court may have regard.
125
Court to state relationship between order and assessed child support
(1) If the court makes an order under section 124,
the court must state in the order whether the annual rate of child support
payable by the liable parent under any relevant administrative assessment is to
be reduced, in the manner specified under subsection (3), by the child
support ordered to be provided by the liable parent.
Note: If the court makes a statement under this
section that the annual rate of child support is to be reduced, the Registrar
must make a provisional notional assessment under section 146B.
(2) The court may state that the annual rate
of child support payable by the liable parent is not to be so reduced only if
it is satisfied that, in the special circumstances of the case, it would be:
(a) just and equitable as regards the
child, the carer entitled to child support and the liable parent; and
(b) otherwise proper;
that the annual rate of child support not be reduced by
the child support ordered to be provided.
(3) If the court states in the order that the
annual rate of child support is to be reduced by the child support ordered to
be provided, the court must also state in the order either:
(a) that the annual rate of child
support payable is to be reduced by a specified amount that represents an
annual value of the child support to be provided; or
(b) that the annual rate of child
support payable is to be reduced by 100% or another specified percentage that
is less than 100%.
(4) The court may, under subsections (1)
and (3), make different provision in relation to different child support
periods and in relation to different parts of a child support period.
(5) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and the
liable parent to make a statement of the kind referred to in subsection (2),
the court must have regard to the matters mentioned in subsections 117(4), (6),
(7), (7A) and (8).
(5A) In having regard to the earning capacity of
a parent of the child under paragraph 117(4)(da), the court may determine that
the parent’s earning capacity is greater than is reflected in his or her income
for the purposes of this Act only if the court is satisfied as mentioned in
subsection 117(7B).
(6) In determining whether it would be
otherwise proper to make a statement of the kind referred to in subsection (2),
the court must have regard to the matters mentioned in subsection 117(5).
(7) Subsections (5), (5A) and (6) do not
limit the matters to which the court may have regard.
126
Court to give reasons for order
(1) If the court makes an order under section 123A
or 124, the court must:
(a) give reasons for:
(i) making the order; and
(ii) if the order is an
order under section 123A—the matters specified in the order under
subsection 123A(3); and
(iii) if the order is an
order under section 124—the statement or statements included in the order
under section 125; and
(b) cause the reasons to be entered in
the records of the court.
(2) Subsection (1) does not apply in
relation to an order if:
(a) it is an order made by consent;
and
(b) the carer entitled to child
support concerned is not in receipt of an income tested pension, allowance or
benefit.
(3) A contravention of subsection (1) in
relation to an order does not affect the validity of the order.
127
Effect of orders on administrative assessment of child support
(1) This section applies if the court makes
an order under section 124 that includes a statement under section 125
that the annual rate of child support payable by a liable parent under an
administrative assessment is to be reduced, in the manner specified under
subsection 125(3), by the child support ordered to be provided by the liable
parent.
(2) When the decision of the court making the
order becomes final, the Registrar must immediately take such action as is
necessary to give effect to the order in relation to any relevant
administrative assessment that has been made (whether by amending the
assessment or otherwise).
(3) In subsequently making a relevant
administrative assessment, the Registrar must:
(a) work out what would, apart from
this Division, be the annual rate of child support payable by the liable parent
to the carer entitled to child support; and
(b) reduce (but not below 0) that
annual rate by the amount or percentage specified in the statement included in
the order under subsection 125(3); and
(c) make the assessment on the basis
of that reduced annual rate.
129
Modification of orders under Division
(1) If an order under section 123A or 124
is in force in relation to a child (whether or not all things ordered to be
done by the order have been done):
(a) the court that made the order; or
(b) another
court having jurisdiction under this Act in which the order has been
registered;
may under this section, by order:
(c) discharge the order; or
(d) suspend its operation wholly or in
part and either until further order or until a fixed time or the happening of a
future event; or
(e) if the operation of the order has
been suspended under paragraph (d)—revive its operation wholly or in part;
or
(f) subject to subsection (3),
vary the order (including any matter specified under subsection 123A(3), or any
statement made under section 125, included in the order) in any way.
(2) The court must not make an order under subsection (1)
in relation to the order under section 123A or 124 unless the court is
satisfied, having regard in particular to any matter specified under subsection
123A(3), or any statement made under section 125, that it would be:
(a) just and equitable as regards the
child, the carer entitled to child support and the liable parent concerned; and
(b) otherwise
proper;
to make the order.
(3) The court must not, by order under subsection (1),
vary an order unless it is also satisfied:
(a) that making the variation is
justified because of a change in the circumstances of the child, the carer
entitled to child support or a liable parent concerned since the order was made
or last varied; or
(c) that making the variation is
justified because of a change in the cost of living since the order was made or
last varied; or
(d) in a case where the order was made
by consent—that the order is not proper or adequate; or
(e) that material facts were withheld
from the court that made the order or from a court that varied the order, or
that material evidence previously given before such a court was false.
(4) If the court proposes to vary an order
made under section 123A or 124 otherwise than by varying any matter
specified in the order under subsection 123A(3), or any statement included in
the order under section 125, the court must consider whether, having
regard to the proposed variation, it should also order the variation of any
such matter or statement.
(5) In determining whether it would be just
and equitable as regards the child, the carer entitled to child support and a
liable parent to make an order under subsection (1), the court must have
regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(5A) In having regard to the earning capacity of
a parent of the child under paragraph 117(4)(da), the court may determine that
the parent’s earning capacity is greater than is reflected in his or her income
for the purposes of this Act only if the court is satisfied as mentioned in
subsection 117(7B).
(6) In determining whether it would be
otherwise proper to make an order under subsection (1), the court must
have regard to the matters mentioned in subsection 117(5).
(7) Subsections (5), (5A) and (6) do not
limit the matters to which the court may have regard.
(8) In satisfying itself for the purposes of paragraph (3)(d),
the court must have regard to any payments, and any transfer or settlement of
property, previously made by the liable parent to the child, to the carer
entitled to child support or to any other person for the benefit of the child.
(9) In satisfying itself for the purposes of paragraph (3)(c),
the court must have regard to any changes that have occurred in a relevant
Consumer Price Index published by the Australian Statistician.
(10) The court must not, in considering the
variation of an order, have regard to a change in the cost of living unless at
least 12 months have elapsed since the order was made, or was last varied
having regard to a change in the cost of living.
(11) Subject to any order made under section 131,
the discharge of an order does not affect the recovery of arrears due under the
order, or under this Act, when the discharge takes effect.
130
Court to give reasons for modifications
(1) If the court makes an order under section 129,
the court must:
(a) give reasons:
(i) for making the order;
and
(ii) if the court varies an
order made under section 124 otherwise than by varying any statement
included in the order under section 125 and does not order the variation
of any such statement—for not ordering the variation of any such statement; and
(b) cause the reasons to be entered in
the records of the court.
(2) Subsection (1) does not apply in
relation to an order made by consent.
(3) A contravention of subsection (1) in
relation to an order does not affect the validity of the order.
131
Court may make orders consequential upon the discharge of orders etc.
(1) This section applies where an order under
section 123A or 124 is discharged by a court under section 129 or
ceases to be in force because of section 142 (Cessation of orders under
Act).
(2) A court having jurisdiction under this
Act may make such orders (including orders for the transfer of property) as it
considers just and equitable for the purpose of preserving or adjusting the
rights of the child concerned or a person who is or was a carer entitled to
child support, or a liable parent, in relation to the child.
(3) An order under subsection (2) may be
made in the proceeding in which the order is discharged or in another
proceeding brought on the application of a person who is or was a carer
entitled to child support, or a liable parent, in relation to the child
concerned.
(4) In the exercise of its powers under this
section, a court must have regard to the interests of, and must make any order
proper for the protection of, a bona fide purchaser or other person
interested.
Division 6—Setting aside accepted child support agreements
135
Simplified outline
The following is a simplified outline of
this Division:
• Certain courts may set
aside a child support agreement or a termination agreement if:
(a) the
agreement of one of the parties was obtained by fraud, undue influence or
unconscionable conduct; or
(b) there has
been a significant change in circumstances; or
(c) the annual
rate of child support payable under the agreement is not proper or adequate; or
(d) exceptional
circumstances arise after the agreement is made.
136
Power of court to set aside child support agreements or termination agreements
(1) A party to either of the following
agreements may apply to a court having jurisdiction under this Act for the
court to set aside the agreement:
(a) a child support agreement that has
been accepted by the Registrar under section 92 or 98U;
(b) a termination agreement, or a
written agreement referred to in paragraph 80G(1)(b), that has been accepted by
the Registrar under section 92.
(2) If a party has applied under subsection (1),
the court may set aside the agreement in accordance with the application if the
court is satisfied:
(a) that the party’s agreement was
obtained by fraud or a failure to disclose material information; or
(b) that another party to the
agreement, or someone acting for another party:
(i) exerted undue
influence or duress in obtaining that agreement; or
(ii) engaged in
unconscionable or other conduct;
to such an extent that it would
be unjust not to set aside the agreement; or
(c) in the case of a limited child
support agreement:
(i) that because of a
significant change in the circumstances of one of the parties to the agreement,
or a child in respect of whom the agreement is made, it would be unjust not to
set aside the agreement; or
(ii) that the agreement
provides for an annual rate of child support that is not proper or adequate,
taking into account all the circumstances of the case (including the financial
circumstances of the parties to the agreement); or
(d) in the case of a binding child
support agreement—that because of exceptional circumstances, relating to a
party to the agreement or a child in respect of whom the agreement is made,
that have arisen since the agreement was made, the applicant or the child will
suffer hardship if the agreement is not set aside.
(3) Subject to section 145 (Registrar
may intervene in proceedings), the parties to a proceeding under subsection (1)
are the parties to the agreement.
(4) If:
(a) the court sets aside a child
support agreement under this section; and
(b) the court is satisfied as
mentioned in paragraph 117(1)(b) (departure orders);
the court may make an order under Division 4 of Part 7
without an application having been made under section 116.
(5) If:
(a) the court sets aside a child
support agreement under this section; and
(b) the court is not satisfied as
mentioned in paragraph 117(1)(b) (departure orders); and
(c) the payee has received or will
receive benefits pursuant to the agreement;
the court may still make an order that departs from the
administrative assessment where it is just and equitable to do so, having
regard to the benefits that the payee has already received pursuant to the
agreement.
137
Court may make orders consequential on setting aside of agreement
(1) This section applies where an agreement
made in relation to a child is set aside under section 136.
(2) A court having jurisdiction under this
Act may make such orders (including orders for the transfer of property) as it
considers just and equitable for the purpose of preserving or adjusting the
rights of the child or a party to the agreement.
(3) An order under subsection (2) may be
made in the proceeding in which the agreement is set aside or in another
proceeding brought on the application of a party to the agreement.
(4) In the exercise of its powers under this
section, a court must have regard to the interests of, and must make any order
proper for the protection of, a bona fide purchaser or other person
interested.
138
Implementation of decisions
When a decision of a court under this Division
becomes final, the Registrar must immediately take such action as is necessary
to give effect to the decision for the purposes of this Act (whether by
amending any administrative assessment or otherwise).
Division 7—Urgent maintenance orders
138A
Simplified outline
The following is a simplified outline of
this Division:
• A court may make an order
for the payment of child support if:
(a) a child is
in urgent need of financial assistance; and
(b) an
application has been made for an administrative assessment in relation to the
child.
139
Urgent maintenance orders
(1) Where, at any time after an application
has been made to the Registrar for administrative assessment of child support
for a child (whether or not the Registrar has accepted or refused to accept the
application), a court having jurisdiction under this Act is of the opinion that
the child is in urgent need of financial assistance, the court may order the
payment of such periodic or other amount as the court considers appropriate.
(2) Subject to subsection (2A) and
section 152, an order under subsection (1) has effect for the period
specified in the order.
(2A) If:
(a) the Registrar has made a decision
refusing to accept the application for administrative assessment of child
support; and
(b) the
order under subsection (1) has not sooner ceased to have effect under subsection (2);
the order ceases to have effect:
(c) if the decision of the Registrar
becomes final—at the time when that decision becomes final; or
(d) if:
(i) the decision of the
Registrar does not become final; and
(ii) one of the reasons for
the Registrar so refusing was that the Registrar was not satisfied under
section 29 that a person who was to be assessed in respect of the costs of
the child is a parent of the child;
at the time when a decision of a
court becomes final, being a decision (whether under section 106A or on
appeal from a decision of a court under that section) that the person is not a
parent of the child; or
(e) in any other case—at the time when
a decision that the applicant was not entitled to administrative assessment of
child support becomes final, being a decision:
(i) of the SSAT under Part VIIA
of the Registration and Collection Act; or
(ii) of a court under
Subdivision B of Division 3 of Part VIII of the Registration and
Collection Act or on appeal from a decision of a court under that Subdivision.
(2B) For the purposes of subsection (2A), a
decision of the Registrar refusing to accept an application for administrative
assessment of child support becomes final if an application:
(a) to a court under section 106A
(declarations of entitlement to administrative assessment); or
(b) to the SSAT under Part VIIA
of the Registration and Collection Act;
is not made within the period for doing so. The
application becomes final at the end of the period.
Note: For determining when decisions of the SSAT
become final, see subsection 110W(1) of the Registration and Collection Act.
(3) A proceeding under this section may be
instituted by the applicant for administrative assessment of child support
against a person who was to be assessed in respect of the costs of the child.
Division 8—Provisions relating to court orders
140A
Simplified outline
The following is a simplified outline of
this Division:
• In exercising jurisdiction
under this Act, a court has broad powers.
• An amount of child support
paid when there is no liability to do so may be recovered in a court.
141
General powers of court
(1) In exercising its powers under this Act,
a court may 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;
(j) subject to section 129
(Modification of orders under Division 5), 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;
(k) make an order imposing terms and
conditions;
(m) make an order by consent;
(n) make any other order (whether or
not of the same kind as those referred to in paragraphs (a) to (m)
(inclusive)) that the court considers appropriate;
(p) 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.
142
Cessation of orders under Act
(1) Where an order made under this Act is in
force in relation to a child and:
(a) a child support terminating event
happens in relation to the child; or
(b) if there is a carer entitled to
child support and a liable parent in relation to the child—a child support
terminating event happens in relation to the carer entitled to child support,
the liable parent or all 3 of them; or
(c) if there is not a carer entitled
to child support and a liable parent in relation to the child, one of the
following events happens:
(i) the person on whose
application the order was made:
(A) dies; or
(B) ceases
to be an eligible carer of the child;
(ii) the
person against whom the order was made:
(A) dies; or
(B) ceases
to be a resident of Australia;
the order ceases to be in force.
(1A) Sub-subparagraph (1)(c)(ii)(B) does
not apply in relation to an international maintenance arrangement.
(2) Nothing in this section affects the
recovery of arrears due under an order when the order ceases to be in force.
143
Amounts paid where no liability to pay exists etc.
(1) If:
(a) an amount of child support is paid
by a person (the payer) to another person (the payee);
and
(b) the payer is not liable, or
subsequently becomes not liable, to pay the amount to the payee;
the amount may be recovered from the payee in a court
having jurisdiction under this Act.
(2) If:
(a) an amount is paid by a person (the
payer) to another person (the payee) for a child in
relation to a period under an order made under section 139 (urgent
maintenance orders); and
(b) child support does not become
payable by the payer to the payee for the child in relation to the period;
the amount may be recovered from the payee in a court
having jurisdiction under this Act.
(3) In proceedings in a court under this
section, the court may make such orders in relation to the payee as it
considers just and equitable for the purposes of adjusting, or giving effect
to, the rights of the parties and of the child concerned.
(3A) If:
(a) a person (the payer)
has paid an amount of child support to another person (the payee);
and
(b) the court has made a declaration
under section 107 that the payer should not be assessed in respect of the
costs of the child because the payer is not a parent of the child; and
(c) the
court:
(i) is considering whether
to make an order under this section; or
(ii) if such an order is to
be made, is determining the amount that is to be recovered and whether payment
is to be made in the form of a lump sum payment or a periodic amount;
then the court must have regard to the matters set out in subsection (3B).
This subsection does not limit subsection (3).
(3B) For the purposes of subsection (3A),
the court must have regard to the following matters:
(a) whether the payee or the payer knew
or suspected, or should reasonably have known or suspected, that the payer was
not a parent of the child;
(b) whether the payee or the payer
engaged in any conduct (by act or omission) that directly or indirectly
resulted in the application for administrative assessment of child support for
the child being accepted by the Registrar;
(c) whether there was any delay by the
payer in applying under section 107 for a declaration once he or she knew,
or should reasonably have known, that he or she was not a parent of the child;
(d) whether there is any other child
support that is, or may become, payable to the payee for the child by the
person who is a parent of the child;
(e) the relationship between the payer
and the child;
(f) the financial circumstances of
the payee and the payer.
(4) An amount paid to the Commonwealth under
section 30 of the Registration and Collection Act is to be taken,
for the purposes of this section, to have been paid to the payee.
Division 9—Miscellaneous
143A
Simplified outline
The following is a simplified outline of
this Division:
• A court may dismiss, or
make orders in respect of, a frivolous or vexatious proceeding.
• A decision of a court
becomes final at the end of the period for appealing against the decision if no
appeal is made.
• The Registrar may intervene
in any proceeding under this Act.
143B
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
Registration and Collection 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 Registration and Collection Act.
(3) A court may discharge or vary an order
made by that court under subsection (1).
144
Determining when decision of a court becomes final
For the
purpose of determining when a decision of a court becomes final:
(a) if the decision is not a decision
of a Full Court of the Family Court and an application is not made for leave to
appeal against the decision within the period for making such an
application—the decision becomes final at the end of that period; or
(b) if the decision is a decision of a
Full Court of the Family Court and an application is not made for special leave
to appeal to the High Court within the period of 30 days after the making of
the decision—the decision becomes final at the end of that period.
145
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 to be 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.
146
Copies of orders to be forwarded to Registrar
(1) Where a court having jurisdiction under
this Act 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, in such instances and to such extent as the
Child Support Registrar considers appropriate, the requirement of subsection (1).
Part 7A—Notional assessments
Division 1—Preliminary
146A
Simplified outline
The following is a simplified outline of
this Part:
• If the Registrar accepts a
certain kind of child support agreement, or the court makes a certain kind of
order, the Registrar must make a provisional notional assessment of the annual
rate of child support that would be payable for a day in a child support period
if child support were payable under Part 5 instead of under the agreement
or order.
• The notional assessment is
used in the maintenance income test in working out a person’s Part A rate of
family tax benefit under the A New Tax System (Family Assistance) Act 1999.
• A parent may estimate their
adjusted taxable income for the purposes of making a provisional notional
assessment.
Division 2—Notional assessments
146B
Provisional notional assessments
(1) The Registrar must make a provisional
notional assessment in accordance with this section if:
(a) the Registrar makes an assessment
under section 34B or section 93; or
(b) a court makes a statement under
section 125, in an order under section 124, that an annual rate of
child support payable is to be reduced.
(2) The Registrar must make a provisional
notional assessment of the annual rate of child support that would be payable
for a child for a particular day in a child support period, by the liable
parent to the carer entitled to child support, if that annual rate were payable
under Part 5 (taking into account any relevant determination under Part 6A,
or any relevant order under Division 4 of Part 7, and taking into
account section 146BA) for the child for that day instead of under the
agreement or order.
(3) The Registrar must serve notice in
writing of the provisional notional assessment on the liable parent and the
carer entitled to child support.
(4) The notice must specify in respect of the
provisional notional assessment the matters that are required under section 69
and subsection 76(2) (disregarding subsection 76(2A)) in respect of an
administrative assessment.
(5) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the liable parent or the carer
entitled to child support can seek a variation of the provisional notional
assessment in accordance with section 146C within 14 days of receiving the
notice; and
(b) once the provisional notional
assessment becomes a notional assessment under section 146E, the liable
parent or the carer entitled to child support may, subject to the Registration
and Collection Act, object to the particulars of the notional assessment; and
(c) if aggrieved by a later decision
on an objection to those particulars, the liable parent or the carer entitled
to child support may, subject to that Act, apply to the SSAT for review of the
later decision.
146BA
Application of Part 5 to provisional notional assessments
(1) In making a provisional notional
assessment, Part 5 applies as if:
(a) subject to this section, a
reference in the Part to an assessment, or an administrative assessment, were a
reference to a provisional notional assessment; and
(b) subsections 44(5) and (6),
Subdivision C of Division 7, and sections 35C, 66C, 69 and 76 to 79
did not apply; and
(c) in paragraph 48(1)(a), the
reference to the day on which an application is made under section 25 or
25A were a reference to the particular day in respect of which the provisional
notional assessment is made; and
(d) in subparagraph 65A(1)(b)(ii):
(i) a reference to
section 60 were a reference to section 146G; and
(ii) a reference to the
amount worked out for the parent under step 2 of the method statement in
subsection 60(5) using the parent’s estimate were a reference to the amount
estimated by the parent under subsection 146G(1).
(2) Part 5 ceases to apply once a
provisional notional assessment becomes a notional assessment.
146C
Variation of provisional notional assessments
(1) A liable parent or carer entitled to
child support (the applicant) may seek a variation of a
provisional notional assessment within 14 days of receiving a notice under
section 146B in respect of the provisional notional assessment by doing
one or more of the following:
(a) by notifying the Registrar of a
change to the percentage of care that the liable parent or the carer entitled
to child support has for the child for the particular day in the child support
period in respect of which the provisional notional assessment is made;
(aa) by making an application under
section 44 to amend the provisional notional assessment;
(ab) by making an application under
section 66A to reduce the annual rate of child support payable to nil;
(b) by making an application under
section 146D for a determination under Part 6A (departure
determinations);
(c) if the applicant is a parent of
the relevant child—by making an election under subsection 146G(1) (estimate of
adjusted taxable income).
Note: A person who does not receive a notice that is
served on the person is taken to have received the notice 14 days after the
notice was served (see subsection 146E(2)).
(2) The Registrar may vary the provisional
notional assessment of the annual rate of child support that would be payable
for the child for the particular day if:
(a) an applicant seeks a variation in
accordance with subsection (1); and
(b) any one or more of the following
applies:
(i) if paragraph (1)(a)
applies—the Registrar determines a different percentage of care for the parent
or the carer for the child for the particular day under Division 4 of Part 5;
(ia) if
paragraph (1)(ab) applies—the Registrar makes a determination under
subsection 44(2);
(ib) if
paragraph (1)(aa) applies—the Registrar reduces the annual rate of child
support payable to nil;
(ii) if paragraph (1)(b)
applies—the Registrar makes a determination in respect of the child under
section 98S;
(iii) if paragraph (1)(c)
applies—the Registrar does not refuse to accept the election under section 146H.
(3) The Registrar may refuse to vary the
provisional notional assessment if:
(a) the liable parent or the carer
entitled to child support seeks a variation to the provisional notional
assessment in accordance with subsection (1); and
(b) any of the following applies:
(i) if paragraph (1)(a)
applies—the Registrar does not determine a different percentage of care for the
parent or carer for the child for the particular day under Division 4 of
Part 5;
(ia) if
paragraph (1)(ab) applies—the Registrar refuses to make a determination
under subsection 44(2);
(ib) if
paragraph (1)(aa) applies—the Registrar refuses to grant an application
under section 66A;
(ii) if paragraph (1)(b)
applies—the Registrar refuses to make a determination in respect of the child
under section 98S;
(iii) if paragraph (1)(c)
applies—the Registrar refuses to accept the election under section 146H;
and
(c) if the liable parent or carer
entitled to child support seeks a variation by doing more than one of the
things mentioned in subsection (1)—the Registrar has not already varied
the provisional notional assessment under subsection (2).
(4) The liable parent and the carer entitled
to child support are not entitled:
(a) to make an application to the SSAT
under section 80 of the Registration and Collection Act; or
(b) to make an application to a court
under section 116;
in respect of the making of, or refusal to make, a
determination under Part 6A.
Note: Instead, once the provisional notional
assessment becomes a notional assessment, an objection can be made to the
particulars of the notional assessment under section 80 of the
Registration and Collection Act.
146D
Departure determinations in respect of provisional notional assessments
(1) A person may, by written application, ask
the Registrar to make a determination under Part 6A (departure
determinations) if:
(a) a provisional notional assessment
has not yet become a notional assessment under section 146E; and
(b) the person is of the view that,
because of special circumstances that exist, the provisions of this Act
relating to administrative assessment of child support should be departed from
for the purposes of making the provisional notional assessment; and
(c) the person has not previously
applied under this section in relation to the provisional notional assessment.
(2) If a person makes an application under subsection (1),
Division 2 of Part 6A applies as if:
(a) references in that Division to an
administrative assessment were references to the provisional notional
assessment; and
(b) section 98JA did not apply.
(3) If:
(a) an application (the original
application) is made under section 98B in relation to an
administrative assessment; and
(b) before the Registrar decides the
application, the Registrar accepts an agreement under section 98U that is
entered into by the parties to the proceedings concerned; and
(c) a provisional notional assessment
is made because of section 34B applying as mentioned in paragraph
98U(4)(a);
then the original application is taken to be an
application made under subsection (1) of this section.
146E
Notional assessments
(1) A provisional notional assessment becomes
a notional assessment:
(a) 14 days after the notice of the
provisional notional assessment is received by all the parties under section 146B;
or
(b) if a liable parent or a carer
entitled to child support seeks a variation to the provisional notional
assessment in accordance with section 146C—on the day on which the
Registrar varies, or refuses to vary, the provisional notional assessment under
that section.
(2) For the purposes of this section and
section 146C, if a person does not receive a notice served under section 146B
before 14 days after the day on which the notice was served on the person by
post at the person’s last known address, the person is taken to have received
the notice on the 14th day.
(3) To avoid doubt, subsection (2)
applies whether the person receives the notice after the time referred to in
that subsection or does not receive the notice at all.
(4) After a provisional notional assessment
becomes a notional assessment, the Registrar must serve notice in writing of
the notional assessment on the liable parent and the carer entitled to child
support.
(5) The notice must specify in respect of the
notional assessment the matters that are required by section 69 and
subsection 76(2) in respect of an administrative assessment.
(6) The notice must include, or be
accompanied by, a statement to the effect that:
(a) the party may, subject to the
Registration and Collection Act, object to the particulars of the notional
assessment; and
(b) if aggrieved by a later decision
on an objection to those particulars, may, subject to that Act, apply to the
SSAT for review of the later decision.
(7) A contravention of subsection (5) or
(6) does not affect the validity of the notional assessment.
146EA
Amendment of notional assessment
(1) The Registrar must amend a notional
assessment of the annual rate of child support that would be payable for a
child (the first child) for a particular day in a child support
period if:
(a) another child in the child support
case that relates to the first child is not covered by the relevant child
support agreement or the order that was made in relation to the first child;
and
(b) the administrative assessment of
the child support payable for the other child for any day (the changed
assessment day) in any child support period changes.
(2) The Registrar must amend the notional
assessment as if:
(a) despite subsection 146BA(2),
section 67A (offsetting) applied on the changed assessment day; and
(b) the annual rate of child support
that would be payable for the first child for the particular day were instead
payable for the changed assessment day.
146F
Later provisional notional assessments
The Registrar must make a new
provisional notional assessment under section 146B:
(a) if the relevant child support
agreement or court order continues in force for more than 3 years—at the end of
the 3 year period after the most recent notional assessment relating to the
agreement or order was made; or
(b) if the relevant child support
agreement was a limited child support agreement—on the request of a party to
the agreement; or
(c) in any case—if the amount of child
support that is payable under the relevant child support agreement or court
order for a day in the child support period changes by more than 15% from the
previous day.
Division 3—Estimating adjusted taxable income for notional assessments
146G
Estimating adjusted taxable income for purposes of notional assessments
(1) Before a provisional notional assessment
relating to a child becomes a notional assessment under section 146E, a
parent of the child may elect that, for the purposes of making the provisional
notional assessment, the parent’s adjusted taxable income for the 12 month
period beginning on the particular day in the child support period in respect
of which the provisional notional assessment is made is the amount estimated by
the parent.
(2) However, a parent may not make an
election under this section in relation to a child if an order or determination
referred to in paragraph (a) of the definition of income amount
order is in force, or would be in force but for the existence of the
relevant child support agreement, in relation to the parent and the particular
day in the child support period in respect of which the provisional notional
assessment is made.
Election must be for amount less than adjusted taxable
income for last relevant year of income
(3) The parent may make an election relating
to a child only if the amount that he or she estimates under subsection (1)
is not more than 85% of the total of the parent’s adjusted taxable income for
the last relevant year of income for the child support period.
How election is made
(4) The parent makes the election by giving
notice of it to the Registrar in the manner specified by the Registrar. The
notice must specify the amount the parent estimates to be his or her adjusted
taxable income.
146H
Registrar may refuse to accept election
(1) The Registrar may refuse to accept the
parent’s election if the Registrar is satisfied that the amount the parent
estimated under subsection 146G(1) is likely to be less than the actual amount
that would be the parent’s adjusted taxable income for that 12 month period.
Note: If the Registrar refuses to accept the
election, he or she may refuse to vary the provisional notional assessment
under subsection 146C(3).
(2) In making the decision as to whether to
refuse the election, the Registrar:
(a) may act on the basis of
information that the Registrar has received or obtained as to the financial
circumstances of the parent; and
(b) may, but is not required to,
conduct an inquiry into the matter.
(3) Except for the purposes of Parts VII,
VIIA and VIII of the Registration and Collection Act (dealing with objections
and appeals), if the Registrar refuses to accept an election, the election is
taken never to have been made.
146J
Effect of election
(1) If a parent makes an election under
subsection 146G(1) relating to a child, then, for the purposes of making the
provisional notional assessment, the parent’s adjusted taxable income is the
amount the parent estimated.
(2) Subsection (1) has effect subject to
any order or determination referred to in paragraph (a) of the definition
of income amount order that is made after the making of the
election that applies in relation to the parent and the particular day in the
child support period in respect of which the provisional notional assessment is
made.
(3) The Registrar must take such action as is
necessary to give effect to subsection (1) in relation to the provisional
notional assessment that has been made in relation to the parent and the child
(whether by varying the provisional notional assessment or otherwise).
146K
Revocation of election
(1) Before a provisional notional assessment
becomes a notional assessment under section 146E, a parent who has made an
election under subsection 146G(1) in relation to a child may, by notice given
to the Registrar, revoke the election.
(2) A notice given to the Registrar must be
given in the manner specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
146L
Effect of revocation
(1) If a parent who made an election under
section 146G relating to a child revokes the election and substitutes a
new election before the provisional notional assessment becomes a notional
assessment under section 146E, then, for the purposes of making the
provisional notional assessment, the parent’s adjusted taxable income is the
amount the parent elected in the new election.
(2) Subsection (1) has effect subject to
any order or determination referred to in paragraph (a) of the definition
of income amount order that is made after the making of the
election that applies in relation to the parent and the particular day in the
child support period in respect of which the provisional notional assessment is
made.
(3) The Registrar must take such action as is
necessary to give effect to subsection (1) in relation to the provisional
notional assessment that has been made in relation to the parent and the child
(whether by varying the provisional notional assessment or otherwise).
(4) This section does not prevent:
(a) the Registrar making a
determination under Part 6A; or
(b) a court making any order under
Division 4 of Part 7; or
(c) the making, and acceptance by the
Registrar, of a child support agreement that includes provisions that have
effect, for the purposes of Part 5, as if they were such an order made by
consent.
Part 8—Administration
147
Secretary has general administration of Act
The Secretary has the general
administration of this Act.
148
Annual report
(1) The Secretary must, as soon as
practicable after 30 June in each year, give to the Minister a report on
the working of this Act.
(2) The Minister must cause a copy of the
report to be laid before each House of the Parliament.
(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 is to be
taken to be a periodic report relating to the working of this Act during the
year ending on that 30 June.
149
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.
(1AA) 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.
(1A) Without limiting the generality of subsection (1),
the Registrar may also, in writing, delegate all or any of the Registrar’s
powers or functions to a person engaged by the Registrar for the purposes of
Part 6A.
(2) A delegation may be made subject to a
power of review and alteration by the Registrar, within a period specified in
the 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 is to be taken to preclude the revocation or
variation of the delegation by the same or a subsequent holder of the office.
150
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 is 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 Registration and Collection 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:
(A) child
support liabilities; or
(B) maintenance
liabilities that arose under the law of the Commonwealth or of a State or
Territory; or
(ii) the enforcement within
Australia of maintenance liabilities that arose under the law of an external
Territory or 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 the 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
Registration and Collection Act, 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.
150AA
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 150(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 150(4G); and
(b) that person makes a record of, or
communicates, the information for the purpose of a proceeding under
section 113A of the Registration and Collection Act;
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.
150A
Applications, notices, elections and replies to be in the manner specified by
the Registrar
(1) The Registrar may specify the manner in
which an application, notice, election or reply 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, election or reply, the Registrar may specify
any or all of the following matters:
(a) the content of the application,
notice, election or reply;
(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 be given in accordance with certain software
requirements.
(3) In relation to an application, notice,
election or reply, 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, it may contain the electronic signature of the person concerned.
(4) The Registrar may in writing approve a
form of application, notice, election or reply 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.
150B
Registrar’s power to request tax file numbers
(1) This
section applies to a person in Australia if:
(a) the person has applied for an
administrative assessment of child support; or
(b) another person has applied for the
person to be assessed in respect of the costs of a child; or
(d) the person is a carer entitled to
child support; or
(e) the person is a liable parent.
(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.
150C
Effect of failure by person to satisfy request for person’s tax file number
(1) If the Registrar makes a request under
subsection 150B(2) of a person, and the person does not, within 28 days of the
making of the request:
(a) comply with the request; or
(b) give to the Registrar a statement
of a kind mentioned in subsection (2) or (3) of this section;
section 58 applies to the person as if the request
under subsection 150B(2) were a requirement with which the person has refused
or failed to comply.
Note: Section 58 provides that where the
Registrar has required a person to give information, and the person has refused
or failed to comply with the requirement, the Registrar may determine the
person’s adjusted taxable income under section 58.
(2) 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.
(3) 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.
150D
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 ascertain whether a person may
apply for administrative assessment of child support;
(b) to make or amend an administrative
assessment of child support;
(c) to ascertain the happening of a
child support terminating event;
(d) to identify a person for purposes
related to a purpose mentioned in paragraph (a), (b) or (c).
150DA
Registrar’s jurisdiction to cease in certain circumstances
If the Registrar receives notice, in
accordance with an article that is prescribed by the regulations, of an
international treaty that is so prescribed, that a carer entitled to child
support is habitually resident in a foreign country that is a party to the
treaty, the jurisdiction of the Registrar ceases in accordance with that
article.
Part 9—Miscellaneous
150E
Suspension of liability to pay child support where parents reconcile
Child support not payable if parents reconcile
(1) The Registrar must make a determination
(a suspension determination) that child support is not payable
for a child by a liable parent to the other parent of the child if:
(a) the Registrar is notified, or
otherwise becomes aware, that the parents have become members of the same
couple; and
(b) the Registrar is satisfied that
the parents have become members of the same couple.
(2) If the Registrar makes a suspension
determination, child support for the child is not payable by the liable parent
to the other parent:
(a) from the day the Registrar
determines that the parents became members of the same couple; and
(b) until the Registrar makes a
determination under subsection (3) in relation to the parents.
Note: Under section 12, there is a child
support terminating event if the parents are members of the same couple for a
period of 6 months or more.
Payment of child support to continue if reconciliation
not successful
(3) If:
(a) a child support terminating event
has not happened in relation to a child and the child’s parents under
subsection 12(5); and
(b) the Register is satisfied that the
parents have ceased being members of the same couple;
then the Registrar must make a determination under this
subsection that child support is again payable by the liable parent to the
other parent.
(4) If the Registrar makes a determination
under subsection (3), child support is again payable by the liable parent
to the other parent from the day that the Registrar is satisfied that the
parents ceased to be members of the same couple.
Suspension determination not to prevent payment of
child support to non‑parent carers
(5) To avoid doubt, child support is still
payable by a liable parent for a child to a non‑parent carer of the child
despite a suspension determination being made in respect of the parents of the
child.
Parent taken not to be assessed in respect of the costs
of the child
(6) For the purposes of this Act and the
Registration and Collection Act, a parent of a child is taken not to be
assessed in respect of the costs of the child during the period in which child
support is not payable by or to the parent under subsection (2).
151
Election by carer entitled to child support to end administrative assessment
(1) A carer entitled to child support for a
child may, by notice given to the Registrar, elect that the liability of a
liable parent to pay or provide child support for the child to the carer
entitled to child support is to end from a specified day.
(2) The notice must be given in the manner
specified by the Registrar.
Note: Section 150A provides for the Registrar
to specify the manner in which a notice may be given.
(4) If:
(a) a carer makes an election under subsection (1)
in respect of a child; and
(b) the carer is entitled to be paid,
or is a claimant for, family tax benefit for the child, the Part A rate of
which is higher than the base rate for the carer under clause 4 of
Schedule 1 to the Family Assistance Act;
the election has no effect unless and until the Secretary
approves the election under section 151A.
(5) If:
(a) a person makes an election under
subsection (1) in respect of a child; and
(b) the application for administrative
assessment under which the child support is payable was made, in accordance
with paragraph 29B(1)(b), by an overseas authority of a reciprocating
jurisdiction on behalf of the carer entitled to child support;
the election has no effect unless and until the overseas
authority approves the election.
151A
Procedure where person making election is receiving more than the base rate of
family tax benefit Part A
(1) As soon as practicable after a carer
referred to in subsection 151(4) makes an election, the Registrar must inform
the Secretary or, if the Secretary has delegated his or her powers under this
section to the CEO or an employee of the Services Delivery Agency, the CEO.
(2) The Secretary must, by applying clause 10
of Schedule 1 to the Family Assistance Act, decide whether the carer has
taken reasonable action to obtain maintenance for the child if it were assumed
that:
(a) the election were to take effect;
and
(b) if the carer is a claimant for
family tax benefit for the child—the carer were entitled to be paid the
benefit.
(3) The Secretary is taken to approve the
election if the Secretary decides that the carer has taken reasonable action to
obtain maintenance for the child.
(4) The Secretary is taken not to approve the
election if the Secretary decides that the carer has not taken reasonable
action to obtain maintenance for the child.
(5) As soon as practicable after the
Secretary makes a decision under this section, the Secretary must tell the
Registrar about the decision.
(6) As soon as practicable after the
Secretary decides not to approve the election, the Secretary must give the
carer a written notice setting out the decision.
(7) The Secretary may, by writing, delegate
all or any of his or her powers under this section to an officer of the
Department or, in accordance with service arrangements, to the CEO or an
employee of the Services Delivery Agency.
151B
Application for assessment/agreement to continue beyond child’s 18th birthday
(1) If a child turns 18 during a year in
which the child is in full‑time secondary education, a carer entitled to
child support for the child may apply for an administrative assessment, or a
child support agreement, in relation to the child to continue in force until
the last day of the secondary school year in which the child turns 18.
Note: For full‑time secondary education,
last day and secondary school see section 5.
(1A) If a relevant dependent child of a parent
turns 18 during a year in which the child is in full‑time secondary
education, the parent may apply for the relevant dependent child to be taken
into account in any relevant administrative assessment until the last day of
the secondary school year in which the child turns 18.
(2) The application must be:
(a) made to the Registrar in the
manner specified by the Registrar; and
(b) in the case of an application
under subsection (1) for a child support agreement to continue in
force—signed by both the carer entitled to child support for the child and the
liable parent in relation to the child.
Note: Section 150A provides for the Registrar
to specify the manner in which an application may be made.
151C
Application for assessment/agreement to continue—Registrar’s decision
(1) The Registrar must either accept or
refuse to accept an application under section 151B.
(2) The Registrar must accept the application
if, and only if, the Registrar is satisfied that:
(a) the child has turned 17; and
(b) either:
(i) if the application is
made under subsection 151B(1)—an administrative assessment, or a child support
agreement, in relation to the child either is in force, or is likely to be in
force, on the day before the child’s 18th birthday; or
(ii) otherwise—an
administrative assessment that takes the child into account is in force, or is
likely to be in force, on the day before the child’s 18th birthday; and
(c) the child is likely to be in full‑time
secondary education on the child’s 18th birthday; and
(d) the child’s 18th birthday will occur
on or before the last day of the secondary school year; and
(e) either:
(i) the application is
made before the child’s 18th birthday; or
(ii) there are, in the
Registrar’s opinion, exceptional circumstances justifying the making of the
application after the child’s 18th birthday.
Note: For full‑time secondary education,
last day and secondary school see section 5.
Refusal of application
(3) If the Registrar refuses to accept the
application, the Registrar must immediately notify the applicant in writing.
Acceptance of application
(4) If the Registrar accepts the application,
the Registrar must immediately notify the applicant, and the liable parent
concerned, in writing.
(5) A notice to a person under this section
must include, or be accompanied by, a statement to the effect:
(a) that the person may, subject to
the Registration and Collection Act, object to the particulars of the
assessment in relation to which the application under section 151B was
made; and
(b) that if the person is aggrieved by
the decision on an objection to the particulars of the assessment (no matter
who lodges the objection), he or she may, subject to that Act, apply to the
SSAT for review of the decision.
(6) A contravention of subsection (5) in
relation to a decision does not affect the validity of the decision.
(7) To avoid doubt, a reference in this
section to an administrative assessment does not include a
reference to an assessment made by the Registrar under subsection 93(2).
151D
Application under subsection 151B(1) for assessment/agreement to
continue—consequences of acceptance
Child support terminating event
(1) If the Registrar accepts an application
under subsection 151B(1) in relation to a child, then, in spite of section 12
(which deals with child support terminating events):
(a) a child support terminating event
does not happen in relation to the child when the child turns 18; and
(b) a child support terminating event
happens in relation to the child on whichever of the following days occurs
first:
(i) the day on which the
Registrar is satisfied the child ceased to be in full‑time secondary
education;
(ii) the last day of the
secondary school year to which the application relates.
Registrar to take necessary action
(2) If the Registrar accepts the application,
the Registrar must immediately take such action as is necessary:
(a) if the application is to continue
an administrative assessment in force—to take account of the change effected by
subsection (1) to the meaning of child support terminating event
in relation to the child (whether by amending the assessment or otherwise); and
(b) if the application is to continue
a child support agreement in force—to take account of the change effected by subsection (1)
to the meaning of child support terminating event in relation to
the child (whether by accepting a subsequent child support agreement or
otherwise).
Child to be regarded as aged 17 for purposes of Part 5
(2A) If the Registrar accepts the application,
the child is to be taken to be aged 17 for the purposes of applying Part 5
to the child throughout the period:
(a) beginning on the day on which the
child turned 18; and
(b) ending on the day on which a child
support terminating event (within the meaning of paragraph (1)(b)) happens
in relation to the child.
Date of effect of decision
(3) A decision of the Registrar to grant an
application in relation to a child under subsection 151B(1) takes effect on the
day before the child turns 18, whether the decision is made before, on or after
that day.
151E Applications
under subsection 151B(1A) in respect of administrative assessments—consequences
of acceptance
Registrar to take necessary action
(1) If the Registrar accepts an application
under subsection 151B(1A), the Registrar must immediately take such action as
is necessary to take account of the change to the meaning of relevant dependent
child (whether by amending an administrative assessment or otherwise).
Child to be regarded as aged 17 for purposes of Part 5
(2) If the Registrar accepts the application,
the child is taken to be aged 17 for the purposes of applying Part 5 to
the child throughout the period:
(a) beginning on the day on which the
child turned 18; and
(b) ending on the last day of the
secondary school year in which the child turns 18.
Date of effect of decision
(3) A decision of the Registrar to accept an
application in relation to a child under subsection 151B(1A) takes effect on
the day before the child turns 18, whether the decision is made before, on or
after that day.
152
Court order etc. to cease to have effect where child support becomes payable
(1) If:
(a) at any time an amount of child
support for a child becomes payable by a liable parent to another person under
an administrative assessment; and
(b) immediately
before that time, a court order or a court registered maintenance agreement, a
financial agreement (within the meaning of the Family Law Act 1975) or a
Part VIIIAB financial agreement (within the meaning of that Act), had
effect under which child support or maintenance for the child was payable by
the liable parent to the other person; and
(c) the court order, maintenance
agreement, financial agreement or Part VIIIAB financial agreement did not
give rise to an overseas maintenance liability;
the court order, maintenance agreement, financial
agreement or Part VIIIAB financial agreement ceases, at that time, to have
effect.
(2) If:
(a) at any time, an amount of child
support for a child becomes payable by a liable parent to another person under
an administrative assessment; and
(b) at that time, the liable parent
and the other person are both residents of Australia; and
(c) immediately before that time, an
overseas maintenance liability had effect under which maintenance for the child
was payable by the liable parent to the other person;
the overseas maintenance liability ceases, at that time,
to have effect.
153
Evidentiary certificates by Registrar
A certificate by the Registrar stating:
(a) that a specified person was, on a
specified day, a resident of Australia; or
(b) that a specified person ceased, on
a specified day, to be a resident of Australia; or
(c) that a specified person applied on
a specified day for one or both parents of a child to be assessed in respect of
the costs of the child; or
(d) that a specified person did not
apply on or before a specified day for one or both parents of a child to be
assessed in respect of the costs of the child; or
(e) that a notice to the effect that
the taxable income of a specified person under the Income Tax Assessment Act
1936 or the Income Tax Assessment Act 1997 for a specified year of
income was nil, or to the effect that no tax is payable (before the allowance
of any rebate or credit) under either of those Acts on the taxable income of a
specified person for a specified year of income, was served on the person under
the Income Tax Assessment Act 1996; or
(f) that
a notice mentioned in paragraph (e) was dated as at a specified day;
is prima facie evidence of the matters stated in
the certificate.
153A
Indexation of amounts
(1) This section applies for the purposes of
the following provisions:
(a) subsection 65A(2); and
(b) subsection 66(5).
(2) For the purposes of this Act, the amount
specified in those provisions in relation to a child support period that begins
in a particular calendar year is taken to be the amount worked out using the
formula:
where:
base September quarter index number means the
index number for the September quarter of 2005.
highest September quarter index number means
the highest index number for a September quarter since the base September
quarter index number (and including the base September quarter).
index number for a quarter is the All Groups
Consumer Price Index number that is the weighted average of the 8 capital
cities and is published by the Australian Statistician in respect of that
quarter.
(3) Subject to subsection (4), if at any
time (whether before or after the commencement of this subsection) the
Australian Statistician publishes an index number for a quarter in substitution
for an index number previously published by the Australian Statistician for
that quarter, the publication of the later index number is to be disregarded
for the purposes of subsection (2).
(4) If at any time the Australian
Statistician changes the reference base for the Consumer Price Index, regard is
to be had, for the purposes of applying subsection (2) after the change
takes place, only to index numbers published in terms of the new reference
base.
155
Publication of figures
(1) Before the end of each calendar year, the
Registrar must publish in the Gazette for all child support periods
starting in the following calendar year:
(a) the minimum annual rate of child
support; and
(b) the annual rate of child support
specified in subsection 65A(2) (low income parents not on income support).
(2) Before the end of each calendar year, the
Secretary must publish in the Gazette for all child support periods
starting in the following calendar year:
(a) the annualised MTAWE figure for
the relevant September quarter; and
(b) the Costs of the Children Table,
incorporating:
(i) the annualised MTAWE
figure for the relevant September quarter; and
(ii) any other amounts in
items in the table that can be worked out using the annualised MTAWE figure.
(3) The instruments published under subsections (1)
and (2) are not legislative instruments.
156
Rounding of amounts
(1) If an amount that is calculated or worked
out under or for the purposes of this Act is not, apart from this section, a
number of whole dollars, the amount is to be rounded to the nearest whole
dollar.
(2) If the amount that is calculated or
worked out is an amount consisting of a number of whole dollars and 50c, the
amount is to be rounded up to the nearest whole dollar.
(3) This section does not apply in relation
to the conversion of an annual rate of child support into a daily rate of child
support.
157
Appearance by Registrar in proceedings etc.
(1) In any action, prosecution or other
proceeding under, or arising out of, this Act, 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 with the authority of the
Registrar, is prima facie evidence of that authority.
158
Judicial notice of signature of Registrar etc.
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, must take judicial notice of the signature
of a person who holds or has held the office of Registrar.
159
False or misleading statements
(1) A person who:
(a) makes a statement to an officer
that the person knows 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, to the knowledge of the person, misleading in a material
particular;
is guilty of an offence punishable on conviction by
imprisonment for a period not exceeding 6 months.
(2) In a prosecution of a person for an
offence against subsection (1), if, having regard to:
(a) the person’s abilities,
experience, qualifications and other attributes; and
(b) all
the circumstances surrounding the alleged offence;
the person ought reasonably to have known that the
statement to which the prosecution relates was false or misleading in a
material particular, the person is to be taken to have known that the statement
was false or misleading in a material particular.
(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 includes, for example, a
statement:
(a) made in an application, form,
notification, appeal or other document made, given or lodged, or purporting to
be made, given or lodged, under this Act; or
(b) made in answer to a question asked
of the person under this Act; or
(c) made in any information given, or
purporting to be given, under this Act.
159A
Statements made recklessly etc.
(1) A person is guilty of an offence if:
(a) the person makes a statement to an
officer; and
(b) the statement:
(i) is false or misleading
in a material particular; or
(ii) omits any matter or
thing without which the statement is false or misleading in a material
particular; and
(c) the person is reckless as to
whether the statement is a statement of that kind.
Penalty: 5 penalty units.
(2) In a prosecution of a person for an
offence against subsection (1), if, having regard to:
(a) the person’s abilities,
experience, qualifications and other attributes; and
(b) all the circumstances surrounding
the alleged offence;
the person has acted without taking reasonable care as to
the accuracy and completeness of the statement, or with intentional disregard
to the requirements to obtain and provide relevant information, the person is
to be taken to have been reckless as to whether the statement is false or
misleading in a material particular.
(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 includes, for example, a
statement:
(a) made in an application, form,
notification, appeal or other document made, given or lodged, or purporting to
be made, given or lodged, under this Act; or
(b) made in answer to a question asked
of the person under this Act; or
(c) made in any information given, or
purporting to have been given, under this Act.
159B
Failure to notify required information
(1) A person is guilty of an offence if:
(a) the person is required to notify
information to the Registrar; and
(b) the requirement is a requirement
under section 63A; and
(c) the person fails to notify the
Registrar; and
(d) the person is reckless as to the
requirement.
Penalty: 5 penalty units.
(2) Strict liability applies to paragraph (1)(b).
(3) In a prosecution of a person for an
offence against subsection (1), if, having regard to:
(a) the person’s abilities,
experience, qualifications and other attributes; and
(b) all the circumstances surrounding
the alleged offence;
the person has acted without reasonable care or with
intentional disregard to the requirement to notify the Registrar as required by
section 63A, the person is to be taken to have been reckless as to that
requirement.
160
Notification requirements
(1) The Registrar may, by written notice
given to a person to or by whom child support is payable, require the person to
notify the Registrar, within 14 days and in the manner specified in the notice,
if:
(a) an event or change of
circumstances specified in the notice happens; or
(b) the person becomes aware that an
event or change of circumstances specified in the notice is likely to happen.
(2) An event or change of circumstances must
not be specified in a notice under subsection (1) unless the happening of
the event or change of circumstances might affect the payment of child support
or the rate at which it is payable.
(3) A person who refuses or fails to comply
with a notice under subsection (1) is guilty of an offence punishable on
conviction by imprisonment for a period not exceeding 6 months.
(3A) Subsection (3) applies only to the
extent to which the person is capable of complying with the notice.
(3B) Subsection (3) does not apply if the
person has a reasonable excuse.
(3C) Subsection (3) is an offence of strict
liability.
(4) It is a reasonable excuse for a person to
refuse or fail to comply with a requirement under subsection (1) if
complying with the requirement may tend to incriminate the person.
(5) This section does not apply to a person:
(a) in respect of whom an
international maintenance arrangement applies; and
(b) who is a resident of a
reciprocating jurisdiction.
161
Obtaining of information and evidence
(1) The Registrar may, where it is reasonably
necessary for the purposes of this Act, by written notice, require a person:
(a) to give to the Registrar, within a
reasonable period (being a period of not less than 7 days), and in a reasonable
manner, specified in the notice, such information as the Registrar requires;
and
(b) to attend before the Registrar, or
before an officer authorised by the Registrar for the purpose, at a reasonable
time and place specified in the notice, and then and there answer questions;
and
(c) to produce to the Registrar, at a
reasonable time and place specified in the notice, any documents in the custody
or under the control of the person.
(2) The regulations must prescribe scales of
expenses to be allowed to persons required to attend under this section.
(3) A person who refuses or fails to comply
with a requirement made under subsection (1) is guilty of an offence
punishable on conviction by imprisonment for a period not exceeding 6 months.
(3A) Subsection (3) applies only to the
extent to which the person is capable of complying with the requirement.
(3B) Subsection (3) does not apply if the
person has a reasonable excuse.
(3C) Subsection (3) is an offence of strict
liability.
(4) It is a reasonable excuse for a person to
refuse or fail to comply with a requirement under subsection (1) if
complying with the requirement may tend to incriminate the person.
(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.
162
Order to comply with requirement
(1) Where:
(a) a person is convicted before a
court of an offence against subsection 161(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 subsection 161(3);
in relation to the refusal or failure of the person to
comply (whether in whole or 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) If 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 must 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 imprisonment for a period
not exceeding 12 months.
(4) Strict liability applies to the element
of an offence against subsection (3) that an order is an order under subsection (1).
162A
Obtaining information in relation to residents of reciprocating jurisdictions
(1) If the Registrar does not possess
sufficient information and documents to determine the overseas income of a
person who is or was a resident of a reciprocating jurisdiction, the Registrar
may, by written notice, request the person or an overseas authority of the
reciprocating jurisdiction to give to the Registrar such information, or to
produce to the Registrar such documents, as are necessary to enable the
Registrar to determine the person’s overseas income.
(2) The Registrar may, by written notice
given:
(a) to a person:
(i) to or by whom child
support is payable; and
(ii) who is or was a
resident of a reciprocating jurisdiction; or
(b) to an overseas authority of the
reciprocating jurisdiction;
request the person or authority to notify the Registrar,
within 60 days and in the manner specified in the notice, if:
(c) an event or change of
circumstances specified in the notice happens; or
(d) the person or authority becomes
aware that an event or change of circumstances specified in the notice is
likely to happen.
(3) An event or change of circumstances must
not be specified in a notice under subsection (2) unless the happening of
the event or change of circumstances might affect the payment of child support
or the rate at which it is payable.
(4) The Registrar may, where it is reasonably
necessary for the purposes of this Act, by written notice, request a person who
is or was a resident of a reciprocating jurisdiction, or 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.
(5) For the purposes of
paragraph (4)(a), the reasonable period that is specified in the notice
cannot be less than 28 days.
162B
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 person who is a resident of a
reciprocating jurisdiction.
163
Act not a taxation law
This Act is not a taxation law within
the meaning of the Taxation Administration Act 1953.
163A
Certain instruments not liable to duty
(1) The following agreements, deeds and other
instruments are not subject to any duty or charge under any law of a State or
Territory or any law of the Commonwealth that applies only in relation to a
Territory:
(a) a deed or other instrument
executed by a person under, or for the purposes of, an order made by a court
under this Act;
(b) an eligible child support
agreement that confers a benefit in relation to a child eligible for
administrative assessment, to the extent to which the agreement confers the
benefit;
(c) a deed or other instrument:
(i) that is executed by a
person under, or for the purposes of, an eligible child support agreement; and
(ii) that
confers a benefit in relation to a child eligible for administrative
assessment;
to the extent to which it
confers the benefit.
(2) A child support agreement is an eligible
child support agreement for the purposes of this section if:
(a) it has been accepted by the
Registrar; and
(b) it is a child support agreement of
one of the following kinds:
(i) a child support
agreement made in connection with the dissolution or annulment of the marriage
to which the agreement relates;
(ii) a child support
agreement (other than an agreement falling within subparagraph (i)) made
in contemplation of the dissolution or annulment of the marriage to which the
agreement relates;
(iii) a child support
agreement (other than an agreement falling within subparagraph (i) or
(ii)) made in connection with the breakdown of the marriage to which the
agreement relates;
(iv) a child support
agreement made in connection with the breakdown of the de facto relationship to
which the agreement relates;
(v) a child support
agreement (other than a child support agreement falling within subparagraph (i),
(ii), (iii) or (iv)) that relates to a child whose parents were not:
(A) married
to each other; or
(B) living
with each other in a de facto relationship;
at the time the child
was conceived.
(3) For the purposes of this section, a child
support agreement, deed or other instrument that confers an entitlement to
property in relation to a child may be taken to confer a benefit in relation to
the child even though the agreement, deed or other instrument also deprives the
child or another person of an entitlement to other property (being property of
an equal or greater value) in relation to the child.
(4) In this
section:
(a) a reference to the marriage to
which a child support agreement relates is a reference to the marriage the
parties to which are parties to the agreement; and
(b) a reference to the de facto
relationship to which a child support agreement relates is a reference to the
de facto relationship the parties to which are parties to the agreement.
(5) In this
section:
de facto relationship means the relationship
between a man and a woman who live with each other as spouses on a genuine
domestic basis although not legally married to each other.
163B
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.
164
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 $1,000 for offences against the regulations.
Table A
Application, saving or transitional provisions
Child Support Legislation Amendment Act 1995 (No. 39, 1995)
5 Application
The amendments made by this Division apply in
relation to an application made under Division 1 of Part 4 of the
Principal Act after the commencement of this section.
12 Application
The amendments made by this Division apply in
relation to an application for acceptance by the Registrar of an agreement, if
the application was made after the commencement of this section.
Child Support (Assessment) Act 1989 (No. 120, 1998)
4
Application
(1) Subject to sections 5 and 6, the amendments
of the Child Support (Assessment) Act 1989 made by Schedules 1, 3,
5, 8, 9, 13, 14 and 18 do not apply in relation to the 1998‑99 child
support year or any earlier child support year.
Note: The effect of this subsection can be modified
by regulations made under sections 5 and 6. If such regulations are made,
they can apply the amendments to a part of the 1998‑99 child support
year.
(2) The amendments made by Schedules 6
and 19 do not apply to applications for administrative assessment made before
the prescribed day.
(3) The amendments of the Child Support
(Assessment) Act 1989 made by Schedules 15 and 16 do not apply in
relation to the 1998‑99 child support year or any earlier child support
year.
(5) The amendments of the Child Support
(Assessment) Act 1989 made by Schedule 23 do not apply in relation to
an assessment for a child support year, or a child support period, starting
before 1 July 2000.
(6) The amendments of the Child Support
(Assessment) Act 1989 made by Schedule 24 do not apply in relation to
an assessment for a child support year, or a child support period, starting
before 1 July 2000.
5
Regulations
(1) The Governor‑General may make
regulations prescribing 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.
(2) Without limiting subsection (1), the
regulations may do any of the following:
(a) prescribe a day for the purposes
of subsection 4(2);
(b) prescribe a day on or after 1 July 1998 and before 1 July 1999 as the 1998‑99 commencing day;
(c) provide for any transitional
matters arising out of the amendment of the Child Support (Assessment) Act
1989, the Child Support (Registration and Collection) Act 1988 and
the Social Security Act 1991 by this Act.
(3) Without limiting paragraph (2)(c),
the regulations may, in relation to the 1998‑99 child support year or a
specified part of that year:
(a) modify the operation of section 6;
or
(b) modify the operation of any of the
provisions of an Act referred to in paragraph (2)(c), as in force before
or after the commencement of this section.
6
Transitional rules if 1998‑99 commencing day is prescribed
(1) If a day is prescribed as the 1998‑99
commencing day, the following subsections apply.
(2) The amendments of the Child Support
(Assessment) Act 1989 made by Schedules 1, 3, 5, 8, 9, 13, 14 and 18
do not apply in relation to the part of the 1998‑99 child support year
that occurs before the 1998‑99 commencing day.
(3) After the commencement of the amendments
of the Child Support (Assessment) Act 1989 made by Schedules 1, 3,
5, 8, 9, 13, 14 and 18, the Registrar must, under that Act as so amended,
assess the annual rate of the child support payable under each assessment in force
under that Act in relation to the days in the 1998‑99 child support year.
(4) An annual rate assessed under subsection (3)
is to apply on and from the 1998‑99 commencing day.
(5) The amendments of the Child Support
(Assessment) Act 1989 made by Schedule 8 do not apply in relation to a
child who turns 18 before the 1998‑99 commencing day.
Schedule 14
5 Transitional
(1) If:
(a) a person applied for a
determination under subsection 98(1) of the Child Support (Assessment) Act
1989 before the day that this Schedule commences (the commencement
day); and
(b) the application was not determined
before the commencement day;
then:
(c) the application is taken to have
been made under subsection 98B(1) of the Child Support (Assessment) Act 1989
as amended by this Schedule; and
(d) any action taken by the Registrar
before the commencement day in respect of the application under section 98G
or 98H of Part 6A as in force before the commencement day, is taken to
have been made under section 98G or 98H of the Child Support
(Assessment) Act 1989 as amended by this Schedule.
(2) If:
(a) the Registrar has made a
determination in respect of an application under Part 6A before the
commencement day that the provisions of the Child Support (Assessment) Act 1989
relating to an administrative assessment should be departed from; and
(b) the
Registrar has not, before the commencement day, amended the administrative
assessment to give effect to the determination;
the determination is taken to have been made under
the Child Support (Assessment) Act 1989 as amended by this Schedule.
(3) If:
(a) the Registrar has refused to make
a determination in respect of an application under Part 6A before the
commencement day; and
(b) after the commencement day, the
applicant makes another application for a determination in respect of the same
administrative assessment;
then, for the purposes of section 98J of the Child
Support (Assessment) Act 1989 as amended by this Schedule, the first
application is to be treated as if it had been made under the Child Support
(Amendment) Act 1989 as amended by this Schedule.
Schedule 16
79 Transitional provision—child support period starting on 1 July 1999
Child support is payable by a liable parent to a
carer entitled to child support for a child for a day in a child support period
starting on 1 July 1999 if:
(a) child support was payable by the
liable parent to the carer for the child for 30 June 1999; and
(b) child support would have been
payable by the liable parent to the carer for the child for the first day of
the 1999‑2000 child support year apart from the amendments made by this
Schedule.
80 Transitional provision—new assessment when 1998‑99
taxable income figure becomes available
(1) This item makes
special provision relating to child support periods and assessment of child
support for the situation where:
(a) child support is payable by a
liable parent to a carer entitled to child support for a child for a day in a
child support period that starts on or after 1 July 1999 but before 1 June
2000; and
(b) an assessment (the tax
assessment) of the taxable income of the liable parent or carer for the
1998‑99 year of income is made under the Income Tax Assessment Act
1936 or the Income Tax Assessment Act 1997 before 1 June 2000;
and
(c) the amount of the taxable income
of the liable parent or carer as shown in the tax assessment was not used in
making the assessment of child support payable for a day in the child support
period.
(2) Section 34A of the Child Support
(Assessment) Act 1989 applies as if the child support period had started
before the end of the 1998‑99 year of income.
(3) However, that section (as applied by this item)
does not require the Registrar to make an assessment of child support payable
in June 2000 or a later named month.
Schedule 19
20 Transitional
If an application under section 25 of the Child Support
(Assessment) Act 1989 (the Act) was made in relation to the
1998‑99 child support year, but not determined before the commencement of
this Schedule, the application is taken to have been made under the Act as in
force after the commencement of this Schedule.
A New
Tax System (Family Assistance and Related Measures) Act 2000
(No. 45, 2000)
Schedule 5
1 Definitions
(1) In this Schedule, unless the contrary intention appears:
approved care organisation means an organisation
that is taken, by virtue of the operation of subitem (2), to be an
approved care organisation for the purposes of the Family Assistance Act.
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 assistance law has the same meaning as in
subsection 3(1) of the Family Assistance Administration Act.
family benefit means payments of:
(a) family allowance; or
(b) family tax payment; or
(c) parenting payment in the nature of
non‑benefit PP (partnered);
payable under the social security law.
MAT means maternity allowance within the meaning of
subsection 3(1) of the Family Assistance Administration Act.
MIA means maternity immunisation allowance within
the meaning of subsection 3(1) of the Family Assistance Administration Act.
receiving, in relation to family benefit, has the
meaning given under subitem (3).
Secretary, in relation to an act or thing done, or
a decision or determination made, under particular legislation, means the
Secretary of the Department administered by the Minister administering that
legislation.
social security law means the Social Security
Act 1991 and the Social Security (Administration) Act 1999.
(2) Any organisation that, immediately before 1 July 2000, was an approved care organisation for the purposes of the Social
Security Act 1991 is taken to have been approved under section 20 of
the Family Assistance Act, with effect from that date, as an
approved care organisation, for the purposes of the latter Act.
(3) For the purposes of this Part, an individual or an
approved care organisation is taken to be receiving payments of family benefit
under the Social Security Act 1991 from the earliest date on which such
payments are payable to the individual or to the organisation, as the case
requires, even if the first instalment of that benefit is not paid until a
later day.
2 Individuals receiving family benefit treated as having
lodged effective claim for family tax benefit by instalment
(1) If, immediately before 1 July 2000, an individual was receiving family benefit, then, with effect from that date, that
individual is taken, subject to items 4 and 5, to have made an effective
claim for family tax benefit by instalment under subsection 7(2) of the Family
Assistance Administration Act as amended by this Act.
(2) If, before 1 July 2000, an individual
receiving family benefit had provided bank account details for the purposes of
making the claim for, or receiving, such benefits, those details are taken to
have been provided in the context of the effective claim that is taken to have
been made under subitem (1).
3 Approved care organisations receiving family allowance
treated as having lodged effective claim for family tax benefit by instalment
(1) If, immediately before 1 July 2000, an approved care organisation was receiving family allowance, then, with effect from that
date, that organisation is taken, subject to item 5, to have made an
effective claim for family tax benefit by instalment under subsection 7(2) of
the Family Assistance Administration Act as amended by this Act.
(2) If, before 1 July 2000, the organisation had
provided bank account details for the purposes of making the claim for, or
receiving, such family allowance payments, those details are taken to have been
provided in the context of the effective claim that is taken to have been made
under subitem (1).
4 Special rules relating to outstanding TFN requirements
If:
(a) an individual has been requested,
before 1 July 2000, under section 75 of the Social Security
(Administration) Act 1999, to provide a tax file number in relation to a
claim for, or the receipt of, family benefit; and
(b) the individual has not, before
that date, provided that tax file number; and
(c) as at 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of section 27 of the Family
Assistance Administration Act as amended by this Act:
(d) the Family Assistance
Administration Act as so amended is treated as having been in force when the
requirement to provide that tax file number was made; and
(e) the requirement to provide that
tax file number is taken to have been made, at the time when it was made, under
section 26 of the Family Assistance Administration Act as so amended and
as so in force.
5 Special rules relating to outstanding bank account
requirements
If:
(a) an individual or an approved care
organisation has been requested, before 1 July 2000, under section 55
of the Social Security (Administration) Act 1999 to nominate a bank
account into which family benefit can be paid; and
(b) the individual or organisation has
not, before that date, nominated a bank account; and
(c) as at 1 July 2000, less than 28 days have elapsed since the request to nominate an account;
then, for the purposes of section 27A of the Family
Assistance Administration Act as amended by this Act:
(d) the Family Assistance Administration
Act as so amended is treated as having been in force when the requirement to
nominate a bank account was made; and
(e) the requirement to nominate a bank
account is taken to have been made, at the time when it was made, under section 26A
of the Family Assistance Administration Act as so amended and as so in force.
6 The making of determinations
(1) On, or as soon as practicable after, 1 July
2000, the Secretary will assess the eligibility for family tax benefit by
instalment of each individual, and each approved care organisation, that is
taken to have lodged an effective claim.
(2) If, for the purposes of making a determination
under section 16 of the Family Assistance Administration Act as amended by
this Act in relation to an individual or approved care organisation to which subitem (1)
refers:
(a) the Secretary has, before 1 July 2000, sought from an individual or an approved care organisation any
information necessary for the purposes of making such a determination; and
(b) that information has not been
provided;
the Secretary may make a determination under section 19 of
the Family Assistance Administration Act as so amended to the effect that the
individual or organisation is not entitled to be paid family tax benefit by
instalment for each day while the determination is in force.
(3) For the avoidance of doubt, such a determination
does not prevent an individual or organisation that later provides information
as required by the Secretary from claiming under the Family Assistance
Administration Act as so amended:
(a) family tax benefit by instalment
when that information is so provided; and
(b) family tax benefit for the past
period between 1 July 2000 and the time when a determination of
entitlement to family tax benefit by instalment is made.
7 Directions concerning payments to third parties
If, immediately before 1 July 2000, there was in force a
direction by the Secretary under subsection 44(3) of the Social Security
(Administration) Act 1999 to the effect that the whole or a part of a person’s
family benefit payment be paid to someone else on behalf of the person, that
direction has effect, on and after that date, as if it were a direction to the
same effect given by the Secretary under subsection 23(4) of the Family
Assistance Administration Act as amended by this Act in relation to the payment
of family tax benefit in respect of that person.
8 Instalment periods
(1) If:
(a) an individual or an approved care
organisation was receiving family benefit by way of family allowance or family
tax payment immediately before 1 July 2000; and
(b) that individual or organisation
received, or last received, a payment of that family allowance or family tax
payment in respect of a period commencing less than 14 days before 1 July
2000; and
(c) the Secretary makes a
determination under section 16 of the Family Assistance Administration Act
as amended by this Act in respect of the entitlement of that individual or
organisation to family tax benefit with effect from that day;
then:
(d) the first instalment of family tax
benefit is to be for a period starting on 1 July 2000 and ending 14 days
after the beginning of the last instalment of family benefit; and
(e) instalments of family tax benefit
thereafter, subject to any change that the Secretary may make under subsection
23(3) of the Family Assistance Administration Act as so amended, are to be for
successive periods of 14 days.
(2) If:
(a) an individual was not receiving
family benefit by way of family allowance immediately before 1 July 2000
but was receiving family benefit by way of non‑benefit PP (partnered)
immediately before that date; and
(b) that individual received, or last
received, a payment of that non‑benefit PP (partnered) in respect of a
period commencing less than 14 days before 1 July 2000; and
(c) the Secretary makes a
determination under section 16 of the Family Assistance Administration Act
as amended by this Act in respect of the entitlement of that individual to
family tax benefit with effect from that day;
then:
(d) the first instalment of family tax
benefit is to be for a period starting on 1 July 2000 and ending 14 days
after the beginning of the last instalment of non‑benefit PP (partnered);
and
(e) instalments of family tax benefit
thereafter, subject to any change that the Secretary may make under subsection
23(3) of the Family Assistance Administration Act as so amended, are to be for
successive periods of 14 days.
9 Claims for family benefit that are undetermined as at 1 July 2000
(1) If:
(a) before 1 July 2000, a person lodged a claim for family benefit by way of family allowance or family tax
payment; and
(b) that claim was not determined
before that date; and
(c) the person was, at the time of the
claim, or becomes, before 1 July 2000, qualified for family benefit of
that kind;
the claim is to be determined under the social security law as in
force before 1 July 2000, as if:
(d) the social security law as so in
force had continued in force; and
(e) the claim related only to the
period preceding 1 July 2000.
(2) If:
(a) before 1 July 2000, a person
lodged a claim for family benefit by way of family allowance or family tax
payment in anticipation of becoming qualified for that benefit; and
(b) the claim was not determined by
that date; and
(c) the person does not become
qualified for the relevant family benefit before 1 July 2000;
the claim is to be taken to have lapsed on that date.
(3) If:
(a) before 1 July 2000, a person has lodged a claim for parenting payment; and
(b) the claim has not been determined
before that date; and
(c) the person was, at the time of the
claim, or becomes, before 1 July 2000, qualified for family benefit of
that kind;
then:
(d) the claim is to be determined
under the social security law as in force before 1 July 2000 as if the law
as so in force had continued: and
(e) if parenting payment would be paid
under the law as so in force at the rate applicable for non‑benefit PP
(partnered)—the claim is to be determined as if it related only to the period
preceding 1 July 2000.
(4) If:
(a) before 1 July 2000, a person lodged a claim for parenting payment in anticipation of becoming qualified for
that payment; and
(b) the claim was not determined by
that date; and
(c) the person does not become
qualified for parenting payment before 1 July 2000; and
(d) if the person were to become
qualified for parenting payment on or after that date—it would be parenting
payment in the nature of non‑benefit PP (partnered) and not some other
form of parenting payment;
the claim is to be taken to have lapsed on that date.
10 Certain claims for family benefit will be admitted on or
after 1 July 2000
(1) In this item:
backdated claim period means a period after the
occurrence of a particular event during which a claim for family benefit with
effect from that event will be allowed.
(2) If:
(a) a person did not make a claim for
family benefit before 1 July 2000; and
(b) but for the amendment of the
social security law with effect from 1 July 2000, if the person had made
such a claim after that date, the backdated claim period would have extended
back to the occurrence of a particular event before that date;
then:
(c) the person may make such a claim
on or after 1 July 2000 as if those amendments had not been made; and
(d) the claim can be dealt with in so
far as the backdated claim period would permit a claim in respect of a period
before 1 July 2000.
11 Transfer of claims for maternity allowance or maternity
immunisation allowance from social security law to family assistance law
(1) If:
(a) a person claims maternity
allowance or maternity immunisation allowance under the social security law
before 1 July 2000; and
(b) the claim has not been determined
as at that date;
the claim is to be treated as if it were a claim for MAT or MIA
under Division 3 of Part 3 of the Family Assistance Administration
Act as amended by this Act and not as such a claim for the corresponding
allowance under the Social Security Act 1991.
(2) If a person purports to claim maternity allowance
or maternity immunisation allowance under the social security law on or after 1 July
2000, that claim is to be treated as if it were a claim for MAT or MIA, as the
case requires, under Division 3 of Part 3 of the Family Assistance
Administration Act as amended by this Act and not as such a claim for the
corresponding allowance under the social security law.
(3) A person who has been paid maternity allowance or
maternity immunisation allowance under the social security law in
respect of a particular child cannot claim MAT or MIA for the same child under
Division 3 of Part 3 of the Family Assistance Administration Act as
amended by this Act.
12 Applications for family benefit, maternity allowance or
maternity immunisation allowance made after 1 July 2000 on behalf of another person
(1) If:
(a) an amount of family benefit is
payable to a person; and
(b) the person dies before receiving
that amount; and
(c) another person applies, on or
after 1 July 2000, to receive the amount; and
(d) the application is made:
(i) within 26 weeks after
the first person’s death; or
(ii) within such further
period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the
Secretary’s opinion, is best entitled to it.
(2) If:
(a) an amount of maternity allowance
or maternity immunisation allowance claimed under the social security law is
payable to a person in respect of a particular child; and
(b) the person dies before receiving
that amount; and
(c) another person applies, on or
after 1 July 2000, to receive the amount; and
(d) the application is made:
(i) within 26 weeks after
the first person’s death; or
(ii) within such further
period as is allowed by the Secretary in the special circumstances of the case;
the Secretary may pay the amount to the person who, in the
Secretary’s opinion, is best entitled to it.
(3) If the Secretary pays an amount under subitem (1)
in respect of family benefit of a particular kind claimed under the social
security law, the Commonwealth has no further liability to any person in
respect of family benefit of that kind under the social security law or in
respect of any family benefit of a like kind under the family assistance law.
(4) If the Secretary pays an amount under subitem (2)
in respect of a particular child, the Commonwealth has no further liability to
any person in respect of maternity allowance or maternity immunisation
allowance under the social security law, or in respect of MAT or MIA under the
family assistance law, in respect of that child.
(5) For the purpose of Part 5 of the Family
Assistance Administration Act, a decision of the Secretary under subitem (1)
or (2) has effect as if it were a decision of an officer under the family
assistance law.
13 Claims for advance payment under Social Security Law
(1) If:
(a) an individual had, under section 864A
of the Social Security Act 1991 as in force before 1 July 2000,
requested a family allowance advance in respect of an advance period, within
the meaning of that Act, that ended before 1 July 2000, and all subsequent
advance periods; and
(b) that request had been granted;
the grant has effect, in relation to the advance period
commencing on 1 July 2000 and all subsequent advance periods as if:
(c) it were a grant made under section 33
of the Family Assistance Administration Act as amended by this Act; and
(d) it related not to qualification
for family allowance advance but rather to an entitlement to family tax benefit
advance in relation to the individual’s family tax benefit as determined by the
Secretary in accordance with item 6.
(2) For the avoidance of doubt, an individual who is
treated, by virtue of the operation of subitem (1), as having made and
been granted a request under section 33 of the Family Assistance
Administration Act as amended by this Act, may on 1 July 2000, or at any
time after that date, withdraw the request in so far as it is treated as
relating to standard advance periods within the meaning of that Act as so
amended for which the individual has not been paid a family tax benefit
advance.
14 Saving provision relating to information collection
If:
(a) family benefit, or maternity
allowance or maternity immunisation allowance claimed under the social security
law, is payable to a person; and
(b) the Secretary decides, on or after
1 July 2000, to seek further information in relation to the benefit or
allowance;
the Secretary may, under Division 1 of Part 5 of the Social
Security (Administration) Act 1999, require the provision of information
concerning that benefit or allowance, or concerning the person to whom it is
payable, as if that benefit or allowance had continued, on and after 1 July
2000, to be a social security payment as defined for the purposes of the Social
Security (Administration) Act 1999.
15 Portability
(1) If:
(a) immediately before 1 July 2000, an individual
(i) is receiving family
benefit in the nature of family allowance in respect of another individual; or
(ii) is receiving family
benefit in the nature of parenting payment because the individual has a PP child;
and
(b) the person in respect of whom, or
because of whom, that benefit is received (the child) is absent
from Australia immediately before that date because:
(i) having left Australia,
the child has not returned before that date; or
(ii) having been born
outside Australia, the child has not subsequently come to Australia before that
date;
the child is not, if that absence extends for a period of 3 years
beginning on the first day of the absence, an FTB child at any time after the
period of 3 years ends.
(2) In determining whether the period of absence of the
child extends for 3 years beginning on the first day of the child’s absence:
(a) any return or coming to Australia
before 1 July 2000 that would have been disregarded under the Social
Security Act 1991 as in force before that date had that Act as so in force
continued unamended after that date is to be disregarded for the purposes of subitem (1);
and
(b) any return or coming to Australia
on or after 1 July 2000 that would have been disregarded under section 24
of the Family Assistance Act as amended by this Act if that section were to
have applied to the person is also to be disregarded for the purposes of that
subitem.
(3) If:
(a) the child referred to in paragraph (1)(b)
is absent from Australia for a continuous period of more than 26 weeks (whether
or not that 26 weeks ends before 1 July 2000); and
(b) an individual having an
entitlement to family tax benefit in respect of the child is not an absent
overseas recipient within the meaning of subsection 62(2) of the Family
Assistance Act as amended by this Act during any part of the child’s absence
from Australia occurring after 26 weeks and after the individual becomes so
entitled;
Schedule 1 to the Family Assistance Act as so amended
applies in relation to that entitlement during that part of the child’s absence
that is referred to in paragraph (b) with the modifications set out in the
table included in subsection 63(4) of that Act as so amended.
(4) If:
(a) the child referred to in paragraph (1)(b)
is absent from Australia for a continuous period of more than 26 weeks (whether
or not that 26 weeks ends before 1 July 2000); and
(b) the child comes to Australia; and
(c) the child leaves Australia less
than 26 weeks after coming to Australia; and
(d) an individual having an
entitlement to family tax benefit in respect of the child is not an absent
overseas recipient within the meaning of subsection 62(2) of the Family
Assistance Act as amended by this Act during any part of the child’s absence from
Australia referred to in paragraph (c) after the individual becomes so
entitled;
Schedule 1 to the Family Assistance Act as so amended
applies in relation to that entitlement during that part of the child’s absence
that is referred to in paragraph (d) from Australia with the modifications
set out in the table included in subsection 63(4) of that Act as so amended.
16 Lump sum bereavement payments for certain persons
receiving non‑benefit PP (partnered) at death of child
(1) If:
(a) a child died less than 4 weeks
before 1 July 2000; and
(b) at the time of the child’s death,
the child was the only PP child of a person; and
(c) under section 512A of the Social
Security Act 1991 as in force immediately before 1 July 2000, if that
section had continued in force after that date, the person would, but for this
item, have qualified to continue to receive that parenting payment for the
period of 4 weeks that starts on the day following the day of the child’s
death;
so much of the parenting payment as would have been payable in
respect of each day in that 4 week period that occurs after 30 June 2000:
(d) continues to be payable as if
section 512A of that Act as so in force had not been repealed but had so
provided; and
(e) is payable as a single lump sum
on, or as soon as practicable after, 1 July 2000.
(2) For the purposes of Part 4 of the Social
Security (Administration) Act 1999, a decision made for the purposes of
section 512A of the Social Security Act 1991 as continued in force
for the purposes of subitem (1) has effect as a decision of an officer
under the social security law.
17 Lump sum bereavement payments for certain persons
receiving family tax payment at death of child
(1) If:
(a) a child died less than 4 weeks
before 1 July 2000; and
(b) at the time of the child’s death,
a person was receiving family tax payment in respect of that child or of
children including that child; and
(c) under section 900AZZC of the Social
Security Act 1991 as in force before 1 July 2000, if that section had
continued in force after that date, the person would, but for this item, have
qualified to continue to receive family tax payment for the period of 4 weeks
that starts on the day following the day of the child’s death at the rate that
would have been applicable if the child had not died;
so much only of the amount of family tax payment that would have
been payable in respect of each day in that 4 week period that occurs after 30 June
2000 and that is attributable to that child:
(d) continues to be payable to the person
as if section 900AZZC of that Act as so in force had not been repealed but
had so provided; and
(e) is payable as a single lump sum
on, or as soon as practicable after, 1 July 2000.
(2) For the purposes of Part 4 of the Social
Security (Administration) Act 1999, a decision made for the purposes of
section 900AZZC of the Social Security Act 1991 as continued in
force for the purposes of subitem (1) has effect as a decision of an
officer under the social security law.
18 Lump sum bereavement payments for certain persons
receiving family allowance at death of child
(1) If:
(a) a child died before 1 July 2000; and
(b) at the time of the child’s death a
person was receiving family allowance in respect of that child or of children
including that child; and
(c) under Subdivision A or B of
Division 10 of Part 2.17 of the Social Security Act 1991 as in
force before 1 July 2000, if those Subdivisions had continued in force
after that date, the person would, but for this item, have qualified to
continue to receive family allowance for a period (the bereavement period)
that starts on the day following the day of the child’s death at the rate that
would have been applicable if the child had not died;
so much only of the amount of family allowance that would have
been payable in respect of each day of the bereavement period that occurs after
30 June 2000 and that is attributable to that child:
(d) continues to be payable to the
person as if that Subdivision of that Act as so in force had not been repealed
but had so provided; and
(e) is payable as a single lump sum
on, or as soon as practicable after, 1 July 2000.
(2) For the purposes of Part 4 of the Social
Security (Administration) Act 1999, a decision under Subdivision A or B of
Division 10 of Part 2.17 of the Social Security Act 1991 as
continued in force for the purposes of subitem (1) has effect as a
decision of an officer under the social security law.
19 Set‑offs
(1) If:
(a) a child dies before 1 July 2000; and
(b) before the Secretary learns of the
death of the child, an individual has begun to receive family tax benefit in
respect of the child in accordance with a determination under section 16
of the Family Assistance Administration Act as amended by this Act in respect
of any period after 30 June 2000;
the Secretary must, as soon as practicable after learning of the
child’s death, review that determination in accordance with section 104 of
the Family Assistance Administration Act as so amended.
(2) If the person continued to receive non‑benefit
PP (partnered) after 30 June 2000 in respect of the deceased child—the
Secretary can set off the amount of any single lump sum due by the Commonwealth
under item 16 against any debt arising on a review of family tax benefit
conducted in accordance with subitem (1).
(3) If the person continued to receive family tax
payment after 30 June 2000 and the rate of the payment was attributable,
in whole or in part, to the deceased child—the Secretary can set off the amount
of any single lump sum due by the Commonwealth under item 17 against any
debt arising on a review of family tax benefit conducted in accordance with subitem (1).
(4) If the person continued to receive family allowance
after 30 June 2000 and the rate of the allowance was attributable, in
whole or in part, to the deceased child—the Secretary can set off the amount of
any single lump sum due by the Commonwealth under item 18 against any debt
arising on a review of family tax benefit conducted in accordance with subitem (1).
20 Bereavement payments in
relation to the death of a recipient
(1) Despite the repeal of section 513A of the Social
Security Act 1991 as in force before 1 July 2000, that section is
taken to continue in force, on and after that date, so as to facilitate any
claim by the partner of a person qualified for parenting payment in respect of
a child who has died, for a period of 13 weeks after the death of that child.
(2) For the purposes of subitem (1), section 513A
of the Social Security Act 1991 as so continued in force has effect as
if the reference in the section to the amount of parenting payment that would
have been payable includes a reference to any lump sum that would have been
payable because of the operation of item 16.
(3) Despite the repeal of section 900 of the Social
Security Act 1991 as in force before 1 July 2000, that section is
taken to continue in force, on and after that date, so as to facilitate any
claim by the partner of a person qualified for family allowance in respect of a
child who has died, for a period of 13 weeks after the death of that child.
(4) For the purposes of subitem (3), section 900
of the Social Security Act 1991 as so continued in force has effect as
if the reference:
(a) in subsection (1) of that
section to the sum of the amounts referred to in paragraphs (f), (g) and
(h) of that subsection; and
(b) in subsection (2) of that
section to the sum of the amounts referred to in paragraphs (e), (f) and
(g) of that subsection;
each includes a reference to any lump sum that would have been
payable because of the operation of item 18.
(5) For the purposes of Part 4 of the Social
Security (Administration) Act 1999, a decision made for the purposes of
section 513A, or section 900, of the Social Security Act 1991
as continued in force for the purposes of this item has effect as if it were a
decision of an officer under the social security law.
21 Provision of TFNs in certain circumstances under Social
Security Act 1991 taken to be provision under Family Assistance
Administration Act
If the tax file number of an individual has been
provided to the Secretary:
(a) by the individual; or
(b) by the partner of the individual;
or
(c) by the Commissioner of Taxation on
the authority of the individual;
under a provision of the Social Security Act 1991 for a
purpose related to a claim for, or to entitlement to, family allowance, family
tax payment or parenting payment in the nature of non‑benefit PP
(partnered), that tax file number is taken, for the purposes of subsection
154A(1) of the Family Assistance Administration Act as amended by this Act, to
have been so provided under a provision of that Act as so amended for the
purposes of that Act as so amended.
22 Saving provision—Part A rate of family tax benefit for
families with children not subject to family allowance income test
(1) This item applies to an individual who, immediately
before 1 July 2000:
(a) was receiving family allowance
under the Social Security Act 1991 in respect of a child; and
(b) by virtue of the operation of
subclause 52(2) or 53(2) of Schedule 1A to that Act—did not have to
satisfy the requirements of paragraph 838(1)(c) of that Act in order to be
qualified for family allowance for that child; and
(c) was also receiving either carer
allowance or double orphan pension under that Act in respect of that child.
(2) If, on or after 1 July 2000, an individual to
whom this item applies has at least one FTB child in relation to whom the
individual continues to receive either carer allowance or double orphan pension
under the Social Security Act 1991, the Part A rate of family tax
benefit payable under the Family Assistance Act as amended by this Act to the
individual from time to time on or after that date is a rate equal to:
(a) unless paragraph (b)
applies—the Part A rate of family tax benefit that would be payable to the
individual under that Act as so amended; or
(b) if the rate referred to in paragraph (a)
is less than the rate (the saved rate) that would have been the
individual’s minimum family allowance rate under the Social Security Act
1991 immediately before 1 July 2000 if that rate were worked out
having regard only to those FTB children of the individual in respect of whom
the individual continues to receive either carer allowance or double orphan
pension under that Act—the saved rate.
(3) If, at any time, an individual begins to receive a
Part A rate of family tax benefit calculated in accordance with paragraph (2)(a),
the person ceases, with effect from that time, to have any entitlement, at any
time thereafter, to a Part A rate of family tax benefit at the saved rate.
Schedule 6
1 Definitions
In this Schedule, unless the contrary intention appears:
approved child care service has the meaning given
in subsection 3(1) of the Family Assistance Administration Act.
childcare assistance means fee reductions made in
respect of care provided before:
(a) 1 July 2000; or
(b) on or after 1 July 2000, as provided for in this Schedule;
in compliance with:
(c) the fee relief guidelines; or
(d) a Commonwealth program,
administered by the Commonwealth Department of Family and Community
Services or the Commonwealth Services Delivery Agency, that provided for fee
reductions, generally known as “childcare assistance” or “fee relief”.
childcare assistance agreement means an agreement,
to which the Commonwealth is a party:
(a) entered into under section 20
of the Child Care Act 1972; or
(b) any other agreement, not being an
agreement entered into under that Act;
that is made to provide grants to reimburse the costs of fee
reductions.
childcare assistance scheme means the Commonwealth
program under which childcare assistance is paid.
child care rebate means child care rebate payable
under the Childcare Rebate Act 1993.
data collection form means a written request to an
individual from the Secretary for information relating to matters associated
with the establishment of a scheme for payment of child care benefit.
family allowance means family allowance payable
under the Social Security Act 1991.
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 assistance law has the same meaning as in
subsection 3(1) of the Family Assistance Administration Act.
fee relief guidelines means the Childcare
Assistance (Fee Relief) Guidelines made under section 12A of the Child
Care Act 1972 as in force on 30 June 2000.
Secretary, in relation to an act or thing done, or
a decision or determination made, under particular legislation, means the
Secretary of the Department administered by the Minister administering that
legislation.
2 Special rules relating to individual entitled to childcare
assistance before 1 July 2000
(1) If, before 1 July 2000:
(a) a decision has been made in
respect of an individual and a child with the effect that the individual is
entitled to childcare assistance in respect of the child; and
(b) the individual has returned a
completed data collection form to the Secretary by the date specified in the
form;
then:
(c) section 42 of the Family
Assistance Act as amended by this Act and in force on 1 July 2000, is
treated as being in force when the completed data collection form was returned;
and
(d) the individual is taken to be
conditionally eligible under that section, as so in force, at the time that the
form was returned.
(2) If:
(a) determinations of conditional
eligibility, CCB %, a weekly limit of hours and schooling %, would, apart from
this subitem, come into force on 1 July 2000 in respect of the individual
and the child; and
(b) the individual has not remained
entitled to childcare assistance in respect of the child for the period
commencing on the day the data collection form is returned to the Secretary and
ending on 30 June 2000;
the determinations do not come into force on 1 July 2000.
Note: Determinations of conditional eligibility, a
weekly limit of hours, CCB % and schooling % are made under sections 50F,
50H, 50J and 50K respectively of the Family Assistance Administration Act as
amended by this Act and in force on 1 July 2000.
(3) If:
(a) a requirement has been imposed
before 1 July 2000 under the childcare assistance scheme in respect of the
child of the individual; and
(b) the requirement is that the child
comply with the immunisation requirement; and
(c) the child does not meet the
requirement by 1 July 2000; and
(d) immediately before 1 July 2000, less than 63 days have elapsed since the requirement was imposed;
then, for the purposes of the Family Assistance
Administration Act as amended by this Act and the Family Assistance Act as so
amended:
(e) section 57E of the Family
Assistance Administration Act as so amended, and paragraph 42(1)(c) of the
Family Assistance Act as so amended, are treated as having been in force when
the requirement was imposed; and
(f) the requirement is taken to have
been imposed, at the time when it was imposed, under section 57E of the
Family Assistance Administration Act as so amended and as so in force; and
(g) the requirement is taken to have
been imposed, at the time when it was imposed, for the purposes of paragraph
42(1)(c) of the Family Assistance Act as so amended and as so in force.
(4) If, immediately before 1 July 2000, the child is meeting the immunisation requirements set out in the childcare assistance scheme,
then, on 1 July 2000, the child is taken to meet the immunisation
requirements in section 6 of the Family Assistance Act, as amended by this
Act and in force on that day.
3 Special rules if individual
claiming child care rebate and receiving family allowance returns data
collection form
(1) If:
(a) an individual makes a claim for
childcare rebate in respect of a child within the period commencing on 1 January
1998 and ending on 30 June 2000; and
(b) immediately before 1 July 2000, the individual is receiving family allowance in respect of the child;
and
(c) the individual returns a completed
data collection form to the Secretary by the date specified in the form;
then, for the purposes of the Family Assistance
Administration Act as amended by this Act and the Family Assistance Act as so
amended:
(d) paragraph 49B(a) of the Family
Assistance Administration Act, as so amended is treated as being in force when
the completed data collection form is returned; and
(e) the individual is taken to have made
an effective claim under that paragraph, as so in force, at the time that the
form was returned.
(2) If, immediately before 1 July 2000, the child
is meeting the immunisation requirements set out in the Childcare Rebate Act
1993, then, on I July 2000, the child is taken to meet the immunisation
requirements in section 6 of the Family Assistance Act as amended by this
Act and in force on that day.
4 Individuals may make a claim for child care benefit by fee
reduction before 1 July 2000
If an individual makes a claim for child care benefit by fee
reduction before 1 July 2000, then, for the purposes of the Family
Assistance Administration Act as amended by this Act and the Family Assistance
Act as so amended:
(a) paragraph 49B(a) of the Family
Assistance Administration Act, as so amended is treated as being in force when
the claim is made; and
(b) the claim is taken to have been
made, at the time that it was made, under that paragraph of that Act as so
amended and in force.
5 Minimum CCB % if individual objects to use of tax file
number given previously
(1) This item applies to an individual referred to in
subitems 2(1) and 3(1).
(2) If:
(a) the tax file number of an
individual to which this item applies has been provided to the Secretary:
(i) by the individual; or
(ii) by the partner of the
individual; or
(iii) by the Commissioner of
Taxation on the authority of the individual;
under:
(iv) a provision of the Social
Security Act 1991 for a purpose related to a claim for, or entitlement to,
family allowance; or
(v) the childcare
assistance scheme for a purpose related to a claim for, or entitlement to,
childcare assistance; and
(b) the individual returns to the
Secretary a completed data collection form by the date specified in the form;
and
(c) in that form, the individual
objects to the use of the tax file number previously provided to the Secretary;
a determination of CCB % under section 50J of the Family
Assistance Administration Act as amended by this Act and that would come into
force on 1 July 2000 in respect of the individual, is to be calculated
under Schedule 2 to the Family Assistance Act using the minimum taxable
income % as the taxable income %.
6 Special rules relating to status of a child
(1) If:
(a) immediately before 1 July 2000, a decision is in force under the childcare assistance scheme that a
child is taken to be a dependent child; and
(b) either:
(i) under item 2, an
individual is taken to be conditionally eligible for child care benefit by fee
reduction in respect of the child; or
(ii) under item 3, an
individual is taken to have made an effective claim for child care benefit by
fee reduction in respect of the child; or
(iii) under item 4, an
individual makes a claim for child care benefit by fee reduction in respect of
the child;
then, for the purposes of the Family Assistance Administration
Act as amended by this Act and the Family Assistance Act as so amended:
(c) the Family Assistance Act as so
amended is treated as having been in force when the decision under paragraph (a)
was made; and
(d) the decision that the child is
taken to be a dependent child is taken to have been a determination that the
child is an FTB child of the individual made, at the time referred to in subitem (2),
under subsection 42(2) of the Family Assistance Act as so amended and in force.
(2) The determination referred to in paragraph (1)(d)
is taken to have been made on:
(a) in the case of subparagraph (b)(i)—the
day the individual is taken to be conditionally eligible immediately before the
time the individual is taken to be so conditionally eligible; and
(b) in the case of subparagraph (b)(ii)—the
day the effective claim is taken to have been made; and
(c) in the case of subparagraph (b)(iii)—the
day the claim is made.
7 Special rules relating to residence
(1) If:
(a) immediately before 1 July
2000, a decision is in force under the childcare assistance scheme that an
individual is taken to be a resident for childcare assistance purposes with
effect that the individual is a resident on 1 July 2000; and
(b) either:
(i) under item 2, the
individual is taken to be conditionally eligible for child care benefit by fee
reduction; or
(ii) under item 3, the
individual is taken to have made an effective claim for child care benefit by
fee reduction; or
(iii) under item 4, an
individual makes a claim for child care benefit by fee reduction;
then, for the purposes of the Family Assistance Administration
Act as amended by this Act and the Family Assistance Act as so amended:
(c) the Family Assistance Act as so
amended is treated as having been in force when the decision under paragraph (a)
was made; and
(d) the decision that the individual
is a resident is taken to have been a determination made, at the time referred
to in subitem (2), under section 8 of the Family Assistance Act as so
amended and in force.
(2) The determination is taken to have been made on:
(a) in the case of subparagraph (b)(i)—the
day the individual is taken to be conditionally eligible, immediately before
the time the individual is taken to be so conditionally eligible; and
(b) in the case of subparagraph (b)(ii)—the
day the effective claim is taken to have been made; and
(c) in the case of subparagraph (b)(iii)—the
day the claim is made.
8 Special rules relating to tax file numbers provided for
another purpose
If:
(a) the tax file number of an
individual has been provided to the Secretary:
(i) by the individual; or
(ii) by the partner of the
individual; or
(iii) by the Commissioner of
Taxation on the authority of the individual;
under:
(iv) a provision of the Social
Security Act 1991 for a purpose related to a claim for, or entitlement to,
family allowance; or
(v) the childcare
assistance scheme; and
(b) the individual returns to the
Secretary a completed data collection form by the date specified in the
form; and
(c) in that form, the individual does
not object to the use of the tax file number previously so provided to the
Secretary;
that tax file number is taken to have been provided for the
purposes of section 50B of the Family Assistance Administration Act, as
amended by this Act and in force on 1 July 2000.
9 Special rules relating to TFN requirements
(1) If:
(a) an individual has been requested,
before 1 July 2000, under section 75 of the Social Security
(Administration) Act 1999 or under the childcare assistance scheme, to
provide a tax file number in relation to a claim for, or the receipt of, family
allowance or childcare assistance; and
(b) the individual has not, before
that date, provided that tax file number; and
(c) immediately before 1 July 2000, less than 28 days have elapsed since the request to provide that number;
then, for the purposes of the Family Assistance Administration
Act as amended by this Act and the Family Assistance Act as so amended:
(d) the Family Assistance Act as so
amended is treated as having been in force when the request was made; and
(e) the request is taken to have been
made, at the time when it was made, under section 57B of the Family
Assistance Act as so amended and in force.
(2) If, under a decision made under the childcare
assistance scheme, an individual has been exempted, before 1 July 2000, from having to meet the tax file number requirements of the scheme,
then, for the purposes of the Family Assistance Administration Act, as amended
by this Act:
(a) that Act as so amended is treated
as having been in force when the decision that the individual is exempt was
made; and
(b) the decision is taken to have been
made, at the time the exemption under the childcare assistance scheme was
given, under subsection 57B(6) of that Act as so amended and in force.
10 Special rules relating to
a childcare assistance agreement in force immediately before 1 July 2000
Agreement to which this item relates
(1) This item applies to a childcare assistance
agreement that was in force immediately before 1 July 2000.
Agreement ceases to operate for grants for fee reductions
after 1 July 2000 except in certain circumstances
(2) Except in the limited circumstances set out in subitem (3)
or (4), on and after 1 July 2000, an agreement to which this item applies
does not operate, in respect of a grant to reimburse the costs of fee
reductions, in relation to care provided on or after 1 July 2000.
Matters in respect of which agreement continues to operate
(3) An agreement to which this item applies does
operate, in respect of a grant to reimburse the costs of fee reductions, in
relation to a session of care that started before 1 July 2000 and continued on that date.
Note 1: Item 17 continues access to fee reductions
under the childcare assistance scheme for care provided during a session of
care that started immediately before 1 July 200 and continued on that
date.
Note 2: In respect of care provided on 1 July 2000, this provision continues the agreement and, in particular, continues the
obligations and responsibilities imposed under the agreement, in relation to
that care.
(4) An agreement to which this item applies does
operate, in respect of a grant to reimburse the costs of fee reductions, in
relation to care provided on or after 1 July 2000, if the care is provided
by an outside school hours care service during the period of a school vacation
that starts before 1 July 2000 and continues on and after that day.
Note 1: Item 18 continues access to fee reductions
under the childcare assistance scheme for vacation care provided on and after 1 July 2000 if the vacation started before 1 July 2000.
Note 2: In respect of care provided on and after 1 July 2000, this provision continues the agreement and, in particular, continues the
obligations and responsibilities imposed under the agreement, in relation to
that care.
(5) On and after 1 July 2000, an agreement to
which this item applies does operate, in respect of a grant to reimburse the
costs of fee reductions, in relation to care provided before 1 July 2000.
Note: In respect of care provided before 1 July 2000, this provision continues the agreement and, in particular, continues the
obligations and responsibilities imposed under the agreement, in relation to
that care.
(6) On and after 1 July 2000, an agreement to
which this item applies operates for the purposes of other grants (if any)
provided for in the agreement.
Commonwealth under no obligation to make further grants
under agreement
(7) The operation of an agreement to which this item
applies is limited in that the Commonwealth is under no obligation, on or after
1 July 2000, to make any further grants under the agreement to reimburse
the costs of fee reductions.
Child Care Act, guidelines etc. to be treated as in force
(8) For the purposes of an agreement to which this item
applies in so far as it relates to a grant to reimburse the costs of fee
reductions, in relation to care provided as mentioned in subitems (3), (4)
and (5):
(a) on and after 1 July 2000, the
Child Care Act 1972 is treated as being in force as if the amendments
made by Schedule 3 to the A New Tax System (Family Assistance)
(Consequential and Related Measures) Act (No. 1) 1999 had not been
made; and
(b) if:
(i) a handbook, guidelines
or other document that relates to fee reductions created by a
Commonwealth Department with the responsibility for administering the agreement
is referred to in the agreement; and
(ii) the handbook,
guidelines or other document operates on 30 June 2000;
the handbook, guidelines or
other document is treated as operating on and after 1 July 2000.
11 Childcare assistance
agreement services to become approved child care services under section 195
of the Family Assistance Administration Act
Long day care services
(1) If:
(a) a childcare assistance agreement
is in force in respect of a long day care service immediately before 1 July 2000; and
(b) the service is not, immediately
before 1 July 2000, subject to a suspension under paragraph 4E(1)(d) of
the Child Care Act 1972;
the service is treated as being an approved centre based long day
care service under section 195 of the Family Assistance Administration Act
as amended by this Act with effect from 1 July 2000.
Family day care services
(2) If a childcare assistance agreement is in force in
respect of a family day care service immediately before 1 July 2000, the service is treated as being an approved family day care service under section 195
of the Family Assistance Administration Act as amended by this Act with effect
from 1 July 2000.
Occasional care services
(3) If a childcare assistance agreement is in force in
respect of an occasional care service immediately before 1 July 2000, the service is treated as being an approved occasional care service under section 195
of the Family Assistance Administration Act as amended by this Act with effect
from 1 July 2000.
Outside school hours care services
(4) If a childcare assistance agreement is in force in
respect of an outside school hours care service immediately before 1 July
2000, the service is treated as being an approved outside school hours care
service under section 195 of the Family Assistance Administration Act as
amended by this Act with effect from 1 July 2000.
Requirement of subsection 195(3) of the Family Assistance
Administration Act need not be complied with
(5) For an approved child care service referred to in subitems (1)
to (4) (inclusive), the Secretary does not have to comply with the requirement
in subsection 195(3) of the Family Assistance Administration Act as amended by
this Act to give a certificate in respect of the service.
If long day care services subject to a sanction (other
than suspension) on 30 June 2000, sanction carries over to child care
benefit scheme
(6) If a long day care service is, immediately before 1 July 2000, subject to a sanction, other than suspension, under section 4E of
the Child Care Act 1972, the service is treated, on and after 1 July 2000, as being subject to the sanction under section 200 of the Family
Assistance Administration Act as amended by this Act .
12 Special condition of continuing approval of approved
child care services referred to in item 11
If:
(a) a service is treated, under item 11,
as an approved child care service; and
(b) item 10 applies to an agreement
in respect of the service;
it is a condition for the continued approval of the approved
child care service under section 195 of the Family Assistance
Administration Act, as amended by this Act and in force on 1 July 2000,
that the service not contravene an obligation imposed on the service under the
agreement in respect of a grant to reimburse the costs of fee reductions, in
relation to care mentioned in subitems 10(3), (4) and (5).
13 Debts under childcare assistance agreements to be
recoverable under the Family Assistance Administration Act
(1) If:
(a) an amount (the debt),
whether described as a debt or not, is to be repaid:
(i) under a childcare
assistance agreement to which item 10 applies; or
(ii) under section 20B
of the Child Care Act 1972 as in force immediately before 1 July
2000 in respect of an advance on account of a grant to reimburse the costs of
fee reductions made for children; and
(b) the debt relates to a grant to
reimburse the costs of fee reductions for care mentioned in subitem (10)(3),
(4) or (5);
the debt, whether it arises before, or on or after, 1 July 2000 is recoverable on or after 1 July 2000 under subsection 82(2) of the
Family Assistance Administration Act as amended by this Act and in force on 1 July 2000.
(2) If the debt has been partially recovered under the
childcare assistance scheme before 1 July 2000, the balance of the debt
may be recovered under subsection 82(2) of the Family Assistance Administration
Act as amended by this Act and in force on and after 1 July 2000.
14 Minister may terminate childcare assistance agreements
(1) If:
(a) a childcare assistance agreement
was in force immediately before 1 July 2000; and
(b) the agreement relates solely to a
grant to reimburse the costs of fee reductions;
the Minister may, on or after 1 July 2000, determine, in writing, that the agreement is ended from a date specified in the
determination.
(2) The determination has effect accordingly.
15 Old sanctions to be taken into account by Secretary when
considering applications under section 194 of the Family Assistance
Administration Act
If:
(a) a person applies under section 194
of the Family Assistance Administration Act as amended by this Act for approval
of a child care service as an approved child care service for the purposes of
the family assistance law; and
(b) the person, when operating a child
care service under the childcare assistance scheme, was subject to sanctions in
respect of the service;
the Secretary may refuse to approve the service under subsection
195(2) of that Act as amended by this Act.
16 Special rules relating to
claims for childcare assistance
Claims for childcare assistance that are undetermined as
at 1 July 2000
(1) If:
(a) a person lodged a claim for
childcare assistance in respect of care provided before 1 July 2000; and
(b) that claim was not determined
before that date;
the claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
Claims lodged after 1 July 2000
(2) Despite the termination of the childcare assistance
scheme on 1 July 2000, a person may lodge a claim for childcare assistance
before 8 July 2000 if the claim relates to care provided no more than 7
days before the claim is lodged. The claim is to be determined after 1 July 2000 under the childcare assistance scheme as in force immediately before 1 July 2000 as if the scheme, as so in force, had continued in force.
17 Special rules relating to sessions of care
If a session of care, within the meaning of the childcare
assistance scheme, provided by a child care service starts before 1 July
2000 and continues on 1 July 2000, a claim for childcare assistance in
respect of the session is to be determined under the childcare assistance
scheme as in force immediately before 1 July 2000 as if the scheme, as so
in force, had continued in force.
18 Special rules relating to vacation care
If a period of vacation care, within the meaning of the childcare
assistance scheme, provided by a child care service starts before 1 July
2000 and continues on and after 1 July 2000, a claim for childcare
assistance in respect of this care is to be determined under the childcare
assistance scheme as in force immediately before 1 July 2000 as if the
scheme, as so in force, had continued in force.
19 Special rules relating to
registered carers under section 49 of the Childcare Rebate Act
Most registered carers to be treated as registered carers
under the child care benefits scheme
(1) If:
(a) an individual was a
registered carer under section 49 of the Childcare Rebate Act 1993 immediately
before 1 July 2000; and
(b) the individual did not do any of
the following things immediately before 1 July 2000:
(i) operate a child care
service that was the subject of a childcare assistance agreement;
(ii) operate a child care
service that was receiving financial assistance from the Commonwealth in
connection with its operational costs, where the provision of that assistance
is administered by the Commonwealth Department of Family and Community
Services;
(iii) provide child care
under a contract with a family day care service that was the subject of a
childcare assistance agreement;
the individual is to be treated as being approved as a registered
carer under section 210 of the Family Assistance Administration Act, as
amended by this Act and in force on 1 July 2000, with effect from that
date.
Applications for registration as a carer under section 49
of the Childcare Rebate Act that are undetermined as at 1 July 2000
(2) If:
(a) a person or body lodged an
application for registration as a carer under section 49 of the Childcare
Rebate Act 1993 before 1 July 2000; and
(b) that application was not
determined before that date;
then:
(c) the application is to be
determined under the Childcare Rebate Act 1993 as in force before 1 July
2000 as if that Act, as so in force, had continued in force; and
(d) if the registration (if any)
relates to a person who is not an individual, the registration remains in force
only in relation to care provided before 1 July 2000, or on or after 1 July
2000 as mentioned in subitems 20(3) and (4); and
(e) for the purposes of subitem (1),
if the registration (if any) relates to a person who is an individual, the individual
is to be treated as being a registered carer before 1 July 2000.
Applications for registration as a carer under section 49
of the Childcare Rebate Act lodged after 1 July 2000
(3) Despite the repeal of the Childcare Rebate Act
1993 on 1 July 2000, a person or body may apply, on or after 1 July
2000 and before 1 January 2001, for registration as a carer under section 49
of that Act if the application relates to care provided as mentioned in subitem
20(2), (3) or (4). The application is to be determined under the Childcare
Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in
force, had continued in force.
20 Special rules relating to claims for child care rebate
Claims for child care rebate that are undetermined as at 1 July 2000
(1) If:
(a) a person lodged a claim for child
care rebate before 1 July 2000; and
(b) that claim was not determined
before that date;
the claim is to be determined under the Childcare Rebate Act
1993 as in force before 1 July 2000 as if the Act, as so in force, had
continued in force.
Claims for child care rebate made after 1 July 2000 for care provided before 1 July 2000
(2) Despite the repeal of the Childcare Rebate Act
1993 on 1 July 2000, a person may lodge a claim for child care
rebate on or after 1 July 2000 and before 1 January 2001 if the claim
relates to care provided during a period commencing 2 years before the claim
was lodged and ending on 30 June 2000. The claim is to be determined under
the Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
(3) If a session of care provided by a child care
service starts before 1 July 2000 and continues on 1 July 2000, a
claim for child care rebate in respect of the session is to be determined under
the Childcare Rebate Act 1993 as in force immediately before 1 July
2000 as if the Act, as so in force, had continued in force.
(4) If a period of vacation care provided by an outside
school hours care service starts before 1 July 2000 and continues on and after
1 July 2000, a claim for child care rebate in respect of this care is to
be determined under the Childcare Rebate Act 1993 as in force
immediately before 1 July 2000 as if the Act, as so in force, had
continued in force.
21 Special rules relating to registration of families
Applications for registration of a family under section 19
of the Childcare Rebate Act that are undetermined as at 1 July 2000
(1) If:
(a) an individual lodged an
application for registration of a family under section 19 of the Childcare
Rebate Act 1993 before 1 July 2000; and
(b) that application was not
determined before that date;
the application is to be determined under the Childcare Rebate
Act 1993, as in force before 1 July 2000, as if that Act, as so
in force, had continued in force.
Applications for registration of a family under section 19
of the Childcare Rebate Act lodged after 1 July 2000
(2) Despite the repeal of the Childcare Rebate Act
1993 on 1 July 2000, an individual may apply, on or after 1 July
2000 and before 1 January 2001, for a family to be registered under
section 19 of that Act if the application relates to care provided as
mentioned in subitem 20(2), (3) or (4). The application is to be determined
under the Childcare Rebate Act 1993 as in force before 1 July 2000 as if the Act, as so in force, had continued in force.
22 Health Insurance Commission’s functions and powers in
relation to child care rebate to continue for certain matters
(1) The Health Insurance Commission must deal with the
following matters:
(a) applications referred to in item 19;
(b) claims referred to in item 20;
(c) applications referred to in item 21;
(d) matters arising in respect of
those applications and claims (for example, applications for review);
under the Health Insurance Commission Act 1973 and the Childcare
Rebate Act 1993 as if the following amendments to those Acts had not
occurred:
(e) the amendments of the Health
Insurance Commission Act 1973 by Schedule 8 to the A New Tax System
(Family Assistance) (Consequential and Related Measures) Act (No 2) 1999;
(f) the repeal of the Childcare
Rebate Act 1993.
(2) In respect of the Commission’s powers under subitem (1),
the Commission may, under subsection 55(3) of the Childcare Rebate Act 1993 as
continued in force, extend the period in which an application may be
made for reconsideration of a decision listed in section 53 of that Act,
but only until 30 June 2001.
23 Other transitional matters may be provided for in
regulations
The Governor‑General may make regulations, not inconsistent
with this Schedule, the Family Assistance Administration Act and the Family
Assistance Act prescribing other transitional matters, apart from transitional
matters provided for in this Schedule, that are necessary or convenient for
carrying out or giving effect to the introduction of child care benefit under
the family assistance law.
Family and Community
Services Legislation Amendment (Application of Criminal Code) Act 2001 (No. 137, 2001)
4
Application of amendments
(1) Each amendment made by this Act applies
to acts and omissions that take place after the amendment commences.
(2) For the purposes of this section, if an
act or omission is alleged to have taken place between 2 dates, one before and
one on or after the day on which a particular amendment commences, the act or
omission is alleged to have taken place before the amendment commences.
Tax Laws Amendment
(Improvements to Self Assessment) Act (No. 2) 2005 (No. 161, 2005)
Schedule 1
61 Application
The amendment made by item 60 applies in relation to
assessments for the 2004‑05 year of income and later years of income.
Child Support
Legislation Amendment (Reform of the Child Support Scheme—Initial Measures) Act
2006 (No. 53, 2006)
4
Extension of amended Child Support Acts to Western Australia in relation to
exnuptial children
(1) The Parliament of the Commonwealth
intends that a Child Support Act, so far as it is amended by this Act and any
other later Act 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 the Child
Support Act, as so amended.
(2) The Parliament of the Commonwealth also
intends that, unless and until one of those events occurs, the Child Support
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 a Child Support Act is amended by this Act
and any other later Act in relation to the maintenance of exnuptial children,
unless and until one of the events mentioned in subsection (1) occurs, there
are effectively 2 versions of the Child Support Act that apply in Australia.
The Child Support 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.
The Child Support Act continues to apply
in Western Australia in relation to exnuptial children as if those amendments
had not been made.
(3) In this section:
Child Support Act means:
(a) the Child Support (Registration
and Collection) Act 1988; or
(b) the Child Support (Assessment)
Act 1989.
Schedule 1
11 Application
The amendments made by this Schedule apply in relation to a day
in a child support period, being a day that is, or is after, the day on which this
Schedule commences.
Schedule 2
13 Application
(1) The amendments made by this Schedule (other than
item 12) apply in relation to a day in a child support period, being a day
that is, or is after, the day on which Part 1 of this Schedule commences.
(2) The amendment made by item 12 of this Schedule
applies in relation to a day in a child support period, being a day that is, or
is after, the later of the following days:
(a) the day on which Part 1 of
this Schedule commences;
(b) the day on which item 12 of
this Schedule commences.
Schedule 3
18 Application
The amendments made by this Schedule apply in relation to:
(a) decisions made by the Registrar
under Division 2 of Part 6A on or after the day on which this
Schedule commences; and
(b) determinations made by the
Registrar under Division 3 of Part 6A on or after the day on which
this Schedule commences; and
(c) decisions made by the Registrar
under Division 5 of Part 6A on or after the day on which this
Schedule commences; and
(d) decisions made by a court under
Division 4 or 5 of Part 7 on or after the day on which this Schedule
commences.
Schedule 5
18 Definition of Child Support Act
In this Part:
Child Support Act means:
(a) the Child Support (Registration
and Collection) Act 1988; or
(b) the Child Support (Assessment)
Act 1989.
19 Extension of amended Child Support Acts to Western
Australia in relation to exnuptial children
(1) The Parliament of the Commonwealth intends, and is
taken always to have intended, that a Child Support Act, so far as it was
amended, before the commencement of this item, by one or more of the Acts
mentioned in subitem (3) in relation to the maintenance of exnuptial
children, not extend to Western Australia, unless and until Western Australia
adopted or adopts the Child Support Act, as so amended.
(2) The Parliament of the Commonwealth intends, and is
taken always to have intended, that:
(a) unless and until that occurred,
the Child Support Act continued to extend to Western Australia; or
(b) unless and until that occurs, the
Child Support Act continues to extend to Western Australia;
in relation to the maintenance of exnuptial children as if those
amendments had not been made.
Note: If a Child Support Act is amended in relation
to the maintenance of exnuptial children, unless and until Western Australia
adopts the Child Support Act, as amended, there are effectively 2 versions of
the Child Support Act that apply in Australia. The Child Support 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.
The Child Support Act continues to apply in
Western Australia in relation to exnuptial children as if those amendments
had not been made.
(3) The following Acts amended one or both Child
Support Acts:
(a) the Child Support Amendment Act
1988;
(b) the Social Security and
Veterans’ Affairs Legislation Amendment Act (No. 3) 1989;
(c) the Child Support Legislation
Amendment Act 1990;
(d) the Taxation Laws Amendment Act
(No. 3) 1991;
(e) the Child Support Legislation
Amendment Act 1992;
(f) the Child Support Legislation
Amendment Act (No. 2) 1992;
(g) the Corporate Law Reform Act
1992;
(h) the Insolvency (Tax Priorities)
Legislation Amendment Act 1993;
(i) the Child Support Legislation
Amendment Act 1995;
(j) the Social Security
Legislation Amendment (Family Measures) Act 1995;
(k) the Family Law Reform
(Consequential Amendments) Act 1995;
(l) the Taxation Laws Amendment
Act (No. 3) 1995;
(m) the Statute Law Revision Act
1996;
(n) the Commonwealth Services
Delivery Agency (Consequential Amendments) Act 1997;
(o) the Income Tax (Consequential
Amendments) Act 1997;
(p) the Child Support Legislation
Amendment Act (No. 1) 1997;
(q) the Audit (Transitional and
Miscellaneous) Amendment Act 1997;
(r) the Social Security
Legislation Amendment (Parenting and Other Measures) Act 1997;
(s) the Taxation Laws Amendment
Act (No. 3) 1998;
(t) the Social Security and
Veterans’ Affairs Legislation Amendment (Budget and Other Measures) Act 1998;
(u) the Child Support Legislation
Amendment Act 1998;
(v) the Financial Sector Reform
(Amendments and Transitional Provisions) Act (No. 1) 1999;
(w) the A New Tax System (Family
Assistance) (Consequential and Related Measures) Act (No. 2) 1999;
(x) the Public Employment
(Consequential and Transitional) Amendment Act 1999;
(y) the A New Tax System (Tax
Administration) Act 1999;
(z) the Federal Magistrates
(Consequential Amendments) Act 1999;
(za) the A New Tax System (Family
Assistance and Related Measures) Act 2000;
(zb) the Child Support Legislation
Amendment Act 2000;
(zc) the New Business Tax System
(Alienation of Personal Services Income) Act 2000;
(zd) the Family Law Amendment Act 2000;
(ze) the Corporations (Repeals,
Consequentials and Transitionals) Act 2001;
(zf) the Child Support Legislation
Amendment Act 2001;
(zg) the Family and Community
Services Legislation Amendment (Application of Criminal Code) Act 2001;
(zh) the Financial Framework
Legislation Amendment Act 2005;
(zi) the Tax Laws Amendment
(Improvements to Self Assessment) Act (No. 2) 2005;
(zj) the Jurisdiction of Courts
(Family Law) Act 2006;
(zk) the Jurisdiction of the Federal
Magistrates Court Legislation Amendment Act 2006;
(zl) the Financial Framework
Legislation Amendment Act (No. 1) 2006;
(zm) the Family Law Amendment (Shared
Parental Responsibility) Act 2006.
20 Payments and amounts referred to in section 75 of
the Child Support (Registration and Collection) Act 1988
(1) If:
(a) a payment purported to be a
payment or repayment of an amount referred to in section 75 of the Child
Support (Registration and Collection) Act 1988 in relation to the
maintenance of an exnuptial child because of the extension of that Act to
Western Australia; and
(b) the payment was made:
(i) after a Child Support
Act was amended by one or more other Acts in relation to the maintenance of
exnuptial children; and
(ii) before the earlier of
the day on which Western Australia adopted the Child Support Act, as so
amended, or the day on which this item commences;
then the payment may, to the extent that it has not already been
repaid to the Commonwealth before this item commences, be recovered by the
Commonwealth from the person as a debt due to the Commonwealth.
(2) A person to whom a payment referred to in subitem (1)
was made is entitled, on the commencement of this item, to be paid, by the
Commonwealth, an amount equal to the amount of the debt due to it by the person
under subitem (1).
(3) The Consolidated Revenue Fund is appropriated for
the purpose of payments under subitem (2).
(4) The Commonwealth may set‑off the amount of a
debt due to it by a person under subitem (1) against an amount that is
payable to that person under subitem (2).
(5) Despite subitems (1) and (2), in applying
section 79 of the Child Support (Registration and Collection) Act 1988 after
the commencement of this item, any payment referred to in subitem (1) is
to be counted as though it had been validly made under section 76 of that
Act.
Note: A person will therefore be liable to repay to
the Commonwealth the amount of any overpayment of that purported payment to the
person.
(6) This item does not, by implication, affect the
recovery or set‑off of other overpayments purporting to be made under the
Child Support (Registration and Collection) Act 1988.
(7) To avoid doubt, this item applies to a payment
that, because of section 71AA of the Child Support (Registration and
Collection) Act 1988, is taken to have been paid under section 76 of
that Act.
21 Validation of past rights and liabilities
(1) This item applies if, and during the period when,
the rights and liabilities of a person under a Child Support Act were different
from the rights and liabilities that the person would have had under that Act
because:
(a) the Child Support Act was amended,
before the commencement of this item, by one or more of the Acts mentioned in
subitem 19(3) in relation to the maintenance of exnuptial children; and
(b) Western Australia did not adopt
the Child Support Act, as so amended.
(2) During that period, the rights and liabilities of
the person are, by force of this item, declared to be, and always to have been,
the same as if:
(a) the Child Support Act, as so
amended, did not extend to Western Australia; and
(b) the Child Support Act continued to
extend to Western Australia in relation to the maintenance of exnuptial
children as if those amendments had not been made.
Child Support
Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other
Measures) Act 2006 (No. 146, 2006)
Schedule 2
115 Application
(1) The amendments made by Schedule 1 to this Act,
and this Schedule (other than items 1 and 2 and 92 to 96 of this
Schedule), apply in relation to a day in a child support period, being a day
that is, or is after, the day on which this item commences.
(2) The amounts referred to in subsections 65A(2) and
66(5) of the Assessment Act (as inserted by Schedule 1 to this Act) are to
be indexed in accordance with section 153A of that Act on and after 1 January
2007 as if item 1 of Schedule 1 had commenced on that day.
116A Application
The amendments made by items 92 to 96 of this Schedule apply
in relation to a day in a child support period, being a day that is, or is
after, 1 January 2008.
117 Saving assessments etc.
(1) The amendments made by Schedule 1 do not
affect the continuity of:
(a) any administrative assessment, in
force immediately before this item commences, of the annual rate of child
support that is payable by a parent; or
(b) any reduction, that is in force
immediately before this item commences, of an annual rate of child support
payable to nil under section 66A of the Assessment Act; or
(c) any liability that arose under
section 77 of the Assessment Act before this item commences.
(2) For the purposes of the Assessment Act, if an
election made by a person under section 60 of that Act is in force
immediately before this item commences:
(a) the election continues in force
for the remaining days in the child support period, despite the amendments made
by Schedule 1; and
(b) the person is taken to have made
the election for the purposes of assessing the person in respect of the costs
of the child; and
(c) the amount specified in the
relevant notice as the amount the person elects to be his or her child support
income amount is taken to be specified in the notice as his or her adjusted
taxable income; and
(d) the amounts specified as amounts
estimated under steps 2 and 3 of the method statement in subsection 60(5) of
that Act, as in force immediately before this item commences, are taken to be
specified in the notice as the amount estimated under step 2 of the method
statement in subsection 60(5) of that Act, as in force immediately after this
item commences.
(3) For the purposes of the Assessment Act, if the
Registrar has acted on the basis of a determination under section 58 of
that Act that is in force immediately before this item commences:
(a) the determination continues in
force despite the amendments made by Schedule 1; and
(b) a determination of a person’s
supplementary amount for a year of income is taken to be a determination of the
components of the person’s adjusted taxable income referred to in paragraphs
43(1)(b) to (e) of the Assessment Act (as inserted by Schedule 1) for the
year of income; and
(c) a determination of a person’s
taxable income, and the person’s supplementary amount, for a year of income is
taken to be a determination of the person’s adjusted taxable income for the
year of income.
118 Requirement to publish annualised MTAWE figure
(1) Before 1 July 2008, the Registrar must publish
in the Gazette the annual rate of child support specified in subsection
65A(2) of the Assessment Act (as inserted by Schedule 1 to this Act) for
all child support periods that start in that calendar year or the previous
calendar year.
(2) Before 1 July 2008, the Secretary must publish
in the Gazette for all child support periods that start in that calendar
year or the previous calendar year:
(a) the annualised MTAWE figure for
the relevant September quarter; and
(b) the Costs of the Children Table,
incorporating:
(i) the annualised MTAWE
figure for the relevant September quarter; and
(ii) any other amounts in
items in the table that can be worked out using the annualised MTAWE figure.
(3) The instruments published under subitems (1)
and (2) are not legislative instruments.
Schedule 3
77 Application—review of
decisions
Decisions of the Registrar—internal review pending or not
yet started at commencement
(1) Subject to subitem (3), Part VII
(internal review) of the Registration and Collection Act (as amended by this
Schedule) applies in relation to a decision made by the Registrar under that
Act or the Assessment Act before or after the commencement of this item.
Note: Part VII of the Registration and
Collection Act (as amended by this Schedule) also applies if a proceeding for
internal review was pending under that Part or Part 6B of the Assessment
Act immediately before the commencement of this item (see subitem (4)).
(2) Part VIIA (SSAT review) of the Registration
and Collection Act (as inserted by this Schedule) applies in relation to a
decision made by the Registrar under subsection 83(1) or 87(1) of the
Registration and Collection Act after the commencement of this item.
Decisions of the Registrar—internal review completed
before commencement
(3) If, before the commencement of this item:
(a) a person objected under:
(i) Part 6B of the
Assessment Act; or
(ii) Part VII of the
Registration and Collection Act;
to a decision (however
described) of the Registrar (the original decision); and
(b) the Registrar made a decision (the
objection decision) on the objection under:
(i) subsection 98ZC(1) of
the Assessment Act; or
(ii) subsection 87(1) or
98(1) of the Registration and Collection Act;
those Acts, as in force immediately before that commencement,
continue to apply in relation to the original decision and the objection
decision.
Pending proceedings—internal reviews
(4) A proceeding before the Registrar that, immediately
before the commencement of this item, was pending under:
(a) Part 6B of the Assessment
Act; or
(b) Part VII of the Registration
and Collection Act;
is taken, at that commencement, to be pending under Part VII
of the Registration and Collection Act as amended by this Schedule.
(5) The Assessment Act and the Registration and
Collection Act, as in force immediately before the commencement of this item,
continue to apply in relation to a decision made by the Registrar before that
commencement under:
(a) subsection 98ZE(1) of the
Assessment Act; or
(b) subsection 91(1) or 101(1) of the
Registration and Collection Act.
Pending proceedings—court and AAT reviews
(6) The amendments of the Assessment Act and the
Registration and Collection Act made by this Schedule do not affect:
(a) any proceeding pending before a
court under:
(i) Part 7 of the
Assessment Act; or
(ii) section 88 of the
Registration and Collection Act;
immediately before the
commencement of this item; or
(b) any proceeding pending before the
Administrative Appeals Tribunal under:
(i) subsection 98ZE(7) or
98ZF(1) of the Assessment Act; or
(ii) subsection 91(5),
99(1) or 101(5) of the Registration and Collection Act;
immediately before the
commencement of this item; or
(c) any order or declaration:
(i) made by a court or the
Administrative Appeals Tribunal under those Acts; and
(ii) in force immediately
before the commencement of this item; or
(d) any appeal to a court in relation
to a proceeding referred to in paragraph (a) or (b).
(7) The amendments of the Assessment Act made by items 5,
9 and 10 of this Schedule do not apply in relation to a proceeding under
Division 3 of Part 7 of that Act as in force immediately before the
commencement of this item.
78 Application and saving—notices
(1) The amendments of the Assessment Act made by items 3,
4, 6, 7, 8, 11, 12, 13, 14 and 37 of this Schedule apply in relation to notices
given under that Act after the commencement of this item.
(3) The amendments of the Assessment Act and the
Registration and Collection Act made by this Schedule do not affect the
validity of a notice given by the Registrar under any provision of those Acts
before the commencement of this item.
80 Application of amendments in relation to Western
Australian exnuptial children
If, immediately after the commencement of this item, the
Assessment Act and the Registration and Collection Act do not extend to Western
Australia in relation to the maintenance of exnuptial children because:
(a) the Parliament of Western
Australia has not referred to the Parliament of the Commonwealth the matter
of the maintenance of exnuptial children or matters that include that matter;
and
(b) Western Australia has not adopted
those Acts as amended by this Act;
items 77 to 79 of this Schedule apply in Western Australia,
after Western Australia adopts those Acts as amended by this Act, in relation
to the maintenance of exnuptial children as if references in those items to the
commencement of those items were references to the adoption of those Acts by
Western Australia as amended by this Act.
Schedule 4
42 Application
The amendments made by items 11, 14, 17, 18 and 19 of this
Schedule apply in respect of:
(a) an application made under section 98B
of the Assessment Act after the commencement of this Schedule; and
(b) a determination in respect of
which parties were notified under section 98M of the Assessment Act after
the commencement of this Schedule; and
(c) an application made under section 116
of the Assessment Act after this item commences, even if the application
relates to a decision made before the commencement of this Schedule:
(i) to make, or refuse to
make, a determination under Part 6A of that Act; or
(ii) to make an
administrative assessment under subsection 66(1) of that Act.
43 Application
The amendments made by items 13 and 23 of this Schedule
apply in respect of proceedings instituted after the commencement of this
Schedule in respect of declarations made under section 107 of the
Assessment Act after that commencement.
46 Application of amendments in relation to Western
Australian exnuptial children
If, immediately after the commencement of this Schedule, the
Assessment Act and the Registration and Collection Act do not extend to Western
Australia in relation to the maintenance of exnuptial children because:
(a) the Parliament of Western
Australia has not referred to the Parliament of the Commonwealth the matter
of the maintenance of exnuptial children or matters that include that matter;
and
(b) Western Australia has not adopted
those Acts as amended by this Act;
items 42 to 45 of this Schedule apply in Western Australia,
after Western Australia adopts those Acts as amended by this Act, in relation
to the maintenance of exnuptial children as if references in those items to the
commencement of this Schedule were references to the adoption of those Acts by
Western Australia as amended by this Act.
Schedule 5
73 Application of amendments in relation to child support
agreements
(1) The amendments made by this Schedule (other than
item 58) apply (subject to subitems (2) and (3)) in respect of a
child support agreement if:
(a) the application for acceptance of
the agreement is made after Division 3 of Part 1 of this Schedule
commences; and
(b) the agreement period for the
agreement ends on or after 1 July 2008.
Note: For the definition of agreement period,
see subitem (6).
Child support agreements that span 1 July 2008
(2) If the agreement period for a child support
agreement covered by subitem (1) begins before 1 July 2008, then:
(a) the agreement is taken to be 2
separate agreements; and
(b) the first agreement is taken to
have effect for the period that:
(i) begins at the
beginning of the agreement period; and
(ii) ends on 30 June 2008 (including that day); and
(c) the second agreement is taken to
have effect for the period that:
(i) begins on 1 July 2008 (including that day); and
(ii) ends at the end of the
agreement period.
(3) If a child support agreement is taken to be 2
separate agreements under subitem (2), then the Assessment Act, the
Registration and Collection Act, the A New Tax System (Family Assistance)
(Administration) Act 1999 and the Social Security Act 1991, as in
force immediately before 1 July 2008, continue to apply, after that time,
in respect of the first agreement mentioned in paragraph (2)(b).
Note: Those Acts as in force on and after 1 July 2008 apply, under subitem (1), in respect of the second agreement
mentioned in paragraph (2)(c).
(4) The Registrar or a court may make different
decisions, or take different actions, in relation to the 2 separate agreements
mentioned in subitem (2).
Example: The Registrar might refuse to accept the first
agreement, while accepting the second agreement.
Effect of old law continues in certain cases
(5) To avoid doubt, if:
(a) an application is made for
acceptance of a child support agreement before Division 3 of Part 1
of this Schedule commences; and
(b) immediately before that Division
commences, the agreement has been neither accepted nor refused by the
Registrar;
then the Assessment Act, the Registration and Collection Act, the
A New Tax System (Family Assistance) (Administration) Act 1999 and the Social
Security Act 1991, as in force immediately before 1 July 2008,
continue to apply, after that time, in respect of the child support agreement.
Definition of agreement period
(6) In this item:
agreement period, for a child support agreement
covered by subitem (1), means the period for which the child support
agreement has effect.
73A Application of amendments in relation to court orders
(1) The amendments made by this Schedule (other than
item 58) apply (subject to subitem (2)) in respect of an application
made to a court for an order if:
(a) the application is made after
Division 3 of Part 1 of this Schedule commences; and
(b) the application relates to a
period that ends on or after 1 July 2008.
Applications that span 1 July 2008
(2) If the application relates to a period that begins
on a day (the first day) before 1 July 2008, then:
(a) the Assessment Act and the
Registration and Collection Act, as in force immediately before 1 July 2008, apply in relation to the period mentioned in paragraph (b), in
relation to the following:
(i) making an order in
response to the application;
(ii) any appeal to another
court in relation to an order made in response to the application;
(iii) any decision or action
taken by the Registrar in relation to an order made in response to the
application; and
(b) for the purposes of
paragraph (a), the period is the period that:
(i) begins on the first
day (including that day); and
(ii) ends on 30 June 2008 (including that day).
Note: Those Acts as in force on and after 1 July 2008 apply, under subitem (1), in respect of the period that begins on 1 July 2008.
(3) A court may, in response to an application, make
different orders for:
(a) the period that ends on 30 June 2008; and
(b) the period that begins on 1 July 2008.
(4) The Registrar may make different decisions, and
take different actions, in relation to different orders made in response to an
application.
Effect of old law continues in certain cases
(5) To avoid doubt, if:
(a) an application is made to a court
before Division 3 of Part 1 of this Schedule commences; and
(b) immediately before that Division
commences, the application has not been finally dealt with by the court;
then the Assessment Act and the Registration and Collection Act,
as in force immediately before 1 July 2008, continue to apply after that
time in relation to the following:
(c) making an order in response to the
application;
(d) any appeal to another court in
relation to an order made in response to the application;
(e) any decision or action taken by
the Registrar in relation to an order made in response to the application.
74 Registrar to review all agreements
(1) Before 1 July 2008, the Registrar must:
(a) review every child support
agreement made before that day that will be in force:
(i) immediately before
that day; or
(ii) after that day; and
(b) determine in writing whether each
such agreement is:
(i) to be taken to be a
binding child support agreement; or
(ii) to be terminated.
(2) If, in accordance with subitem 73(5), the Registrar
accepts a child support agreement on or after 1 July 2008 under the Assessment Act as in force immediately before that day, the Registrar must:
(a) review the agreement; and
(b) determine in writing whether the
agreement is:
(i) to be taken to be a
binding child support agreement; or
(ii) to be terminated.
(3) After the Registrar makes a determination under subitem (1)
or (2), the Registrar must serve notice in writing of the determination on each
of the parties to the agreement.
(4) The notice must include, or be accompanied by, a
statement to the effect:
(a) that the party may, subject to the
Registration and Collection Act, object to the decision (the original
decision); and
(b) that if the party is aggrieved by
a later decision on an objection to the original decision (no matter who lodges
the objection), the party may apply, subject to that Act, to the SSAT for
review of the later decision.
(5) A contravention of subitem (4) in relation to
a decision does not affect the validity of the decision.
75 Effect of determinations
Effect of determinations
(1) If the Registrar makes a determination under
subparagraph 74(1)(b)(i) or (2)(b)(i), then, for the purposes of the Assessment
Act and the Registration and Collection Act, at the time specified in subitem (4)
(if the agreement has not been previously terminated):
(a) the agreement is taken to be a
binding child support agreement; and
(b) the amendments made by this
Schedule do not affect the continuity of any assessment, in force at that time,
of the annual rate of child support that is payable under the agreement.
(2) If the Registrar makes a determination under
subparagraph 74(1)(b)(ii) or (2)(b)(ii), then, for the purposes of the
Assessment Act and the Registration and Collection Act, for any day in a child
support period that is on or after the time specified in subitem (4) (if
the agreement has not been previously terminated), the agreement is terminated
by force of this item.
(3) Subitems (1) and (2) do not affect the
operation of provisions in an agreement that do not have effect for the
purposes of the Assessment Act or the Registration and Collection Act.
When determinations take effect
(4) For the purposes of subitems (1) and (2), the
following time is specified:
(a) if the determination is made under
subparagraph 74(1)(b)(i)—the time that item 5 of this Schedule commences;
(b) otherwise—the latest of the
following times:
(i) if the decision of the
Registrar to make the determination becomes final—at the time when that
decision becomes final;
(ii) if a decision of the
SSAT relating to the Registrar’s determination becomes final—at the time when
that decision becomes final (within the meaning of subsection 110W(1) of the
Registration and Collection Act);
(iii) if neither subparagraph (i)
nor (ii) applies—at the time when a decision of a court relating to the
Registrar’s determination becomes final (within the meaning of subsection
110W(2) or (3) of that Act);
(iv) at the time when the
agreement takes effect.
(5) For the purposes of subparagraph (4)(b)(i), a
decision of the Registrar becomes final at the end of the period within which
an application could have been made to the SSAT under section 80 of the
Registration and Collection Act (as it applies because of subitem 74(6) of this
Schedule).
Terminating deemed binding child support agreements
(6) In addition to section 80D of the Assessment
Act (as inserted by this Schedule), an agreement that is taken to be a binding
child support agreement under subitem (1) may be terminated by another
agreement that:
(a) is in writing; and
(b) is signed by the parties to the
original agreement.
76 Delegation
(1) The Registrar may, by writing, delegate all or any
of his or her powers and functions under item 74 of this Schedule to an
SES employee, or acting SES employee, of the Department.
(2) In exercising powers or functions under a
delegation, the delegate must comply with any directions of the Registrar.
Schedule 6
12 Application
The amendments made by this Schedule apply in respect of:
(a) an application made under section 98B
of the Assessment Act after this item commences; and
(b) a determination in respect of
which parties were notified under section 98M of the Assessment Act after
this item commences; and
(c) an application made under section 116
of the Assessment Act after this item commences, even if the application relates
to a decision made before this item commences:
(i) to make, or refuse to
make, a determination under Part 6A of that Act; or
(ii) to make an
administrative assessment under subsection 66(1) of that Act.
Schedule 7
11 Application
The amendment made by item 1 of this Schedule applies in
relation to parents who become members of the same couple after the
commencement of this Schedule.
12 Application
The amendment made by item 2 of this Schedule applies in
relation to parents that:
(a) the Registrar is notified, or
otherwise becomes aware, have become members of the same couple; and
(b) the Registrar is satisfied have
become members of the same couple;
after the commencement of this Schedule.
Schedule 9
1 Assessments in relation to court orders made before 1 July 2008
(1) The Registrar is not required, after 1 July 2008:
(a) to make an administrative
assessment under Part 4A of the Assessment Act; or
(b) to amend an administrative
assessment under section 75 of the Assessment Act;
in respect of an order made, before that time, by a court under
Division 4 of Part 7 of that Act.
(2) If such an order will be in force immediately
before 1 July 2008, the Registrar must:
(a) review the administrative
assessment that relates to that order; and
(b) amend the assessment, or
make an administrative assessment, (as the case requires) in accordance with
regulations made for the purposes of this item.
(3) For the purposes of this item, the regulations may
specify how rights and obligations arising under an order made, before 1 July 2008, by a court under Division 4 of Part 7 of the Assessment Act
correspond to rights and obligations under that Act as amended by:
(a) this Act; and
(b) the Families, Community
Services and Indigenous Affairs Legislation Amendment (Child Support Reform
Consolidation and Other Measures) Act 2007.
(4) The notice given under section 76 of the
Assessment Act in relation to the assessment must (in addition to the
requirements under that section) include, or be accompanied by, a statement to
the effect that the party may apply, under section 116 of the Assessment
Act, to a court having jurisdiction under that Act.
(5) A contravention of subitem (4) in relation to
a decision does not affect the validity of the decision.
(6) The Assessment Act (as amended by this Act) applies
as if subsection 116(1) of that Act included the following paragraph:
(ac) the assessment is amended or made
under item 1 of Schedule 9 to the Child Support Legislation
Amendment (Reform of the Child Support Scheme—New Formula and Other Measures)
Act 2006;
(7) To the extent that a person who applies to court
under section 116 of the Assessment Act by virtue of subitem (6) of
this item would not otherwise have special circumstances, the person is taken
to have special circumstances for the purposes of that section.
Families, Community
Services and Indigenous Affairs Legislation Amendment (Child Support Reform
Consolidation and Other Measures) Act 2007 (No. 82,
2007)
4
Application, saving and transitional provisions
(1) If:
(a) on 1 July 2008, a provision of an Act is amended by an item in a Schedule to the Child Support
Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other
Measures) Act 2006 (the New Formula Act); and
(b) after that time, the provision is
amended by an item in a Schedule to this Act; and
(c) the New Formula Act contains an
application provision, a saving provision or a transitional provision in
relation to the amendment made by the New Formula Act;
(so far as the context permits), the application
provision, saving provision or transitional provision in the New Formula Act
applies in respect of the amendment made by this Act in the same way as that
provision applied in respect of the amendment made by the New Formula Act.
(2) In subsection (1), a reference to an
item amending a provision of an Act includes a reference to an item that
inserts a provision into an Act or repeals a provision from an Act.
Schedule 1
78 Application of item 7
The amendment made by item 7 of this Schedule applies
in respect of any decision made under section 98E or 98R of the Assessment
Act (whether the decision is made before or after this item commences).
79 Application of
item 16
The amendment made by item 16 of this Schedule
applies in respect of any order made after this item commences in a proceeding
instituted under section 143 of the Assessment Act (whether the proceeding
was instituted before or after this item commences).
80 Application of
item 20
The amendment made by item 20 of this Schedule
applies in respect of requirements made after this item commences.
98 Application of items 92 to 97
The amendments made by items 92 to 97 of this
Schedule apply in respect of elections made under section 60 of the
Assessment Act after this item commences.
Schedule 4
23 Application
Item 22 of this Schedule applies to the working out of the
exempted income amount of a liable parent in relation to the assessment of
child support payable by the liable parent if the notice mentioned in paragraph
39(3)(d) of the Assessment Act:
(a) was given not more than 28 days
before; or
(b) is given on or after;
the commencement of the item.
33 Application
Item 32 of this Schedule applies to all notices under
section 76 of the Assessment Act given on or after the commencement of the
item.
Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Further 2008 Budget and Other Measures) Act 2008
(No. 143, 2008)
Schedule 3
11 Application and transitional
(1) The amendments made by items 1 and 3 to 10
apply in relation to changes in percentages of care that occur on or after 1 July 2008.
(2) Subparagraphs 48(1)(b)(i) and 74A(b)(ia) and
paragraph 75(2)(aa) of the Child Support (Assessment) Act 1989, as
inserted by this Act, apply in relation to:
(a) agreements, plans or orders made
on or after 1 July 2008; and
(b) variations, occurring on or after 1 July 2008, of agreements, plans or orders made on or after 1 July 2008.
(3) If:
(a) a change in percentage of care
mentioned in subitem (1) occurred before the commencement of this item;
and
(b) as a result of that change, an
assessment is amended under section 75 of the Child Support
(Assessment) Act 1989;
the amendment cannot take effect earlier than the commencement of
this item.
(4) The amendment made by item 2 applies in
relation to determinations made on or after the commencement of that item.
26 Application
(1) The amendment made by item 15 applies in
relation to applications to the Registrar made on or after the commencement of
that item.
(2) The amendments made by items 16 and 17 apply
in relation to requests made, after the commencement of those items, to the
Registrar for acceptance of agreements (regardless of whether the agreements
are made before, on or after the commencement of those items).
(3) The amendments made by items 18 to 23 apply in
relation to applications to a court made on or after the commencement of those
items.
(4) The amendment made by item 24 applies in
relation to agreements accepted before, on or after the commencement of that
item.
(5) The amendment made by item 25 applies in
relation to an agreement accepted on or after the commencement of that item
(regardless of whether the agreement was made before, on or after that
commencement and regardless of whether the original application was made
before, on or after that commencement).
29 Application
The amendments made by items 27 and 28 apply in relation to
a child support terminating event that happens on or after the commencement of
those items.
31 Application and saving
(1) The amendment made by item 30 applies in
relation to applications made on or after the day on which that item commences
in respect of:
(a) the whole of a child support
period that begins on or after that day; or
(b) a part of a child support period,
being a part that begins on or after the day on which that item commences
(regardless of whether the child support period begins before, on or after that
day);
regardless of whether the assessment was made before, on or after
the day on which that item commences.
(2) Subsection 66A(1) of the Child Support
(Assessment) Act 1989, as inserted by this Act, does not apply in relation
to a child support period if subsection 66A(1) of that Act (as in force before
the commencement of this item) has applied in respect of a day in that period.
(3) Regulations in force for the purposes of subsection
66A(1) of the Child Support (Assessment) Act 1989 immediately before the
commencement of this item continue in force on and after that commencement as
if they were regulations in force for the purposes of paragraph 66A(1)(a) of
that Act.
(4) Subsection 66A(3B) of the Child Support
(Assessment) Act 1989, as inserted by this Act, applies in relation to
administrative assessments made under laws of reciprocating jurisdictions
before, on or after the commencement of this item.
49 Application
The amendments made by items 32 to 39 and 41 to 48 apply in
relation to administrative assessments made under laws of reciprocating
jurisdictions before, on or after the commencement of those items.
Tax Laws Amendment (2009
Measures No. 1) Act 2009 (No. 27, 2009)
Schedule 3
102 Application
(1) The amendments made by this Schedule apply in
relation to income years starting on or after 1 July 2009.
(2) However, the amendments do not apply in relation to
the following:
(b) an election to work out a parent’s
adjusted taxable income under section 60 of the Child Support
(Assessment) Act 1989 if the remaining period (within the meaning of
subsection 60(5) of that Act) concerned starts before 1 July 2009;
(c) working out a parent’s real
remaining period adjusted taxable income under section 64 of the Child
Support (Assessment) Act 1989 in relation to an election covered by
paragraph (b) of this subitem.