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Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010

Schedule 2 Percentage of care

Part 1 Amendments

A New Tax System (Family Assistance) Act 1999

1  Subsection 3(1)

Insert:

application day has the meaning given by subsections 35K(2) and (3).

2  Subsection 3(1)

Insert:

care arrangement in relation to a child means:

                     (a)  a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

                     (b)  a parenting plan for the child; or

                     (c)  any of the following orders relating to the child:

                              (i)  a family violence order within the meaning of section 4 of the Family Law Act 1975 ;

                             (ii)  a parenting order within the meaning of section 64B of that Act;

                            (iii)  a State child order registered in accordance with section 70D of that Act;

                            (iv)  an overseas child order registered in accordance with section 70G of that Act.

3  Subsection 3(1)

Insert:

care period has the meaning given by subparagraph 35A(1)(a)(ii) or (2)(b)(ii) or paragraph 35B(1)(a) or (2)(b).

4  Subsection 3(1)

Insert:

change of care day for an individual who cares for a child means:

                     (a)  if a determination of the individual’s percentage of care for the child has been revoked under Subdivision E of Division 1 of Part 3—the first day on which the care of the child that was actually taking place ceased to correspond with the individual’s percentage of care for the child under the determination; or

                     (b)  otherwise—the first day on which the care of the child that was actually taking place ceased to correspond with the individual’s extent of care under a care arrangement that applies in relation to the child.

5  Subsection 3(1)

Insert:

child support care determination has the meaning given by paragraph 35T(1)(b).

6  Subsection 3(1) (subparagraph (b)(i) of the definition of FTB child )

Omit “in applying paragraph 22(6A)(b) to child care benefit, the reference in that paragraph”, substitute “in applying Subdivision D of that Division to child care benefit, a reference in that Subdivision”.

7  Subsection 3(1)

Insert:

interim period has the meaning given by subsection 35L(2).

8  Subsection 3(1)

Insert:

percentage of care , in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.

9  Subsection 3(1)

Insert:

percentage range has the meaning given by subsection 35P(2).

10  Subsection 3(1)

Insert:

reduced care of a child has the meaning given by section 35H.

11  Subsection 3(1) (paragraph (a) of the definition of regular care child )

Repeal the paragraph, substitute:

                     (a)  means an individual:

                              (i)  who would be an FTB child of the adult but for the operation of section 25 (adult’s percentage of care for the child during a care period is less than 35%); and

                             (ii)  for whom the adult has a percentage of care during a care period that is at least 14%; and

12  Subsections 22(6A) to (6D)

Repeal the subsections.

13  Subsection 22(7)

Omit “If, under subsection (6A), the Secretary determines that a child was, or will be, in the care of an individual for at least 35% of a period”, substitute “If an individual’s percentage of care for a child during a care period is at least 35%”.

14  Subsection 22(7) (note)

Omit “If the Secretary determines that a child was, or will be, in the care of an individual for less than 35% of a period”, substitute “If an individual’s percentage of care for a child during a care period is less than 35%”.

15  Section 25

Omit all the words before “the child is taken”, substitute “If an individual’s percentage of care for a child during a care period is less than 35%,”.

Note:       The heading to section 25 is replaced by the heading “ Effect of an individual’s percentage of care for a child being less than 35% ”.

16  Section 25A

Omit all the words before “the child is taken”, substitute “If an individual’s percentage of care for a child during a care period is at least 14% but less than 35%,”.

Note:       The heading to section 25A is altered by omitting “ period of care ” and substituting “ care period ”.

17  Paragraph 27(2)(b)

Repeal the paragraph, substitute:

                     (b)  if the Secretary has determined, under section 35A or 35B, one individual’s percentage of care for the qualifying child during a care period (whether before or after the 2 individuals became members of that couple)—the Secretary is taken to have determined the same percentage to be the other individual’s percentage of care for the child during that period.

18  At the end of Division 1 of Part 3

Add:

Subdivision D Determination of percentage of care

35A   Determination o f percentage of care—child is not in the adult’s care

Initial determination

             (1)  If:

                     (a)  the Secretary is satisfied that an individual (the adult ) has no care of a child but that:

                              (i)  the child is an FTB child of the adult under section 23; or

                             (ii)  the child would, under subsection 22(2), (3), (4) or (6), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period ) under a care arrangement relating to the child; and

                     (b)  the adult, or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and

                     (c)  the adult is not a partner of at least one other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the other individual or individuals; and

                     (d)  section 35C, 35D or 35G applies in relation to the adult;

the Secretary must determine the adult’s percentage of care for the child during the care period in accordance with that section.

Determination after revocation

             (2) If:

                     (a)  the Secretary revokes, under Subdivision E of this Division, a determination of an individual’s (the adult ) percentage of care for a child that was made under this section or section 35B; and

                     (b)  the Secretary is satisfied that the adult has no care of the child but that:

                              (i)  the child is an FTB child of the adult under section 23; or

                             (ii)  the child would, under subsection 22(2), (3), (4) or (6), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period ) under a care arrangement relating to the child; and

                     (c)  the adult is not a partner of at least one other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the other individual or individuals; and

                     (d)  section 35C, 35D or 35G applies in relation to the adult;

the Secretary must determine the adult’s percentage of care for the child during the care period in accordance with that section.

35B   Determination of percentage of care—child is in the adult’s care

Initial determination

             (1)  If:

                     (a)  the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period ) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of more than one individual; and

                     (b)  one of those individuals (the adult ), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and

                     (c)  the adult is not a partner of at least one of the other individuals referred to in paragraph (a);

the Secretary must determine the adult’s percentage of care for the child during the care period.

Determination after revocation

             (2)  If:

                     (a)  the Secretary revokes, under Subdivision E of this Division, a determination of an individual’s (the adult ) percentage of care for a child that was made under section 35A or this section; and

                     (b)  the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period ) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the adult and at least one other individual; and

                     (c)  the adult is not a partner of at least one of those other individuals;

the Secretary must determine the adult’s percentage of care for the child during the care period.

Percentage of care

             (3)  The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.

             (4)  Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult’s percentage of care under subsection (1) or (2) in accordance with that section.

35C   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

             (1)  This section applies in relation to an individual (the adult ) if:

                     (a)  a care arrangement applies in relation to a child; and

                     (b)  the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and

                     (c)  an individual who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.

Note:          This section does not apply in certain circumstances, see section 35F.

             (2)  The Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.

             (3)  The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil).

             (4)  The second percentage of care is to be:

                     (a)  if section 35A applies in relation to the adult—0%; or

                     (b)  if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.

35D   Percentage of care if action taken to make a new care arrangement in relation to a child

             (1)  This section applies in relation to an individual (the adult ) if:

                     (a)  a care arrangement (the current care arrangement ) applies in relation to a child; and

                     (b)  the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during the care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and

                     (c)  an individual who has reduced care of the child:

                              (i)  has not taken reasonable action to ensure that the current care arrangement is complied with; but

                             (ii)  has taken reasonable action to make another care arrangement (the new care arrangement ) in relation to the child; and

                     (d)  the Secretary is satisfied that, if the new care arrangement were to be made, the extent of care that the individual who has reduced care of the child would have under that arrangement during the care period would be:

                              (i)  more than the actual care of the child that the Secretary is satisfied that the individual has had, or will have, during that period; but

                             (ii)  less than the extent of care of the child that the individual should have had, or is to have, under the current care arrangement during that period; and

                     (e)  the Secretary is satisfied that special circumstances exist in relation to the individual who has reduced care of the child.

Note:          This section does not apply in certain circumstances, see section 35F.

             (2)  The Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.

             (3)  The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult would have under the new care arrangement during the care period if it were to be made.

             (4)  The second percentage of care is to be:

                     (a)  if section 35A applies in relation to the adult—0%; or

                     (b)  if section 35B applies in relation to the adult—a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the new care arrangement were not to be made.

35E   Application of sections 35C and 35D in relation to claims for family tax benefit for a past period

Initial determination

             (1)  If:

                     (a)  the Secretary is required by section 35A or 35B to determine an individual’s percentage of care for a child; and

                     (b)  subsection 35A(1) or 35B(1) applies; and

                     (c)  the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit for a past period;

sections 35C and 35D apply in relation to the individual as if the determination were being made on the first relevant day of the past period.

Determination after revocation

             (2)  If:

                     (a)  the Secretary is required by section 35A or 35B to determine (the new determination ) an individual’s percentage of care for a child; and

                     (b)  subsection 35A(2) or 35B(2) applies; and

                     (c)  the determination (the earlier determination ) referred to in paragraph 35A(2)(a) or 35B(2)(a) relates to a claim for payment of family tax benefit for a past period;

sections 35C and 35D apply in relation to the individual as if the new determination were being made on the relevant day after the revocation of the earlier determination.

35F   Sections 35C and 35D do not apply in certain circumstances

             (1)  Sections 35C and 35D do not apply in relation to an individual if:

                     (a)  subsection 35A(1) or 35B(1) applies; and

                     (b)  either:

                              (i)  if the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit for a past period—the first day of the past period is 14 weeks or more after the change of care day for the individual; or

                             (ii)  otherwise—the day on which the claim referred to in that paragraph is or was made is 14 weeks or more after the change of care day for the individual.

             (2)  If the Secretary is satisfied that special circumstances exist in relation to an individual who has reduced care of the child, the Secretary may determine that subsection (1) applies as if the reference to 14 weeks in subparagraph (1)(b)(i) or (ii) were a reference to such longer period as the Secretary determines to be appropriate.

             (3)  The period determined under subsection (2) must not be more than 26 weeks.

35G   Percentage of care if claim is made for payment of family tax benefit because of the death of a child

             (1)  This section applies in relation to an individual (the adult ) if:

                     (a)  the adult, or the partner of the adult, has made a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual; and

                     (b)  the claim relates to a child who has died; and

                     (c)  a determination (the earlier determination ) of the adult’s percentage of care for the child applied, immediately before the child’s death, in relation to a claim by the adult or the partner for payment of family tax benefit by instalment.

             (2)  The Secretary must determine, under section 35A or 35B, the adult’s percentage of care for the child to be the percentage of care that applied under the earlier determination immediately before the child’s death.

35H   When an individual has reduced care of a child

                   An individual has reduced care of a child if:

                     (a)  a care arrangement applies in relation to the child; and

                     (b)  the individual should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

                     (c)  the Secretary is satisfied that the actual care of the child that the individual has had, or will have, during the care period is less than that extent of care.

35J   Working out actual care, and extent of care, of a child

             (1)  The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.

             (2)  The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.

             (3)  For the purposes of this section, a child cannot be in the care of more than one individual at the same time.

             (4)  This section does not limit section 35B, 35C, 35D or 35H.

35K   Days to which the percentage of care applies if sections 35C and 35D did not apply in relation to an individual etc.

             (1)  If:

                     (a)  a determination of an individual’s percentage of care for a child during a care period is made under section 35A or 35B; and

                     (b)  either of the following apply:

                              (i)  sections 35C and 35D did not apply in relation to the individual;

                             (ii)  section 35G applied in relation to the individual;

the percentage of care applies on and from the application day unless a revocation of the determination under Subdivision E of this Division takes effect.

             (2)  If subsection 35A(1) or 35B(1) applies in relation to the determination, the application day is:

                     (a)  if:

                              (i)  the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual; and

                             (ii)  the claim relates to a child who has died;

                            the day on which the claim referred to in that paragraph is or was made; or

                     (b)  otherwise—the first day of the care period.

             (3)  If subsection 35A(2) or 35B(2) applies in relation to the determination, the application day is the first day of the care period that begins after the revocation of the determination referred to in paragraph 35A(2)(a) or 35B(2)(a) takes effect.

35L   Days to which the percentage of care applies if section 35C or 35D applied in relation to an individual

             (1)  If:

                     (a)  a determination of an individual’s percentage of care for a child is made under section 35A or 35B; and

                     (b)  section 35C or 35D applied in relation to the individual;

then:

                     (c)  the percentage of care referred to in subsection 35C(3) or 35D(3) applies during the interim period for the determination unless a revocation of the determination under Subdivision E of this Division takes effect; and

                     (d)  the percentage of care referred to in subsection 35C(4) or 35D(4) applies after the end of the interim period for the determination unless a revocation of the determination under Subdivision E of this Division takes effect.

             (2)  The interim period for the determination:

                     (a)  starts on the application day for the determination; and

                     (b)  ends at the end of the earliest of the following days:

                              (i)  the day specified by the Secretary;

                             (ii)  if section 35C applied in relation to the individual—the day before the day on which the action referred to in paragraph 35C(1)(c) ends;

                            (iii)  if section 35D applied in relation to the individual—the day before the day on which the action referred to in subparagraph 35D(1)(c)(ii) ends;

                            (iv)  if a care arrangement in relation to the child begins to apply on a day after the application day for the determination—the day before the day on which the care arrangement begins to apply.

             (3)  The day specified by the Secretary under subparagraph (2)(b)(i) must be the last day in the 14 week period, or such other longer period as is specified under subsection (4), that starts on the change of care day for the individual.

             (4)  If the Secretary is satisfied that special circumstances exist in relation to the individual who has reduced care of the child, the Secretary may specify a period of up to 26 weeks for the purposes of subsection (3).

35M   Rounding of a percentage of care

                   If an individual’s percentage of care determined under 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.

35N   Guidelines about the making of determinations

             (1)  The Secretary may, by legislative instrument, make guidelines relating to the making of determinations under this Subdivision.

             (2)  In making a determination under this Subdivision, the Secretary must have regard to any guidelines in force under subsection (1).

Subdivision E Revocation of determination of percentage of care

35P   Determination must be revoked if there is a change to the individual’s shared care percentage etc.

             (1)  If:

                     (a)  a determination of an individual’s percentage of care (the existing percentage of care ) for a child has been made under section 35A or 35B; and

                     (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

                     (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

                     (d)  the Secretary is satisfied:

                              (i)  that the individual’s shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child; or

                             (ii)  that, if the Secretary were to determine under that section another percentage to be the individual’s percentage of care for the child, the other percentage would not be in the same percentage range as the individual’s existing percentage of care;

the Secretary must revoke the determination.

Note:          The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

             (2)  Each of the following is a percentage range :

                     (a)  0% to less than 14%;

                     (b)  14% to less than 35%;

                     (c)  48% to 52%;

                     (d)  more than 65% to 86%;

                     (e)  more than 86% to 100%.

             (3)  The revocation of the determination takes effect at the end of:

                     (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

                     (b)  otherwise—the day before the change of care day for the individual.

35Q   Secretary may revoke a determination of an individual’s percentage of care

             (1)  If:

                     (a)  a determination of an individual’s percentage of care (the existing percentage of care ) for a child has been made under section 35A or 35B; and

                     (b)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended; and

                     (c)  the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual’s existing percentage of care for the child; and

                     (d)  the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual’s percentage of care for the child, the other percentage would not be the same as the individual’s existing percentage of care for the child; and

                     (e)  section 35P does not apply;

the Secretary may revoke the determination.

Note:          If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

             (2)  If the Secretary revokes the determination, the revocation takes effect at the end of:

                     (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

                     (b)  otherwise—the day before the change of care day for the individual.

35R   Secretary may revoke a determination relating to a claim for payment of family tax benefit for a past period

             (1)  If:

                     (a)  a determination of an individual’s percentage of care for a child has been made under section 35A or 35B; and

                     (b)  the determination relates to a claim for payment of family tax benefit for a past period; and

                     (c)  if section 35C or 35D applied in relation to the individual—the interim period for the determination has ended;

the Secretary may revoke the determination.

Note:          If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).

             (2)  If the Secretary revokes the determination, the revocation takes effect at the end of:

                     (a)  if the change of care day for the individual occurs during the interim period for the determination—the day on which the interim period ends; or

                     (b)  otherwise—the day before the change of care day for the individual.

35S   Guidelines about the revocation of determinations

             (1)  The Secretary may, by legislative instrument, make guidelines relating to the revocation of determinations under this Subdivision.

             (2)  In revoking a determination under this Subdivision, the Secretary must have regard to any guidelines in force under subsection (1).

Subdivision F Percentages of care determined under the child support law

35T   Percentages of care determined under the child support law that apply for family assistance purposes

             (1)  If:

                     (a)  the Secretary is required by a provision of Subdivision D of this Division to determine an individual’s percentage of care for a child in relation to a claim for payment of family tax benefit; and

                     (b)  the Child Support Registrar has determined the individual’s percentage of care for the child (the child support care determination ) under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; and

                     (c)  the child support care determination has not ceased to apply or been revoked;

then:

                     (d)  the child support care determination has effect, for the purposes of this Act as it applies to such a claim, as if it were a determination of the individual’s percentage of care for the child that has been made by the Secretary under a corresponding provision of Subdivision D of this Division; and

                     (e)  the individual’s percentage of care for the child applies, for the purposes of this Act as it applies to such a claim, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Secretary under such a provision; and

                      (f)  the child support care determination may cease to apply, or be revoked, under Subdivision D or E of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision D of this Division may cease to apply, or be revoked.

             (2)  This section ceases to apply to the child support care determination if the determination ceases to apply, or is revoked, under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 .

35U   Reviews of percentages of care under child support law apply for family assistance purposes

             (1)  Subject to subsections (2) and (3), if:

                     (a)  the Child Support Registrar considers an objection to a decision under Part VII of the Child Support (Registration and Collection) Act 1988 ; and

                     (b)  considering the objection involves (wholly or partly) a consideration of a determination that:

                              (i)  was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; or

                             (ii)  has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

                     (c)  the Child Support Registrar’s decision on the objection has the effect of varying the determination or substituting a new determination;

section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

             (2)  Subject to subsection (3), if:

                     (a)  the SSAT reviews a decision under Part VIIA of the Child Support (Registration and Collection) Act 1988 ; and

                     (b)  reviewing the decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; or

                             (ii)  has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

                     (c)  the SSAT’s decision on the review has the effect of varying the determination or substituting a new determination;

section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

             (3)  If:

                     (a)  the AAT reviews a decision under the AAT Act ; and

                     (b)  reviewing the decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; or

                             (ii)  has effect, under section 54K of that Act, as if it were a determination made under such a provision; and

                     (c)  the AAT’s decision on the review has the effect of varying the determination or substituting a new determination;

section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.

19  Paragraph 59(1)(a)

Repeal the paragraph, substitute:

                     (a)  the Secretary has determined the individual’s percentage of care for the child during a care period; and

20  Subsection 59(1) (note)

Repeal the note, substitute:

Note:          Paragraph 27(2)(b) deals with the percentage of care in a blended family case.

21  Subsection 59(2) (table, heading to Column 1)

Omit “ determined under subsection 22(6A) ”, substitute “ of care ”.

A New Tax System (Family Assistance) (Administration) Act 1999

22  Subsection 3(1)

Insert:

care percentage decision means a decision to the extent that the decision involves (wholly or partly):

                     (a)  a determination of an individual’s percentage of care for a child that was made, under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act, in relation to a claim for payment of family tax benefit; or

                     (b)  a determination relating to an individual that has effect, under section 35T of that Act, as if it were a determination made under such a provision.

23  After subsection 105(4)

Insert:

          (4A)  If:

                     (a)  the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and

                     (b)  a consideration of an objection to a decision carried out under Part VII of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;

the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

24  Subsection 109A(1)

Repeal the subsection, substitute:

             (1)  A person affected by a decision (the original decision ):

                     (a)  that is not a care percentage decision; and

                     (b)  that, under section 108, must be reviewed under this section;

may apply to the Secretary for review of the original decision.

Note:          If an application is made under this section for review of a decision about a person’s entitlement to child care benefit, and a decision has also been made about the person’s entitlement to child care rebate, that decision about rebate may be automatically reviewed: see Division 5.

          (1A)  A person affected by a decision (the original decision ):

                     (a)  that is a care percentage decision; and

                     (b)  that, under section 108, must be reviewed under this section;

may apply to the Secretary, or the Child Support Registrar, for review of the original decision.

25  Subsection 109A(2)

Omit “does so”, substitute “makes an application under subsection (1) or (1A)”.

26  After subsection 109A(2)

Insert:

          (2A)  If:

                     (a)  the review involves (wholly or partly) a review of an original decision that is a care percentage decision; and

                     (b)  a consideration of an objection to a decision carried out under Part VII of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) the consideration of the determination to which the care percentage decision relates;

the Secretary must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

27  Paragraph 109A(4)(a)

Omit “Secretary for review of a decision under subsection (1)”, substitute “Secretary or Child Support Registrar for review of a decision under subsection (1) or (1A)”.

28  Subsection 109A(4)

Omit “Secretary for review of the decision under subsection (1)”, substitute “Secretary or Child Support Registrar for review of the decision under that subsection”.

29  Subsections 109D(1), (2), (3) and (4)

Omit “subsection 109A(1)”, substitute “section 109A”.

30  Paragraph 109E(1)(a)

Omit “to the Secretary, under subsection 109A(1),”, substitute “under section 109A”.

31  Subsections 109E(2) and (3)

Omit “subsection 109A(1)”, substitute “section 109A”.

32  Paragraphs 109G(1)(c) and (2)(c)

Omit “to the Secretary”.

33  Paragraph 111(2)(d)

Omit “or 157 (Secretary requiring”, substitute “, 157 or 159A (Secretary requiring or requesting”.

34  Subsection 111(3) (definition of decision reviewer )

Omit “subsection 109A(1)”, substitute “section 109A”.

35  After subsection 113(1)

Insert:

          (1A)  If:

                     (a)  the review involves (wholly or partly) a review of a decision (the original decision ) that is a care percentage decision; and

                     (b)  a review of a decision carried out under Part VIIA of the Child Support (Registration and Collection) Act 1988 has involved (wholly or partly) a review of the determination to which the care percentage decision relates;

the SSAT must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

36  At the end of section 142

Add:

             (5)  If:

                     (a)  the decision reviewed by the SSAT is a care percentage decision; and

                     (b)  a review of a decision carried out by the AAT under the Administrative Appeals Tribunal Act 1975 has involved (wholly or partly) a review of the determination to which the care percentage decision relates;

then, despite section 43 of that Act, the AAT must not vary the decision made by the SSAT, or set that decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

37  At the end of Part 5

Add:

Division 6 Date of effect of reviews under the child support law

152C   Date of effect of decisions on objections under the child support law that apply for family assistance purposes

             (1)  This section applies if:

                     (a)  a person lodges, under section 80A of the Child Support (Registration and Collection) Act 1988 , an objection to a care percentage decision (within the meaning of that Act); and

                     (b)  the consideration of the objection under that Act involves (wholly or partly) a consideration of a determination that:

                              (i)  was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; or

                             (ii)  has effect, under section 54K of the Child Support (Assessment) Act 1989 , as if it were a determination made under such a provision; and

                     (c)  the objection was lodged more than 52 weeks after notice of the care percentage decision referred to in paragraph (a) of this subsection was given; and

                     (d)  the decision (the review decision ) on the objection has the effect of varying the determination or substituting a new determination; and

                     (e)  the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.

             (2)  The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:

                     (a)  unless paragraph (b) of this subsection applies—the date that would give full effect to the review decision; or

                     (b)  if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the objection was lodged—that first day.

             (3)  If the Secretary is satisfied that there are special circumstances that prevented the objection from being lodged within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 52 weeks in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.

152D   Date of effect of SSAT reviews under the child support law that apply for family assistance purposes

             (1)  This section applies if:

                     (a)  a person applies to the SSAT, under section 89 of the Child Support (Registration and Collection) Act 1988 , for review of a decision (the original decision ); and

                     (b)  the review of the original decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 ; or

                             (ii)  has effect, under section 54K of the Child Support (Assessment) Act 1989 , as if it were a determination made under such a provision; and

                     (c)  the application for review of the original decision was made more than 13 weeks after notice of the original decision was given; and

                     (d)  the decision (the review decision ) on the review has the effect of varying the determination or substituting a new determination; and

                     (e)  the determination as varied or substituted has effect, under sections 35T and 35U of the Family Assistance Act, as if it were a determination made under Subdivision D of Division 1 of Part 3 of that Act.

             (2)  The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:

                     (a)  unless paragraph (b) of this subsection applies—the date that would give full effect to the review decision; or

                     (b)  if the date referred to in paragraph (a) of this subsection is earlier than the first day of the income year before the income year in which the application for review was made—that first day.

             (3)  If the Secretary is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in paragraph (1)(c), the Secretary may determine that subsection (1) applies as if the reference to 13 weeks in that paragraph were a reference to such longer period as the Secretary determines to be appropriate.

38  After section 159

Insert:

159A   Requesting information for the purposes of a care percentage determination under the child support law

                   The Secretary may request a person:

                     (a)  to give information; or

                     (b)  to produce a document that is in the person’s custody or under the person’s control;

to a specified agency if the Secretary considers that the information or document may be relevant to the making or revoking of a determination under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 .

Child Support (Assessment) Act 1989

39  Subsection 5(1)

Insert:

application day has the meaning given by subsection 54B(2).

40  Subsection 5(1)

Insert:

care arrangement has the same meaning as in the Family Assistance Act.

41  Subsection 5(1) (definition of care period )

Omit “section 48”, substitute “paragraph 4 9(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii)”.

42  Subsection 5(1)

Insert:

change of care day for a responsible person for a child means:

                     (a)  if a determination of the responsible person’s percentage of care for the child has been revoked under Subdivision C of Division 4 of Part 5—the first day on which the care of the child that was actually taking place ceased to correspond with the responsible person’s percentage of care for the child under the determination; or

                     (b)  otherwise—the first day on which the care of the child that was actually taking place ceased to correspond with the responsible person’s extent of care under a care arrangement that applies in relation to the child.

43  Subsection 5(1) (definition of court order )

Repeal the definition.

44  Subsection 5(1)

Insert:

Family Assistance Administration Act means the A New Tax System (Family Assistance) (Administration) Act 1999 .

45  Subsection 5(1)

Insert:

family assistance care determination has the meaning given by paragraph 54K(1)(b).

46  Subsection 5(1)

Insert:

Family Assistance Secretary means the Secretary of the Department administered by the Minister who administers Division 1 of Part 3 of the Family Assistance Act.

47  Subsection 5(1)

Insert:

interim period has the meaning given by subsection 54C(2).

48  Subsection 5(1) (definition of percentage of care )

Repeal the definition, substitute:

percentage of care , in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5.

49  Subsection 5(1)

Insert:

reduced care of a child has the meaning given by section 54.

50  Subsection 5(1)

Insert:

responsible person for a child means a parent or non-parent carer of the child.

51  Subsections 5(2) and (3)

Repeal the subsections, substitute:

Definitions of regular care and shared care

             (2)  A person has regular care of a child if the person’s percentage of care for the child during a care period is at least 14% but less than 35%.

             (3)  A person has shared care of a child if the person’s percentage of care for the child during a care period is at least 35% but not more than 65%.

52  Section 35 (method statement, step 4)

Omit “section 48”, substitute “Subdivision B of Division 4 of Part 5”.

53  Subsections 39(1) and 40(1) (method statements, step 2)

Omit “section 48”, substitute “Subdivision B of Division 4 of Part 5”.

54  Section 46 (method statement, step 2)

Omit “section 48”, substitute “Subdivision B of Division 4 of Part 5”.

55  Division 4 of Part 5

Repeal the Division, substitute:

Division 4 Percentage of care

Subdivision A Preliminary

48   Simplified outline

                   The following is a simplified outline of this Division:

•      A responsible person’s percentage of care for a child during a care period is the percentage of care determined by the Registrar under Subdivision B of this Division.

•      A responsible person’s percentage of care for a child is used in section 55C to work out the responsible person’s cost percentage for the child.

Subdivision B Determination of percentage of care

49   Determination of percentage of care—responsible person has had etc. no pattern of care for a child

             (1)  This section applies if:

                     (a)  either of the following applies:

                              (i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

                             (ii)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

                            and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or

                     (b)  the Registrar:

                              (i)  revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and

                             (ii)  is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.

             (2)  The Registrar must determine the responsible person’s percentage of care for the child during the care period.

             (3)  The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.

50   Determination of percentage of care—responsible person has had etc. a pattern of care for a child

             (1)  This section applies if:

                     (a)  either of the following applies:

                              (i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

                             (ii)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

                            and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or

                     (b)  the Registrar:

                              (i)  revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and

                             (ii)  is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.

             (2)  The Registrar must determine the responsible person’s percentage of care for the child during the care period.

             (3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

             (4)  Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

51   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

             (1)  This section applies if:

                     (a)  the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

                     (b)  a care arrangement applies in relation to the child; and

                     (c)  the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

                     (d)  a person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.

Note:          This section does not apply in certain circumstances: see section 53.

             (2)  The Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

             (3)  The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).

             (4)  The second percentage of care is to be:

                     (a)  for a determination under section 49—0%; or

                     (b)  for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

52   Percentage of care if action taken to make a new care arrangement in relation to a child

             (1)  This section applies if:

                     (a)  the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

                     (b)  a care arrangement (the current care arrangement ) applies in relation to the child; and

                     (c)  the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the current care arrangement during that period (which may be nil); and

                     (d)  a person who has reduced care of the child:

                              (i)  has not taken reasonable action to ensure that the current care arrangement is complied with; but

                             (ii)  has taken reasonable action to make another care arrangement (the new care arrangement ) in relation to the child; and

                     (e)  the Registrar is satisfied that, if the new care arrangement were to be made, the extent of care that the person who has reduced care of the child would have under that arrangement during the care period would be:

                              (i)  more than the actual care of the child that the Registrar is satisfied that that person has had, or is likely to have, during that period; but

                             (ii)  less than the extent of care of the child that that person should have had, or is to have, under the current care arrangement during that period; and

                      (f)  the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child.

Note:          This section does not apply in certain circumstances: see section 53.

             (2)  The Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

             (3)  The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person would have under the new care arrangement during the care period if it were to be made.

             (4)  The second percentage of care is to be:

                     (a)  for a determination under section 49—0%; or

                     (b)  for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the new care arrangement were not to be made.

53   Sections 51 and 52 do not apply in certain circumstances

Initial determination

             (1)  Sections 51 and 52 do not apply in relation to a responsible person for a child if:

                     (a)  in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies—the day on which the application referred to in that subparagraph is made is 14 weeks or more after the change of care day for the responsible person; or

                     (b)  in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies—the day referred to in that subparagraph is 14 weeks or more after the change of care day for the responsible person.

Later determination

             (2)  Sections 51 and 52 do not apply in relation to a responsible person for a child if:

                     (a)  the Registrar has revoked, under section 54F or 54H, a determination of the responsible person’s percentage of care for the child; and

                     (b)  the revocation of the determination takes effect at the end of the day referred to in paragraph 54F(2)(c) or 54H(2)(c); and

                     (c)  the day after that day is 14 weeks or more after the change of care day for the responsible person.

Extension of 14 week period

             (3)  If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may determine that subsection (1) or (2) applies as if the reference to 14 weeks in paragraph (1)(a) or (b) or (2)(c) were a reference to such longer period as the Registrar determines to be appropriate.

             (4)  The period determined under subsection (3) must not be more than 26 weeks.

54   When a person has reduced care of a child

                   A person has reduced care of a child if:

                     (a)  a care arrangement applies in relation to the child; and

                     (b)  the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

                     (c)  the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.

54A   Working out actual care, and extent of care, of a child

             (1)  The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

             (2)  The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

             (3)  For the purposes of this section, a child cannot be in the care of more than one person at the same time.

             (4)  This section does not limit section 50, 51, 52 or 54.

54B   Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person

             (1)  If:

                     (a)  a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and

                     (b)  sections 51 and 52 did not apply in relation to the responsible person;

the percentage of care applies to each day in a child support period on and from the application day unless a revocation of the determination under Subdivision C of this Division takes effect.

             (2)  The application day is:

                     (a)  if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day on which the application referred to in that subparagraph is made; or

                     (b)  if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph; or

                     (c)  if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:

                              (i)  in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a)—that day; or

                             (ii)  otherwise—the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect.

54C   Days to which the percentage of care applies if section 51 or 52 applied in relation to a responsible person

             (1)  If:

                     (a)  a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and

                     (b)  section 51 or 52 applied in relation to the responsible person;

then:

                     (c)  the percentage of care referred to in subsection 51(3) or 52(3) applies to each day in a child support period that occurs in the interim period for the determination unless a revocation of the determination under Subdivision C of this Division takes effect; and

                     (d)  the percentage of care referred to in subsection 51(4) or 52(4) applies to each day in a child support period that occurs after the interim period for the determination unless a revocation of the determination under Subdivision C of this Division takes effect.

             (2)  The interim period for the determination:

                     (a)  starts on the application day for the determination; and

                     (b)  ends at the end of the earliest of the following days:

                              (i)  the day specified by the Registrar;

                             (ii)  if section 51 applied in relation to the responsible person—the day before the day on which the action referred to in paragraph 51(1)(d) ends;

                            (iii)  if section 52 applied in relation to the responsible person—the day before the day on which the action referred to in subparagraph 52(1)(d)(ii) ends;

                            (iv)  if a care arrangement in relation to the child begins to apply on a day after the application day for the determination—the day before the day on which the care arrangement begins to apply.

             (3)  The day specified by the Registrar under subparagraph (2)(b)(i) must be the last day in the 14 week period, or such other longer period as is specified under subsection (4), that starts on the change of care day for the responsible person.

             (4)  If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may specify a period of up to 26 weeks for the purposes of subsection (3).

54D   Rounding of a percentage of care

                   If a responsible person’s percentage of care determined under 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.

54E   Registrar must have regard to guidelines about the making of determinations

                   In making a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35N(1) of the Family Assistance Act.

Subdivision C Revocation of determination of percentage of care

54F   Determination must be revoked if there is a change to the responsible person’s cost percentage

             (1)  If:

                     (a)  a determination of a responsible person’s percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and

                     (b)  if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and

                     (c)  the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

                     (d)  the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

                     (e)  section 54G does not apply;

the Registrar must revoke the determination.

Note:          The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

             (2)  The revocation of the determination takes effect at the end of:

                     (a)  if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

                              (i)  in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

                             (ii)  otherwise—the day before that change of care day; or

                     (b)  if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or

                     (c)  otherwise—the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.

54G   Determination must be revoked if there is less than regular care etc.

             (1)  If:

                     (a)  a responsible person (the first responsible person ) for a child was to have at least regular care of the child during a care period under a determination (the first care determination ) made under section 50; and

                     (b)  the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

                     (c)  a determination of the other responsible person’s percentage of care for the child has been made under section 50; and

                     (d)  the other responsible person notifies the Registrar or the Family Assistance Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

the Registrar must revoke both determinations.

Note:          The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

             (2)  The revocation of each determination takes effect:

                     (a)  if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or

                     (b)  if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.

             (3)  To avoid doubt, a responsible person never establishes a pattern of care if:

                     (a)  the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and

                     (b)  the responsible person does not establish that pattern during that particular period.

54H   Registrar may revoke a determination of a responsible person’s percentage of care

             (1)  If:

                     (a)  a determination of a responsible person’s percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and

                     (b)  if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and

                     (c)  the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

                     (d)  the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and

                     (e)  sections 54F and 54G do not apply;

the Registrar may revoke the determination.

Note:          If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

             (2)  If the Registrar revokes the determination, the revocation takes effect at the end of:

                     (a)  if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

                              (i)  in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

                             (ii)  otherwise—the day before that change of care day; or

                     (b)  if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or

                     (c)  otherwise—the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.

54J   Registrar must have regard to guidelines about the revocation of determinations

                   In revoking a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35S(1) of the Family Assistance Act.

Subdivision D Percentages of care determined under the Family Assistance Act

54K   Percentages of care determined under the Family Assistance Act that apply for child support purposes

             (1)  If:

                     (a)  the Registrar is required by a provision of Subdivision B of this Division to determine a responsible person’s percentage of care for a child; and

                     (b)  the Family Assistance Secretary has determined the responsible person’s percentage of care for the child (the family assistance care determination ) under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; and

                     (c)  the family assistance care determination was made in relation to a claim for payment of family tax benefit; and

                     (d)  the family assistance care determination has not ceased to apply or been revoked;

then:

                     (e)  the family assistance care determination has effect, for the purposes of this Act, as if it were a determination of the responsible person’s percentage of care for the child that has been made by the Registrar under a corresponding provision of Subdivision B of this Division; and

                      (f)  the responsible person’s percentage of care for the child applies, for the purposes of this Act, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Registrar under such a provision; and

                     (g)  the family assistance care determination may cease to apply, or be revoked, under Subdivision B or C of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision B of this Division may cease to apply, or be revoked.

             (2)  This section ceases to apply to the family assistance care determination if the determination ceases to apply, or is revoked, under Subdivision D or E of Division 1 of Part 3 of the Family Assistance Act.

54L   Reviews of percentages of care under the Family Assistance Administration Act apply for child support purposes

             (1)  Subject to subsections (2) and (3), if:

                     (a)  the Family Assistance Secretary reviews a decision under section 105 or 109A of the Family Assistance Administration Act; and

                     (b)  reviewing the decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

                     (c)  the Family Assistance Secretary’s decision on the review has the effect of varying the determination or substituting a new determination;

section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

             (2)  Subject to subsection (3), if:

                     (a)  the SSAT reviews a decision under section 113 of the Family Assistance Administration Act; and

                     (b)  reviewing the decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

                     (c)  the SSAT’s decision on the review has the effect of varying the determination or substituting a new determination;

section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

             (3)  If:

                     (a)  the AAT reviews a decision under the Administrative Appeals Tribunal Act 1975 ; and

                     (b)  reviewing the decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

                     (c)  the AAT’s decision on the review has the effect of varying the determination or substituting a new determination;

section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.

56  Paragraph 74A(b)

Repeal the paragraph, substitute:

                     (b)  a determination of a responsible person’s percentage of care for the child is revoked; and

                   (ba)  another such determination (the later determination ) is made in relation to the responsible person; and

57  Paragraph 74A(c)

Omit “child; and”, substitute “child;”.

58  Paragraph 74A(d)

Repeal the paragraph.

59  Section 74A

Omit “whichever of the following days is applicable:”, substitute “the first day in a child support period to which the responsible person’s percentage of care under the later determination applies.”.

60  Paragraphs 74A(e) and (f)

Repeal the paragraphs.

61  Section 74A (note 1)

Repeal the note.

62  Section 74A (note 2)

Omit “Note 2”, substitute “Note”.

63  Subsection 75(2)

Omit “a person’s”, substitute “a responsible person’s”.

64  Paragraphs 75(2)(aa) to (cb)

Repeal the paragraphs, substitute:

                     (a)  the amendment relating to the responsible person’s percentage of care for the child would cause the person’s cost percentage for the child to change; or

65  Subsection 75(2) (note)

Repeal the note.

66  Paragraph 146BA(1)(c)

Omit “paragraph 48(1)(a)”, substitute “paragraph 54B(2)(a)”.

67  Paragraph 146BA(1)(c)

Omit “is made under section 25 or 25A”, substitute “referred to in subparagraph 49(1)(a)(i) or 50(1)(a)(i) is made”.

68  Paragraph 146C(4)(a)

Omit “section 80”, substitute “section 89”.

69  Subsection 146C(4) (note)

After “section 80”, insert “or 80A”.

70  After section 162B

Insert:

162C   Requesting information for the purposes of a care percentage determination under the family assistance law

                   The Registrar may request a person:

                     (a)  to give information; or

                     (b)  to produce a document that is in the person’s custody or under the person’s control;

to the Registrar if the Registrar considers that the information or document may be relevant to the making or revoking of a determination under Subdivision D or E of Division 1 of Part 3 of the Family Assistance Act.

Child Support (Registration and Collection) Act 1988

71  Subsection 4(1)

Insert:

care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):

                     (a)  a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or

                     (b)  a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.

72  At the end of section 80

Add:

Section does not apply to care percentage decisions

             (6)  This section does not apply to a decision that is a care percentage decision.

Note:       The heading to section 80 is altered by adding at the end “ —general ”.

73  At the end of Division 2 of Part VII

Add:

80A   Objections against care percentage decisions may be lodged

                   The following persons may lodge with the Registrar, or the Family Assistance Secretary, an objection to a care percentage decision:

                     (a)  the carer entitled to child support;

                     (b)  the liable parent.

74  Subsection 81(1)

After “refusal decision”, insert “or a care percentage decision”.

75  Section 84

After “must state”, insert “or give”.

76  At the end of section 85

Add:

             (3)  Subsection (1) does not apply to an objection to a care percentage decision.

77  After section 85

Insert:

85A   Notification of objections to care percentage decisions

                   If:

                     (a)  a person objects to a care percentage decision under section 80A; and

                     (b)  more than one person could have objected to the decision under that section;

the Registrar must, as soon as practicable, notify each other person who could have objected to the decision of the objection referred to in paragraph (a).

Note:       The heading to section 86 is altered by inserting “ served with copy of objection etc. ” after “ party ”.

78  At the end of Division 4 of Part VII

Add:

86A   Notified person may oppose or support an objection to a care percentage decision

             (1)  A person notified of an objection under section 85A may, within 28 days of being so notified:

                     (a)  lodge with the Registrar a written notice in opposition to, or in support of, the objection; or

                     (b)  otherwise inform the Registrar whether the person opposes or supports the objection.

             (2)  If a notice is lodged under paragraph (1)(a), the notice must state fully and in detail the grounds relied on.

             (3)  If paragraph (1)(b) applies, the person must give fully and in detail the grounds relied on.

             (4)  If the person is a resident of a reciprocating jurisdiction, subsection (1) applies as if the reference in that subsection to 28 days were a reference to 90 days.

79  Subsection 87(1)

Omit “with the Registrar under this”, substitute “under this”.

80  Paragraph 87(1)(a)

Repeal the paragraph, substitute:

                     (a)  consider the objection and:

                              (i)  if paragraph 86A(1)(b) applies in relation to the objection—any grounds relied on to oppose or support the objection; or

                             (ii)  otherwise—any notice lodged with the Registrar under section 86 or paragraph 86A(1)(a) in relation to the objection; and

81  Paragraph 87(1)(b)

Omit “with the Registrar”.

82  Subsection 87(1A)

Repeal the subsection, substitute:

          (1A)  However, if any of the following is a resident of a reciprocating jurisdiction:

                     (a)  the person objecting;

                     (b)  in a case where a person has been served with a copy of the objection and any accompanying documents under section 85—that person;

                     (c)  in a case where a person has been notified of the objection under section 85A—that person;

the Registrar has 120 days, instead of 60 days, to act under paragraph (1)(b).

83  After subsection 87(1A)

Insert:

          (1B)  If:

                     (a)  the objection is an objection to a care percentage decision; and

                     (b)  a review of a decision carried out under Division 1 of Part 5 of the Family Assistance Administration Act has involved (wholly or partly) a review of the determination to which the care percentage decision relates;

the Registrar must not allow the objection in a way that has the effect of varying the determination or substituting a new determination.

84  Paragraph 87(2)(b)

Repeal the paragraph, substitute:

                     (b)  each other person:

                              (i)  if the objection is an objection to a care percentage decision—who was entitled to be notified of the objection under section 85A; or

                             (ii)  otherwise—who was entitled to be served a copy of the objection and the accompanying documents under section 85.

85  At the end of Part VII

Add:

Division 6 Date of effect of objections

87AA   Date of effect of objections relating to care percentage decisions that are allowed

             (1)  If:

                     (a)  a person lodges, under section 80A, an objection to a care percentage decision; and

                     (b)  the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and

                     (c)  the Registrar decides (the review decision ), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;

the date of effect of the review decision is the day on which the person lodged the objection.

             (2)  If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:

                     (a)  in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or

                     (b)  otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

             (3)  If:

                     (a)  the Registrar decides to make a determination under subsection (2) in relation to a person; or

                     (b)  the Registrar decides not to make such a determination in relation to a person;

the Registrar must give written notice of the decision to each person affected by the decision.

             (4)  The notice must:

                     (a)  set out the reasons for the decision; and

                     (b)  include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act, to the SSAT for review of the decision.

             (5)  A contravention of subsection (4) in relation to a decision does not affect the validity of the decision.

86  Subsection 89(1) (paragraph (a) of table item 2, column headed “Who may apply for review”)

After “section 80”, insert “or 80A”.

87  Subsection 89(1) (at the end of the table)

Add:

 

3

a decision to make a determination under subsection 87AA(2) or a decision not to make such a determination

a person affected by the decision

4

a decision to make a determination under subsection 110Y(3) or 110Z(3) or a decision not to make such a determination

a person affected by the decision

88  Subsection 90(1)

Repeal the subsection, substitute:

             (1)  An application for review under this Part (other than an application for review of a decision on an objection to a care percentage decision) must be made by a person within the period of 28 days starting on:

                     (a)  if the decision is set out in item 1 or 2 of the table in subsection 89(1)—the day on which the relevant notice under subsection 83(3) or 87(2) is served on the person; or

                     (b)  otherwise—the day on which the relevant notice under subsection 87AA(3), 110Y(4) or 110Z(4) is given to the person.

89  Subsection 90(2)

Omit “subsection (1)”, substitute “paragraph (1)(a) or (b)”.

90  Section 103S

Before “If”, insert “(1)”.

91  At the end of section 103S

Add:

             (2)  If:

                     (a)  the review is a review of a decision (the original decision ) under subsection 87(1) on an objection to a care percentage decision; and

                     (b)  a review of a decision carried out under Division 2 of Part 5 of the Family Assistance Administration Act has involved (wholly or partly) a review of the determination to which the care percentage decision relates;

the SSAT must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

92  Subsection 103V(2)

Omit “The decision”, substitute “Subject to subsection (3), the decision”.

93  At the end of section 103V

Add:

             (3)  If:

                     (a)  the decision (the original decision ) under review is a decision on an objection to a care percentage decision; and

                     (b)  the application for review of the original decision was made more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the original decision was served;

the original decision as varied or the new decision (as the case may be) has effect, or is to be taken to have had effect, on and from the day on which the application was made.

             (4)  If the SSAT is satisfied that there are special circumstances that prevented the application from being made within the period referred to in paragraph (3)(b), the SSAT may determine that subsection (3) applies as if:

                     (a)  in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the SSAT determines to be appropriate; or

                     (b)  otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the SSAT determines to be appropriate.

             (5)  If:

                     (a)  the SSAT decides to make a determination under subsection (4) in relation to a person; or

                     (b)  the SSAT decides not to make such a determination in relation to a person;

the SSAT must give written notice of the decision to each person affected by the decision.

             (6)  The notice must include a statement to the effect:

                     (a)  that the person may, subject to the Administrative Appeals Tribunal Act 1975 , apply to the AAT for review of the decision; and

                     (b)  except where subsection 28(4) of that Act applies—that the person may request a statement under section 28 of that Act.

             (7)  A contravention of subsection (6) in relation to a decision does not affect the validity of the decision.

94  After subsection 103VA(1)

Insert:

          (1A)  If:

                     (a)  the decision (the original decision ) reviewed by the SSAT is a decision on an objection to a care percentage decision; and

                     (b)  a review of a decision carried out by the AAT under the Administrative Appeals Tribunal Act 1975 has involved (wholly or partly) a review of the determination to which the care percentage decision relates;

then, despite section 43 of that Act, the AAT must not vary the original decision, or set the original decision aside and substitute a new decision, in a way that has the effect of varying the determination or substituting a new determination.

          (1B)  An application may be made to the AAT for review of:

                     (a)  a decision of the SSAT under subsection 103V(4) to make a determination under that subsection in relation to a person; or

                     (b)  a decision of the SSAT under subsection 103V(4) not to make a determination under that subsection in relation to a person.

Note:       The heading to section 103VA is altered by adding at the end “ etc. ”.

95  Subsection 103VA(2)

Omit “subsection (1)”, substitute “this section”.

96  Section 110N

After:

•      A person might commit an offence if the person publishes an account of a proceeding, or a list of proceedings, under Part VIIA or Division 3 of Part VIII that identifies a witness or party.

Insert:

•      The date of effect of reviews of decisions under the Family Assistance Administration Act that apply for child support purposes is dealt with in Division 6.

97  At the end of Part VIIIA

Add:

Division 6 Date of effect of reviews under the Family Assistance Administration Act

110Y  Date of effect of internal reviews under the Family Assistance Administration Act that apply for child support purposes

             (1)  This section applies if:

                     (a)  the Family Assistance Secretary reviews, under section 105 or 109A of the Family Assistance Administration Act, a decision (the original decision ) relating to a person; and

                     (b)  the review of the original decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

                     (c)  either:

                              (i)  the decision on the review under section 105 of the Family Assistance Administration Act is made more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the original decision was given; or

                             (ii)  the application for review of the original decision under section 109A of the Family Assistance Administration Act was made more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the original decision was given; and

                     (d)  the decision (the review decision ) on the review has the effect of varying the determination or substituting a new determination; and

                     (e)  the determination as varied or substituted has effect, under sections 54K and 54L of the Assessment Act, as if it were a determination made under Subdivision B of Division 4 of Part 5 of that Act.

             (2)  The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is:

                     (a)  for a review under section 105 of the Family Assistance Administration Act—the day on which the review decision is made; or

                     (b)  for a review under section 109A of the Family Assistance Administration Act—the day on which the application for review was made.

             (3)  If the Registrar is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in subparagraph (1)(c)(ii), the Registrar may determine that subsection (1) applies as if:

                     (a)  in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that subparagraph were a reference to such longer period as the Registrar determines to be appropriate; or

                     (b)  otherwise—the reference to 28 days in that subparagraph were a reference to such longer period as the Registrar determines to be appropriate.

             (4)  If:

                     (a)  the Registrar decides to make a determination under subsection (3) in relation to a person; or

                     (b)  the Registrar decides not to make such a determination in relation to a person;

the Registrar must give written notice of the decision to each person affected by the decision.

             (5)  The notice must:

                     (a)  set out the reasons for the decision; and

                     (b)  include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act, to the SSAT for review of the decision.

             (6)  A contravention of subsection (5) in relation to a decision does not affect the validity of the decision.

110Z   Date of effect of SSAT reviews under the Family Assistance Administration Act that apply for child support purposes

             (1)  This section applies if:

                     (a)  a person applies to the SSAT, under section 111 of the Family Assistance Administration Act, for review of a decision (the original decision ); and

                     (b)  the review of the original decision involves (wholly or partly) a review of a determination that:

                              (i)  was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

                             (ii)  has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

                     (c)  the application for review of the original decision was made more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the original decision was given; and

                     (d)  the decision (the review decision ) on the review has the effect of varying the determination or substituting a new determination; and

                     (e)  the determination as varied or substituted has effect, under sections 54K and 54L of the Assessment Act, as if it were a determination made under Subdivision B of Division 4 of Part 5 of that Act.

             (2)  The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is the day on which the application for review was made.

             (3)  If the Registrar is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in paragraph (1)(c), the Registrar may determine that subsection (1) applies as if:

                     (a)  in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or

                     (b)  otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

             (4)  If:

                     (a)  the Registrar decides to make a determination under subsection (3) in relation to a person; or

                     (b)  the Registrar decides not to make such a determination in relation to a person;

the Registrar must give written notice of the decision to each person affected by the decision.

             (5)  The notice must:

                     (a)  set out the reasons for the decision; and

                     (b)  include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act, to the SSAT for review of the decision.

             (6)  A contravention of subsection (5) in relation to a decision does not affect the validity of the decision.

Income Tax Assessment Act 1936

98  Paragraph 251R(5)(d)

Repeal the paragraph, substitute:

                     (d)  the Families Secretary has determined, under Subdivision D of Division 1 of Part 3 of that Act, each parent’s or spouse’s percentage of care for the child during a care period (within the meaning of that Act);

99  Subsection 251R(5)

Omit “represents that percentage of the period”, substitute “corresponds with that percentage of care”.



 

Part 2 Application and transitional provisions

Division 1—Definitions

100  Definitions

In this Part:

Assessment Act means the Child Support (Assessment) Act 1989 .

commencement day means the day on which this Schedule commences.

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 .

Registration and Collection Act means the Child Support (Registration and Collection) Act 1988 .

Division 2—Amendments of the child support law

101  Transitional—existing percentage of care under the Assessment Act

(1)       This item applies if:

                     (a)  before the commencement day, a person’s percentage of care for a child during a care period has been determined (the existing care determination ) under Division 4 of Part 5 of the Assessment Act; and

                     (b)  the person’s percentage of care under the existing care determination applies immediately before the commencement day.

(2)       The existing care determination is taken to have been revoked immediately before the commencement day.

(3)       The Registrar is taken, on the commencement day, to have determined (the new care determination ) under section 49 or 50 of the Assessment Act, as inserted by this Act, a percentage that is equal to the person’s percentage of care under the existing care determination to be the person’s percentage of care for the child during the care period.

(4)       Sections 51 and 52 of the Assessment Act, as inserted by this Act, are taken not to have applied in relation to the person.

(5)       The person’s percentage of care for the child under the new care determination applies, for the purposes of the Assessment Act as amended by this Act, on and from the commencement day unless a revocation of the determination under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, takes effect.

(6)       The new care determination may be revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, in the same way, and in the same circumstances, in which a determination made under Subdivision B of that Division, as inserted by this Act, may be revoked.

(7)       If:

                     (a)  the new care determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act; and

                     (b)  the date of effect of the revocation under that Subdivision would, apart from this subitem, be a day before the commencement day;

then, despite that Subdivision, the revocation of the determination takes effect at the beginning of the commencement day.

(8)       If:

                     (a)  the new care determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act; and

                     (b)  on the revocation of the new care determination, another determination of the person’s percentage of care for the child during the care period is made under section 49 or 50 of the Assessment Act, as inserted by this Act; and

                     (c)  the application day for the other determination would, apart from this subitem, be a day before the commencement day;

then, despite subsection 54B(2) of the Assessment Act as inserted by this Act, the application day for the other determination is the commencement day.

(9)       Sections 35T and 35U of the Family Assistance Act do not apply in relation to the new care determination.

(10)     The Registrar is taken, on the commencement day, to have notified the person of the effect of this item.

102  Transitional—pending child support applications

(1)       This item applies if:

                     (a)  an application under section 25 or 25A of the Assessment Act was made before the commencement day; and

                     (b)  the application has not been determined before the commencement day.

(2)       Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the application as if those amendments had not been made.

(3)       If a person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the application, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

103  Transitional—change of care event

(1)       This item applies if:

                     (a)  an event referred to in paragraph 48(1)(b) of the Assessment Act, as in force immediately before the commencement day, occurs in relation to a person before that day; and

                     (b)  the Registrar is notified, or otherwise becomes aware of the event within 28 days after the day on which the event occurred; and

                     (c)  the day on which the Registrar is so notified, or becomes so aware, is a day on or after the commencement day.

(2)       Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the person as if those amendments had not been made.

(3)       If the person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the person, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

104  Transitional—relevant dependent child

(1)       This item applies if:

                     (a)  a person is taken under section 73A of the Assessment Act to have had a relevant dependent child from a day specified in that section; and

                     (b)  that day is a day before the commencement day; and

                     (c)  the person’s percentage of care for the child has not been determined under Division 4 of Part 5 of that Act before the commencement day.

(2)       Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the person as if those amendments had not been made.

(3)       If the person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the person, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

105  Application—sections 49 and 50 of the Assessment Act

(1)       Subparagraph 49(1)(a)(i) or 50(1)(a)(i) of the Assessment Act, as inserted by this Act, applies in relation to an application that is made under section 25 or 25A of the Assessment Act on or after the commencement day.

(2)       Subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) of the Assessment Act, as inserted by this Act, applies in relation to a parent who is taken under section 73A of the Assessment Act to have a relevant dependent child from a day that is on or after the commencement day.

106  Application—section 54K of the Assessment Act

Section 54K of the Assessment Act, as inserted by this Act, applies in relation to a determination that is made under Subdivision D of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, on or after the commencement day.

Division 3—Amendments of the family assistance law

107  Transitional—existing percentage of care under the Family Assistance Act

(1)       This item applies if:

                     (a)  before the commencement day, the Secretary has determined (the existing care determination ), under subsection 22(6A) of the Family Assistance Act, a percentage of a period during which a child was, or will be, in the care of an individual; and

                     (b)  the individual’s percentage of care under the existing care determination applies immediately before the commencement day.

(2)       The existing care determination is taken to have been revoked immediately before the commencement day.

(3)       The Secretary is taken, on the commencement day, to have determined (the new care determination ) under section 35B of the Family Assistance Act, as inserted by this Act, a percentage that is equal to the individual’s percentage of care under the existing care determination to be the individual’s percentage of care for the child during the period.

(4)       Sections 35C and 35D of the Family Assistance Act, as inserted by this Act, are taken not to have applied in relation to the individual.

(5)       The individual’s percentage of care for the child under the new care determination applies, for the purposes of the Family Assistance Act as amended by this Act, on and from the commencement day unless a revocation of the determination under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, takes effect.

(6)       The new care determination may be revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, in the same way, and in the same circumstances, in which a determination made under Subdivision D of that Division, as inserted by this Act, may be revoked.

(7)       If:

                     (a)  the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and

                     (b)  the date of effect of the revocation under that Subdivision would, apart from this subitem, be a day before the commencement day;

then, despite that Subdivision, the revocation of the determination takes effect at the beginning of the commencement day.

(8)       If:

                     (a)  the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and

                     (b)  on the revocation of the new care determination, another determination of the individual’s percentage of care for the child during the care period is made under section 35A or 35B of the Family Assistance Act, as inserted by this Act; and

                     (c)  the application day for the other determination would, apart from this subitem, be a day before the commencement day;

then, despite subsections 35K(2) and (3) of the Family Assistance Act as inserted by this Act, the application day for the other determination is the commencement day.

(9)       Sections 54K and 54L of the Assessment Act do not apply in relation to the new care determination.

(10)     The Secretary is taken, on the commencement day, to have notified the individual of the effect of this item.

108  Transitional—family tax benefit for a past period

(1)       This item applies if:

                     (a)  a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit for a past period is made before, on or after the commencement day; and

                     (b)  the past period occurs before the commencement day.

(2)       Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.

109  Transitional—pending family tax benefit claims

(1)       This item applies if:

                     (a)  a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit was made before the commencement day; and

                     (b)  the claim is not a claim for payment of family tax benefit for a past period; and

                     (c)  the claim has not been determined before the commencement day.

(2)       Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.

(3)       If the Secretary makes a determination under subsection 22(6A) of the Family Assistance Act, as it continues to apply under subitem (2) in relation to the claim, the Secretary is taken, for the purposes of item 107 of this Schedule, to have made the determination before the commencement day.

110  Application—sections 35A and 35B of the Family Assistance Act

(1)       Sections 35A and 35B of the Family Assistance Act, as inserted by this Act, apply in relation to a claim under Part 3 of the Family Assistance Administration Act that is made on or after the commencement day.

(2)       Subitem (1) does not apply to a claim under that Part if:

                     (a)  the claim is a claim for payment of family tax benefit for a past period; and

                     (b)  the past period occurs before the commencement day.

111  Application—section 35T of the Family Assistance Act

Section 35T of the Family Assistance Act, as inserted by this Act, applies in relation to a determination that is made under Subdivision B of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, on or after the commencement day.

Division 4—Application of amendments in relation to Western Australian exnuptial children

112  Application of amendments in relation to Western Australian exnuptial children

(1)       This item applies if, immediately after the commencement day, the Assessment Act and the Registration and Collection Act, as amended by this 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.

(2)       Items 101 to 111 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 day were references to the adoption of those Acts by Western Australia as amended by this Act.