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Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007

Schedule 3 Amendments relating to access to courts and review process

Part 1 Amendments commencing on 1 January 2008

Child Support (Assessment) Act 1989

1  Paragraph 33(2)(a)

After “carer application”, insert “or a liable parent application”.

2  Paragraph 33(2)(b)

Repeal the paragraph, substitute:

                     (b)  one of the reasons for the Registrar refusing to accept the application was that the Registrar was not satisfied under section 29 that:

                              (i)  in the case of a carer application—the person from whom the application sought payment of child support is a parent of the child; and

                             (ii)  in the case of a liable parent application—the applicant is a parent of the child.

3  Paragraph 33(3)(b)

Repeal the paragraph, substitute:

                     (b)  a statement to the effect that the applicant may apply to a court having jurisdiction under this Act for:

                              (i)  in the case of a carer application—a declaration under section 106A that the applicant is entitled to administrative assessment of child support for a child because the person from whom the application sought payment of child support is a parent of the child; and

                             (ii)  in the case of a liable parent application—a declaration under section 106B that the applicant is entitled to administrative assessment of child support because the applicant is a parent of the child.

4  Paragraph 33(4)(b)

After “original decision”, insert “(no matter who lodges the objection)”.

5  Paragraph 34(2)(a)

Before “that the person”, insert “in the case of a carer application—”.

Note:       The heading to section 34 is replaced by the heading “ Giving notice of successful application ”.

6  After paragraph 34(2)(a)

Insert:

                    (aa)  in the case of a liable parent application—that the applicant may apply to a court having jurisdiction under this Act for a declaration under section 107A of this Act that the applicant was not entitled to administrative assessment of child support for the child because the applicant is not a parent of the child; and

7  Paragraph 34(2)(b)

Omit “that the person”, insert “in any case—that the applicant or the person”.

8  Subparagraph 34(2)(b)(i)

After “ground that”, insert “the applicant or”.

9  Section 98W (3rd dot point)

Omit “another person is, or is not, the parent”, substitute “that person or another person is, or is not, a parent”.

10  Section 106

After “because” (wherever occurring), insert “that person or”.

11  After section 106A

Insert:

106B   Declaration that a person is entitled to administrative assessment—liable parent applications

             (1)  This section applies if:

                     (a)  the Registrar refuses to accept from an applicant a liable parent application for administrative assessment of child support for a child under subsection 30(2); and

                     (b)  one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that the applicant is a parent of the child.

Applications for declarations

             (2)  The applicant may apply to a court having jurisdiction under this Act for a declaration that:

                     (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the applicant is entitled to administrative assessment of child support for the child because the applicant is a parent of the child; and

                     (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the applicant is entitled to have the Registrar reconsider the application under Division 2 of Part 4 because the applicant is a parent of the child.

             (3)  The application must be made within:

                     (a)  the time prescribed by the applicable Rules of Court; or

                     (b)  such further time as is allowed under the applicable Rules of Court.

Parties

             (4)  Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are:

                     (a)  the applicant; and

                     (b)  the person to whom the application sought to pay child support.

Declarations

             (5)  The court may grant the declaration if the court is satisfied that:

                     (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the applicant is entitled to administrative assessment of child support because the applicant is a parent of the child; or

                     (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the applicant is entitled to have the Registrar reconsider the application under Division 2 of Part 4 because the applicant is a parent of the child.

             (6)  If the court grants the declaration:

                     (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the Registrar is taken to have accepted the application for administrative assessment of child support; and

                     (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar must reconsider the application under Division 2 of Part 4.

Note:       The heading to section 106A is altered by adding at the end “ —carer applications ”.

12  After section 107

Insert:

107A   Declaration that a person is not entitled to administrative assessment—liable parent applications

             (1)  If the Registrar accepts a liable parent application for administrative assessment of child support for a child, the applicant may, subject to subsection (2), apply to a court having jurisdiction under this Act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the applicant because the applicant is not a parent of the child concerned.

             (2)  However, an applicant must not apply for a declaration in respect of a child if a court has already declared under section 106B that the applicant was entitled to administrative assessment of child support for the child, or to have the Registrar reconsider an application, because the applicant is a parent of the child.

Note:          In that case, the applicant may be able to appeal against the declaration under Division 1 of Part 7.

             (3)  The application must be made within the time prescribed by the applicable Rules of Court or within such further time as is allowed under the applicable Rules of Court.

             (4)  Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are the applicant and the person to whom the application sought payment of child support.

             (5)  The court may grant the declaration if the court is satisfied that the applicant was not entitled to administrative assessment of child support for the child because the applicant is not a parent of the child.

             (6)  If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.

             (7)  If the court grants the declaration, the court must, as soon as practicable, consider making an order under section 143.

Note:       The heading to section 107 is altered by adding at the end “ —carer applications ”.

13  Paragraph 109(2)(a)

After “107”, insert “or 107A”.

14  Paragraph 139(2A)(d)

Repeal the paragraph, substitute:

                     (d)  if:

                              (i)  the decision of the Registrar does not become final; and

                             (ii)  one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that the applicant or the person from whom the application sought payment of child support is a parent of the child;

                            at the time when a decision of a court becomes final, being a decision (whether under section 106A or 106B or on appeal from a decision of a court under that section) that the applicant or the person from whom the application sought payment of child support is not a parent of the child; or

15  Paragraph 139(2B)(a)

After “106A”, insert “or 106B”.

16  Paragraph 143(3A)(b)

Omit “107 that”, insert “107 or 107A that the payer or”.

17  Paragraph 143(3B)(c)

After “107”, insert “or 107A”.

Child Support (Registration and Collection) Act 1988

18  Paragraph 17A(1)(c)

Repeal the paragraph, substitute:

                     (c)  the court made the order in response to:

                              (i)  a declaration under section 107 of that Act that the payer was not entitled to an administrative assessment of child support for a child because the payee is not a parent of the child; or

                             (ii)  a declaration under section 107A of that Act that the payee was not entitled to an administrative assessment of child support for a child because the payee is not a parent of the child.

19  Paragraph 79A(1)(a)

Repeal the paragraph, substitute:

                     (a)  the Registrar has notice that:

                              (i)  the payer has made an application under section 107 of the Assessment Act for a declaration that the payee was not entitled to administrative assessment of child support for the child because the payer is not a parent of the child; or

                             (ii)  the payer has made an application under section 107A of the Assessment Act for a declaration that the payer was not entitled to administrative assessment of child support for the child because the payer is not a parent of the child; and

Note:       The heading to section 79A is altered by omitting “ parent ” and substituting “ person ”.

20  Subsection 79A(2) (note 1)

After “107”, insert “or 107A”.

21  Subsection 80(4)

Omit “the parent”, substitute “a parent”.

22  Subsection 80(4) (note)

Repeal the note, substitute:

Note:          In that case, a person may be able to apply to a court under section 107 or 107A of the Assessment Act.

23  At the end of section 80

Add:

             (6)  An objection may not be lodged to a decision of the Registrar to refuse to accept a liable parent application for administrative assessment if one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that the applicant is a parent of the child concerned.

Note:          In that case, the applicant may be able to apply to a court under section 106B of the Assessment Act for a declaration that the applicant is entitled to administrative assessment of child support for the child.

24  Subsection 82(1)

Repeal the subsection, substitute:

             (1)  A person may lodge an objection under this Part after the period for lodging such an objection has ended if, at the time of lodging the objection or a later time, the person applies to the Registrar to consider the objection despite the period ending.

25  At the end of section 82

Add:

             (3)  The application must be made in the manner specified by the Registrar.

26  Section 85

Before “The following”, insert “(1)”.

27  Section 85 (after table item 3)

Insert:

 

3A

a decision to accept an application for administrative assessment of child support for a child under subsection 30(1) of the Assessment Act

the applicant

28  At the end of section 85

Add:

             (2)  Subsection (1) does not apply to an objection to a decision to make, or refuse to make, a departure determination under Part 6A of the Assessment Act if the Registrar is satisfied that the rights of the person who would otherwise be served with a copy of the objection and any accompanying documents will not be affected by any possible decision the Registrar could make in relation to the objection.



 

Part 2 Amendments commencing on 1 July 2008

Child Support (Assessment) Act 1989

29  Subsection 33(3)

Repeal the subsection, substitute:

Refusals on ground that Registrar not satisfied that person a parent

             (3)  If one of the reasons the Registrar refused to accept the application was because the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child, the notice must include, or be accompanied by:

                     (a)  a statement that the Registrar was not satisfied under section 29 that the person is a parent of the child; and

                     (b)  a statement to the effect that an application may be made to a court having jurisdiction under this Act for a declaration under section 106A that the person should be assessed in respect of the costs of a child because the person is a parent of the child.

30  Paragraph 34(2)(a)

Repeal the paragraph, substitute:

                     (a)  an application may be made to a court having jurisdiction under this Act for a declaration under section 107 that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child; and

31  Subparagraph 34(2)(b)(i)

Omit “the person” (first occurring), substitute “the applicant or a parent who is to be assessed in respect of the costs of the child”.

Note:       The heading to section 34 is replaced by the heading “ Giving notice of successful application ”.

32  Subparagraph 34(2)(b)(i)

Omit “because the person”, substitute “because a person”.

33  Subparagraph 34(2)(b)(ii)

Omit “the person”, substitute “the applicant or a parent who is to be assessed in respect of the costs of the child”.

34  Section 98W

Omit:

•      A court may declare that a person is, or is not, entitled to administrative assessment of child support for a child because that person or another person is, or is not, the parent of the child.

substitute:

•      A court may declare that a person should, or should not, be assessed in respect of the costs of the child because the person is, or is not, a parent of the child.

35  Division 2 of Part 7 (heading)

Repeal the heading, substitute:

Division 2 Declarations relating to whether persons should be assessed in respect of the costs of the child

36  Section 106

Repeal the section, substitute:

106   Simplified outline

                   The following is a simplified outline of this Division:

•      A court may declare that a person should be assessed in respect of the costs of a child because the person is a parent of the child.

•      A court may declare that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child.

37  Subsection 106A(2)

Repeal the subsection, substitute:

Applications for declarations

             (2)  An application may be made to a court having jurisdiction under this Act for a declaration that:

                     (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—a person should be assessed in respect of the costs of the child because the person is a parent of the child; and

                     (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child.

Note:       The heading to section 106A is altered by omitting “ is entitled to administrative assessment—carer applications ” and substituting “ should be assessed in respect of the costs of the child ”.

38  Subsections 106A(4) and (5)

Repeal the subsections, substitute:

Parties

             (4)  Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are:

                     (a)  if the application for administrative assessment was made under section 25—each person who was to be assessed in respect of the costs of the child; and

                     (b)  if the application for administrative assessment was made under section 25A—the non-parent carer who made the application and the person in respect of whom the declaration is sought.

Declarations

             (5)  The court may grant the declaration if the court is satisfied that:

                     (a)  if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application—the person should be assessed in respect of the costs of the child because the person is a parent of the child; or

                     (b)  if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application—the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child.

39  Section 106B

Repeal the section.

40  Subsection 107(1) and (1A)

Repeal the subsections, substitute:

             (1)  If the Registrar accepts an application for administrative assessment of child support for a child, an application may be made, subject to subsection (1A), to a court having jurisdiction under this Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child.

          (1A)  However, an application must not be made in respect of a child and a person if a court has already declared under section 106A that the person should be assessed in respect of the costs of the child because the person is a parent of the child.

Note:          In that case, an appeal may be made against the declaration under Division 1 of Part 7.

Note:       The heading to section 107 is altered by omitting “ is not entitled to administrative assessment—carer applications ” and substituting “ should not be assessed in respect of the costs of the child ”.

41  Subsection 107(4)

Repeal the subsection, substitute:

             (4)  The court may grant the declaration if the court is satisfied that the person should not be assessed in respect of the costs of the child because the person is not a parent of the child.

42  Section 107A

Repeal the section.

43  Paragraph 109(2)(a)

Omit “or 107A”.

44  Paragraph 139(2A)(d)

Repeal the paragraph, substitute:

                     (d)  if:

                              (i)  the decision of the Registrar does not become final; and

                             (ii)  one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child;

                            at the time when a decision of a court becomes final, being a decision (whether under section 106A or on appeal from a decision of a court under that section) that the person is not a parent of the child; or

45  Paragraph 139(2B)(a)

Omit “or 106B”.

46  Paragraph 143(3A)(b)

Repeal the paragraph, substitute:

                     (b)  the court has made a declaration under section 107 that the payer should not be assessed in respect of the costs of the child because the payer is not a parent of the child; and

47  Paragraph 143(3B)(a)

Omit “the parent”, substitute “a parent”.

48  Paragraph 143(3B)(c)

Omit “or 107A”.

49  Paragraphs 143(3B)(c) and (d)

Omit “the parent”, substitute “a parent”.

Child Support (Registration and Collection) Act 1988

50  Paragraph 17A(1)(c)

Repeal the paragraph, substitute:

                     (c)  the court made the order in response to a declaration under section 107 of that Act that the payee should not be assessed in respect of the costs of the child because the payee is not a parent of the child.

51  Paragraph 79A(1)(a)

Repeal the paragraph, substitute:

                     (a)  the Registrar has notice that an application has been made under section 107 of the Assessment Act for a declaration that the payer should not be assessed in respect of the costs of the child because the payer is not a parent of the child; and

Note:       The heading to section 79A is replaced by the heading “ Suspension determinations—pending declarations that person should not be assessed in respect of the costs of the child ”.

52  Subsection 79A(2) (note 1)

Omit “or 107A”.

53  Subsection 80(4) (note)

Omit “or 107A of the Assessment Act”, substitute “of the Assessment Act for a declaration that a person should not be assessed in respect of the costs of the child because the person is not a parent of the child”.

54  Subsection 80(5) (note)

Repeal the note, substitute:

Note:          In that case, an application may be made to a court under section 106A of the Assessment Act for a declaration that a person should be assessed in respect of the costs of the child because the person is a parent of the child.

55  Subsection 80(6)

Repeal the subsection.