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Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Bill 2008 - Schedule 3—Child support

Schedule 3 Child support

Part 1 Percentage of care

Child Support (Assessment) Act 1989

1  Paragraph 48(1)(b)

Repeal the paragraph, substitute:

                     (b)  if one of the following events occurs:

                              (i)  there is a change of less than 7.1% in the percentage of care for the child that the person has because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order);

                             (ii)  there is a change of at least 7.1% in the percentage of care for the child that the person has, and the change alters the person’s cost percentage for the child;

                            (iii)  the person’s percentage of care for the child falls below 14%;

                            (iv)  the person’s percentage of care for the child increases to 14%, or above 14%;

                             (v)  the person’s percentage of care for the child falls below 35%;

                            (vi)  the person’s percentage of care for the child increases to 35%, or above 35%;

                            whichever of the following days is applicable:

                           (vii)  if the Registrar is notified, or otherwise becomes aware, of the event within 28 days after the day on which the event occurs—the day on which the event occurs;

                          (viii)  in any other case—the day on which the Registrar is notified, or otherwise becomes aware, of the event; or

2  At the end of section 52

Add:

             (5)  However, the Registrar is not required to review a determination as mentioned in subsection (4) if the Registrar is satisfied that there are special circumstances that justify the Registrar in not doing so.

3  Before subparagraph 74A(b)(i)

Insert:

                            (ia)  a person’s percentage of care for the child has changed by less than 7.1%, and the change is because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order); or

4  Subparagraph 74A(b)(i)

Omit “affects the annual rate of child support payable for the child”, substitute “alters the person’s cost percentage for the child”.

5  Subparagraph 74A(b)(iii)

Omit “14%; and”, substitute “14%; or”.

6  At the end of paragraph 74A(b)

Add:

                            (iv)  a person’s percentage of care for the child has fallen below 35%; or

                             (v)  a person’s percentage of care for the child has increased to 35%, or above 35%; and

7  Section 74A

Omit “on and from the day the Registrar was notified, or otherwise became aware, of the change of percentage referred to in paragraph (b).”, substitute:

on and from whichever of the following days is applicable:

                     (e)  if the Registrar is notified, or otherwise becomes aware, of the change of percentage referred to in paragraph (b) within 28 days after the day on which the change occurs—the day on which the change occurs;

                      (f)  in any other case—the day on which the Registrar is notified, or otherwise becomes aware, of the change of percentage referred to in paragraph (b).

8  Before paragraph 75(2)(a)

Insert:

                    (aa)  the change to the person’s percentage of care is less than 7.1%, and the change is because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order); or

9  Paragraph 75(2)(a)

Omit “affects the annual rate of child support payable for the child”, substitute “alters the person’s cost percentage for the child”.

10  After paragraph 75(2)(c)

Insert:

                    (ca)  the person’s percentage of care falls below 35%; or

                   (cb)  the person’s percentage of care increases to 35%, or above 35%; or

11  Application and transitional

(1)       The amendments made by items 1 and 3 to 10 apply in relation to changes in percentages of care that occur on or after 1 July 2008.

(2)       Subparagraphs 48(1)(b)(i) and 74A(b)(ia) and paragraph 75(2)(aa) of the Child Support (Assessment) Act 1989 , as inserted by this Act, apply in relation to:

                     (a)  agreements, plans or orders made on or after 1 July 2008; and

                     (b)  variations, occurring on or after 1 July 2008, of agreements, plans or orders made on or after 1 July 2008.

(3)       If:

                     (a)  a change in percentage of care mentioned in subitem (1) occurred before the commencement of this item; and

                     (b)  as a result of that change, an assessment is amended under section 75 of the Child Support (Assessment) Act 1989 ;

the amendment cannot take effect earlier than the commencement of this item.

(4)       The amendment made by item 2 applies in relation to determinations made on or after the commencement of that item.



 

Part 2 Publication of reasons for decisions of the Social Security Appeals Tribunal

Child Support (Registration and Collection) Act 1988

12  After subsection 16(2A)

Insert:

       (2AA)  Subsection (2) does not prevent:

                     (a)  the SSAT from communicating the reasons for a decision of the SSAT under Part VIIA to the Secretary or a person authorised by the Secretary; or

                     (b)  the Secretary from communicating the reasons for a decision of the SSAT under Part VIIA to a person authorised by the Secretary.

       (2AB)  Subsection (2) does not prevent the Secretary, or a person authorised by the Secretary, from publishing in written or electronic form the reasons for a decision of the SSAT under Part VIIA if the publication does not identify:

                     (a)  a party to the proceedings concerned (other than the Registrar); or

                     (b)  a person (other than the Registrar) who is related to, or associated with, a party to the proceedings concerned or is, or is alleged to be, in any other way concerned in the matter to which the proceedings concerned relate; or

                     (c)  a witness in the proceedings concerned.

       (2AC)  Without limiting subsection (2AB), a publication of reasons for a decision of the SSAT under Part VIIA is taken to identify a person if it contains any particulars of:

                     (a)  the name, title, pseudonym or alias of the person; or

                     (b)  the address of any premises at which the person resides or works, or the locality in which any such premises are situated; or

                     (c)  the physical description or the style of dress of the person; or

                     (d)  any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person; or

                     (e)  the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person; or

                      (f)  the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or

                     (g)  any real or personal property in which the person has an interest or with which the person is otherwise associated;

and the particulars are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the publication is disseminated, as the case requires.

13  Application

The amendment made by item 12 applies in relation to decisions of the SSAT made before, on or after the commencement of that item.



 

Part 3 Departure from assessments

Child Support (Assessment) Act 1989

14  Paragraph 80E(1)(d)

Repeal the paragraph, substitute:

                     (d)  either:

                              (i)  it meets the conditions in subsection (2), (3) or (4), as the case requires, (assuming the agreement is accepted by the Registrar); or

                             (ii)  it has been accepted by the Registrar under section 98U.

15  Paragraph 98C(2)(b)

Omit “and (3B)”, substitute “to (3C)”.

16  After subsection 98U(1)

Insert:

          (1A)  In working out whether an agreement is a limited child support agreement for the purposes of subsection (1), disregard:

                     (a)  paragraph 80E(1)(d); and

                     (b)  subsections 80E(2) to (5).

17  Subsection 98U(2)

Repeal the subsection, substitute:

             (2)  For an agreement (other than a binding child support agreement), the Registrar must not accept the agreement unless he or she is also satisfied that it would be just and equitable, as regards the child, the liable parent and the carer entitled to child support, to accept the agreement.

18  Paragraph 117(3A)(a)

Omit “the carer entitled to child support”, substitute “a parent or a non-parent carer”.

19  Paragraph 117(3A)(b)

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

20  Paragraph 117(3A)(c)

Repeal the paragraph.

21  Subsection 117(3B)

After “care costs”, insert “for a parent”.

22  Paragraph 117(3B)(a)

Omit “carer’s”, substitute “parent’s”.

23  After subsection 117(3B)

Insert:

          (3C)  Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.

24  Paragraph 136(1)(a)

After “section 92”, insert “or 98U”.

25  At the end of section 146D

Add:

             (3)  If:

                     (a)  an application (the original application ) is made under section 98B in relation to an administrative assessment; and

                     (b)  before the Registrar decides the application, the Registrar accepts an agreement under section 98U that is entered into by the parties to the proceedings concerned; and

                     (c)  a provisional notional assessment is made because of section 34B applying as mentioned in paragraph 98U(4)(a);

then the original application is taken to be an application made under subsection (1) of this section.

26  Application

(1)       The amendment made by item 15 applies in relation to applications to the Registrar made on or after the commencement of that item.

(2)       The amendments made by items 16 and 17 apply in relation to requests made, after the commencement of those items, to the Registrar for acceptance of agreements (regardless of whether the agreements are made before, on or after the commencement of those items).

(3)       The amendments made by items 18 to 23 apply in relation to applications to a court made on or after the commencement of those items.

(4)       The amendment made by item 24 applies in relation to agreements accepted before, on or after the commencement of that item.

(5)       The amendment made by item 25 applies in relation to an agreement accepted on or after the commencement of that item (regardless of whether the agreement was made before, on or after that commencement and regardless of whether the original application was made before, on or after that commencement).



 

Part 4 Terminating events

Child Support (Assessment) Act 1989

27  Subsection 12(2)

Repeal the subsection, substitute:

             (2)  A child support terminating event happens in relation to a person who is a carer entitled to child support in relation to a child if the person dies.

28  After subsection 12(2)

Insert:

       (2AA)  A child support terminating event happens in relation to a child if:

                     (a)  both of the parents of the child are not eligible carers of the child; and

                     (b)  there are no non-parent carers entitled to be paid child support in relation to the child.

29  Application

The amendments made by items 27 and 28 apply in relation to a child support terminating event that happens on or after the commencement of those items.



 

Part 5 Reducing rate of child support under minimum annual rate assessments

Child Support (Assessment) Act 1989

30  Subsections 66A(1) to (3)

Repeal the subsections, substitute:

             (1)  If the Registrar has made an assessment under section 66 in respect of the annual rate of child support payable by a parent for all the children in a child support case for a day in a child support period, the Registrar may, on an application made by the parent that:

                     (a)  is in accordance with the regulations; and

                     (b)  either:

                              (i)  nominates the whole (the nominated period ) of that child support period (if the first day of that child support period is the day referred to in paragraph 66(4)(a)); or

                             (ii)  nominates a part (the nominated period ) of that child support period, being a part that is at least 2 months and that begins on or after the day referred to in paragraph 66(4)(a);

reduce the annual rate of child support payable by the parent for those children for the nominated period to nil. This subsection is subject to subsection (3C).

Note:          If the Registrar refuses to grant an application under this section, the Registrar must serve a notice on the applicant under section 66C.

             (2)  The Registrar must not grant an application under subsection (1) unless the Registrar is satisfied that the amount worked out under subsection (3) is less than the amount worked out under subsection (3A).

             (3)  The amount for the purposes of this subsection is:

          (3A)  The amount for the purposes of this subsection is:

          (3B)  For the purposes of subsection (3A), a parent is taken to have a child support case if the parent is liable to pay child support for one or more children under an administrative assessment under the law of a reciprocating jurisdiction.

          (3C)  A reduction under subsection (1) has no effect in relation to a day to which the assessment under section 66 does not apply.

Note:          Subsection 66(4) deals with when an assessment under section 66 applies.

31  Application and saving

(1)       The amendment made by item 30 applies in relation to applications made on or after the day on which that item commences in respect of:

                     (a)  the whole of a child support period that begins on or after that day; or

                     (b)  a part of a child support period, being a part that begins on or after the day on which that item commences (regardless of whether the child support period begins before, on or after that day);

regardless of whether the assessment was made before, on or after the day on which that item commences.

(2)       Subsection 66A(1) of the Child Support (Assessment) Act 1989 , as inserted by this Act, does not apply in relation to a child support period if subsection 66A(1) of that Act (as in force before the commencement of this item) has applied in respect of a day in that period.

(3)       Regulations in force for the purposes of subsection 66A(1) of the Child Support (Assessment) Act 1989 immediately before the commencement of this item continue in force on and after that commencement as if they were regulations in force for the purposes of paragraph 66A(1)(a) of that Act.

(4)       Subsection 66A(3B) of the Child Support (Assessment) Act 1989 , as inserted by this Act, applies in relation to administrative assessments made under laws of reciprocating jurisdictions before, on or after the commencement of this item.



 

Part 6 Overseas liabilities

Child Support (Assessment) Act 1989

32  Section 35D

Before “The annual”, insert “(1)”.

33  At the end of section 35D

Add:

             (2)  Subsection (1) does not apply if at least one of the parents is liable to pay child support for a child under an administrative assessment under the law of a reciprocating jurisdiction.

34  Section 36A

Before “The annual”, insert “(1)”.

35  At the end of section 36A

Add:

             (2)  For the purposes of paragraph (1)(b), a parent is taken to be assessed in respect of the costs of another child in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

36  Section 39

Before “This is”, insert “(1)”.

37  At the end of section 39

Add:

             (2)  For the purposes of steps 4, 6 and 7 of the method statement in subsection (1), a parent is taken to be assessed in respect of the costs of another child who is in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

38  Section 40

Before “This is”, insert “(1)”.

39  At the end of section 40

Add:

             (2)  For the purposes of steps 4, 6 and 7 of the method statement in subsection (1), a parent is taken to be assessed in respect of the costs of another child who is in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

40  Paragraph 40A(1)(b)

Omit “section 39 or 40”, substitute “subsection 39(1) or 40(1)”.

41  At the end of section 41

Add:

Administrative assessments under laws of reciprocating jurisdictions

             (6)  Subsection (1) or (2) does not apply if the parent is liable to pay child support for a child under an administrative assessment under the law of a reciprocating jurisdiction.

             (7)  For the purposes of paragraphs (3)(b) and (4)(b), a parent is taken to be assessed in respect of the costs of another child in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

42  At the end of section 55E

Add:

             (3)  For the purposes of paragraph (1)(c), a parent is taken to be assessed for a day in respect of the costs of another child who is in another child support case if the parent is liable to pay child support for that child for the day under an administrative assessment under the law of a reciprocating jurisdiction.

43  At the end of section 55G

Add:

             (7)  For the purposes of paragraph (2)(b), a parent is taken to be assessed in respect of the costs of another child who is in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

44  At the end of section 55HA

Add:

             (7)  For the purposes of paragraph (2)(b), a parent is taken to be assessed in respect of the costs of another child who is in another child support case if the parent is liable to pay child support for that child under an administrative assessment under the law of a reciprocating jurisdiction.

45  After subsection 65A(4)

Insert:

          (4A)  For the purposes of subsection (4), if a parent is liable to pay child support for one or more children under an administrative assessment under the law of a reciprocating jurisdiction, then that child support is taken to be payable by the parent for those children under subsection (1).

46  After subsection 66(6)

Insert:

          (6A)  For the purposes of subsection (6), if a parent is liable to pay child support for one or more children for a day under an administrative assessment under the law of a reciprocating jurisdiction, then the parent is taken to be assessed for the day in respect of the costs of children in a child support case.

47  After subsection 66A(2)

Insert:

          (2A)  For the purposes of subsection (2), a parent is taken to have a child support case if the parent is liable to pay child support for one or more children under an administrative assessment under the law of a reciprocating jurisdiction.

48  After subsection 76(2)

Insert:

       (2AA)  For the purposes of paragraph (2)(d), a parent is taken to have a child support case if the parent is liable to pay child support for one or more children under an administrative assessment under the law of a reciprocating jurisdiction.

49  Application

The amendments made by items 32 to 39 and 41 to 48 apply in relation to administrative assessments made under laws of reciprocating jurisdictions before, on or after the commencement of those items.

Child Support (Registration and Collection) Act 1988

50  Subparagraph 72D(1)(c)(ii)

Omit “section 17A; and”, substitute “section 17A; or”.

51  At the end of paragraph 72D(1)(c)

Add:

                            (iii)  one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); and

52  After paragraph 72D(2)(d)

Insert:

                   (da)  if subparagraph (1)(c)(iii) applies:

                              (i)  the length of time for which the debts mentioned in that subparagraph have remained unpaid after the day on which they became due and payable; and

                             (ii)  the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;

53  Paragraph 72E(a)

After “17A”, insert “, subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a))”.

54  Application

The amendments made by items 51 to 53 apply in relation to registrable overseas maintenance liabilities arising before, on or after the commencement of those items.



 

Part 7 Crediting prescribed payments

Child Support (Registration and Collection) Act 1988

55  After paragraph 71C(1)(b)

Insert:

                   (ba)  at the time the payment is made, the payer does not have at least regular care of any of the children to whom the relevant administrative assessment relates; and

56  After subsection 71C(1)

Insert:

             (2)  Subsection (1) does not apply in relation to a payment (the prescribed payment ) mentioned in paragraph (1)(a) if:

                     (a)  before the prescribed payment is made, the payer has provided child support to the payee in the form of a lump sum payment; and

                     (b)  the lump sum payment has been credited, or will be credited, under section 69A against all or part of the amount payable under the enforceable maintenance liability in relation to the day the prescribed payment is made.

57  Application

(1)       The amendment made by item 55 applies in relation to payments made on or after the commencement of that item.

(2)       The amendment made by item 56 applies in relation to payments mentioned in paragraph 71C(1)(a) of the Child Support (Registration and Collection) Act 1988 made on or after the commencement of that item (regardless of whether the lump sum payment is made before, on or after that commencement).