Commonwealth Consolidated Acts Commonwealth Consolidated ActsDivision 1--Binding and limited child support agreements
Child Support (Assessment) Act 1989
1 Section 5
Insert:
"binding child support agreement" has the meaning given by section 80C.
2 Section 5
Insert:
"limited child support agreement" has the meaning given by section 80E.
3 Section 5
Insert:
"termination agreement" has the meaning given by section 80D.
4 Section 34B
Repeal the section, substitute:
(1) The Registrar must assess the annual rate of child support payable for a child for a day in a child support period if:
(a) the Registrar accepts a child support agreement made in relation to the child; and
(b) child support is already payable by a parent for the child under an administrative assessment; and
(c) the agreement is to affect the annual rate of child support payable for the child.
The Registrar must assess the annual rate immediately after accepting the agreement.
Note: Section 95 explains how the provisions of the agreement affect the assessment.
(2) The child support period starts:
(a) if:
(i) the application for acceptance of the agreement was made to the Registrar within 28 days after the day on which the agreement was signed; and
(ii) the agreement states that child support is to be payable from a specified day; and
(iii) the day specified is not earlier than the day on which child support first became payable under the administrative assessment;
on the specified day; or
(b) if:
(i) the application for acceptance of the agreement was made to the Registrar within 28 days after the day on which the agreement was signed; and
(ii) the agreement states that child support is to be payable from a specified day; and
(iii) the day specified is earlier than the day on which child support first became payable under the administrative assessment;
on the day on which child support first became payable under the administrative assessment; or
(c) if:
(i) the application for acceptance of the agreement was made to the Registrar within 28 days after the day on which the agreement was signed; and
(ii) the agreement does not specify a day from which child support is to be payable;
on the day on which the agreement was signed; or
(d) otherwise--on the day on which the application was made to the Registrar for acceptance of the agreement.
5 Division 1 of Part 6
Repeal the Division, substitute:
The following is a simplified outline of this Part:
• Parents (and non - parent carers) of a child can, using a child support agreement, agree between themselves the child support that is to be payable for the child.
• There are 2 sorts of agreements. The first is a binding child support agreement. Each party to the agreement must have received legal advice before entering the agreement, and must also receive legal advice before terminating the agreement.
• The second sort of agreement is a limited child support agreement. An administrative assessment must be in place before a limited child support agreement can be accepted by the Registrar. The annual rate of child support payable under the agreement must be at least the annual rate of child support otherwise payable under this Act.
• Agreements may include provisions that state that child support is to be payable otherwise than in the form of periodic amounts. There are 2 main kinds of such provisions:
(a) non - periodic payment provisions, under which lump sum payments and other non - periodic payments (such as school fees) may be made; and
(b) lump sum payment provisions, under which lump sum payments may be made.
• Payments made under non - periodic payment provisions reduce the annual rate of child support payable.
• Payments made under lump sum payment provisions are credited against the liability of a party to the agreement (rather than reducing the annual rate of child support payable).
80B Cases in relation to which Part applies
This Part applies where the parents of an eligible child, or a parent or the parents of an eligible child and a non - parent carer of the child, want to give effect to an agreement between themselves in relation to child support payable for the child.
Division 1A -- Binding and limited child support agreements
Subdivision A -- Binding child support agreements
80C Making binding child support agreements
(1) An agreement is a binding child support agreement if:
(a) the agreement is binding on the parties to the agreement in accordance with subsection (2); and
(b) the agreement complies with subsection 81(2).
(2) For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the parties to the agreement; and
(c) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e) the agreement has not been terminated under section 80D; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
Note: For the manner in which the contents of a binding child support agreement may be proved, see section 48 of the Evidence Act 1995 .
80CA No variation of binding child support agreements
(1) A binding child support agreement must not be varied.
Note: A binding child support agreement can be terminated and replaced with a new binding child support agreement.
(2) However, subsection (1) does not prevent a binding child support agreement between parties from incorporating by reference the provisions of a previous child support agreement between the parties.
80D Terminating binding child support agreements
(1) A binding child support agreement (the previous agreement ) may be terminated only by:
(a) a provision being included in a new binding child support agreement made by the parties to the previous agreement to the effect that the previous agreement is terminated; or
(b) the parties to the previous agreement making a written agreement (a termination agreement ):
(i) that is binding on the parties in accordance with subsection (2); and
(ii) to the effect that the agreement is terminated; or
(c) a court order setting aside the previous agreement under section 136.
(2) For the purposes of subparagraph (1)(b)(i), an agreement is binding on the parties if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the parties to the agreement; and
(c) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e) the agreement has not been set aside by a court under section 136; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
Note: For the manner in which the contents of a termination agreement may be proved, see section 48 of the Evidence Act 1995 .
(3) A binding child support agreement is terminated:
(a) if paragraph (1)(a) applies--on the day set out in the following paragraph:
(i) if the new binding child support agreement specifies a day on which it takes effect--that day;
(ii) otherwise--the day on which the new binding child support agreement is signed; and
(b) if paragraph (1)(b) applies--on the day set out in the following paragraph:
(i) if the termination agreement specifies a day on which it takes effect--that day;
(ii) otherwise--the day on which the termination agreement is signed; and
(c) if paragraph (1)(c) applies--on the day on which the court order takes effect.
Subdivision B -- Limited child support agreements
80E Making limited child support agreements
(1) An agreement is a limited child support agreement if:
(a) it is in writing; and
(b) it is signed by the parties to the agreement; and
(c) it complies with subsection 81(2); and
(d) it meets the conditions in subsection (2), (3) or (4), as the case requires, (assuming the agreement is accepted by the Registrar).
Note: In addition to the requirements in this section, there must be an administrative assessment in force in relation to the child in respect of whom the agreement is made (see subsection 92(3)).
Child support payable on day application for acceptance of agreement is made to Registrar
(2) An agreement meets the condition in this subsection if:
(a) child support is to be payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the application is made to the Registrar for acceptance of the agreement; and
(b) the annual rate of child support that is so payable under the agreement on that day is at least the annual rate of child support that would otherwise be payable under this Act on that day.
Note: If the child support payable under the agreement is not a periodic amount, the regulations can prescribe the method by which that amount is to be converted into an annual rate (see subsection (5)).
Child support payable on day agreement commences
(3) An agreement meets the condition in this subsection if:
(a) child support is not to be payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the application is made to the Registrar for acceptance of the agreement; but
(b) the annual rate of child support that is payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the agreement commences is at least the annual rate of child support that would otherwise be payable under this Act on that day.
Child support payable for past period
(4) An agreement meets the condition in this subsection if:
(a) child support is payable under the agreement, by one party to the agreement to the other party or parties, for a period before the day on which the application is made to the Registrar for acceptance of the agreement; and
(b) the amount of child support that is so payable under the agreement for that period is at least the amount of child support that would otherwise be payable under this Act for that period.
Regulations
(5) The regulations may, for the purposes of subsections (2), (3) and (4), provide a method of converting an amount of child support that is payable under an agreement otherwise than in the form of periodic amounts into an annual rate of child support.
80F No variation of limited child support agreements
(1) A limited child support agreement must not be varied.
Note: A limited child support agreement can be terminated and replaced with a new limited child support agreement.
(2) However, subsection (1) does not prevent a limited child support agreement between parties from incorporating by reference the provisions of a previous child support agreement between the parties.
80G Terminating limited child support agreements
(1) A limited child support agreement (the previous agreement ) may be terminated only by:
(a) a provision being included in:
(i) a new limited child support agreement made by the parties to the previous agreement; or
(ii) a binding child support agreement made by the parties to the previous agreement;
to the effect that the previous agreement is terminated; or
(b) the parties to the previous agreement making a written agreement that is signed by those parties to the effect that the previous agreement is terminated; or
(c) a court order setting aside the previous agreement under section 136; or
(d) if the notional assessment of the amount of child support that would have been payable by one party to the previous agreement to another party is varied by more than 15% from the previous notional assessment in circumstances not contemplated by the previous agreement--a party to the previous agreement giving the Registrar written notice of the termination of the agreement within 60 days of that party receiving notice of the variation; or
(e) if the previous agreement was made 3 or more years earlier--a party to the previous agreement giving the Registrar written notice of the termination of the previous agreement.
(2) A limited child support agreement is terminated:
(a) if paragraph (1)(a) applies--on the day set out in the following paragraph:
(i) if the new limited child support agreement, or binding child support agreement, specifies a day on which it takes effect--that day;
(ii) otherwise--the day on which the new limited child support agreement or binding child support agreement is signed; and
(b) if paragraph (1)(b) applies--on the day set out in the following paragraph:
(i) if the written agreement specifies a day on which it takes effect--that day;
(ii) otherwise--the day on which the written agreement is signed; and
(c) if paragraph (1)(c) applies--on the day on which the court order takes effect; and
(d) if paragraph (1)(d) or (e) applies--28 days after the notice is given.
(3) If a limited child support agreement is terminated under paragraph (1)(d) or (e), the Registrar must notify in writing the other parties to the agreement of the termination.
(4) The notice under subsection (3) must include, or be accompanied by, a statement that specifically draws the attention of the parties to the previous agreement to the right:
(a) to object, subject to the Registration and Collection Act, to the decision (the original decision ) to terminate the agreement; and
(b) if aggrieved by a later decision on an objection to the original decision (no matter who lodges the objection but subject to that Act), to apply to the SSAT for review of the later decision.
6 Section 81
Repeal the section, substitute:
81 Child support agreement definition and general requirement
(1) An agreement is a child support agreement if:
(a) the agreement is a binding child support agreement; or
(b) the agreement is a limited child support agreement.
Note: For the definitions of binding child support agreement and limited child support agreement , see sections 80C and 80E.
(2) An agreement is a binding child support agreement or a limited child support agreement if it complies with the following provisions:
(a) section 82 (children in relation to whom agreements may be made);
(b) section 83 (persons who may be parties to agreements);
(c) section 84 (provisions that may be included in agreements).
Note: A parenting plan under the Family Law Act 1975 may, subject to the requirements of this Division, be a child support agreement.
7 Section 85
Repeal the section.
8 Paragraph 88(a)
Repeal the paragraph, substitute:
(a) either:
(i) the agreement is a child support agreement; or
(ii) the agreement is a termination agreement or a written agreement referred to in paragraph 80G(1)(b); and
9 Subsection 89(1)
Omit "(1)".
10 Subsection 89(4)
Repeal the subsection.
11 Section 91
Omit "a child support agreement", substitute "an agreement referred to in paragraph 88(a)".
12 Section 91A
Repeal the section.
13 Subsections 92(3) and (4)
Repeal the subsections, substitute:
(3) The Registrar must refuse to accept a limited child support agreement if, immediately before the application for acceptance of the agreement is made, no administrative assessment is in force in relation to the child.
14 Paragraph 93(1)(g)
Repeal the paragraph, substitute:
(g) the child support is payable from the day on which the application was made to the Registrar for acceptance of the agreement; and
(h) the child support is payable until the earlier of the following days:
(i) the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all 3 of them;
(ii) the day on which the agreement is terminated under section 80D or 80G.
15 Subsection 93(2)
Omit "the period mentioned in paragraph (1)(g) starts", substitute "on which the application was made to the Registrar for acceptance of the agreement".
16 Subsection 93(2) (note)
Repeal the note, substitute:
Note: The Registrar must assess, under section 34B, the annual rate of child support payable under an agreement if an annual rate of child support is already payable and the agreement is to affect that annual rate.
17 Section 94
Repeal the section, substitute:
(1) After the Registrar accepts a child support agreement made in relation to a child, the Registrar must immediately take such further action (if any) as is necessary to give effect to the agreement .
Note: After accepting the agreement, section 34B or 93 or Part 5 might require the Registrar to assess an annual rate of child support payable.
(2) In making any administrative assessment in relation to the child, the Registrar must act in accordance with section 95 (effect of certain provisions of accepted child support agreements).
(3) After the Registrar accepts a termination agreement, or a written agreement referred to in paragraph 80G(1)(b), the Registrar must immediately take such further action (if any) as is necessary to give effect to the agreement .
18 Division 6 of Part 6
Repeal the Division.
19 Paragraph 98U(4)(a)
Omit "94", substitute "93".
20 Section 98W
Omit:
• A court may order that child support be paid in a form other than periodic amounts paid to a carer.
• A court may set aside a child support agreement if the consent of one of the parties was obtained by fraud or undue influence.
substitute:
• A court may order that child support be paid in a form other than periodic amounts paid to a carer (including in the form of a lump sum payment).
• A court may set aside a child support agreement or termination agreement in certain circumstances (such as fraud, undue influence or change of circumstance).
21 At the end of subsection 116(1)
Add:
Note 3: A court may make an order under this Division if the court sets aside a child support agreement under section 136.
22 Paragraph 124(2)(c)
Omit "benefit; and", substitute "benefit.".
23 Paragraph 124(2)(d)
Repeal the paragraph.
24 Section 128
Repeal the section.
25 Paragraph 129(3)(b)
Repeal the paragraph.
26 Subsection 129(8)
Omit "(3)(b) or (d)", substitute "(3)(d)".
27 Section 135
Repeal the section, substitute:
The following is a simplified outline of this Division:
• Certain courts may set aside a child support agreement or a termination agreement if:
(a) the agreement of one of the parties was obtained by fraud, undue influence or unconscionable conduct; or
(b) there has been a significant change in circumstances; or
(c) the annual rate of child support payable under the agreement is not proper or adequate.
28 Section 136
Repeal the section, substitute:
136 Power of court to set aside child support agreements or termination agreements
(1) A party to either of the following agreements may apply to a court having jurisdiction under this Act for the court to set aside the agreement:
(a) a child support agreement that has been accepted by the Registrar under section 92;
(b) a termination agreement, or a written agreement referred to in paragraph 80G(1)(b), that has been accepted by the Registrar under section 92.
(2) If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:
(a) that the party's agreement was obtained by fraud or a failure to disclose material information; or
(b) that another party to the agreement, or someone acting for another party:
(i) exerted undue influence or duress in obtaining that agreement; or
(ii) engaged in unconscionable or other conduct;
to such an extent that it would be unjust not to set aside the agreement; or
(c) that because of a significant change in the circumstances of one of the parties to the agreement, or a child in respect of whom the agreement is made, it would be unjust not to set aside the agreement; or
(d) in the case of a child support agreement--that the agreement provides for an annual rate of child support that is not proper or adequate, taking into account all the circumstances of the case (including the financial circumstances of the parties to the agreement).
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to a proceeding under subsection (1) are the parties to the agreement.
(4) If:
(a) the court sets aside a child support agreement under this section; and
(b) the court is satisfied as mentioned in paragraph 117(1)(b) (departure orders);
the court may make an order under Division 4 of Part 7 without an application having been made under section 116.
(5) If:
(a) the court sets aside a child support agreement under this section; and
(b) the court is not satisfied as mentioned in paragraph 117(1)(b) (departure orders); and
(c) the payee has received or will receive benefits pursuant to the agreement;
the court may still make an order that departs from the administrative assessment where it is just and equitable to do so, having regard to the benefits that the payee has already received pursuant to the agreement.
29 Subsection 137(1)
Omit "a child support agreement", substitute "an agreement".
A New Tax System (Family Assistance) Act 1999
30 Subparagraphs 8(5)(b)(i) and (ii) of Schedule 3
Repeal the subparagraphs, substitute:
(i) non - periodic payment provisions (within the meaning of that Act) under which the individual is providing child support to another individual for a child; and
(ii) a statement that the annual rate of child support payable under any relevant administrative assessment is to be reduced by a specified amount that represents an annual value of the child support to be provided; and
Child Support (Assessment) Act 1989
31 Subsection 5(1)
Insert:
"lump sum payment provisions" has the meaning given by paragraph 84(1)(e).
32 Subsection 5(1)
Insert:
"non-periodic payment provisions" has the meaning given by paragraph 84(1)(d).
33 Subsection 5(1)
Insert:
"otherwise than in the form of periodic amounts" , in relation to child support, means child support that is not paid as periodic amounts, and includes child support paid in the form of:
(a) a lump sum payment; and
(b) a transfer or settlement of property.
Note: Periodic amount is defined in section 4 of the Registration and Collection Act.
34 After paragraph 76(2)(g)
Insert:
(ga) if a child support agreement includes lump sum payment provisions, or if a court has made an order under section 123A, in respect of the children in the child support case to which the assessment relates:
(i) the amount of the lump sum payment specified in the agreement or order; and
(ii) the amount of any remaining lump sum payment (within the meaning of the Registration and Collection Act); and
(iii) any annual rate and daily rate of child support that remains payable under section 78 of this Act after taking into account any remaining lump sum payment that will be credited under section 69A of the Registration and Collection Act;
35 After paragraph 76(3)(c)
Insert:
(ca) a statement that specifically draws the attention of the liable parent and the carer entitled to child support to the right to apply to a court having jurisdiction under this Act for an order under section 123A that the liable parent provide child support for the child in the form of a lump sum payment to be credited against the liability of the liable parent under any relevant administrative assessment;
36 Section 78
Before "An", insert "(1)".
37 At the end of section 78
Add:
(2) An amount payable under subsection (1), in relation to a day in a month in a year of income, is taken to be paid at the time that the amount becomes due and payable, to the extent that a remaining lump sum payment will be credited, under section 69A of the Registration and Collection Act, at the end of the year of income against the liability to pay child support in relation to all or part of that amount.
38 Section 84
Repeal the section, substitute:
84 Provisions that may be included in agreements
Provisions that may be included
(1) An agreement is a child support agreement only if it includes one or more of the following kinds of provisions:
(a) provisions under which a party is to pay child support for a child to another party in the form of periodic amounts paid to the other party;
(b) provisions under which the rate at which a party is already liable to pay child support for a child to another party in the form of periodic amounts paid to the other party is varied;
(c) provisions agreeing between parties any other matter that may be included in an order made by a court under Division 4 of Part 7 (departure orders);
(d) provisions (the non - periodic payment provisions ) that state:
(i) that a party (the liable party ) is to provide child support for a child to another party otherwise than in the form of periodic amounts; and
(ii) that the annual rate of child support payable for the child by the liable party under any relevant administrative assessment is to be reduced, in the manner specified under subsection (6), by the amount of child support to be provided by the liable party;
(e) provisions (the lump sum payment provisions ) that meet the requirements of subsection (7) and that state:
(i) that a party (the liable party ) is to provide child support for a child to another party in the form of a lump sum payment (including by way of transfer or settlement of property); and
(ii) that the lump sum payment is to be credited against the liable party's liability under the relevant administrative assessment in relation to amounts payable under the liability;
(f) provisions under which a party is to provide child support for a child to another party otherwise than in the form of periodic amounts and that are not non - periodic payment provisions or lump sum payment provisions;
(g) provisions under which the liability of a party to pay or provide child support for a child to another party is to end from a specified day.
(2) The agreement may include more than one kind of provision in relation to different parts of a child support period and different child support periods.
Other kinds of provisions not to have effect
(3) If the agreement also includes provisions of a kind not referred to in subsection (1), those provisions do not have effect for the purposes of this Act.
(4) Subsection (3) does not affect the operation of provisions of the kind referred to in that subsection for any other purpose.
Agreement may also be parenting plan, maintenance agreement or financial agreement
(5) Without limiting subsection (4), nothing in this Part is to be taken to prevent the same document being both a child support agreement and:
(a) a parenting plan; or
(b) a maintenance agreement or financial agreement under the Family Law Act 1975 .
Additional requirements of agreements with non - periodic payment provisions
(6) If an agreement includes provisions of the kind referred to in paragraph (1)(d), the statement referred to in subparagraph (1)(d)(ii) must specify either:
(a) that the annual rate of child support payable under the administrative assessment is to be reduced by a specified amount that represents an annual value of the child support payable; or
(b) that the annual rate of child support payable under the administrative assessment is to be reduced by 100% or another specified percentage that is less than 100%.
Note: Non - periodic payment provisions are taken to have effect as if they were a statement made by a court under section 125 in an order made under section 124 (see subsection 95(3)).
Additional requirements etc. of agreements with lump sum payment provisions
(7) If an agreement includes provisions of the kind referred to in paragraph (1)(e), the provisions meet the requirements of this subsection if:
(a) the agreement is a binding child support agreement; and
(b) an administrative assessment, in relation to the child in respect of whom the agreement is made, is in force immediately before the application for acceptance of the agreement is made; and
(c) the amount of the lump sum payment:
(i) is specified in the agreement; and
(ii) equals or exceeds the annual rate of child support payable for the child under the administrative assessment.
Note: If an agreement includes provisions of the kind referred to in paragraph (1)(e) (lump sum payment provisions), the lump sum payment is credited under section 69A of the Registration and Collection Act against the liable party's liability (rather than reducing the annual rate of child support payable under the administrative assessment).
(8) An agreement that includes lump sum payment provisions may also state that the lump sum payment is to be credited against the liability under the administrative assessment in relation to 100%, or another specified percentage that is less than 100%, of the child support payable under the liability.
Note: If an agreement does not specify a percentage, the lump sum payment is credited against the liability in relation to 100% of the amounts payable under the liability (see section 69A of the Registration and Collection Act).
39 Subsections 95(3) and (4)
Repeal the subsections, substitute:
(3) If the agreement includes non - periodic payment provisions:
(a) the provisions have effect, for the purposes of this Act, as if they were a statement made by a court under section 125 in an order made under section 124; and
(b) if the provisions or the agreement is registered in a court having jurisdiction under Part VII of the Family Law Act 1975 --Division 13A of Part VII, and Parts XIII and XIIIB, of that Act apply in relation to the provisions as if the provisions were an order made by the court under Part VII of that Act.
Note 1: The effect of paragraph (3)(a) is that the Registrar must make any subsequent administrative assessment on the basis of the annual rate of child support as reduced by the amount or percentage specified in the child support agreement (see section 127).
Note 2: This section does not deal with lump sum payment provisions (see paragraph 84(1)(e) of this Act and section 69A of the Registration and Collection Act).
40 At the end of section 96
Add:
(4) If a child support agreement includes lump sum payment provisions, the notice must specify:
(a) the amount of the lump sum payment specified in the agreement; and
(b) any annual rate and daily rate of child support that remains payable after taking into account any remaining lump sum payment (within the meaning of the Registration and Collection Act) that will be credited under section 69A of that Act.
41 Subsection 123(1)
Repeal the subsection, substitute:
(1) An application may be made to a court having jurisdiction under this Act for:
(a) an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b) an order that a liable parent provide child support in the form of a lump sum payment to be credited against the liability under the relevant administrative assessment in relation to amounts payable under the liability.
42 Subsection 123(2)
After "application", insert "under subsection (1)".
43 After section 123
Insert:
(1) The court may make an order that a liable parent provide child support for a child to a carer entitled to child support in the form of a lump sum payment to be credited against the liability under the relevant administrative assessment in relation to amounts payable under the liability if:
(a) the carer entitled to child support or the liable parent makes an application to a court under paragraph 123(1)(b); and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order under this section; and
(c) the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment.
Note: If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the liable parent's liability (rather than reducing the annual rate of child support payable under the administrative assessment).
(2) A lump sum payment may include a payment by way of transfer or settlement of property.
(3) An order under subsection (1):
(a) must specify the amount of the lump sum payment; and
(b) must specify that the lump sum payment is to be credited against the liability under the administrative assessment in relation to 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability.
(4) In determining the application made under paragraph 123(1)(b), the court must have regard to:
(a) the administrative assessment; and
(b) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(c) any order in force under Division 4 of this Part (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(d) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit; and
(e) if the carer entitled to child support is not in receipt of such a pension, allowance or benefit--whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
(5) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(6) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(7) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(8) Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.
44 Paragraph 124(1)(a)
Repeal the paragraph, substitute:
(a) a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and
45 Subsections 125(1), (2) and (3)
Repeal the subsections, substitute:
(1) If the court makes an order under section 124, the court must state in the order whether the annual rate of child support payable by the liable parent under any relevant administrative assessment is to be reduced, in the manner specified under subsection (3), by the child support ordered to be provided by the liable parent.
(2) The court may state that the annual rate of child support payable by the liable parent is not to be so reduced only if it is satisfied that, in the special circumstances of the case, it would be:
(a) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(b) otherwise proper;
that the annual rate of child support not be reduced by the child support ordered to be provided.
(3) If the court states in the order that the annual rate of child support is to be reduced by the child support ordered to be provided, the court must also state in the order either:
(a) that the annual rate of child support payable is to be reduced by a specified amount that represents an annual value of the child support to be provided; or
(b) that the annual rate of child support payable is to be reduced by 100% or another specified percentage that is less than 100%.
46 Subsection 126(1)
After "section" (first occurring), insert "123A or".
47 Subparagraph 126(1)(a)(ii)
Repeal the subparagraph, substitute:
(ii) if the order is an order under section 123A--the matters specified in the order under subsection 123A(3); and
(iii) if the order is an order under section 124--the statement or statements included in the order under section 125; and
48 Subsection 127(1)
Repeal the subsection, substitute:
(1) This section applies if the court makes an order under section 124 that includes a statement under section 125 that the annual rate of child support payable by a liable parent under an administrative assessment is to be reduced, in the manner specified under subsection 125(3), by the child support ordered to be provided by the liable parent.
49 Subsection 129(1)
After "section" (first occurring), insert "123A or".
50 Paragraph 129(1)(f)
Omit "included in the order under section 125", substitute "made by a court under section 125 in an order made under section 124".
51 Subsection 129(2)
After "section" (first occurring), insert "123A or".
52 Subsection 129(4)
Omit "the order" (first occurring), substitute "an order made under section 124".
53 Subparagraph 130(1)(a)(ii)
After "an order", insert "made under section 124".
54 Subsection 131(1)
After "section" (second occurring), insert "123A or".
Child Support (Registration and Collection) Act 1988
55 Subsection 4(1)
Insert:
"regular care" has the meaning given by subsection 5(2) of the Assessment Act.
56 Subsection 4(1)
Insert:
"remaining lump sum payment" has the meaning given by subsection 69A(4).
57 At the end of section 66
Add:
(3) An amount payable under subsection (1) or (2), in respect of a day in an initial period or payment period in a year of income, is taken to be paid at the time that the amount becomes due and payable, to the extent that a remaining lump sum payment will be credited, under section 69A, at the end of the year of income against a liability in relation to all or part of that amount.
58 After section 69
Insert:
69A Crediting of lump sum payments
(1) This section applies if:
(a) either:
(i) a child support agreement accepted by the Registrar includes lump sum payment provisions in accordance with paragraph 84(1)(e) of the Assessment Act; or
(ii) a court has made an order under section 123A of that Act in relation to the provision of child support in the form of a lump sum payment; and
(b) the Registrar has been notified that the lump sum payment has been paid in accordance with the agreement or order.
(2) The Registrar must, in accordance with subsection (3):
(a) in respect of an initial period or payment period, in a year of income, for a registered maintenance liability, credit the remaining lump sum payment against the liability:
(i) if the agreement or order states that the lump sum payment is to be credited against the liability in relation to a specified percentage of the amount payable under the liability--in relation to that percentage of the amount payable under the liability; and
(ii) if subparagraph (i) does not apply--in relation to 100% of the amount payable under the liability; and
(b) reduce, but not below nil, the remaining lump sum payment by the amount so credited.
(3) The Registrar must credit a remaining lump sum payment and reduce the remaining lump sum payment at the end of each year of income.
(4) The remaining lump sum payment , in relation to the lump sum payment paid under the agreement or order, means:
(a) for the initial period or the first payment period that occurs after the agreement is accepted or the order is made--the lump sum payment; and
(b) for the first payment period that begins on or after 1 January in a calendar year (other than a payment period covered by paragraph (a))--the remaining lump sum payment for the previous initial period or payment period as indexed under subsection (5); and
(c) otherwise--so much of the remaining lump sum payment as remains after crediting under the previous application of this section.
(5) The remaining lump sum payment, for the first payment period that begins on or after 1 January in a calendar year, is indexed as follows:
where:
"base quarter" means the September quarter (before the September quarter for the previous calendar year, but after the agreement is accepted or the order is made) with the highest index number.
"indexation factor" means:
"index number" for a quarter is the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician in respect of that quarter.
(6) If an indexation factor worked out under subsection (5) would be less than 1, the indexation factor is to be increased to 1.
(7) Subject to subsection (8), if at any time (whether before or after the commencement of this subsection), the Australian Statistician publishes an index number for a quarter in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of subsection (5).
(8) If at any time the Australian Statistician changes the reference base for the Consumer Price Index, regard is to be had, for the purposes of applying subsection (5) after the change takes place, only to index numbers published in terms of the new reference base.
Division 3--Notional assessments
A New Tax System (Family Assistance) Act 1999
59 Subsection 3(1) (definition of capitalised maintenance income )
After "means maintenance income", insert "(other than child maintenance to which clause 20B or 20C of Schedule 1 applies)".
60 Subsection 3(1)
Insert:
"child support agreement" has the meaning given by section 81 of the Child Support (Assessment) Act 1989 .
61 Subsection 3(1) (paragraph (a) of the definition of maintenance income )
Repeal the paragraph, substitute:
(a) child maintenance--any one or more of the following amounts:
(i) if clause 20B of Schedule 1 applies (notional assessments for child support agreements)--the amount worked out under that clause;
(ii) if clause 20C of Schedule 1 applies (lump sum payments)--the amount worked out under that clause;
(iii) otherwise--the amount of a payment or the value of a benefit that is received by the individual for the maintenance of an FTB child of the individual and is received from a parent of the child, or the partner or former partner of a parent of the child; or
62 Subsection 3(1)
Insert:
"notional assessment" has the meaning given by section 146E of the Child Support (Assessment) Act 1989.
63 After clause 20A of Schedule 1
Insert:
20B Working out amounts of child maintenance using notional assessments
(1) If:
(a) an individual receives child maintenance for an FTB child of the individual under a child support agreement or court order; and
(b) there is, in relation to the agreement or order, a notional assessment of the annual rate of child support that would be payable to the individual for the child for a particular day in a child support period if that annual rate were payable under Part 5 of the Child Support (Assessment) Act 1989 instead of under the agreement or order;
then the amount of child maintenance that the individual is taken to have received in an income year under the agreement or order for the child for a period is worked out in accordance with this clause.
Note: The amount worked out in accordance with this clause is annualised under clause 20A.
Individual taken to have received notional assessed amount
(2) For the purposes of this Act, the amount of child maintenance that the individual is taken to have received under the agreement or order for the child for the period is, subject to this clause, the amount (the notional assessed amount ) that the individual would have received if the individual had received the annual rate of child support for the child for the period that is included in the notional assessment.
Underpayments
(3) If the amount received in an income year by the individual under the agreement or order for the child for the period is less than the amount that is payable to the individual under the agreement or order for the child for the period (such that a debt arises for the period under the agreement or order), then, for the purposes of this Act, the amount of child maintenance that the individual is taken to have received under the agreement or order for the child for the period is the following amount (the notional amount paid ):
Note: This subclause only applies in respect of enforceable maintenance liabilities (see subclause (7)).
Arrears
(4) If the amount received in an income year by the individual under the agreement or order for the child for the period exceeds the amount that is payable to the individual under the agreement or order for the child for the period, then, for the purposes of this Act, the amount of child maintenance that the individual is taken to have received under the agreement or order for the child for the period is:
Note: This subclause only applies in respect of enforceable maintenance liabilities (see subclause (7)).
(5) The notional arrears amount , in respect of a debt arising for a previous period under the agreement or order, is:
(6) For the purposes of subclause (5), if:
(a) an individual has more than one debt that arose under an agreement or order for previous periods; and
(b) the amount received in an income year by the individual under the agreement or order for a child for a period exceeds the amount that is payable to the individual under the agreement or order for the child for the period;
then:
(c) the individual is taken to have received the excess to pay off each debt in the order in which the debts arose; and
(d) each debt is reduced by the amount of the debt that is paid off.
(7) Subclauses (3) and (4) only apply in respect of enforceable maintenance liabilities (within the meaning of the Child Support (Registration and Collection) Act 1988 ).
20C Working out amounts of child maintenance in relation to lump sum payments
(1) This clause applies if an individual receives in an income year child maintenance for an FTB child of the individual under:
(a) a child support agreement, containing lump sum payment provisions (within the meaning of paragraph 84(1)(e) of the Child Support (Assessment) Act 1989 ), to which clause 20B does not apply; or
(b) a court order made under section 123A of that Act;
in the form of a lump sum payment that is to be credited under section 69A of the Child Support (Registration and Collection) Act 1988 against a liability under an administrative assessment.
(2) For the purposes of this Act, the amount of child maintenance that the individual is taken to have received in an income year under the agreement or order for the child for a period is the amount that is credited under section 69A of the Child Support (Registration and Collection) Act 1988 against the liability under the administrative assessment for the child for the period.
Note: The amount worked out under this clause is annualised under clause 20A.
Child Support (Assessment) Act 1989
64 Subsection 5(1)
Insert:
"notional assessment" has the meaning given by section 146E.
65 Subsection 5(1)
Insert:
"provisional notional assessment" means a provisional notional assessment made under section 146B.
66 Subsection 34B(1) (note)
Omit "Note", substitute "Note 1".
67 At the end of subsection 34B(1)
Add:
Note 2: If the Registrar makes an assessment under this section, the Registrar must make a provisional notional assessment under section 146B.
68 Subsection 93(2) (note)
Omit "Note", substitute "Note 1".
69 At the end of subsection 93(2)
Add:
Note 2: If the Registrar makes an assessment under this section, the Registrar must make a provisional notional assessment under section 146B.
70 At the end of subsection 125(1)
Add:
Note: If the court makes a statement under this section that the annual rate of child support is to be reduced, the Registrar must make a provisional notional assessment under section 146B.
71 After Part 7
Insert:
Part 7A -- Notional assessments
The following is a simplified outline of this Part:
• If the Registrar accepts a certain kind of child support agreement, or the court makes a certain kind of order, the Registrar must make a provisional notional assessment of the annual rate of child support that would be payable for a day in a child support period if child support were payable under Part 5 instead of under the agreement or order.
• The notional assessment is used in the maintenance income test in working out a person's Part A rate of family tax benefit under the A New Tax System (Family Assistance) Act 1999 .
• A parent may estimate their adjusted taxable income for the purposes of making a provisional notional assessment.
Division 2 -- Notional assessments
146B Provisional notional assessments
(1) The Registrar must make a provisional notional assessment in accordance with this section if:
(a) the Registrar makes an assessment under section 34B or section 93; or
(b) a court makes a statement under section 125, in an order under section 124, that an annual rate of child support payable is to be reduced.
(2) The Registrar must make a provisional notional assessment of the annual rate of child support that would be payable for a child for a particular day in a child support period, by the liable parent to the carer entitled to child support, if that annual rate were payable under Part 5 (taking into account any relevant determination under Part 6A, or any relevant order under Division 4 of Part 7) for the child for that day instead of under the agreement or order.
(3) The Registrar must serve notice in writing of the provisional notional assessment on the liable parent and the carer entitled to child support.
(4) The notice must specify in respect of the provisional notional assessment the matters that are required under section 69 and subsection 76(2) in respect of an administrative assessment.
(5) The notice must include, or be accompanied by, a statement to the effect that:
(a) the liable parent or the carer entitled to child support can seek a variation of the provisional notional assessment in accordance with section 146C within 14 days of receiving the notice; and
(b) once the provisional notional assessment becomes a notional assessment under section 146E, the liable parent or the carer entitled to child support may, subject to the Registration and Collection Act, object to the particulars of the notional assessment; and
(c) if aggrieved by a later decision on an objection to those particulars, the liable parent or the carer entitled to child support may, subject to that Act, apply to the SSAT for review of the later decision.
146C Variation of provisional notional assessments
(1) A liable parent or carer entitled to child support (the applicant ) may seek a variation of a provisional notional assessment within 14 days of receiving a notice under section 146B in respect of the provisional notional assessment by doing one or more of the following:
(a) by notifying the Registrar of a change to the percentage of care that the liable parent or the carer entitled to child support has for the child for the particular day in the child support period in respect of which the provisional notional assessment is made;
(b) by making an application under section 146D for a determination under Part 6A (departure determinations);
(c) if the applicant is a parent of the relevant child--by making an election under subsection 146G(1) (estimate of adjusted taxable income).
Note: A person who does not receive a notice that is served on the person is taken to have received the notice 14 days after the notice was served (see subsection 146E(2)).
(2) The Registrar may vary the provisional notional assessment of the annual rate of child support that would be payable for the child for the particular day if:
(a) an applicant seeks a variation in accordance with subsection (1); and
(b) any one or more of the following applies:
(i) if paragraph (1)(a) applies--the Registrar determines a different percentage of care for the parent or the carer for the child for the particular day under Division 4 of Part 5;
(ii) if paragraph (1)(b) applies--the Registrar makes a determination in respect of the child under section 98S;
(iii) if paragraph (1)(c) applies--the Registrar does not refuse to accept the election under section 146H.
(3) The Registrar may refuse to vary the provisional notional assessment if:
(a) the liable parent or the carer entitled to child support seeks a variation to the provisional notional assessment in accordance with subsection (1); and
(b) any of the following applies:
(i) if paragraph (1)(a) applies--the Registrar does not determine a different percentage of care for the parent or carer for the child for the particular day under Division 4 of Part 5;
(ii) if paragraph (1)(b) applies--the Registrar refuses to make a determination in respect of the child under section 98S;
(iii) if paragraph (1)(c) applies--the Registrar refuses to accept the election under section 146H; and
(c) if the liable parent or carer entitled to child support seeks a variation by doing more than one of the things mentioned in subsection (1)--the Registrar has not already varied the provisional notional assessment under subsection (2).
(4) The liable parent and the carer entitled to child support are not entitled:
(a) to make an application to the SSAT under section 80 of the Registration and Collection Act; or
(b) to make an application to a court under section 116;
in respect of the making of, or refusal to make, a determination under Part 6A.
Note: Instead, once the provisional notional assessment becomes a notional assessment, an objection can be made to the particulars of the notional assessment under section 80 of the Registration and Collection Act.
146D Departure determinations in respect of provisional notional assessments
(1) A person may, by written application, ask the Registrar to make a determination under Part 6A (departure determinations) if:
(a) a provisional notional assessment has not yet become a notional assessment under section 146E; and
(b) the person is of the view that, because of special circumstances that exist, the provisions of this Act relating to administrative assessment of child support should be departed from for the purposes of making the provisional notional assessment; and
(c) the person has not previously applied under this section in relation to the provisional notional assessment.
(2) If a person makes an application under subsection (1), Division 2 of Part 6A applies as if:
(a) references in that Division to an administrative assessment were references to the provisional notional assessment; and
(b) section 98JA did not apply.
(1) A provisional notional assessment becomes a notional assessment :
(a) 14 days after the notice of the provisional notional assessment is received by all the parties under section 146B; or
(b) if a liable parent or a carer entitled to child support seeks a variation to the provisional notional assessment in accordance with section 146C--on the day on which the Registrar varies, or refuses to vary, the provisional notional assessment under that section.
(2) For the purposes of this section and section 146C, if a person does not receive a notice served under section 146B before 14 days after the day on which the notice was served on the person by post at the person's last known address, the person is taken to have received the notice on the 14th day.
(3) To avoid doubt, subsection (2) applies whether the person receives the notice after the time referred to in that subsection or does not receive the notice at all.
(4) After a provisional notional assessment becomes a notional assessment, the Registrar must serve notice in writing of the notional assessment on the liable parent and the carer entitled to child support.
(5) The notice must specify in respect of the notional assessment the matters that are required by section 69 and subsection 76(2) in respect of an administrative assessment.
(6) The notice must include, or be accompanied by, a statement to the effect that:
(a) the party may, subject to the Registration and Collection Act, object to the particulars of the notional assessment; and
(b) if aggrieved by a later decision on an objection to those particulars, may, subject to that Act, apply to the SSAT for review of the later decision.
(7) A contravention of subsection (5) or (6) does not affect the validity of the notional assessment.
146F Later provisional notional assessments
The Registrar must make a new provisional notional assessment under section 146B:
(a) if the relevant child support agreement or court order continues in force for more than 3 years--at the end of the 3 year period after the most recent notional assessment relating to the agreement or order was made; or
(b) if the relevant child support agreement was a limited child support agreement--on the request of a party to the agreement; or
(c) in any case--if the amount of child support that is payable under the relevant child support agreement or court order for a day in the child support period changes by more than 15% from the previous day.
Division 3 -- Estimating adjusted taxable income for notional assessments
146G Estimating adjusted taxable income for purposes of notional assessments
(1) Before a provisional notional assessment relating to a child becomes a notional assessment under section 146E, a parent of the child may elect that, for the purposes of making the provisional notional assessment, the parent's adjusted taxable income for the 12 month period beginning on the particular day in the child support period in respect of which the provisional notional assessment is made is the amount estimated by the parent.
(2) However, a parent may not make an election under this section in relation to a child if an order or determination referred to in paragraph (a) of the definition of income amount order is in force in relation to the parent and the particular day in the child support period in respect of which the provisional notional assessment is made.
Election must be for amount less than adjusted taxable income for last relevant year of income
(3) The parent may make an election relating to a child only if the amount that he or she estimates under subsection (1) is not more than 85% of the total of the parent's adjusted taxable income for the last relevant year of income for the child support period.
How election is made
(4) The parent makes the election by giving notice of it to the Registrar in the manner specified by the Registrar. The notice must specify the amount the parent estimates to be his or her adjusted taxable income.
146H Registrar may refuse to accept election
(1) The Registrar may refuse to accept the parent's election if the Registrar is satisfied that the amount the parent estimated under subsection 146G(1) is likely to be less than the actual amount that would be the parent's adjusted taxable income for that 12 month period.
Note: If the Registrar refuses to accept the election, he or she may refuse to vary the provisional notional assessment under subsection 146C(3).
(2) In making the decision as to whether to refuse the election, the Registrar:
(a) may act on the basis of information that the Registrar has received or obtained as to the financial circumstances of the parent; and
(b) may, but is not required to, conduct an inquiry into the matter.
(3) Except for the purposes of Parts VII, VIIA and VIII of the Registration and Collection Act (dealing with objections and appeals), if the Registrar refuses to accept an election, the election is taken never to have been made.
(1) If a parent makes an election under subsection 146G(1) relating to a child, then, for the purposes of making the provisional notional assessment, the parent's adjusted taxable income is the amount the parent estimated.
(2) Subsection (1) has effect subject to any order or determination referred to in paragraph (a) of the definition of income amount order that is made after the making of the election that applies in relation to the parent and the particular day in the child support period in respect of which the provisional notional assessment is made.
(3) The Registrar must take such action as is necessary to give effect to subsection (1) in relation to the provisional notional assessment that has been made in relation to the parent and the child (whether by varying the provisional notional assessment or otherwise).
(1) Before a provisional notional assessment becomes a notional assessment under section 146E, a parent who has made an election under subsection 146G(1) in relation to a child may, by notice given to the Registrar, revoke the election.
(2) A notice given to the Registrar must be given in the manner specified by the Registrar.
Note: Section 150A provides for the Registrar to specify the manner in which a notice may be given.
(1) If a parent who made an election under section 146G relating to a child revokes the election and substitutes a new election before the provisional notional assessment becomes a notional assessment under section 146E, then, for the purposes of making the provisional notional assessment, the parent's adjusted taxable income is the amount the parent elected in the new election.
(2) Subsection (1) has effect subject to any order or determination referred to in paragraph (a) of the definition of income amount order that is made after the making of the election that applies in relation to the parent and the particular day in the child support period in respect of which the provisional notional assessment is made.
(3) The Registrar must take such action as is necessary to give effect to subsection (1) in relation to the provisional notional assessment that has been made in relation to the parent and the child (whether by varying the provisional notional assessment or otherwise).
(4) This section does not prevent:
(a) the Registrar making a determination under Part 6A; or
(b) a court making any order under Division 4 of Part 7; or
(c) the making, and acceptance by the Registrar, of a child support agreement that includes provisions that have effect, for the purposes of Part 5, as if they were such an order made by consent.
Child Support (Registration and Collection) Act 1988
72 Subsection 80(1) (after table item 14)
Insert:
14A | as to the particulars of a notional assessment | (a) the carer entitled to child support; or (b) the liable parent |
Part 2 -- Application and transitional provisions
73 Application of amendments in relation to child support agreements
(1) The amendments made by this Schedule (other than item 58) apply (subject to subitems (2) and (3)) in respect of a child support agreement if:
(a) the application for acceptance of the agreement is made after Division 3 of Part 1 of this Schedule commences; and
(b) the agreement period for the agreement ends on or after 1 July 2008.
Note: For the definition of agreement period , see subitem (6).
Child support agreements that span 1 July 2008
(2) If the agreement period for a child support agreement covered by subitem (1) begins before 1 July 2008, then:
(a) the agreement is taken to be 2 separate agreements; and
(b) the first agreement is taken to have effect for the period that:
(i) begins at the beginning of the agreement period; and
(ii) ends on 30 June 2008 (including that day); and
(c) the second agreement is taken to have effect for the period that:
(i) begins on 1 July 2008 (including that day); and
(ii) ends at the end of the agreement period.
(3) If a child support agreement is taken to be 2 separate agreements under subitem (2), then the Assessment Act, the Registration and Collection Act, the A New Tax System (Family Assistance) (Administration) Act 1999 and the Social Security Act 1991 , as in force immediately before 1 July 2008, continue to apply, after that time, in respect of the first agreement mentioned in paragraph (2)(b).
Note: Those Acts as in force on and after 1 July 2008 apply, under subitem (1), in respect of the second agreement mentioned in paragraph (2)(c).
(4) The Registrar or a court may make different decisions, or take different actions, in relation to the 2 separate agreements mentioned in subitem (2).
Example: The Registrar might refuse to accept the first agreement, while accepting the second agreement.
Effect of old law continues in certain cases
(5) To avoid doubt, if:
(a) an application is made for acceptance of a child support agreement before Division 3 of Part 1 of this Schedule commences; and
(b) immediately before that Division commences, the agreement has been neither accepted nor refused by the Registrar;
then the Assessment Act, the Registration and Collection Act, the A New Tax System (Family Assistance) (Administration) Act 1999 and the Social Security Act 1991 , as in force immediately before 1 July 2008, continue to apply, after that time, in respect of the child support agreement.
Definition of agreement period
(6) In this item:
agreement period , for a child support agreement covered by subitem (1), means the period for which the child support agreement has effect.
73A Application of amendments in relation to court orders
(1) The amendments made by this Schedule (other than item 58) apply (subject to subitem (2)) in respect of an application made to a court for an order if:
(a) the application is made after Division 3 of Part 1 of this Schedule commences; and
(b) the application relates to a period that ends on or after 1 July 2008.
Applications that span 1 July 2008
(2) If the application relates to a period that begins on a day (the first day ) before 1 July 2008, then:
(a) the Assessment Act and the Registration and Collection Act, as in force immediately before 1 July 2008, apply in relation to the period mentioned in paragraph (b), in relation to the following:
(i) making an order in response to the application;
(ii) any appeal to another court in relation to an order made in response to the application;
(iii) any decision or action taken by the Registrar in relation to an order made in response to the application; and
(b) for the purposes of paragraph (a), the period is the period that:
(i) begins on the first day (including that day); and
(ii) ends on 30 June 2008 (including that day).
Note: Those Acts as in force on and after 1 July 2008 apply, under subitem (1), in respect of the period that begins on 1 July 2008.
(3) A court may, in response to an application, make different orders for:
(a) the period that ends on 30 June 2008; and
(b) the period that begins on 1 July 2008.
(4) The Registrar may make different decisions, and take different actions, in relation to different orders made in response to an application.
Effect of old law continues in certain cases
(5) To avoid doubt, if:
(a) an application is made to a court before Division 3 of Part 1 of this Schedule commences; and
(b) immediately before that Division commences, the application has not been finally dealt with by the court;
then the Assessment Act and the Registration and Collection Act, as in force immediately before 1 July 2008, continue to apply after that time in relation to the following:
(c) making an order in response to the application;
(d) any appeal to another court in relation to an order made in response to the application;
(e) any decision or action taken by the Registrar in relation to an order made in response to the application.
74 Registrar to review all agreements
(1) Before 1 July 2008, the Registrar must:
(a) review every child support agreement made before that day that will be in force:
(i) immediately before that day; or
(ii) after that day; and
(b) determine in writing whether each such agreement is:
(i) to be taken to be a binding child support agreement; or
(ii) to be terminated.
(2) If, in accordance with subitem 73(5) , the Registrar accepts a child support agreement on or after 1 July 2008 under the Assessment Act as in force immediately before that day, the Registrar must:
(a) review the agreement; and
(b) determine in writing whether the agreement is:
(i) to be taken to be a binding child support agreement; or
(ii) to be terminated.
(3) After the Registrar makes a determination under subitem (1) or (2), the Registrar must serve notice in writing of the determination on each of the parties to the agreement.
(4) The notice must include, or be accompanied by, a statement to the effect:
(a) that the party may, subject to the Registration and Collection Act, object to the decision (the original decision ); and
(b) that if the party is aggrieved by a later decision on an objection to the original decision (no matter who lodges the objection), the party may apply, subject to that Act, to the SSAT for review of the later decision.
(5) A contravention of subitem (4) in relation to a decision does not affect the validity of the decision.
(6) The Registration and Collection Act (as amended by Schedule 3 of this Act) applies as if the table in subsection 80(1) of that Act (as inserted by Schedule 3 of this Act) included the following table item:
16 | a determination under item 74 of Schedule 5 to the Child Support Legislation Amendment (Reform of the Child Support Scheme--New Formula and Other Measures) Act 2006 that an agreement is to be a binding child support agreement or is to be terminated | a party to the agreement |
75 Effect of determinations
Effect of determinations
(1) If the Registrar makes a determination under subparagraph 74(1)(b)(i) or (2)(b)(i), then, for the purposes of the Assessment Act and the Registration and Collection Act, at the time specified in subitem (4) (if the agreement has not been previously terminated):
(a) the agreement is taken to be a binding child support agreement; and
(b) the amendments made by this Schedule do not affect the continuity of any assessment, in force at that time, of the annual rate of child support that is payable under the agreement.
(2) If the Registrar makes a determination under subparagraph 74(1)(b)(ii) or (2)(b)(ii), then, for the purposes of the Assessment Act and the Registration and Collection Act, for any day in a child support period that is on or after the time specified in subitem (4) (if the agreement has not been previously terminated), the agreement is terminated by force of this item.
(3) Subitems (1) and (2) do not affect the operation of provisions in an agreement that do not have effect for the purposes of the Assessment Act or the Registration and Collection Act.
When determinations take effect
(4) For the purposes of subitems (1) and (2), the following time is specified:
(a) if the determination is made under subparagraph 74(1)(b)(i)--the time that item 5 of this Schedule commences;
(b) otherwise--the latest of the following times:
(i) if the decision of the Registrar to make the determination becomes final--at the time when that decision becomes final;
(ii) if a decision of the SSAT relating to the Registrar's determination becomes final--at the time when that decision becomes final (within the meaning of subsection 110W(1) of the Registration and Collection Act);
(iii) if neither subparagraph (i) nor (ii) applies--at the time when a decision of a court relating to the Registrar's determination becomes final (within the meaning of subsection 110W(2) or (3) of that Act);
(iv) at the time when the agreement takes effect.
(5) For the purposes of subparagraph (4)(b)(i), a decision of the Registrar becomes final at the end of the period within which an application could have been made to the SSAT under section 80 of the Registration and Collection Act (as it applies because of subitem 74(6) of this Schedule).
Terminating deemed binding child support agreements
(6) In addition to section 80D of the Assessment Act (as inserted by this Schedule), an agreement that is taken to be a binding child support agreement under subitem (1) may be terminated by another agreement that:
(a) is in writing; and
(b) is signed by the parties to the original agreement.
76 Delegation
(1) The Registrar may, by writing, delegate all or any of his or her powers and functions under item 74 of this Schedule to an SES employee, or acting SES employee, of the Department.
(2) In exercising powers or functions under a delegation, the delegate must comply with any directions of the Registrar.
77 Application
The amendment made by item 58 of this Schedule applies in relation to lump sum payments that are paid by a payer:
(a) in accordance with lump sum payment provisions in an agreement under paragraph 84(1)(e) of the Assessment Act or a court order made under section 123A of that Act (as amended or inserted by this Schedule); and
(b) after the commencement of Division 2 of Part 1 of this Schedule.
Part 3 -- Consequential amendments
A New Tax System (Family Assistance) (Administration) Act 1999
78 Subsection 104(1)
Omit "(1) Under", substitute "Under".
Note: The heading to subsection 104(1) is deleted.
79 Subsection 104(2)
Repeal the subsection.
80 Subsection 106(3)
Repeal the subsection, substitute:
Notice to be given of other review decisions
(3) If:
(a) the Secretary makes a review decision under section 105 to:
(i) vary an original decision; or
(ii) set aside an original decision and substitute a new decision; and
(b) the review decision is in respect of any other original decision that, under section 104, may be reviewed (other than a review decision referred to in subsection (1) or (2));
the Secretary must give notice of the review decision to the person whose entitlement, or possible entitlement, to family assistance or one - off payment to families is affected by the decision.
81 Subsection 108(1)
Repeal the subsection, substitute:
Decisions that may and may not be reviewed under section 109A
(1) A decision of any officer under the family assistance law must be reviewed on application under section 109A unless an exception set out in subsection (2) applies to the decision.
82 Section 109
Repeal the section.
83 Subsection 109B(3)
Repeal the subsection, substitute:
Notice to be given of other review decisions
(3) If a review decision is in respect of any other original decision that may be reviewed under section 109A, other than an original decision referred to in subsection (2), the decision reviewer must give the applicant written notice of his or her decision:
(a) to affirm or vary the decision reviewed; or
(b) to set it aside and substitute a new decision.
84 Subsection 111(1B)
Repeal the subsection.
85 Subsection 118(2A)
Repeal the subsection.
86 Subsection 122(4)
Repeal the subsection.
87 Paragraph 139(1)(a)
Repeal the paragraph, substitute:
(a) may give general directions as to the procedure to be followed by the SSAT in connection with the review of decisions under the family assistance law; and
88 Paragraph 139(5)(aa)
Repeal the paragraph.
89 Subsection 142(5)
Repeal the subsection.
90 Subsection 23(1) (definition of officer )
Omit ", the Farm Household Support Act 1992 or subsection 91A(3) of the Child Support (Assessment) Act 1989 ", substitute "or the Farm Household Support Act 1992 ".
