Section 146L - Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Act 2006 - Effect of revocation | Zoe
Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Act 2006
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(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.
Social Security Act 1991
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”.
Schedule 6—Amendments relating to departure orders (commencing on 1 July 2008)
Part 1—Amendments
Child Support (Assessment) Act 1989
3 Subsection 98S(3A)
Repeal the subsection.
5 After paragraph 117(2)(a)
Insert:
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain another child (the resident child) of the parent;
6 Subparagraph 117(2)(c)(ii)
Omit “child; or”, substitute “child.”.
7 Subparagraphs 117(2)(c)(iii) and (iv)
Repeal the subparagraphs.
8 Subsection 117(2) (note)
Repeal the note.
9 Subsection 117(3)
Repeal the subsection, substitute:
Parent’s responsibility to maintain resident child
(2A) The ground for departure mentioned in paragraph (2)(aa) is taken not to exist in respect of a resident child unless:
(a) the resident child normally lives with the parent, but is not a child of the parent; and
(b) the parent is, or was, for 2 continuous years, a member of a couple; and
(c) the other member of the couple is, or was, a parent of the resident child; and
(d) the resident child is aged under 18; and
(e) the resident child is not a member of a couple; and
(f) neither parent of the resident child is able to support the resident child due to:
(i) the death of the parent; or
(ii) the ill‑health of the parent; or
(iii) the responsibility of the parent to care for another child; and
(g) the court is satisfied that the resident child requires financial assistance.
High costs involved in enabling parent to care for a child
(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to care for the child.
10 Section 117A
Repeal the section.
11 Subsection 118(2A)
Repeal the subsection.
Part 2—Application provision
12 Application
The amendments made by this Schedule apply in respect of:
(a) an application made under section 98B of the Assessment Act after this item commences; and
(b) a determination in respect of which parties were notified under section 98M of the Assessment Act after this item commences; and
(c) an application made under section 116 of the Assessment Act after this item commences, even if the application relates to a decision made before this item commences:
(i) to make, or refuse to make, a determination under Part 6A of that Act; or
(ii) to make an administrative assessment under subsection 66(1) of that Act.
Schedule 7—Other amendments commencing on 1 July 2008
Part 1—Amendments
Child Support (Assessment) Act 1989
1 At the end of section 12
Add:
(5) A child support terminating event happens in relation to a child and the child’s parents if the parents become members of the same couple for a period of 6 months or more.