These Regulations are the Child Support Reform (New Formula and Other Measures) Regulations 2007.
2 Commencement
These Regulations commence on 1 January 2008.
3 Purpose
These Regulations are made for section 6 of the Act.
4 Definitions
In these Regulations:
Act means the Child Support Legislation Amendment (Reform of the Child Support Scheme—New Formula and Other Measures) Act 2006.
administrative assessment means an administrative assessment that is:
(a) made under subregulation 7(1); or
(b) amended under subregulation 7(1); or
(c) an existing assessment amended under subregulation 7(1).
amended Assessment Act means the Assessment Act as amended by the Act and the Consolidation Act on, or immediately after, 1 July 2008.
amended Registration and Collection Act means the Registration and Collection Act as amended by the Act and the Consolidation Act on, or immediately after, 1 July 2008.
applicable formula, for a child, means the formula that would be applicable to working out the annual rate of child support payable for the child under Part 5 of the Assessment Act, as amended by the Act and the Consolidation Act, as if the amendments provided by those Acts to come into operation on 1 July 2008, or immediately after that day, had come into operation on, or immediately after, the commencement of these Regulations.
Assessment Act means the Child Support (Assessment) Act 1989.
carer means a carer entitled to child support.
carer entitled to child support has the same meaning as in the amended Assessment Act.
child support has the same meaning as in the amended Assessment Act.
child support agreement has the same meaning as in the Assessment Act.
Consolidation Act means the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007.
departure determination means a departure determination made under subregulation 9(1).
existing assessment means an administrative assessment in force under the Assessment Act before 1 July 2008.
Human Services Department means the Department administered by the Minister administering the Human Services (Centrelink) Act 1997.
liable parent has the same meaning as in the amended Assessment Act.
payee has the same meaning as in the amended Registration and Collection Act.
payer has the same meaning as in the amended Registration and Collection Act.
Registrar has the same meaning as in the amended Assessment Act.
Registration and Collection Act means the Child Support (Registration and Collection) Act 1988.
transition period means the period beginning on the commencement of these Regulations and ending at the end of 30 June 2008.
Part 2—Scale of expenses
5 Scale of expenses (Act s 4(2))
(1) For subsection 4(2) of the Act, the scale of expenses set out in Schedule 1 is prescribed.
(2) A reference in Schedule 1 to the High Court Rules is a reference to the High Court Rules as in force from time to time.
Part 4—Corresponding rights and obligations under determinations made before 1 July 2008
16 Application
This Part applies if the Registrar, using the applicable formula, makes or amends an administrative assessment of child support that is subject to an existing determination.
17 Definition for Part 4
In this Part, existing determination means a departure determination in force under the Assessment Act before 1 July 2008.
18 Corresponding rights and obligations for departure determinations
(1) A liable parent, or a carer, to whom a relevant determination mentioned in an item applies has the same rights and obligations as if the relevant determination were an amended Assessment Act determination mentioned in the item.
Paragraph 98S(1)(a): varying the rate of child support payable
Paragraph 98S(1)(a): varying the annual rate of child support payable
2
Paragraph 98S(1)(b): varying the adjusted income amount
Paragraph 98S(1)(c): varying a parent’s child support income
3
Paragraph 98S(1)(b) or (d): varying the child support income amount
Paragraph 98S(1)(g): varying a parent’s adjusted taxable income
4
Paragraph 98S(1)(b): varying the exempted income amount
Paragraph 98S(1)(i): varying a parent’s self‑support amount
(2) In this regulation:
amended Assessment Act determination, for an item, means a departure determination made under the provision of the amended Assessment Act, and having the effect, mentioned in column 3 of the item.
relevant determination, for an item, means an existing determination having the effect mentioned in column 2 of the item.
item means an item in the table in subregulation (1).
19 Determinations with no corresponding rights and obligations
(1) This regulation applies to an existing determination under any of the following provisions of the Assessment Act:
(a) paragraph 98S(1)(b) (varying the child support percentage);
(b) paragraph 98S(1)(d) (varying the disregarded income amount of the carer);
(c) paragraph 98S(1)(g) (varying a factor ascertained under paragraph 54(1)(b) of the Assessment Act).
(2) The rights and obligations under the existing determination have effect after 30 June 2008 as if the determination were a departure determination under paragraph 98S(1)(a) of the amended Assessment Act varying the annual rate of child support to the rate payable on 30 June 2008.
(3) An amount specified in an existing determination to which this regulation applies is to be indexed annually on 1 July, starting on 1 July 2009, using the following steps:
Step 1: Divide the highest March quarter index number by the base March quarter index number.
Step 2: Multiply the amount specified in the existing determination by the number worked out in Step 1.
(4) In this regulation:
base March quarter index number means the index number for the March quarter of 2008.
highest March quarter index number means the highest index number for a March quarter since the base March quarter index number (and including the base March quarter index number).
index number means, for a quarter, the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities and is published by the Australian Statistician for that quarter.
(5) If at any time 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 in applying subregulation (3).
(6) However, if at any time the Australian Statistician changes the reference base for the Consumer Price Index, in applying subregulation (3) after the change takes place, only the index numbers published in terms of the new reference base are to be used.
Part 5—Transitional matters for child support agreements made before 1 July 2008
20 Registrar’s review of child support agreements made before 1 July 2008
This Part applies if, under item 74 of Schedule 5 to the Act, the Registrar reviews a child support agreement in force during the transition period and determines that the agreement is to be taken to be a binding child support agreement.
21 Corresponding rights and obligations for transitional agreements
(1) A liable parent, or a carer, who is a party to a transitional agreement mentioned in an item has the same rights and obligations as if the agreement were an amended Assessment Act agreement mentioned in the item.
Item
Transitional agreement
Corresponding amended Assessment Act agreement
1
Varying the rate of child support payable
Varying the annual rate of child support payable
2
Varying the adjusted income amount
Varying a parent’s child support income
3
Varying the child support income amount
Varying a parent’s adjusted taxable income
4
Varying the exempted income amount
Varying a parent’s self‑support amount
(2) In this regulation:
amended Assessment Act agreement, for an item, means an agreement under the amended Assessment Act having the effect mentioned in column 3 of the item.
item means an item in the table in subregulation (1).
transitional agreement, for an item, means a binding child support agreement having the effect mentioned in column 2 of the item.
Part 6—Transitional arrangements for a single child support period
22 Multiple assessments for a child
(1) This regulation applies if, before 1 July 2008, there is more than one existing assessment of child support for a child.
(2) The existing assessments for a child have effect after 30 June 2008 under Part 5 of the amended Assessment Act, as if made in a single child support case calculated on the 2006–07 year of income.
(3) For a child support case mentioned in subregulation (2), a single child support period starts on 1 July 2008 and ends as provided for in subsection 7A(3) of the amended Assessment Act.
Part 7—Transitional matters for court orders made before 1 July 2008
23 Purpose
The regulations in this Part are made for item 1 of Schedule 9 to the Act.
24 Assessments for court orders
This Part applies if a court order is in force during the transition period and the Registrar, using the applicable formula, makes or amends an administrative assessment of child support.
Note: A liable parent or carer may apply to a court under section 116 of the Assessment Act in relation to the Registrar’s notice of an administrative assessment of child support under the applicable formula: see item 1(6) of Schedule 9 to the Act.
25 Corresponding rights and obligations for court orders
(1) This regulation applies to an administrative assessment made or amended under this Part for an Assessment Act order mentioned in an item.
(2) The Registrar must ensure, as far as practicable, that the administrative assessment confers on the liable parent or carer bound by the order the same rights and obligations as if there were a corresponding amended Assessment Act order mentioned in the item.
Item
Assessment Act order
Corresponding amended Assessment Act order
1
Paragraph 118(1)(a): varying the rate of child support payable
Paragraph 118(1)(a): varying the annual rate of child support payable
2
Paragraph 118(1)(b): varying the adjusted income amount
Paragraph 118(1)(c): varying a parent’s child support income
3
Paragraph 118(1)(b) or (d): varying the child support income amount
Paragraph 118(1)(g): varying a parent’s adjusted taxable income
4
Paragraph 118(1)(b): varying the exempted income amount
Paragraph 118(1)(i): varying a parent’s self‑support amount
(3) In this regulation:
amended Assessment Act order, for an item, means an order made under the provision of the amended Assessment Act, and having the effect, mentioned in column 3 of the item.
Assessment Act order, for an item, means an order made under the provision of the Assessment Act, and having the effect, mentioned in column 2 of the item.
item means an item in the table in subregulation (2).
26 Court orders with no corresponding rights and obligations
(1) This regulation applies to an administrative assessment made or amended under this Part for a relevant order.
(2) The Registrar must ensure, as far as practicable, that the administrative assessment confers on the liable parent or carer bound by the order the same rights and obligations as if there were an order under paragraph 118(1)(a) of the amended Assessment Act varying the annual rate of child support to the rate payable on 30 June 2008.
(3) Subregulations 19(3) to (6) apply to the administrative assessment as if the review of the assessment by the Registrar were an existing determination to which those subregulations apply.
(4) In this regulation:
relevant order means a court order under any of the following provisions of the Assessment Act:
(a) paragraph 118(1)(b) (varying the child support percentage);
(b) paragraph 118(1)(d) (varying the disregarded income amount of the carer);
(c) paragraph 118(1)(g) (varying a factor ascertained under paragraph 54(1)(b) of the Assessment Act).
Part 8—Miscellaneous
Division 1—Preliminary
27 Definitions for Part 8
In this Part:
applied Assessment Act means the amended Assessment Act, as applied by these Regulations.
applied Registration and Collection Act means the amended Registration and Collection Act, as applied by these Regulations.
Division 2—Prescriptions for applied Acts
28 Taxable income—prescribed provisions and circumstances
(1) For paragraphs 56(2)(b) and (c) of the applied Assessment Act, the following provisions and circumstances are prescribed:
(a) sections 78A, 82KJ, 82KK, 82KL, 136AF and 177F of the Income Tax Assessment Act 1936 (the Tax Act);
(b) the circumstances in which subsection 170(9B) of the Tax Act applies;
(c) a provision that is a prescribed provision within the meaning of subsection 170(14) of the Tax Act.
(2) The following circumstance is also prescribed for paragraph 56(2)(c) of the applied Assessment Act:
(a) the Commissioner has written to a person (the taxpayer):
(i) about an announcement by the Commissioner, on 14 February 2002, allowing taxpayers who were investors in schemes identified by the Commissioner as mass marketed tax effective schemes a deduction for certain actual cash outlays; and
(ii) proposing to amend the tax assessment of the taxpayer to the effect that the taxable income of the taxpayer for a particular year of income is reduced, taking into account that kind of cash outlay; and
(b) the taxpayer has responded, accepting the Commissioner’s proposal; and
(c) the Commissioner has later amended the tax assessment of the taxpayer, making a reduction in the taxable income of the taxpayer for the year of income in accordance with the Commissioner’s proposal.
(3) For paragraph 57(7)(a) of the applied Assessment Act the following circumstances are prescribed:
(a) if a tax assessment in force under the Tax Act immediately before commencement of these Regulations could be amended to give effect to the provisions of the Tax Act; or
(b) the circumstances prescribed in subregulation (1) or (2).
For paragraph 58A(2)(c) of the applied Assessment Act the following circumstances are prescribed:
(a) a parent is unable to provide information about taxable income to the Registrar at the time the administrative assessment was made because at that time:
(i) the parent did not know that the assessment was being made; or
(ii) the parent had a serious illness or injury; or
(iii) the parent was under detention or imprisonment; or
(iv) the parent resided in a remote location which made it difficult to contact the Registrar; or
(v) a natural disaster prevented the parent from being able to contact the Registrar; or
(vi) there was some other exceptional circumstance that prevented the parent from providing the information; and
(b) the Registrar confirms that the parent was unable to provide the information because of a circumstance in paragraph (a); and
(c) the parent later provides the information to the Registrar as soon as is practicable in the circumstances.
30 Factor for making a determination
(1) For subsection 58(3A) of the applied Assessment Act, the factor for determining a parent’s adjusted taxable income for a year of income in relation to a child support period is the EAWE amount.
(2) In this regulation:
EAWE amount, means the change in the all employees average weekly total earnings amount for persons in Australia (trend estimate) for the relevant September quarter, from the corresponding quarter of the previous year, as published by the Australian Statistician before the calendar year in which the child support period started.
relevant September quarter has the same meaning as in subsection 5A(2) of the amended Assessment Act.
31 Overseas income—conversion of currency
(1) For determining, under Subdivision BA of Division 7 of Part 5 of the applied Assessment Act an amount of income expressed in foreign currency to be a person’s overseas income, the Registrar must convert the amount into an equivalent amount in Australian currency.
(2) The amount must be worked out using:
(a) the average exchange rate for the foreign currency for the financial year in which the income was derived; or
(b) if that rate is not available for the financial year—an exchange rate for the foreign currency that the Registrar considers appropriate.
(3) For paragraph (2)(a), an average exchange rate for a foreign currency for a year is the average of the telegraphic transfer rates published by the Commonwealth Bank of Australia for that currency for the financial year.
32 Date of making of application etc
(1) An application for administrative assessment or for the acceptance of a child support agreement is taken to have been made on the day on which the application is received in an office of:
(a) the Human Services Department; or
(c) the Australian Taxation Office.
(2) An election under section 60 of the applied Assessment Act, or a revocation under section 62, is taken to have been made on the day on which the form of election or revocation is received in any of the offices mentioned in subregulation (1).
(3) If any other matter is required by the applied Assessment Act to be done in an approved form, the form is taken to have been received on the day on which the form is received in any of the offices referred to in subregulation (1).
33 Application to have liability reduced to nil
An application under subsection 66A(1) of the applied Assessment Act to reduce an assessment to nil must be made before or within the child support period to which it relates, and in the manner required by the Registrar.
Note: Section 150A of the amended Assessment Act provides that the Registrar may specify how an application must be made.
34 Prescribed payments
(1) For paragraph (b) of the definition of income in subsection 66A(4) of the applied Assessment Act, the following payments are prescribed:
(a) payments, in the nature of an amenity allowance or gratuity, authorised by the Governor of a prison, to a person serving a term of imprisonment in the prison, to the extent that the payment is not for:
(i) work done by the person inside or outside the prison; or
(ii) approved study undertaken by the person inside or outside the prison; or
(iii) participation by the person in any other program approved by the Governor;
(b) support pension payments of the following kind:
(i) disability support pension paid to a person under the social security law;
(ii) pension paid to a veteran who is totally and permanently incapacitated as mentioned in paragraph 24(1)(b) of the Veterans’ Entitlements Act 1986;
(iii) Special Rate Disability Pension paid to a person under Part 6 of Chapter 4 of the Military Rehabilitation and Compensation Act 2004.
(2) For paragraph (1)(b), a support pension is a pension that, in the opinion of the Registrar, is substantially used for the support of the pension recipient.
(3) In this regulation:
amenity allowance or gratuity means periodical payments of an incidental nature to a person for one, or both, of the following:
(a) the purchase of personal items such as toiletries;
(b) other minor expenses.
Governor means the person in charge of a prison, however described.
social security law has the same meaning as in subsection 3(3) of the Social Security (Administration) Act 1999.
35 Conversion of annual rates into daily rates
(1) For section 69 of the applied Assessment Act, an annual rate of child support is to be converted into a daily rate by using the formula:
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where:
DR is the daily rate of payment; and
AR is the annual rate of payment.
(2) In working out a conversion, the calculation must be made to 6 decimal places and:
(a) if the final figure is greater than 4—the second‑last figure must be increased by 1 and the final figure then disregarded; and
(b) if the final figure is 4 or less, it must be disregarded.
Division 3—Administration
37 Application of Division 3
This Division applies for:
(a) these Regulations; and
(b) the applied Assessment Act; and
(c) the applied Registration and Collection Act.
38 Service of notices etc
(1) A notice by or on behalf of the Registrar may be served on a person:
(a) if the person is a natural person:
(i) by serving it personally on the person; or
(ii) by leaving it at the person’s address for service; or
(iii) by sending it by pre‑paid post to the person’s address for service; or
(b) if the person is a corporation:
(i) by leaving it at the person’s address for service; or
(ii) by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the corporation.
(2) If service has been attempted by pre‑paid post, unless the contrary is proved, service is taken to have been effected at the time when the notice would, in the ordinary course of the post, have arrived at the place to which it was addressed.
(3) For subparagraph (1)(a)(ii) or (b)(i), if the person has consented to receiving the notice, or notices of that kind, by electronic communication, the notice is taken to have been left at the address for service if it has been delivered by electronic communication.
(4) In this regulation:
consent has the meaning given by section 5 of the Electronic Transactions Act 1999.
electronic communication has the meaning given by section 5 of the Electronic Transactions Act 1999.
notice includes any kind of communication.
39 Address for service
(1) The address last notified by a person to the Registrar as the address for service of the person is taken to be the person’s address for service.
(2) If no address for service has been notified to the Registrar but the Registrar’s records contain an address attributed to the person, the latest address of that kind is the person’s address for service.
(3) For this regulation:
address for service, for a person, includes the person’s address for the electronic delivery of notices.
notice includes any kind of communication.
40 Documents taken to be duly signed
(1) A document bearing the written name of the Registrar in place of the Registrar’s signature must, unless it is proved that the document was issued without authority, be taken to have been duly signed by the Registrar.
(2) Judicial notice must be taken of the name and signature of the Registrar.
(3) In this regulation:
name, for a person, includes a facsimile of the person’s signature.
Registrar, includes a person who is, or was at any time, the Registrar or a delegate of the Registrar.
Note: Section 25 of the Acts Interpretation Act 1901 defines document and writing in broad terms. See also section 18A of the Acts Interpretation Act 1901.