CHILD SUPPORT LEGISLATION AMENDMENT ACT 1998 NO. 120, 1998 - SCHEDULE 14 - Departure from administrative assessments

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CHILD SUPPORT LEGISLATION AMENDMENT ACT 1998 NO. 120, 1998 - SCHEDULE 14

- Departure from administrative assessments

Child Support (Assessment) Act 1989

1 Subparagraph 76(3)(aa)

Omit "98A(2)", substitute "98A(3)".

2 Part 6A

Repeal the Part, substitute:

Part 6A—Departure from administrative assessment of child support Division 1—Object of Part 98A> Object of Part

(1): The object of this Part is, subject to subsection (2), to give power to the Registrar to make a determination having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to a child.
(2): Under this Part, the Registrar may make a determination in 2 circumstances:

(a) upon application by a liable parent or carer entitled to child support; or (b) when the Registrar initiates the making of the determination.

(3): The Registrar is not empowered under this Part to make a determination in relation to child support payable in the child support year ending on 30 June 1992 or any earlier child support year.
(4): The Registrar is not empowered under this Part to make a determination that varies, or that has the effect of varying, the annual rate of child support payable by a liable parent under an assessment made under subsection 66(1) to a rate below $260 per annum.

Division 2—Departures initiated by a liable parent or carer 98B Application for determination under Part

(1): If, at any time when an administrative assessment is in force in relation to a child:

(a) the liable parent concerned; or (b) the carer entitled to child support concerned;

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 in relation to the child, the liable parent or carer may, by written application, ask the Registrar to make a determination under this Part.

: Note: For the determinations that the Registrar may make under this Part see section 98S.

(2): The parties to the proceedings under this Division are the liable parent and the carer entitled to child support.

98C Matters as to which Registrar must be satisfied before making
determination

(1): Subject to this Part, if:

(a) an application is made to the Registrar under section 98B; and (b) the Registrar is satisfied: (i) that one, or more than one, of the grounds for departure referred to in subsection (2) exists; and (ii) that it would be: (A) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and (B) otherwise proper; to make a particular determination under this Part;

the Registrar may make the determination.

(2): For the purposes of subparagraph (1)(b)(i):

(a) the grounds for departure from the provisions of this Act relating to administrative assessment of child support in relation to the child are the same as the grounds for departure set out in subsection 117(2); and (b) sub-subparagraph 117(2)(b)(i)(C) has effect subject to subsections 117(3A) and (3B).

(3): Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this Division as if:

(a) any reference in those subsections to the court were a reference to the Registrar; and (b) any reference to an order were a reference to a determination.

98D Formal requirements for application

An application made under section 98B must be in the manner specified by the Registrar.

: Note: Section 150A provides for the Registrar to specify the manner in which an application must be made.

98E Registrar may refuse to make determination because issues too
complex

If the Registrar is satisfied, after considering the application, that the issues raised by the application are too complex to be dealt with under this Part, the Registrar may:

(a) refuse to make the determination, without taking any further action under this Part; and (b) recommend that application be made to a court having jurisdiction under this Act for an order under Division 4 of Part 7.

98F Application disclosing no grounds etc. for making
determination—how dealt with

If the Registrar is satisfied, after considering the application, that:

(a) there are no grounds for departing from the provisions of this Act relating to administrative assessment of child support in relation to the child concerned; or (b) that it would not be: (i) just or equitable as regards the child or either party to the application; or (ii) otherwise proper; to make the determination;

the Registrar may refuse to make the determination without taking any further action under this Part.

98G Other party to be notified

(1): If section 98E or 98F or subsection 98J(2) does not apply, the Registrar must cause a copy of:

(a) the application; and (b) any document accompanying it;

to be served on the other party to the proceedings.

(2): The Registrar must, at the same time, inform the other party to the proceedings in writing that he or she may make any representation (a reply ) regarding the application that he or she considers relevant.
(3): If the other party to the proceedings makes a reply, the Registrar must serve a copy of the reply and any accompanying documents on the applicant for the determination.

98H Procedure for dealing with application

(1): In making a decision under this Division in relation to an application, the Registrar:

(a) may act on the basis of: (i) the application and the documents accompanying it; and (ii) if action has been taken under section 98G—the reply (if any) to the application and the documents (if any) accompanying it; and (b) may, but is not required to, conduct any inquiry or investigation into the matter.

(2): Except where the Registrar refuses to make a determination under section 98E or 98F or subsection 98J(2) in respect of an application, the Registrar must give an opportunity to the applicant and the other party to appear before the Registrar, and be heard by him or her, if they so wish.

: Note: Sections 98E and 98F and subsection 98J(2) provide that the Registrar may refuse to make a determination in the circumstances set out in those provisions without taking any further action under this Part.

(3): Nothing in subsection (2) empowers the Registrar to compel a party to the proceeding to appear before the Registrar in the presence of the other party.
(4): Any hearing before the Registrar, and any inquiry or investigation carried out by the Registrar, is to be carried out as the Registrar thinks fit and the Registrar is not bound by any rules of evidence.
(5): A party to the proceedings must not be represented by another person before the Registrar.

98J Subsequent applications

(1): A person who has made an application for a determination under this Part in respect of an administrative assessment of child support is not, for that reason, precluded from subsequently making another application in respect of that assessment if, because of circumstances existing at the time when the subsequent application is made, there are grounds for departing from the administrative assessment.
(2): If:

(a) a person has made an application for a determination under this Part; and (b) the Registrar has refused to make a determination on the application; and (c) the person subsequently makes an application for a determination under this Part; and (d) the Registrar is satisfied, after considering: (i) the application last made and the documents (if any) accompanying it; and (ii) the previous application and the documents (if any) accompanying it and any matter taken into account by the Registrar in refusing to make a determination in relation to that application; that no new matter has been submitted in support of the claim that there are grounds for departing from the provisions of this Act relating to administrative assessment of child support in relation to the child;

the Registrar may refuse to make a determination, without taking any further action under this Part.

Division 3—Departures initiated by the Registrar 98K Registrar may initiate a determination under this Part

(1): If, at any time when an administrative assessment is in force in relation to a child, the Registrar 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 in relation to the child, the Registrar may make a determination under this Part.

: Note: For the determinations that the Registrar may make under this Part see section 98S.

(2): The parties to the proceedings under this Division are the liable parent and the carer entitled to child support.

98L Matters as to which Registrar must be satisfied before making
determination

(1): Subject to this Part, the Registrar may make the determination if:

(a) the Registrar is satisfied that, in the special circumstances of the case, application in relation to a child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property and financial resources of either parent; and (b) that it would be: (i) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and (ii) otherwise proper;

to make a particular determination under this Part.

(2): Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her powers under this section as if:

(a) any reference in those subsections to the court were a reference to the Registrar; and (b) any reference to an order were a reference to a determination.

98M Parties to be notified

(1): The Registrar must, in writing, notify the parties to the proceedings that the Registrar is considering the making of a determination under section 98S in relation to the child concerned.
(2): The Registrar must also cause to be served on each of the parties to the proceedings a summary of the information that the Registrar used to form the view that the Registrar should make a determination under this Division.
(3): At the same time, the Registrar must inform each party to the proceedings in writing that the party may make any representation (a reply ) regarding the application that the party considers relevant.

98N Replies

(1): Any reply made by a party to proceedings under this Division must:

(a) be in the manner specified by the Registrar; and (b) be made to the Registrar.

: Note: Section 150A provides for the Registrar to specify the manner in a reply may be made.

(2): If a party to the proceedings makes a reply, the Registrar must serve a copy of the reply and any accompanying documents on the other party to the proceedings.

98P Parties may jointly elect that Registrar discontinue
proceedings

(1): In respect of proceedings under this Division, the liable parent and the carer entitled to child support may jointly elect that the Registrar discontinue the proceedings if the carer is not in receipt of an income tested pension, benefit or allowance.
(2): The election must be:

(a) in the manner specified by the Registrar; and (b) given to the Registrar.

(3): If the parties to the proceedings make an election as set out in subsection (1), the Registrar must:

(a) discontinue the proceedings; and (b) notify the parties to the proceedings that the Registrar has discontinued them because of the election under subsection (1).

98Q Procedure

(1): In making a decision under this Division, the Registrar:

(a) may act on the basis of: (i) the information that the Registrar used to form 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 in relation to the child concerned; and (ii) if action has been taken under section 98N—the replies (if any) and the documents (if any) accompanying them; and (b) may, but is not required to, conduct any inquiry or investigation into the matter.

(2): Except where the Registrar refuses to make a determination under section 98R in respect of proceedings, the Registrar must give an opportunity to parties to the proceedings to appear before the Registrar, and be heard by him or her, if they so wish.

: Note: Section 98R provides that the Registrar may refuse to make a determination in the circumstances set out in that provision without taking any further action under this Part.

(3): Nothing in subsection (2) empowers the Registrar to compel the parties to the proceedings to appear before the Registrar in the presence of the other party.
(4): Any hearing before the Registrar, and any inquiry or investigation carried out by the Registrar, is to be carried out as the Registrar thinks fit and the Registrar is not bound by any rules of evidence.
(5): A party must not be represented by another person before the Registrar.

98R Registrar may refuse to make determination because issues too
complex

If the Registrar is satisfied, after considering the information before him or her and the representations (if any), that the issues involved are too complex to be dealt with under this Part, the Registrar may:

(a) decide not to make the determination, without taking any further action under this Part; and (b) recommend that application be made to a court having jurisdiction under this Act for an order under Division 4 of Part 7.

Division 4—Determinations that may be made under this Part 98S Determinations that may be made under Part

(1): Subject to section 98A, the determinations that the Registrar may make under this Part are as follows:

(a) a determination varying the rate of child support payable by the liable parent concerned; (b) a determination varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent; (c) a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the liable parent; (d) a determination varying the child support income amount or disregarded income amount of the carer entitled to child support concerned; (e) a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled to child support; (f) a determination directing that one or more of the following provisions is not to apply: (i) section 42 (Cap on child support if child support income amount exceeds 2.5 times yearly equivalent of relevant AWE amount); (ii) section 52 (Cap on combined child support liabilities of 2 liable parents); (g) a determination varying a factor ascertained under paragraph 54(1)(b).

(2): In proceedings under Division 2, the determinations under subsection (1) that the Registrar may make are not limited by the terms of the application.
(3): A determination under this Division may make different provision in relation to different child support years and in relation to different parts of a child support year.
(4): The Registrar must give, in writing, the reasons for making the determination (including the reasons for which the Registrar is satisfied as required by paragraph 117(1)(b)).
(5): A contravention of subsection (4) in relation to a determination does not affect the validity of the determination.

Division 5—Child support agreements 98T Parties may enter into child support agreement

The parties to proceedings under this Part may, at any time before a determination is made in relation to the proceedings, enter into an agreement, purporting to be a child support agreement, in relation to the child support payable for the child in relation to whom the determination may be made.

98U Decision on child support agreement

(1): Subject to subsection (2), if the Registrar is satisfied that an agreement entered into by the parties to proceedings is a child support agreement, the Registrar must accept the agreement.
(2): If the carer entitled to child support who is party to the agreement is in receipt of an income tested pension, allowance or benefit, the Registrar must not accept the agreement unless he or she is also satisfied that it would be:

(a) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and (b) otherwise proper;

to accept the agreement.

(3): Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her functions under subsection (2) as if:

(a) any reference in those subsections to the court were a reference to the Registrar; and (b) any reference to the making of a particular order under Division 4 of Part 7 were a reference to the acceptance of an agreement.

(4): If the Registrar accepts the agreement:

(a) sections 94, 95 and 96 apply; and (b) the Registrar may not make a determination under this Part in relation to the proceedings.

(5): If the Registrar is not satisfied as required by subsections (1) and (2), the Registrar must refuse to accept the agreement.
(6): If the Registrar refuses to accept the agreement:

(a) section 96 applies; and (b) the Registrar must proceed to make a determination under this Part.

Division 6—Pending applications 98V
Pending application not to affect assessment

Subject to section 140 (Stay orders), the fact that proceedings are pending under this Part in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person. Any such assessment may be registered under the Child Support (Registration and Collection) Act 1988 , and amounts of child support and other amounts recovered in relation to the assessment, as if proceedings were pending.

3 Paragraph 115(b)

Omit ", on application under section 98B,".

4 Subsection 132(1)

Omit "98K", substitute "98U".

5 Transitional

(1) If:

(a) a person applied for a determination under subsection 98(1) of the Child Support (Assessment) Act 1989 before the day that this Schedule commences (the commencement day ); and (b) the application was not determined before the commencement day;

then:

(c) the application is taken to have been made under subsection 98B(1) of the Child Support (Assessment) Act 1989 as amended by this Schedule; and (d) any action taken by the Registrar before the commencement day in respect of the application under section 98G or 98H of Part 6A as in force before the commencement day, is taken to have been made under section 98G or 98H of the Child Support (Assessment) Act 1989 as amended by this Schedule.

(2) If:

(a) the Registrar has made a determination in respect of an application under Part 6A before the commencement day that the provisions of the Child Support (Assessment) Act 1989 relating to an administrative assessment should be departed from; and (b) the Registrar has not, before the commencement day, amended the administrative assessment to give effect to the determination;

the determination is taken to have been made under the Child Support (Assessment) Act 1989 as amended by this Schedule.

(3) If:

(a) the Registrar has refused to make a determination in respect of an application under Part 6A before the commencement day; and (b) after the commencement day, the applicant makes another application for a determination in respect of the same administrative assessment;

then, for the purposes of section 98J of the Child Support (Assessment) Act 1989 as amended by this Schedule, the first application is to be treated as if it had been made under the Child Support (Amendment) Act 1989 as amended by this Schedule.

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