CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39, 1995
Making Information - Assented to 29 May 1995
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1 - PRELIMINARY Section 1. Short title 2. Commencement PART 2 - AMENDMENT OF THE CHILD SUPPORT (ASSESSMENT) ACT 1989 Division 1 - Principal Act 3. Principal Act Division 2 - Amendments relating to the presumptions of parentage 4. How decision is to be made 5. Application Division 3 - Amendments relating to child support agreements 6. Interpretation - definitions 7. Cases in relation to which Part applies 8. Formal requirement for applications 9. Insertion of new section: 91A. Procedure where payee is in receipt of, or a claimant for, sole parent pension, additional family payment etc. 10. Decision on application 11. Consequential amendments of the Social Security Act 1991 12. Application PART 3 - AMENDMENT OF THE CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988 Division 1 - Principal Act 13. Principal Act Division 2 - Amendments relating to the enforcement of certain maintenance liabilities 14. Interpretation 15. Insertion of new section: 37B. Registered maintenance liability not to be enforced if payer is a low-income recipient of a social security pension or a social security benefit 16. Election to have enforceable maintenance liability no longer enforced under this Act 17. Application for variation to enable liability to again become enforceable 18. Insertion of new section: 39B. Amounts not enforceable under this Act during periods when the payee is not the main provider of ongoing daily care for a child 19. Duties of payers Division 3 - Amendments relating to elections about the non-enforcement of maintenance liabilities 20. Interpretation 21. Insertion of new section: 28A. Reversal of subsection 23(3) or 24A(2) election - collection of arrears 22. Election to have enforceable maintenance liability no longer enforced under this Act 23. Insertion of new section: 39A. Reversal of section 38 election - collection of arrears SCHEDULE AMENDMENTS OF THE SOCIAL SECURITY ACT 1991 RELATING TO DECISIONS OF THE SECRETARY UNDER SECTION 91A OF THE CHILD SUPPORT (ASSESSMENT) ACT 1989 CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - LONG TITLE
An Act to amend the Child Support (Assessment) Act 1989, the Child Support (Registration and Collection) Act 1988 and the Social Security Act 1991, and for related purposes CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - PART 1 PART 1 - PRELIMINARY
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 1 Short title
1. This Act may be cited as the Child Support Legislation Amendment Act 1995. (Minister's second reading speech made in - House of Representatives on 8 December 1994 Senate on 1 February 1995) CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 2 Commencement
2. (1) This Act (other than section 22) commences on the day on which it receives the Royal Assent. (2) Section 22 commences immediately after the commencement of section 16. CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - PART 2 PART 2 - AMENDMENT OF THE CHILD SUPPORT (ASSESSMENT) ACT 1989
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 1 Division 1 - Principal Act

Back to Top
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 3 Principal Act
3. In this Part, "Principal Act" means the Child Support (Assessment) Act 1989*1*. *1* No. 124, 1989, as amended. For previous amendments, see No. 163, 1989; No. 138, 1990; and Nos. 13 and 151, 1992. CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 2 Division 2 - Amendments relating to the presumptions of parentage
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 4 How decision is to be made
4. Section 29 of the Principal Act is amended: (a) by omitting from subsection (1) "subsection (2)" and substituting "this section"; (b) by omitting from paragraph (2)(d) "he is the father" and substituting "the person is the father or mother"; (c) by adding at the end of subsection (2): "; or (f) that the person is a man and the child was born to a woman within 10 months after a purported marriage to which the man and the woman were parties was annulled; or (g) that the person is a man who was a party to a marriage to a woman and: (i) the parties to the marriage separated; and (ii) after the parties to the marriage separated, they resumed cohabitation on one occasion; and (iii) within 3 months after the resumption of cohabitation, they again separated and afterwards lived separately and apart; and (iv) the child was born to the woman within 10 months after the period of cohabitation but after the dissolution of the marriage; or (h) that the person is a man and: (i) the child was born to a woman who, for a period of at least 6 months before the birth, cohabited with the man; and (ii) no marriage between the woman and the man subsisted during any part of the period of cohabitation; and (iii) the period of cohabitation included the time 10 months before the birth."; (d) by adding at the end: "(3) If: (a) 2 or more paragraphs of subsection (2) are relevant to a particular application; and (b) those paragraphs, or some of them, conflict with each other; the paragraph that appears to the Registrar to be the more or most likely to be the correct presumption prevails.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 5 Application
5. The amendments made by this Division apply in relation to an application made under Division 1 of Part 4 of the Principal Act after the commencement of this section. CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 3 Division 3 - Amendments relating to child support agreements
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 6 Interpretation - definitions
6. Section 5 of the Principal Act is amended by inserting the following definitions: "'additional family payment' has the same meaning as in the Social Security Act 1991; 'claimant', in relation to additional family payment, sole parent pension or special needs sole parent pension, means a person who has made a claim for the payment or pension, where the claim has neither been granted nor refused; 'sole parent pension' has the same meaning as in the Social Security Act 1991; 'special needs sole parent pension' has the same meaning as in the Social Security Act 1991;". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 7 Cases in relation to which Part applies
7. Section 80 of the Principal Act is amended by omitting from subsection (2) "This" and substituting "Except as provided by sections 91A and 92, this". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 8 Formal requirement for applications
8. Section 89 of the Principal Act is amended by adding at the end: "(4) Without limiting paragraph (1)(a), a form of application for acceptance by the Registrar of an agreement made in relation to a child may require the party covered by paragraph 83(1)(a) to state whether or not he or she is in receipt of, or a claimant for: (a) a sole parent pension; or (b) additional family payment for the child; or (c) a special needs sole parent pension; on the day on which the application is made.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 9 Insertion of new section
9. After section 91 of the Principal Act the following section is inserted: Procedure where payee is in receipt of, or a claimant for, sole parent
Back to Top
pension, additional family payment etc. When section applies "91A. (1) This section applies if: (a) an application is made to the Registrar for acceptance of an agreement made in relation to a child; and (b) the party referred to in paragraph 83(1)(a) (the 'eligible person') is in receipt of, or a claimant for: (i) a sole parent pension; or (ii) additional family payment for the child; or (iii) a special needs sole parent pension; on the day on which the application is made; and (c) immediately before the application is made, an administrative assessment is in force in relation to the child. Copy of agreement to be sent to Secretary "(2) As soon as practicable after the application is made, the Registrar must send a copy of the agreement to the Secretary. Secretary to decide whether the agreement passes the "reasonable action to obtain maintenance" test "(3) The Secretary must decide whether or not the eligible person would cease to be qualified for the pension or payment because of section 252 or 777A or point 1069 - D11 of the Social Security Act 1991 if it were assumed that: (a) the Registrar were to accept the agreement; and (b) if the eligible person is a claimant for the pension or payment - the eligible person were in receipt of the pension or payment. The Secretary is said to make an adverse decision under this subsection if the Secretary decides that the eligible person would so cease to be qualified for the pension or payment. Note 1: Sections 252 and 777A and point 1069 - D11 of the Social Security Act 1991 deal with the 'reasonable action to obtain maintenance' test. Note 2: Chapter 6 of the Social Security Act 1991 provides for review of decisions under this subsection. Secretary to tell Registrar about decision "(4) As soon as practicable after the Secretary makes a decision under this section, the Secretary must tell the Registrar about the decision. Secretary to notify parties to the agreement about an adverse decision "(5) As soon as practicable after the Secretary makes an adverse decision under subsection (3), the Secretary must give each of the parties to the agreement a written notice setting out the decision. Delegation "(6) The Secretary may, by writing, delegate all or any of his or her powers under this section to an officer of the Department of Social Security.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 10 Decision on application
10. Section 92 of the Principal Act is amended: (a) by omitting from subsection (1) "If" and substituting "Subject to this section, if"; (b) by adding at the end: "(3) The Registrar must refuse to accept the agreement if the Secretary makes an adverse decision under subsection 91A(3) in respect of the agreement. "(4) The Registrar must refuse to accept the agreement if: (a) the party referred to in paragraph 83(1)(a) is in receipt of, or a claimant for: (i) a sole parent pension; or (ii) additional family payment for the child; or (iii) a special needs sole parent pension; on the day on which the application is made; and (b) immediately before the application is made, no administrative assessment is in force in relation to the child.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 11 Consequential amendments of the Social Security Act 1991
11. The Social Security Act 1991 is amended as set out in the Schedule. CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 12 Application
12. The amendments made by this Division apply in relation to an application for acceptance by the Registrar of an agreement, if the application was made after the commencement of this section. CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - PART 3 PART 3 - AMENDMENT OF THE CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 1 Division 1 - Principal Act
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 13 Principal Act
13. In this Part, "Principal Act" means the Child Support (Registration and Collection) Act 1988*2*. *2* No. 3, 1988, as amended. For previous amendments, see No. 132, 1988; Nos. 124 and 163, 1989; No. 138, 1990; No. 216, 1991; Nos. 13, 151 and 210, 1992; and No. 32, 1993.
Back to Top
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 2 Division 2 - Amendments relating to the enforcement of certain maintenance liabilities
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 14 Interpretation
14. Section 4 of the Principal Act is amended: (a) by omitting "or 38, subsection 39(2) or section" from paragraph (b) of the definition of "appealable refusal decision" in subsection (1) and substituting ", 37B, 38, 39, 39B or"; (b) by inserting after paragraph (b) of the definition of "appealable refusal decision" in subsection (1): "(ba) a decision under subsection 37B(4) determining, or refusing to determine, a day;". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 15 Insertion of new section
15. After section 37A of the Principal Act the following section is inserted: Registered maintenance liability not to be enforced if payer is a low-income recipient of a social security pension or a social security benefit Object "37B. (1) The object of this section is to provide for the non-enforcement of certain registered maintenance liabilities during the subsistence of a low-income non-enforcement period. Payer may apply to have liability no longer enforced under Act "(2) If the payer of an enforceable maintenance liability covered by subsection 17(1): (a) is in receipt of a social security pension or a social security benefit; or (b) has made a claim for a social security pension or a social security benefit; the payer may apply to the Registrar, in the approved form, to have the liability no longer enforced under this Act. Court orders etc. dealing with unemployment etc. "(3) The payer is not entitled to make an application under subsection (2) if: (a) the liability is covered by subparagraph 17(1)(b)(i); and (b) the court order or court registered maintenance agreement concerned provides, either directly or indirectly, for the reduction of amounts payable under the liability during periods when: (i) the payer is unemployed; or (ii) the payer's income is substantially reduced. Start of low-income non-enforcement period "(4) For the purposes of this section, if the payer of a registered maintenance liability: (a) makes an application under subsection (2); and (b) is taken, under the regulations, to satisfy the prescribed income test in relation to the first instalment of a social security pension or a social security benefit paid to the payer after the day on which the application was made; a low-income non-enforcement period in relation to the liability: (c) begins on whichever of the following days is applicable: (i) the day on which the application was made; (ii) an earlier day determined by the Registrar, being a day that is on or after the day on which the payer commences to receive a social security pension or a social security benefit; and (d) continues until the time worked out under subsection (5). End of low-income non-enforcement period "(5) For the purposes of this section, a low-income non-enforcement period in relation to a registered maintenance liability ends at whichever is the earliest of the following: (a) when the payer of the liability ceases to receive a social security pension or a social security benefit; (b) if the payer of the liability is taken, under the regulations, not to satisfy the prescribed income test in relation to an instalment of a social security pension or a social security benefit paid to the payer for a particular fortnight - the beginning of that fortnight; (c) when the liability ends. Non-enforcement of liability - variation of Child Support Register "(6) If a low-income non-enforcement period in relation to a registered maintenance liability begins, the Registrar must, as soon as practicable, vary the particulars entered in the Child Support Register in relation to the liability by specifying the beginning of the low-income non-enforcement period as the time at which the liability ceases to be enforceable under this Act. However, this rule does not apply if, immediately before the low-income non-enforcement period, the liability had already ceased to be enforceable under this Act because of section 38 or 39B. Resumption of enforcement of liability - variation of Child Support Register "(7) If a low-income non-enforcement period in relation to a registered maintenance liability ends, the Registrar: (a) must, as soon as practicable, vary the particulars entered in the Child
Back to Top
Support Register in relation to the liability by specifying the end of the low-income non-enforcement period as the time at which the liability again becomes enforceable under this Act; and (b) may make such variations (if any) to those particulars as the Registrar considers necessary or desirable: (i) to enable a court order or court registered maintenance agreement that varies or otherwise affects the liability to be given effect to under this Act; or (ii) to take account of the happening of an affecting event in relation to the liability. However, these rules do not apply if, immediately before the low-income non-enforcement period, the liability had ceased to be enforceable under this Act because of section 38 or 39B. Definitions "(8) In this section: 'social security benefit' has the same meaning as in the Social Security Act 1991; 'social security pension' has the same meaning as in the Social Security Act 1991.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 16 Election to have enforceable maintenance liability no longer enforced under this Act
16. Section 38 of the Principal Act is amended: (a) by omitting "Where" and substituting "Subject to this section, if"; (b) by adding at the end: "(2) The Registrar must not vary the particulars entered in the Child Support Register in relation to the liability by specifying a day as the day on which the liability ceases to be enforceable under this Act if the day is included in a period that is a low-income non-enforcement period in relation to the liability for the purposes of section 37B. If that day is included in that period, the Registrar must not take action under paragraph (1)(b) in relation to that day.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 17 Application for variation to enable liability to again become enforceable
17. Section 39 of the Principal Act is amended: (a) by inserting after subsection (1): "(1A) The payee is not entitled to make an application under subsection (1) in relation to a liability if the application is made during a period that is a low-income non-enforcement period in relation to the liability for the purposes of section 37B."; (b) by omitting from subsection (2) "Where" and substituting "Subject to subsection (3), if"; (c) by adding at the end the following subsection: "(3) The Registrar must refuse to vary the particulars entered in the Child Support Register in relation to the liability by specifying a day as the day on which the liability again becomes enforceable under this Act if the day is included in a period that is a low-income non-enforcement period in relation to the liability for the purposes of section 37B. If that day is included in that period, the Registrar must not take action under paragraph (2)(b) in relation to that day.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 18 Insertion of new section
18. Before section 40 of the Principal Act the following section is inserted: Amounts not enforceable under this Act during periods when the payee is not the main provider of ongoing daily care for a child When this section applies "39B.(1) This section applies if: (a) at a particular time after the commencement of this section, the payee of an enforceable maintenance liability covered by subsection 17(1) is the main provider of ongoing daily care for a particular child covered by the liability; and (b) at a later time (the 'cessation time') the payee ceases to be the main provider of ongoing daily care for the child. Overall non-care period "(2) For the purposes of this section, the overall non-care period is the period: (a) beginning at the cessation time; and (b) ending at whichever is the earlier of the following: (i) when the payee next resumes being the main provider of ongoing daily care for the child; (ii) when the liability ends. Joint election by payer and payee "(3) During the overall non-care period, the payer and payee may jointly elect, by giving a duly completed approved form to the Registrar, to have so much of the liability as is attributable to the child no longer enforced under this Act. The election takes effect at whichever of the following times is applicable: (a) if the election is made within 28 days after the start of the overall non-care period - the start of the overall non-care period;
Back to Top
(b) in any other case - when the election is made. However, the election does not take effect if the applicable time is included in a period that is a low-income non-enforcement period in relation to the liability for the purposes of section 37B. Consequences of election under subsection (3) "(4) If an election is made under subsection (3): (a) if the child is the only child covered by the liability - the liability ceases to be enforceable under this Act after the applicable time; or (b) in any other case - this Act has effect in relation to the liability, after the applicable time, as if a reference in this Act to amounts payable under the liability did not include a reference to an amount attributable to the child. Note: Paragraph (4)(b) could result in the liability becoming partially unenforceable under this Act. Reversal of election "(5) If: (a) so much of the liability as is attributable to the child is not enforceable under this Act because of an election made under subsection (3); and (b) the overall non-care period ends; the payer or the payee may elect, by giving a duly completed approved form to the Registrar, to have so much of the liability as is attributable to the child again become enforceable under this Act. When reversal of election takes effect "(6) An election under subsection (5) takes effect at whichever of the following times is applicable: (a) if the election is made within 28 days after the end of the overall non-care period - the end of the overall non-care period; (b) in any other case - when the election is made. However, the election does not take effect if the applicable time is included in a period that is a low-income non-enforcement period in relation to the liability for the purposes of section 37B. Consequences of reversal of election "(7) An election under subsection (5) has effect accordingly. Registrar to vary Register "(8) If an election is made under this section, the Registrar must, as soon as practicable, make such variations to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to give effect to subsection (4) or (7), as the case requires. Election form may include declaration "(9) A form of election made by a person or persons under this section may require the person or persons, as the case requires, to make a declaration about the circumstances relating to the beginning or end of the overall non-care period. Partial unenforceability "(10) A reference in this Act to a liability that is enforceable under this Act includes a reference to a liability that is partially unenforceable under this Act as a result of paragraph (4)(b).". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 19 Duties of payers
19. Section 111 of the Principal Act is amended by inserting after subsection (1): "(1A) For the purposes of subsection (1), if: (a) on a particular day (the 'application day'), the payer of a registered maintenance liability makes an application under subsection 37B(2); and (b) as a result of that application, there is a low-income non-enforcement period in relation to the liability for the purposes of section 37B; the liability is taken to be an enforceable maintenance liability throughout so much of the period as occurs on or after the application day.". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - DIVISION 3 Division 3 - Amendments relating to elections about the non-enforcement of maintenance liabilities
CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 20 Interpretation
20. Section 4 of the Principal Act is amended: (a) by inserting after paragraph (a) of the definition of "appealable refusal decision" in subsection (1): "(aa) a decision under paragraph 28A(5)(d) or (e);"; (b) by inserting before paragraph (c) of the definition of "appealable refusal decision" in subsection (1): "(bb) a decision under paragraph 39A(6)(b) or (c);". CHILD SUPPORT LEGISLATION AMENDMENT ACT 1995 No. 39 of 1995 - SECT 21 Insertion of new section