Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010

This section applies if:

a person applies to the SSAT, under section 111 of the Family Assistance Administration Act, for review of a decision (the original decision); and

the review of the original decision involves (wholly or partly) a review of a determination that:

was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or

has effect, under section 35T of that Act, as if it were a determination made under such a provision; and

the application for review of the original decision was made more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the original decision was given; and

the decision (the review decision) on the review has the effect of varying the determination or substituting a new determination; and

the determination as varied or substituted has effect, under sections 54K and 54L of the Assessment Act, as if it were a determination made under Subdivision B of Division 4 of Part 5 of that Act.

The date of effect of the review decision, to the extent that it has the effect referred to in paragraph (1)(d), is the day on which the application for review was made.

If the Registrar is satisfied that there are special circumstances that prevented the application for review from being made within the period referred to in paragraph (1)(c), the Registrar may determine that subsection (1) applies as if:

in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or

otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

If:

the Registrar decides to make a determination under subsection (3) in relation to a person; or

the Registrar decides not to make such a determination in relation to a person;

the Registrar must give written notice of the decision to each person affected by the decision.

The notice must:

set out the reasons for the decision; and

include a statement to the effect that, if the person is aggrieved by the decision, application may be made, subject to this Act, to the SSAT for review of the decision.

A contravention of subsection (5) in relation to a decision does not affect the validity of the decision.

Income Tax Assessment Act 1936

98 Paragraph 251R(5)(d)

Repeal the paragraph, substitute:

the Families Secretary has determined, under Subdivision D of Division 1 of Part 3 of that Act, each parent’s or spouse’s percentage of care for the child during a care period (within the meaning of that Act);

99 Subsection 251R(5)

Omit “represents that percentage of the period”, substitute “corresponds with that percentage of care”.

Part 2—Application and transitional provisions

Division 1—Definitions

100 Definitions

In this Part:

Assessment Act means the Child Support (Assessment) Act 1989.

commencement day means the day on which this Schedule commences.

Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.

Family Assistance Administration Act means the A New Tax System (Family Assistance) (Administration) Act 1999.

Registration and Collection Act means the Child Support (Registration and Collection) Act 1988.

Division 2—Amendments of the child support law

101 Transitional—existing percentage of care under the Assessment Act

This item applies if:

before the commencement day, a person’s percentage of care for a child during a care period has been determined (the existing care determination) under Division 4 of Part 5 of the Assessment Act; and

the person’s percentage of care under the existing care determination applies immediately before the commencement day.

The existing care determination is taken to have been revoked immediately before the commencement day.

The Registrar is taken, on the commencement day, to have determined (the new care determination) under section 49 or 50 of the Assessment Act, as inserted by this Act, a percentage that is equal to the person’s percentage of care under the existing care determination to be the person’s percentage of care for the child during the care period.

Sections 51 and 52 of the Assessment Act, as inserted by this Act, are taken not to have applied in relation to the person.

The person’s percentage of care for the child under the new care determination applies, for the purposes of the Assessment Act as amended by this Act, on and from the commencement day unless a revocation of the determination under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, takes effect.

The new care determination may be revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, in the same way, and in the same circumstances, in which a determination made under Subdivision B of that Division, as inserted by this Act, may be revoked.

If:

the new care determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act; and

the date of effect of the revocation under that Subdivision would, apart from this subitem, be a day before the commencement day;

then, despite that Subdivision, the revocation of the determination takes effect at the beginning of the commencement day.

If:

the new care determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act, as inserted by this Act; and

on the revocation of the new care determination, another determination of the person’s percentage of care for the child during the care period is made under section 49 or 50 of the Assessment Act, as inserted by this Act; and

the application day for the other determination would, apart from this subitem, be a day before the commencement day;

then, despite subsection 54B(2) of the Assessment Act as inserted by this Act, the application day for the other determination is the commencement day.

Sections 35T and 35U of the Family Assistance Act do not apply in relation to the new care determination.

The Registrar is taken, on the commencement day, to have notified the person of the effect of this item.

102 Transitional—pending child support applications

This item applies if:

an application under section 25 or 25A of the Assessment Act was made before the commencement day; and

the application has not been determined before the commencement day.

Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the application as if those amendments had not been made.

If a person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the application, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

103 Transitional—change of care event

This item applies if:

an event referred to in paragraph 48(1)(b) of the Assessment Act, as in force immediately before the commencement day, occurs in relation to a person before that day; and

the Registrar is notified, or otherwise becomes aware of the event within 28 days after the day on which the event occurred; and

the day on which the Registrar is so notified, or becomes so aware, is a day on or after the commencement day.

Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the person as if those amendments had not been made.

If the person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the person, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

104 Transitional—relevant dependent child

This item applies if:

a person is taken under section 73A of the Assessment Act to have had a relevant dependent child from a day specified in that section; and

that day is a day before the commencement day; and

the person’s percentage of care for the child has not been determined under Division 4 of Part 5 of that Act before the commencement day.

Despite the amendments made by this Schedule to the Assessment Act and the Registration and Collection Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the person as if those amendments had not been made.

If the person’s percentage of care is determined under Division 4 of Part 5 of the Assessment Act, as it continues to apply under subitem (2) in relation to the person, the determination is taken, for the purposes of item 101 of this Schedule, to have been made before the commencement day.

105 Application—sections 49 and 50 of the Assessment Act

Subparagraph 49(1)(a)(i) or 50(1)(a)(i) of the Assessment Act, as inserted by this Act, applies in relation to an application that is made under section 25 or 25A of the Assessment Act on or after the commencement day.

Subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) of the Assessment Act, as inserted by this Act, applies in relation to a parent who is taken under section 73A of the Assessment Act to have a relevant dependent child from a day that is on or after the commencement day.

106 Application—section 54K of the Assessment Act

Section 54K of the Assessment Act, as inserted by this Act, applies in relation to a determination that is made under Subdivision D of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, on or after the commencement day.

Division 3—Amendments of the family assistance law

107 Transitional—existing percentage of care under the Family Assistance Act

This item applies if:

before the commencement day, the Secretary has determined (the existing care determination), under subsection 22(6A) of the Family Assistance Act, a percentage of a period during which a child was, or will be, in the care of an individual; and

the individual’s percentage of care under the existing care determination applies immediately before the commencement day.

The existing care determination is taken to have been revoked immediately before the commencement day.

The Secretary is taken, on the commencement day, to have determined (the new care determination) under section 35B of the Family Assistance Act, as inserted by this Act, a percentage that is equal to the individual’s percentage of care under the existing care determination to be the individual’s percentage of care for the child during the period.

Sections 35C and 35D of the Family Assistance Act, as inserted by this Act, are taken not to have applied in relation to the individual.

The individual’s percentage of care for the child under the new care determination applies, for the purposes of the Family Assistance Act as amended by this Act, on and from the commencement day unless a revocation of the determination under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, takes effect.

The new care determination may be revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, in the same way, and in the same circumstances, in which a determination made under Subdivision D of that Division, as inserted by this Act, may be revoked.

If:

the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and

the date of effect of the revocation under that Subdivision would, apart from this subitem, be a day before the commencement day;

then, despite that Subdivision, the revocation of the determination takes effect at the beginning of the commencement day.

If:

the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and

on the revocation of the new care determination, another determination of the individual’s percentage of care for the child during the care period is made under section 35A or 35B of the Family Assistance Act, as inserted by this Act; and

the application day for the other determination would, apart from this subitem, be a day before the commencement day;

then, despite subsections 35K(2) and (3) of the Family Assistance Act as inserted by this Act, the application day for the other determination is the commencement day.

Sections 54K and 54L of the Assessment Act do not apply in relation to the new care determination.

The Secretary is taken, on the commencement day, to have notified the individual of the effect of this item.

108 Transitional—family tax benefit for a past period

This item applies if:

a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit for a past period is made before, on or after the commencement day; and

the past period occurs before the commencement day.

Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.

109 Transitional—pending family tax benefit claims

This item applies if:

a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit was made before the commencement day; and

the claim is not a claim for payment of family tax benefit for a past period; and

the claim has not been determined before the commencement day.

Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.

If the Secretary makes a determination under subsection 22(6A) of the Family Assistance Act, as it continues to apply under subitem (2) in relation to the claim, the Secretary is taken, for the purposes of item 107 of this Schedule, to have made the determination before the commencement day.

110 Application—sections 35A and 35B of the Family Assistance Act

Sections 35A and 35B of the Family Assistance Act, as inserted by this Act, apply in relation to a claim under Part 3 of the Family Assistance Administration Act that is made on or after the commencement day.

Subitem (1) does not apply to a claim under that Part if:

the claim is a claim for payment of family tax benefit for a past period; and

the past period occurs before the commencement day.

111 Application—section 35T of the Family Assistance Act

Section 35T of the Family Assistance Act, as inserted by this Act, applies in relation to a determination that is made under Subdivision B of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, on or after the commencement day.

Division 4—Application of amendments in relation to Western Australian exnuptial children

112 Application of amendments in relation to Western Australian exnuptial children

This item applies if, immediately after the commencement day, the Assessment Act and the Registration and Collection Act, as amended by this Act, do not extend to Western Australia in relation to the maintenance of exnuptial children because:

the Parliament of Western Australia has not referred to the Parliament of the Commonwealth the matter of the maintenance of exnuptial children or matters that include that matter; and

Western Australia has not adopted those Acts as amended by this Act.

Items 101 to 111 of this Schedule apply in Western Australia, after Western Australia adopts those Acts as amended by this Act, in relation to the maintenance of exnuptial children as if references in those items to the commencement day were references to the adoption of those Acts by Western Australia as amended by this Act.

Schedule 3—Non‑payment of family tax benefit for non‑lodgment of tax returns

A New Tax System (Family Assistance) (Administration) Act 1999

1 After subsection 32AB(1)

Insert:

However, there is not a prohibited period for the claimant under subsection (1) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

2 Paragraph 32AB(2)(b)

After “(4)”, insert “, (4A)”.

3 After subsection 32AB(4)

Insert:

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding at the end of the grace period; and

at a time after the end of the grace period, no amount of that debt is outstanding.

4 After subsection 32AB(5)

Insert:

However, there is not a prohibited period for the claimant under subsection (5) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

5 Subparagraph 32AB(6)(b)(iii)

After “subsection”, insert “(6A) or”.

6 After subsection 32AB(6)

Insert:

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

at a time on or after that day, no amount of that debt is outstanding.

7 After subsection 32AC(1)

Insert:

However, there is not a prohibited period for the relevant partner under subsection (1) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding at the end of the grace period.

8 Paragraph 32AC(2)(b)

After “(4)”, insert “, (4A)”.

9 After subsection 32AC(4)

Insert:

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding at the end of the grace period; and

at a time after the end of the grace period, no amount of that debt is outstanding.

10 After subsection 32AC(5)

Insert:

However, there is not a prohibited period for the relevant partner under subsection (5) because of a variation mentioned in section 32AA if:

no debt arose under section 71 as a result of that variation; or

a debt arose under section 71 as a result of that variation, but no amount of that debt is outstanding immediately before the day that would, apart from this subsection, be determined under paragraph (6)(a).

11 Paragraph 32AC(6)(b)

After “(8)”, insert “, (8A)”.

12 After subsection 32AC(8)

Insert:

This subsection applies if:

a debt arose under section 71 as a result of the variation mentioned in section 32AA; and

an amount of that debt was outstanding immediately before the day determined under paragraph (6)(a); and

at a time on or after that day, no amount of that debt is outstanding.

13 Subsection 32AE(1)

After “3”, insert “or more”.

Note: The heading to section 32AE is altered by inserting “or more” after “3”.

14 Subsections 32AE(2) and (3)

Repeal the subsections, substitute:

Claimant

The claimant is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) for a period if, throughout that period, both subsections (3) and (4) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1: For cancellation income year see subsection 28(1).

Note 2: Subsection (8) creates an exception to subsection (2).

This subsection applies in relation to a cancellation income year if either or both of the following apply:

if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

if the claimant is a member of a couple and the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note: For relevant partner see section 32AA.

This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Partner

If the claimant is a member of a couple, the claimant’s partner is not entitled to be paid family tax benefit (worked out on the basis referred to in subsection 20(1), (2A) or (3)) for a period if, throughout that period, both subsections (6) and (7) of this section apply in relation to one or more of the cancellation income years concerned.

Note 1: For cancellation income year see subsection 28(1).

Note 2: Subsection (9) creates an exception to subsection (5).

This subsection applies in relation to a cancellation income year if either or both of the following apply:

if the claimant was required to lodge an income tax return for that year—the claimant has not lodged that return;

if the claimant’s partner is a relevant partner in relation to that year and that partner was required to lodge an income tax return for that year—that partner has not lodged that return.

Note: For relevant partner see section 32AA.

This subsection applies in relation to a cancellation income year if a debt arose under section 71 as a result of the variation concerned and an amount of that debt is outstanding.

Exceptions

The Secretary may, by writing, determine that subsection (2) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

The Secretary may, by writing, determine that subsection (5) does not apply in relation to a specified person and to a specified period if the Secretary is satisfied that there are special circumstances that justify the Secretary doing so.

A period specified in a determination under subsection (8) or (9) may be a period beginning before, on or after the day the determination is made.

A determination made under subsection (8) or (9) is not a legislative instrument.

15 Application and transitional

The amendments made by items 1 to 12 apply in relation to variations made before, on or after the commencement of those items.

Subsection 32AE(1) of the A New Tax System (Family Assistance) (Administration) Act 1999, as amended by this Act, does not apply in relation to a variation made before the commencement of this item if:

no debt arose under section 71 of that Act as a result of that variation; or

a debt arose under section 71 of that Act as a result of that variation, but no amount of that debt is outstanding immediately before that commencement.

Schedule 4—Other amendments

A New Tax System (Family Assistance) Act 1999

1 Subsection 3(1) (at the end of the definition of FTB child)

Add:

; and (c) in relation to baby bonus—has the meaning given in Subdivision A of Division 1 of Part 3 but, in applying Subdivision D of that Division to baby bonus, a reference in that Subdivision to a claim for payment of family tax benefit is to be read as a reference to a claim for payment of baby bonus; and

in relation to maternity immunisation allowance—has the meaning given in Subdivision A of Division 1 of Part 3 but, in applying Subdivision D of that Division to maternity immunisation allowance, a reference in that Subdivision to a claim for payment of family tax benefit is to be read as a reference to a claim for payment of maternity immunisation allowance.

Child Support (Registration and Collection) Act 1988

2 Section 110N

After:

• A person might commit an offence if the person publishes an account of a proceeding, or a list of proceedings, under Part VIIA or Division 3 of Part VIII that identifies a witness or party.

Insert:

• Division 5 modifies the application of the Administrative Appeals Tribunal Act 1975 to applications for review under subsection 103VA(1) of this Act.

3 After Division 4 of Part VIIIA

Insert: