Child Support Legislation
Amendment Bill 2004
Date
Introduced: 8
December 2004
House: House of
Representatives
Portfolio: Family and
Community Services
Commencement: Schedule 1 commences 28 days after the proposed Act
receives Royal Assent. Schedule 2 commences on the day when the
proposed Act receives Royal Assent. Schedule 3 commences on various
dates (mainly on Royal Assent or 28 days thereafter), except for
item 10 which is taken to have commenced on 30 June
2001.(1)
The Bill amends
the Child Support (Assessment) Act 1989 ( the Assessment
Act ), the Child Support (Registration and Collection) Act
1988 ( the Registration Act ) and the Family Law Act
1975 ( the Family Law Act ) for four main purposes.
First, the Bill incorporates certain matters
relating to the assessment and collection of child support
presently contained in regulations into the parent Acts. Second,
the Bill refines some provisions to clarify, among other things,
that Australian child support legislation does not apply if both
parents reside outside Australia.
Third, the Bill is
designed to improve access to courts for review of child support
decisions. Fourth, the Bill seeks to address anomalies in the
current system or improve aspects of child support administration ,
such as giving a Minister a right to access personal information
about a constituent (where the constituent has expressly or
impliedly consented to the Minister having access to that
information for the purpose of responding to a request for
assistance from another member of parliament on behalf of the
constituent).
The Bill also
amends section 33 of A New Tax System (Family Assistance)
(Administration) Act 1999 to provide that the Secretary can
take account of a child support debt in determining that an
individual is entitled to be paid a family tax benefit advance for
a standard advance period.
The Bill does not give effect to
recommendations for the revision of the child support scheme
contained in the 2003 report by the House of Representatives
Standing Committee on Family and Community Affairs, Every
picture tells a story: report on the inquiry into child custody
arrangements in the event of family separation).(2)
The Child Support Agency confirms this view.(3)
Primarily, child
support in Australia is dealt with by three Acts (and regulations
made to give effect to those Acts): the Assessment Act, the
Registration Act and the Family Law Act. Whether one or more of
these Acts applies is determined by the circumstances of the case.
For example, the Family Law Act will not apply to most cases (see
below).
In short, the
Assessment Act applies if the child for whom child support is
payable was born on or after 1 October 1989; if the parents
separated after that date; or if a sibling was born after that
date. Among other circumstances, the Assessment Act does not apply
if the child is over 18 years of age; married or living in a de
facto relationship; or is not present in Australia, ordinarily
resident in Australia or in a reciprocating jurisdiction . The
Assessment Act contains a formula by which the Registrar of Child
Support in reality an administrative officer of the Child Support
Agency assesses child support. It provides mechanisms for seeking
internal review of administrative assessments and for seeking
judicial review (including the power of the court, among other
things, to order a departure from the administrative assessment if
in the special circumstances of the case , the assessment is unjust
and inequitable : see section 117).(4)
The Registration
Act provides for the registration and collection of child support
liabilities. Such liabilities may arise from administrative
assessment of child support, the registration of a child support
agreement (including an agreement entered into overseas), or a
court order. The Child Support Agency usually collects child
support through deductions from the liable parent s salary or
wages. It can also collect arrears this way. Once a liability is
registered, the debt becomes a debt owed to the Commonwealth. As
such, only the Commonwealth (and not the payee) can commence legal
proceedings for the recovery of the debt. It is important to note
that not all child support payments or arrears are collected under
the Registration Act. For example, a payee who is not in receipt of
an income-tested pension or benefit may elect not to have child
support payments collected under the Act (in which case, the payer
makes payments directly to the payee or to a third party on behalf
of the payee).
Division 7 of Part VII of the Family Law Act
deals with child maintenance orders. Importantly, section 66E
provides that a court must not make or vary a child maintenance
order if an application for administrative assessment of child
support could be made under the Assessment Act. The court may,
however, make or vary a child maintenance order in relation to
those children to whom the Assessment Act does not apply because
they were born before 1 October 1989 ( as a matter of mathematics,
such children would already be at least 15 years old). Further,
section 66L of the Family Law Act provides that the court can make
a maintenance order in relation to a child who is over 18 years of
age if the court considers that the maintenance is necessary:
(a) to enable the child to complete his or her
education; or
(b) because of a mental or physical disability of
the child.
None of the
political parties has expressed a view about the Bill. Further,
there has been no press report about the Bill to date. This is not
surprising, given that the proposed amendments seem to be largely
uncontroversial.
It should be noted that, apart from some very
minor details, the Bill is identical to a previous version of the
Bill that was introduced in the House of Representatives on 31
March 2004 (during the 40th Parliament). After
presenting the Bill, Larry Anthony, then Minister for Children and
Youth Affairs, made a second reading speech. Debate was then
adjourned.(5) The Bill was later considered by the
Senate Selection of Bills Committee, which recommended that the
Bill not be referred to a committee.(6) The Bill lapsed
at the end of the 40th Parliament.
On 29 July 2004, Prime Minister Howard
announced a package of family law reforms as part of the Government
s response to the release in December 2003 of the report on child
custody arrangements by the House of Representatives Standing
Committee on Family and Community Affairs. In relation to child
support, the Prime Minister said:
The committee recommended a number of changes to
child support legislation and a detailed re-evaluation of the Child
Support Scheme by a Taskforce. The government recognises that there
is considerable interest in the scheme and a strongly held belief
in parts of the community that the current system is inequitable.
The government is taking immediate steps to establish a Child
Support Taskforce to report back by March 2005 on the
recommendations of the Committee. This Taskforce could also
consider whether there is scope for the Child Support System to
encourage couples to enter parenting plans and access the services
of the Family Relationship Centres [which are to be established as
part of the Government s family law reforms].(7)
On 16 August 2004, the then Minister for
Children and Youth Affairs announced the terms of reference of a
Ministerial Taskforce to examine the child support
scheme.(8) The role of the Taskforce is to:
1. Provide advice around the short-term
recommendations of the Committee along the lines of those set out
in the Report (Recommendation 25) that relate to:
increasing the minimum child support
liability;
lowering the maximum 'cap' on the assessed income
of parents;
changing the link between the child support
payments and the time children spend with each parent; and
the treatment of any overtime income and income
from a second job.
2. Evaluate the existing formula percentages and
associated exempt and disregarded incomes, having regard to the
findings of the Report and the available or commissioned research
including:
data on the costs of children in separated
households at different income levels, including the costs for both
parents to maintain significant and meaningful contact with their
children;
the costs for both parents of re-establishing
homes for their children and themselves after separation; and
advise on what research program is necessary to
provide an ongoing basis for monitoring the child support
formula.
3. Consider how the Child Support Scheme can play
a role in encouraging couples to reach agreement about parenting
arrangements.
4. Consider how Family Relationship Centres may
contribute to the understanding of and compliance with the Child
Support Scheme.(9)
The Government also established a Reference
Group, which will consider broader policy and stakeholder issues
such as the extent to which the scheme is meeting its objectives.
It will also provide guidance on ideas and policy positions
referred to it by the Taskforce .(10)
The Taskforce is to provide a final report to
the Minister before March 2005. There have been three Taskforce
meetings held so far, with a fourth scheduled for mid-January 2005.
The Reference Group met in September 2004 and is also scheduled to
meet in early 2005.(11)
It could be said that, in light of these
developments, it might have been better for the introduction of the
Bill to have been delayed at least until after the Taskforce has
reported in March 2005. However, the Bill contains measures which
do not fall directly within the terms of reference of the Taskforce
and thus, unless the Taskforce recommends a complete overhaul of
the child support scheme, the measures contained in the Bill remain
valid and necessary (as discussed below).
Schedule
1 commences 28 days after the proposed Act receives Royal
Assent.
Schedule
1 incorporates into the Assessment Act, the Registration
Act and the Family Law Act certain matters relating to overseas
maintenance arrangements currently contained in regulations made
under those Acts. The relevant regulations are the Child Support
(Assessment) (Overseas-related Maintenance Obligations) Regulations
2000 and the Child Support (Registration and Collection)
(Overseas-related Maintenance Obligations) Regulations 2000 ( the
regulations ).(12) The regulations deal with Australia s
obligations under various international agreements.
The power to make
the regulations was conferred by the Child Support Legislation
Amendment Act 2000. That Act amended the Assessment Act, the
Registration Act and the Family Law Act. Some amendments contained
in the Child Support Legislation Amendment Act 2000 are
referred to as Henry VIII clauses , because they provided for the
making of regulations which are inconsistent with the parent Act
and provided that the regulations will prevail to the extent of any
inconsistency with the parent Act.(13)
In parliamentary
debate on 10 April 2000 concerning the Child Support Legislation
Amendment Bill 2000, Senator Newman, the then Minister for Family
and Community Services, explained that the Bill was intended to
give effect to an international agreement between Australia and New
Zealand about child support. That agreement was to take effect from
1 July 2000, but due to pressures on the Office of Parliamentary
Counsel, it was apparently not possible for a Bill to be drafted
incorporating the terms of the agreement. Instead, the plan was to
introduce the Bill enabling the terms of the agreement to be dealt
with by regulations, with another Bill implementing the agreement
to follow later on this year . Senator Newman said:
This bill we are debating tonight was intended to
include the measures that are now going to be tabled as
regulations. But, as most senators would recognise, there has been
huge demands on the Office of Parliamentary Counsel over the last
few months with the pressure of legislation, and they were unable
to complete the work in time for a 1 July start-up for these
measures. The problem was caused by an agreement between our Prime
Minister and the New Zealand Prime Minister. They had agreed that
the new arrangements would start up on 1 July.
In order to honour that commitment, Australia is
bringing forward some of the details by way of regulation. However,
we have made it clear that these measures will be tabled But they
will also be brought into the legislation later in the year. I
think that is not an unreasonable way of proceeding in what is a
very tight timeframe not for the government but for the legislative
draftsmen and also for Australia s reputation in making agreements
with heads of other governments. I think it is a practical
solution. These are special circumstances, it will be for a very
short period, until the legislative draftsmen can get what will
come forward as regulations into an amending bill later on this
year.(14)
Many of the
proposed amendments contained in the current Bill refer to an
overseas reciprocating jurisdiction . The term reciprocating
jurisdiction means those jurisdictions specified in Schedule 2 to
the Child Support (Registration and Collection) (Overseas-related
Maintenance Obligations) Regulations 2000. The list includes many
countries, including African nations such as Kenya and Tanzania
(excluding Zanzibar); Asian nations such as Malaysia, Singapore and
the Philippines; European nations such as France, Germany, Spain,
Italy and Greece; the United Kingdom; Canada (except Labrador and
Quebec province); New Zealand; the United States of America; and
South American nations such as Chile and Brazil. Notably, the list
does not include the People s Republic of China, Indonesia,
Vietnam, Saudi Arabia, Lebanon, Iran or Iraq.(15)
Where one parent
resides in a reciprocating jurisdiction, but the other parent
resides in Australia, the Australian child support scheme may still
apply. Among other things, this means that child support may be
assessed administratively under the Assessment Act and/or that
child support may be collected under the provisions of the
Registration Act.
Rather than simply
relocating whole provisions intact from the regulations into the
child support scheme, the Bill seeks to amend the existing
legislation to extend the operation of certain provisions to cover
overseas child support and/or maintenance situations. For example,
the Bill amends the Assessment Act to provide that the liability of
a parent (the payer) who resides in a reciprocating jurisdiction
does not arise until all prior requirements (if any) under the
applicable international maintenance arrangement, and under the
laws of the reciprocating jurisdiction, have been complied with
(see item 16, which effectively inserts regulation
15 of the Child Support (Assessment) (Overseas-related Maintenance
Obligations) Regulations 2000 into section 31 of the Assessment
Act). The Bill also seeks to insert whole provisions dealing
exclusively with overseas child maintenance where the terms of the
regulations do not fit conveniently into the existing scheme. For
example, the Bill seeks to amend the Family Law Act to include new
sections dealing with parentage testing for the purposes of an
international agreement or arrangement (item 111);
Australia s obligations under the Agreement between the Government
of Australia and the Government of New Zealand on Child and Spousal
Maintenance signed at Canberra on 12 April 2000 (item
114), and Australia s obligations under the Agreement
between the Government of the United States of America and the
Government of Australia for the enforcement of Maintenance
(Support) Obligations concluded and entered into force on 12
December 2002 (also item 114).
The Bill also
seeks to refine various provisions by clarifying the effect of
those provisions or by deleting unnecessary words or concepts. For
example, the Bill makes it clear that at least one parent must
reside in Australia for the Australian child support scheme to
apply. It clarifies the role of overseas authorities where one
parent resides in a reciprocating jurisdiction. It also clarifies
how to calculate overseas income where a payer resides
overseas.
While the
amendments themselves are technically complicated (as is the child
support scheme generally), they do not seem to be controversial,
and it is thus unnecessary to discuss them in detail.
Importantly, by
items 47 and 116, the Bill repeals subsection
163B(3) of the Assessment Act and subsection 124A(3) of the
Registration Act. The effect of the repeal is to remove the
possibility of making regulations which are inconsistent with the
parent Act and which prevail over the parent Act to the extent of
any inconsistency. In other words, this amendment removes the Henry
VIII clauses.
Schedule
2 commences on the day when the proposed Act receives
Royal Assent.
Schedule
2 amends the Assessment Act and the Registration Act to
provide fairer access to courts and the review process under those
Acts.
The Bill amends
the Assessment Act to provide that where the Registrar refuses to
accept an application for administrative assessment of child
support and the applicant objects, either party may apply to a
court of competent jurisdiction if he or she is aggrieved by the
decision on the objection (item 1). Likewise, the
Bill provides that where the Registrar accepts an application for
administrative assessment, and a party objects, either party may
apply to a court of competent jurisdiction if he or she is
aggrieved by the decision on the objection (items 2
4). The effect of these amendments is to provide that only
one party need object to the Registrar s decision but that both
parties are then entitled to commence legal proceedings. In other
words, it streamlines the review process and minimises the risk of
multiple objections and applications in the same case.
The Bill is also designed to limit a person s
redress to the Child Support Agency where the Assessment Act
provides that person with a right to recourse to litigation (such
as sections 106, 106A and 107). For example, currently subsection
98X(1) sets out the decisions against which an objection may be
lodged with the Child Support Agency and subsection 98X(2) provides
an exception. Items 5 and 6 expand the exceptions,
thereby reducing redress to the Child Support Agency in certain
circumstances.
Under section 98X
(as amended by the Bill), the exceptions to the provision are that
(a) a person may not lodge an objection to a decision to
accept an application for administrative assessment of child
support if the ground of the person s objection is that the person
is not the parent of the child, and (b) that a person may not
object to a decision to refuse to accept an application for
administrative assessment of child support if the ground of the
objection is either that the person from whom child support is
sought is the parent of the child or that the person who wishes to
object is the parent of the child. If a person is prevented from
lodging an objection by section 98X, then the person may be able to
apply to a court for a declaration under section 106, 106A or 107
or proposed section 107A (item 17 of
Schedule 2).(16)
The amendments
also provide (items 14 17) that unless one of the
exceptions to section 98X applies, a person may not apply to a
court unless the person has first objected under section 98X of the
Act.
Item
11 inserts proposed section 98ZCA to
provide that where a person applies to a court for a departure
order under section 116 and has also lodged an objection under
section 98X, the Registrar of Child Support is not obliged to
consider the objection unless a court so orders.
Items 22
and 23 make consequential amendments to the Registration
Act to include reference in section 79A of the Registration Act to
proposed section 107A of the Assessment Act.
Items 1 4,
6 8, and 12 33 of Schedule 3 commence on Royal Assent.
Items 5, 9 and 11 commence 28 days after the
proposed Act receives Royal Assent. Item 10 is
taken to have commenced on 30 June 2001.
Schedule
3 makes miscellaneous amendments to the A New Tax
System (Family Assistance) (Administration) Act 1999, the
Assessment Act and the Registration Act.
The Bill amends
the A New Tax System (Family Assistance) (Administration) Act to
provide for the recovery of a child support debt owed to the
Commonwealth from the debtor s family tax benefit advance. In
reality, it is rare for a person to apply for an advance of family
tax benefit (although it may depend on the amount of family tax
benefit to which the person is entitled) it is more likely that a
person would apply for an advance of their own entitlement to a
pension or benefit (because their own pension or benefit is more
likely to be a higher amount of money). It is also unlikely that a
person with a child support debt would be entitled to a family tax
benefit advance.
However, in the
rare case where a person has a child support debt and applies for a
family tax benefit advance, the proposed amendments to
section 33 (contained in items 1
3) provide that the debt may be deducted from the advance.
These proposed amendments bring the provision in line with
amendments made to other family tax benefit provisions in 2001.
Those amendments only permitted the Commonwealth to recover a child
support debt from a person s periodic family tax benefit payments
(and not from an advance).
The Bill makes
very minor technical amendments to the Assessment Act. For example,
it inserts a definition of yearly equivalent of the EAWE amount in
section 5 (item 4). The term EAWE amount is
already defined in section 5 as the estimate of the all employees
average weekly total earnings for persons in Australia [as
calculated by the Australian Statistician]. It would not be
difficult to extrapolate from that definition the meaning of the
term yearly equivalent of the EAWE amount , but presumably it is
useful to have the definition contained in the Act.
The Bill also
provides for the backdating of the assessment of child support
where it comes to the attention of the Registrar that a payer (or
liable parent) has another relevant dependent child who was not
taken into account when the assessment was made. The amendment to
paragraph 39(3)(d) in items 6 and 7 provides that
if the Registrar becomes aware of the existence of the other child
within 28 days of the notice of the assessment, then the liable
parent is taken to have had the child when the application for
administrative assessment was made (assuming paragraph 39(3)(c)
does not apply). Presently paragraph 39(3)(d) provides that the
liable parent (the payer) is taken to have the child from the day
the notice was given. The amendment is fairer to the liable parent
than the present provision, because the notice of the assessment
may be the first time the liable parent learns of the child support
liability. Consequently the notice of assessment may provide the
first opportunity for the person to present information to the
Child Support Agency (and to correct the information on which the
Registrar based the assessment).
Item
8 corrects a reference to liable parent in subsection
45A(2). The provision currently refers to the total amount of
losses and outgoings incurred by the liable parent , but the
provision should refer to the total amount of losses and outgoings
incurred by the entitled carer , given that section 45A deals with
the calculation of the entitled carer s supplementary amount of
income.
Item
10 amends subsection 47(1) of the Assessment Act by
replacing the phrase in respect of whom an assessment has been made
with the phrase eligible for administrative assessment . While this
item has retrospective operation from 30 June 2001, this is of no
consequence because the amendment seeks merely to correct an
earlier drafting anomaly. According to the Explanatory Memorandum
for the Bill: No person will be adversely affected by this
retrospective commencement .(17)
Items 13
18 amend section 76 by limiting the information which the
Registrar must provide to the parties to an administrative
assessment (for example, limited details about the children of a
new relationship who are not the subject of the assessment). The
effect of the amendments is to protect privacy, but they would also
simplify the Registrar s workload.
Item
21 is one of the more interesting amendments in the Bill.
It replaces section 143 with a more precisely worded provision to
give effect to the decision of the Full Court of the Family Court
of Australia in Child Support Registrar and Z & T
[2002] FamCA 182.(18) (Section 143 deals with amounts
paid by way of child support where no liability to pay exists.) At
first instance, the trial Judge found that under section 143 (as it
currently stands) a person could seek to recover child support
overpayments from the Registrar, rather than the person on whose
behalf the Registrar collected child support (that is, the payee).
The Full Court allowed an appeal by the Registrar. While the
purpose of the amendment is to clarify, by express words, that the
amount may be recovered from the payee (and not the Registrar), the
language used in the amendment does not make the situation entirely
clear it refers to recovery of the amount from the recipient and
not from the payee (or some other term in the Act used to refer to
the eligible carer).
Items 22
and 23 are also interesting amendments. They amend section
150 of the Assessment Act, which deals with secrecy. Item
22 amends subsection 150(3) to provide that the Secretary
may disclose protected information to a law enforcement officer if
the information concerns a threat by a person to harm himself or
herself seriously . The adverb seriously is not defined. The
Explanatory Memorandum is not entirely clear as to the impetus for
the amendment; self-harm is not an offence, and so it is not clear
why there is a need to report the threat to law enforcement
officers. The second reading speech states that the amendment is to
facilitate police intervention to protect the
client.(19) It may be more appropriate if the amendment
were to provide that the Secretary may disclose the threat to
welfare agencies. Nonetheless, the amendment would seem to be in
the public good.
Item
23 amends section 150 to provide that a person does not
commit an offence of communicating protected information under
subsection 150(4) if the communication of the protected information
to the Minister is expressly or impliedly authorised by the person
to whom the information relates . Again, this seems to be a
well-intentioned provision open to issues of interpretation. The
Explanatory Memorandum to the Bill states that the purpose of the
amendment is to allow the disclosure to portfolio ministers of
protected information about child support clients that is necessary
to finalise correspondence and similar tasks for those clients
.(20)
While express
authorisation raises little concern, implied consent is another
matter. It may have been less contentious for the amendment to have
referred only to express consent, because then the consent (and any
qualifications on the consent) could be documented. Questions may
be raised about whether the Minister could receive information
which the person himself or herself was not entitled to receive
because of the secrecy provisions. Further, the Act and the
proposed amendment seem to be silent as to whether the Minister
could then communicate the information to the person or if, for
example, authorised by the Commissioner under subsection 150(7),
the Minister could only communicate the information to a court.
Questions may also be raised as to whether the Minister can receive
all information about the person held by the Child Support Agency
or only that information pertinent to the current request for
assistance.
In very large
measure, the Bill is uncontroversial and uncontentious. It
incorporates matters contained in the regulations into the three
main child support Acts. It also clarifies existing provisions and
amends other provisions which experience has proved to be
inoperative or wrong.
There are a few
provisions, particularly those contained in Schedule 3, which are
more interesting and may be more contentious. They may, for
example, raise issues of interpretation or privacy
considerations.
-
This provision is not, however, particularly significant it
amends an earlier revision of the Assessment Act. See discussion of
the provisions of Schedule 3 in the Main provisions section of this
Digest.
-
The report is available electronically at:
http://www.aph.gov.au/house/committee/fca/childcustody/report/fullreport.pdf.
-
See Child Support Amendment Bill introduced into Parliament at:
http://www.csa.gov.au/legal/bill.htm.
-
For a history of child support/maintenance before the
introduction of the child support scheme in 1988 1989, see the
decision of Beck and Sliwka (1992) FLC 92-296.
-
Larry Anthony, then Minister for Children and Youth Affairs,
Second reading speech: Child Support Legislation Amendment Bill
2004 , House of Representatives, Debates, 31 March 2004,
pp. 26 478 26 479.
-
See Senate Selection of Bills Committee, Report no. 8 2004,
tabled 16 June 2004, p. 1, available electronically at:
http://www.aph.gov.au/senate/committee/selectionbills_ctte/reports/rep0804.pdf
(as at 20 January 2005). See also Senator Lightfoot, COMMITTEES
Selection of Bills Committee Report , Senate, Debates, 16
June 2004, p. 23 931, available electronically at:http://www.aph.gov.au/hansard/senate/dailys/ds160604.pdf
(as at 20 January 2005)