Explanatory Memorandum
(Circulated by the authority of the Assistant Treasurer,Senator the Hon Jim Short)Chapter 6 Consideration of child support in property and spousal maintenance proceedings
Overview
6.1 Items 40 and 41 of Schedule 1 of the Bill will amend the Family Law Act 1975 to enable the Court to consider future child support liabilities in property and spousal maintenance proceedings even in the absence of an administrative assessment under the Child Support (Assessment) Act 1989.
Summary of the amendments
6.2 To enable paying parents to have their future child support obligations recognised and taken into account by the Court in property and spousal maintenance proceedings irrespective of whether an administrative assessment of child support has been made.
6.3 On the 28th day after the day on which the Act receives the Royal Assent.
Background to the legislation
6.4 In some circumstances where proceedings are before the Court and the parent receiving child support has not applied for a child support assessment, the non-custodial parent cannot obtain an assessment to enable the Court to take the child support liability into account in determining what is a just and equitable property settlement under section 79 of the Family Law Act 1975 . After the property proceedings have been determined, the custodial parent can then proceed to apply for an assessment which could include substantial arrears which the Court did not take into account in the property proceedings. The Joint Select Committee suggested in Recommendation 156 that this problem for paying parents needed to be addressed.
6.5 Although the problem raised by the Committee only concerned property proceedings, the same problem may occur in relation to spousal maintenance proceedings. It is therefore considered appropriate that amendments should also be made to section 75 of the Family Law Act 1975 to remove this problem.
Explanation of proposed amendments
6.6 The proposed amendment allows the Court to refer to an amount which would be payable under the Child Support (Assessment) Act 1989 . this solution does not require parents to apply for an administrative assessment. Ultimately parents can still determine whether they wish to settle matters privately or require the involvement of the Child Support Registrar. [Item 40 and 41 - amend paragraphs 75(2)(na) and paragraph 79(4)(g) respectively]