Explanatory Memorandum
(Circulated by authority of the Minister for Family and Community Services, Senator the Hon Jocelyn Newman)Chapter 19 - Parent Applications
Overview
19.1 Items 1 to 17, 20 and 21 of Schedule 19 of the Bill will amend the Child Support (Assessment) Act 1989 (the Assessment Act) to provide that either parent can apply for a child support assessment.
19.2 Items 18 to 19, 20 and 21 of Schedule 19 of the Bill will amend the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act) so that a liability arising out of a paying parent's application will not be registered for collection until the eligible carer applies to the Registrar to have it collected.
Summary of the amendments
19.3 The purpose of the amendments is to reinforce that parents have the primary responsibility for the financial support of their children and will:
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- encourage parents to take an active role in making choices about applying for child support
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- allow both eligible carers and paying parents to apply for an assessment of child support.
19.4 On the day on which the Act receives Royal Assent and will not apply in relation to applications for administrative assessment made before the prescribed day
Background to the legislation
19.5 Currently, only a person who has care of a child can make an application to the Registrar for an administrative assessment, indicating at that time whether or not to have the liability collected by the Registrar.
19.6 The Joint Committee identified this as a concern for paying parents and in Recommendation 156 proposed that either parent be able to apply for an assessment of child support.
Explanation of the amendments
19.7 The proposed amendment will address the recommendation of the Joint Committee and enable the paying parent to ascertain the actual amount of their liability.
19.8 The proposed amendments will allow the paying parent to make an application to the Registrar for an administrative assessment as a person seeking to pay child support to an eligible carer. However, the paying parent will not be able have the liability registered for collection by the Registrar.
Persons who may apply - parents other than eligible carers
19.9 A person who does not have care of a child will now be able to apply to the Registrar for an administrative assessment seeking to pay child support for that child. The requirements for a valid application will now be that the applicant is a parent of the child and a resident of Australia on the day they make the application. The applicant must be seeking to pay child support for the child to an eligible carer, who is not living with the applicant as their partner on a genuine domestic basis. This type of application will be called a liable parent application. [Item 2 - insert definition of "liable parent application" in section 5; Item 4 - repeal section 26 and insert new section 25A]
19.10 As a result of these changes consequential amendments are required to a number of provisions in the Assessment Act. [Item 3 - repeal paragraph 23(c) and insert new paragraph 23(c), Item 5 - amend subsection 29(1); Item 9 - repeal paragraph 83(1)(b) and insert new paragraph 83(1)(b); Item 11 - repeal paragraph 106(4)(c) and insert new paragraph 106(4)(c), Item 14 - repeal paragraph 107(4)(c) and insert new paragraph 107(4)(c), Item 15 - repeal paragraph 109(2)(b) and insert new paragraph 109(2)(b)]
19.11 Where a liable parent application is made, the applicant will be called the "liable parent" and the person to whom the application sought to pay child support will be called the "carer entitled to child support". [Item 7 - repeal paragraph 31(b) and insert new paragraph 31(b)]
19.12 Where the Registrar accepts a "liable parent application", the Registrar must immediately notify both parties of this acceptance. [Item 8 - amend subsection 34(1)]
Persons who may apply - eligible carers
19.13 Where an application is an "eligible carer application" proof of parentage will still be required. However, where an application is made by a paying parent it will be taken to be a declaration that they are a parent of the child. [Item 6 - amend subsection 29(2)]
19.14 The proposed amendments will not affect an eligible carer's ability to apply for an administrative assessment seeking payment of child support from the paying parent. However, the existing provisions are modified to reflect that either the paying parent or an eligible carer may apply for an administrative assessment of child support. [Item 1 - insert new definition of "carer application" in section 5; Item 4 - repeal section 25 and insert new section 25]
19.15 As a result of these changes, consequential amendments are required to provisions in the Assessment Act to reflect that both parties will be able to lodge applications and also obtain an evidentiary certificate as to that fact from the Registrar. [Item 3 - repeal paragraph 23(b) and insert new paragraph 23(b); Item 17 - amend paragraphs 153(c) and (d)]
19.16 Further consequential amendments are required where some provisions are now only applicable to applications made by an eligible carer. [Item 16 - amend subsection 139(1), Item 10 - amend subsection 106(1); Item 13 - amend subsection 107(1)]
19.17 Where a carer application is made the applicant will be called the "carer entitled to child support" and the person from whom the application sought payment of child support will be called the "liable parent". [Item 7 - repeal paragraph 31(1)(a) and insert new paragraph 31(1)(a)]
Applications where there are joint carers or child is under child welfare law
19.18 The proposed amendments provide that if a child is cared for jointly by two or more persons only one of the eligible carers at any one time may apply for an administrative assessment of child support to be paid for the child. If one of the joint carers is a parent of the child the application must be made by that carer or on behalf of that person. [Item 4 - insert new subsections 26(1) and (2)]
19.19 A paying parent may apply for an administrative assessment, seeking to pay child support for a child who is cared for jointly by two or more persons. If the paying parent makes such an application they must nominate only one of those carers as the eligible carer they are seeking to pay. If one of the joint carers is a parent of the child the paying parent must nominate to pay the joint carer who is the parent. [Item 4 - insert new subsections 26(3) and (4)]
19.20 If an eligible carer applies for an administrative assessment of child support for a child who is under a child welfare law, the eligible carer making the application must be a parent or relative (such as a grandparent, aunt or uncle) of the child. [Item 4 - insert new section 26A(a)]
19.21 If a paying parent applies for an administrative assessment, seeking to pay child support for a child who is under a child welfare law to an eligible carer, the application must be to pay an eligible carer who is a parent or relative (such as a grandparent, aunt or uncle) of the child. [Item 4 - insert section 26A(b)]
19.22 If the Registrar rejects a liable parent application by a paying parent seeking to pay child support to a person, the paying parent may apply to a court with jurisdiction under the Assessment Act for a declaration that they were entitled to an administrative assessment. If the court is satisfied that the applicant was entitled to make an application then the court may make the declaration. [Item 12 - insert section 106A]
19.23 Currently, where the Registrar makes an assessment under which a registrable maintenance liability arises, the Registrar immediately registers the liability, unless the eligible carer elected not to have the liability enforced in their application for child support.
19.24 The proposed amendments to the Registration and Collection Act will provide that where a liable parent application is made and an assessment is raised, the Registrar will not automatically register the liability. [Item 18 - insert paragraph 24A(2)(c)]
19.25 The proposed amendment to the Registration and Collection Act will allow the eligible carer to apply to the Registrar for registration of the maintenance liability. [Item 19 - insert subsection 28(1A)]