Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (146 of 2006)
Schedule 5 Amendments relating to child support agreements and court orders (commencing on 1 July 2008)
Part 1 Main amendments
Division 1 Binding and limited child support agreements
Child Support (Assessment) Act 1989
5 Division 1 of Part 6
Repeal the Division, substitute:
Division 1 - Preliminary
80A Simplified outline
The following is a simplified outline of this Part:
• Parents (and non-parent carers) of a child can, using a child support agreement, agree between themselves the child support that is to be payable for the child.
• There are 2 sorts of agreements. The first is a binding child support agreement. Each party to the agreement must have received legal advice before entering the agreement, and must also receive legal advice before terminating the agreement.
• The second sort of agreement is a limited child support agreement. An administrative assessment must be in place before a limited child support agreement can be accepted by the Registrar. The annual rate of child support payable under the agreement must be at least the annual rate of child support otherwise payable under this Act.
• Agreements may include provisions that state that child support is to be payable otherwise than in the form of periodic amounts. There are 2 main kinds of such provisions:
(a) non-periodic payment provisions, under which lump sum payments and other non-periodic payments (such as school fees) may be made; and
(b) lump sum payment provisions, under which lump sum payments may be made.
• Payments made under non-periodic payment provisions reduce the annual rate of child support payable.
• Payments made under lump sum payment provisions are credited against the liability of a party to the agreement (rather than reducing the annual rate of child support payable).
80B Cases in relation to which Part applies
This Part applies where the parents of an eligible child, or a parent or the parents of an eligible child and a non-parent carer of the child, want to give effect to an agreement between themselves in relation to child support payable for the child.
Division 1A - Binding and limited child support agreements
Subdivision A - Binding child support agreements
80C Making binding child support agreements
(1) An agreement is a binding child support agreement if:
(a) the agreement is binding on the parties to the agreement in accordance with subsection (2); and
(b) the agreement complies with subsection 81(2).
(2) For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the parties to the agreement; and
(c) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e) the agreement has not been terminated under section 80D; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
Note: For the manner in which the contents of a binding child support agreement may be proved, see section 48 of the Evidence Act 1995.
80CA No variation of binding child support agreements
(1) A binding child support agreement must not be varied.
Note: A binding child support agreement can be terminated and replaced with a new binding child support agreement.
(2) However, subsection (1) does not prevent a binding child support agreement between parties from incorporating by reference the provisions of a previous child support agreement between the parties.
80D Terminating binding child support agreements
(1) A binding child support agreement (the previous agreement ) may be terminated only by:
(a) a provision being included in a new binding child support agreement made by the parties to the previous agreement to the effect that the previous agreement is terminated; or
(b) the parties to the previous agreement making a written agreement (a termination agreement ):
(i) that is binding on the parties in accordance with subsection (2); and
(ii) to the effect that the agreement is terminated; or
(c) a court order setting aside the previous agreement under section 136.
(2) For the purposes of subparagraph (1)(b)(i), an agreement is binding on the parties if, and only if:
(a) the agreement is in writing; and
(b) the agreement is signed by the parties to the agreement; and
(c) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e) the agreement has not been set aside by a court under section 136; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
Note: For the manner in which the contents of a termination agreement may be proved, see section 48 of the Evidence Act 1995.
(3) A binding child support agreement is terminated:
(a) if paragraph (1)(a) applies - on the day set out in the following paragraph:
(i) if the new binding child support agreement specifies a day on which it takes effect - that day;
(ii) otherwise - the day on which the new binding child support agreement is signed; and
(b) if paragraph (1)(b) applies - on the day set out in the following paragraph:
(i) if the termination agreement specifies a day on which it takes effect - that day;
(ii) otherwise - the day on which the termination agreement is signed; and
(c) if paragraph (1)(c) applies - on the day on which the court order takes effect.
Subdivision B - Limited child support agreements
80E Making limited child support agreements
(1) An agreement is a limited child support agreement if:
(a) it is in writing; and
(b) it is signed by the parties to the agreement; and
(c) it complies with subsection 81(2); and
(d) it meets the conditions in subsection (2), (3) or (4), as the case requires, (assuming the agreement is accepted by the Registrar).
Note: In addition to the requirements in this section, there must be an administrative assessment in force in relation to the child in respect of whom the agreement is made (see subsection 92(3)).
Child support payable on day application for acceptance of agreement is made to Registrar
(2) An agreement meets the condition in this subsection if:
(a) child support is to be payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the application is made to the Registrar for acceptance of the agreement; and
(b) the annual rate of child support that is so payable under the agreement on that day is at least the annual rate of child support that would otherwise be payable under this Act on that day.
Note: If the child support payable under the agreement is not a periodic amount, the regulations can prescribe the method by which that amount is to be converted into an annual rate (see subsection (5)).
Child support payable on day agreement commences
(3) An agreement meets the condition in this subsection if:
(a) child support is not to be payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the application is made to the Registrar for acceptance of the agreement; but
(b) the annual rate of child support that is payable under the agreement, by one party to the agreement to the other party or parties, on the day on which the agreement commences is at least the annual rate of child support that would otherwise be payable under this Act on that day.
Child support payable for past period
(4) An agreement meets the condition in this subsection if:
(a) child support is payable under the agreement, by one party to the agreement to the other party or parties, for a period before the day on which the application is made to the Registrar for acceptance of the agreement; and
(b) the amount of child support that is so payable under the agreement for that period is at least the amount of child support that would otherwise be payable under this Act for that period.
Regulations
(5) The regulations may, for the purposes of subsections (2), (3) and (4), provide a method of converting an amount of child support that is payable under an agreement otherwise than in the form of periodic amounts into an annual rate of child support.
80F No variation of limited child support agreements
(1) A limited child support agreement must not be varied.
Note: A limited child support agreement can be terminated and replaced with a new limited child support agreement.
(2) However, subsection (1) does not prevent a limited child support agreement between parties from incorporating by reference the provisions of a previous child support agreement between the parties.
80G Terminating limited child support agreements
(1) A limited child support agreement (the previous agreement ) may be terminated only by:
(a) a provision being included in:
(i) a new limited child support agreement made by the parties to the previous agreement; or
(ii) a binding child support agreement made by the parties to the previous agreement;
to the effect that the previous agreement is terminated; or
(b) the parties to the previous agreement making a written agreement that is signed by those parties to the effect that the previous agreement is terminated; or
(c) a court order setting aside the previous agreement under section 136; or
(d) if the notional assessment of the amount of child support that would have been payable by one party to the previous agreement to another party is varied by more than 15% from the previous notional assessment in circumstances not contemplated by the previous agreement - a party to the previous agreement giving the Registrar written notice of the termination of the agreement within 60 days of that party receiving notice of the variation; or
(e) if the previous agreement was made 3 or more years earlier - a party to the previous agreement giving the Registrar written notice of the termination of the previous agreement.
(2) A limited child support agreement is terminated:
(a) if paragraph (1)(a) applies - on the day set out in the following paragraph:
(i) if the new limited child support agreement, or binding child support agreement, specifies a day on which it takes effect - that day;
(ii) otherwise - the day on which the new limited child support agreement or binding child support agreement is signed; and
(b) if paragraph (1)(b) applies - on the day set out in the following paragraph:
(i) if the written agreement specifies a day on which it takes effect - that day;
(ii) otherwise - the day on which the written agreement is signed; and
(c) if paragraph (1)(c) applies - on the day on which the court order takes effect; and
(d) if paragraph (1)(d) or (e) applies - 28 days after the notice is given.
(3) If a limited child support agreement is terminated under paragraph (1)(d) or (e), the Registrar must notify in writing the other parties to the agreement of the termination.
(4) The notice under subsection (3) must include, or be accompanied by, a statement that specifically draws the attention of the parties to the previous agreement to the right:
(a) to object, subject to the Registration and Collection Act, to the decision (the original decision ) to terminate the agreement; and
(b) if aggrieved by a later decision on an objection to the original decision (no matter who lodges the objection but subject to that Act), to apply to the SSAT for review of the later decision.