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1.4.3: Application of the Assessment Act to WA
ex-nuptial cases
Context
The Child Support (Assessment) Act 1989 (the
Assessment Act) and its amendments apply to WA ex-nuptial cases to the extent
that it has been adopted by the WA Parliament.
Legislative References
Child Support (Assessment)
Act 1989
Child Support (Adoption of
Laws) Act 1990 (WA)
Child Support (Adoption of Laws) Amendment Act
1994 (WA)
Child Support (Adoption of Laws) Amendment Act
2000 (WA)
Child Support (Adoption of Laws) Amendment Act
2002 (WA)
Child Support Legislation
Amendment Act 1998
Family Court Act 1997 (WA)
Child Support Legislation
Amendment (Reform of the Child Support Scheme - Initial Measures) Act 2006
Family Legislation Amendment Act 2006 (WA)
Child Support Legislation
Amendment (Reform of the Child Support Scheme - New Formula and Other Measures)
Act 2006 (Cth)
Families, Community Services
and Indigenous Affairs Legislation Amendment (Child Support Reform
Consolidation and Other Measures) Act 2007
(Cth)
Explanation
The WA Parliament has adopted the Assessment Act
and all amendments made to it. The arrangement by which the WA Parliament has
adopted the laws means that from time to time CSA must treat WA ex-nuptial
cases differently to other cases.
Commencement of the Assessment Act
The Assessment Act came into operation on 1
October 1989. It did not apply to WA ex-nuptial children immediately. Carers of
ex-nuptial children resident in WA could still apply to the WA Family Court for
orders for child maintenance. CSA could register these court orders under the
Registration and Collection Act.
WA adoption of Assessment
Act from 19 January 1991
WA adoption of Assessment
Act amendments from 9 December 1994
WA adoption of Assessment
Act amendments from 30 June 2000
WA adoption of Assessment
Act amendments from 1 January 2001
WA adoption of Assessment
Act amendments from 9 December 2002
WA adoption of Assessment
Act amendments from 1 August 2006
WA adoption of
Assessment Act amendments from 1 November 2007 and later dates
Amendments that apply
to WA ex-nuptial cases from 1 November 2007
Amendments that apply
to WA ex-nuptial cases from 1 January 2008
Amendments that
apply to WA ex-nuptial cases from a later date
WA
adoption of Assessment Act from 19 January 1991
WA Parliament adopted the Assessment Act from 19
January 1991. From that date the following arrangements applied to WA
ex-nuptial cases.
-
Ex-nuptial children living in WA were eligible
children for the purposes of the Assessment Act and the people who cared for
them were able to apply for an administrative assessment of child support.
-
Carers of WA ex-nuptial children could no longer
apply to the court for variations to existing court orders and registered
agreements. A carer in a WA ex-nuptial case could have a court order for
maintenance and be entitled to apply for an administrative assessment of child
support payable by the same payer for the same child. In these cases, CSA
offset the overlapping Stage 1/Stage 2 liabilities.
Example
M and F are the parents of A.
M and F separated on 1 December 1989. They were never married.
A lives with M in Western Australia.
M applied to the Western Australian Family Court for an order
requiring F to pay maintenance for A. The court ordered F to pay $25 per week.
M registered the order with CSA and CSA started collecting child support from
F.
M applied to CSA on 3 February 1991 for an administrative
assessment of child support. CSA accepted M's application and worked out that F
should pay $100 per week. M's court ordered amount remained as $25 per week and
the assessment amount was reduced to $75 per week so that the overall amount
payable (comprising both liabilities) was $100 per week.
WA
adoption of Assessment Act amendments from 9 December 1994
The WA Parliament adopted amendments made to the
Assessment Act since the last adoption from 9 December 1994. From that date the
following arrangements applied to WA ex-nuptial cases.
-
Parents in a WA ex-nuptial case could apply to
CSA for a change to their assessment in the special circumstances of the case
for any child support year commencing 1 July 1992 onwards rather than applying
to the court.
-
Payees in WA ex-nuptial cases who received more
than minimum family payment from Centrelink could no longer elect to end their
child support assessments.
-
CSA no longer offset overlapping liabilities for
WA ex-nuptial cases. Instead, a court order for child support ceased to have
effect when child support became payable under an administrative assessment for
the child.
-
A person was considered an eligible carer of a
WA ex-nuptial child if they cared for the child for at least 30% of the nights
in the child support year. This level of care is called substantial contact. If
only one other person cares for the child, that person's level of care was
considered to have major contact.
-
If the payer or payee's taxable income for the
last relevant year was not available when CSA was making a new child support
assessment for a WA ex-nuptial case, CSA could choose an appropriate default
income for that person. Before 9 December 1994, CSA was required to use a
default income figure equivalent to 2.5 time average weekly earnings.
-
A payer or payee in a WA ex-nuptial case could
no longer revoke their estimate of taxable income unless they made a new
estimate election. Before 9 December 1994 a person could revoke their estimate
and have their case return to the previous assessment based upon their income 2
years prior. Estimates could also be replaced by new estimates every 2 months
rather than 3 months.
-
Courts were required to give reasons for making
orders by consent for a change of assessment in special circumstances, or the
provision of 'in kind' child support in cases where the payee in a WA
ex-nuptial case received an income tested pension, benefit or allowance.
WA
adoption of Assessment Act amendments from 30 June 2000
The WA Parliament adopted further amendments to
the Assessment Act from 30 June 2000. From that date the following arrangements
applied to WA ex-nuptial cases.
-
The start date of the liability arising from
acceptance of an application for an assessment in a WA ex-nuptial case was
changed to the date the application was lodged.
-
Payees in WA ex-nuptial cases can apply for the
administrative assessment of child support for a child in secondary education
to continue to the end of the school year in which the child turns 18.
-
Payers and payees in WA ex-nuptial cases can now
provide information and make some applications over the telephone, which CSA
previously required in writing.
-
CSA can now be satisfied that a person is a
parent of a WA ex-nuptial child if:
-
the child is born within 44 weeks of a marriage
being annulled; or
-
the child is born after a marriage has been
dissolved but within 44 weeks after a period of cohabitation by the 2 people
concerned; or
-
the child is born to a woman who lived with the
man anytime during the period beginning 44 weeks and ending 20 weeks before the
child's birth.
-
Payers and payees in WA ex-nuptial cases can
object to CSA decisions under the Assessment Act.
-
Payers and payees in WA ex-nuptial cases may
only apply to a court for a departure from administrative assessment (section
116), or appeal against an incorrect assessment (section 110), or appeal
against the acceptance or non-acceptance of a child support agreement (section
132) providing they have personally objected to the decision and it has been
disallowed or partly allowed.
-
CSA can make a decision to either increase or
decrease the amount of child support payable when making a change of assessment
decision on an application by a payer or payee in a WA ex-nuptial case.
-
CSA can initiate a change of assessment in
special circumstances for a WA ex-nuptial case.
-
A liable parent in a WA ex-nuptial case can
apply for an administrative assessment.
-
CSA will include relevant dependent children in
a child support assessment for a WA ex-nuptial case from the date of
notification unless CSA is notified within 28 days of the child becoming a
relevant dependant child, or within 28 days of a notice of assessment.
-
Changes to levels of care of a child in a WA
ex-nuptial case will have effect from the date CSA is notified of the change.
-
Payees in WA ex-nuptial cases who receive more
than the base rate of Family Tax Benefit Part A can elect to end their
assessment if the Secretary of the Department of Families, Housing, Community
Services and Indigenous Affairs (FaHCSIA) approves the election. The Secretary
must be satisfied that the payee is taking reasonable action to obtain
maintenance for the child.
-
CSA must refer an agreement between the payer
and payee in a WA ex-nuptial case if the payee receives more than the base rate
of Family Tax Benefit Part A to the Secretary of FaHCSIA. CSA can only accept
these agreements if the Secretary decides that the agreement passes the
'reasonable action to obtain maintenance' test.
WA
adoption of Assessment Act amendments from 1 January 2001
The following amendments applied to WA ex-nuptial
cases from 1 January 2001.
-
Child support for WA ex-nuptial cases is
assessed in child support periods rather than child support years. A child
support period may last up to 15 months.
-
The assessments are based on taxable income for
the most recent taxation year rather than taxable income for the financial year
before last.
-
The payee's disregarded income is based on the
'all employees average weekly earnings' figure rather than the usually higher
average weekly earnings figure and extra amounts according to the age of the
children were no longer added to it
-
The payer's exempt income amount was increased
to 110% of the unpartnered rate of social security pension relevant to the one
payable for the child support period
-
When the liable parent has relevant dependent
children the exempt income amount was increased to 220% of the annual amount of
the partnered rate of social security pension relevant to that payable for the
child support period.
-
The minimum child support rate payable is $260,
not nil, and will not be reduced below $260 per annum unless the person's total
income in the first 12 months of a child support period is less than $260.
-
A person could apply for a change of assessment
if the child care costs they incurred were high and cost more than 5% of their
child support income amount
-
Senior case officers could not make a decision
on a change of assessment application that the annual rate of child support in
a case was to be reduced to nil.
-
In calculating the amount payable in an
assessment the payer's adjusted income is reduced by 50 cents for every dollar
of the carer parent's income above the disregarded income amount
-
Any supplementary income (exempt foreign income,
net rental losses and reportable fringe benefits) is added back to the liable
parent's to taxable income amounts
-
When the parents share care of the children of a
relationship, additional amounts are added to the liable parent's exempt income
for any children in their sole, major or shared care
-
CSA may refuse, review or amend a payer or
payee's estimate of income.
New Child support assessments commencing 1
January 2001
CSA made a new child support assessment for every
WA ex-nuptial case, which applied to a child support period starting on 1
January 2001.
CSA based the new child support assessment upon
the parents' taxable income for 1999-2000 if the ATO had issued an assessment
of taxable income for that year for either parent. If neither parent's
1999-2000 taxable income was available, CSA based the new assessment on the
1998-1999 taxable income for each parent inflated by the relevant child support
inflation factor.
WA
adoption of Assessment Act amendments from 9 December 2002
The Child Support (Adoption of Laws) Amendment
Act 2002 (WA) commenced on 9 December 2002. It adopted amendments to
the Assessment Act contained in several acts including the Child Support
Legislation Amendment Act (No. 2) 2000 and the Child Support
Legislation Amendment Act 2001.
The following provisions of the Assessment Act
apply to WA ex-nuptial cases from 9 December 2002:
WA adoption of Assessment Act amendments from
1 August 2006
The Family Legislation Amendment Act 2006 (WA)
included provisions to adopt amendments to the Assessment Act.
The following provisions apply to WA ex-nuptial
cases from 1 August 2006
-
The reduction of the
maximum income amount
used in a child support assessment from 2.5 times average weekly earnings (AWE)
to 2.5 times all employees average weekly total earnings (EAWE).
-
The increase in the
minimum annual rate of child support
from $260 to $320 (adjusted annually in accordance with the Consumer Price
Index).
-
Changes limiting the circumstances in which an
assessment can be increased on the basis of a
parent's earning capacity.
WA
adoption of Assessment Act amendments from 1 November 2007 and later dates
The Child Support (Adoption of Laws) Amendment
Act 2007 (WA) adopted amendments to the Assessment Act contained in
the:
-
Tax Laws Amendment (Repeal of Inoperative
Provisions) Act 2006;
-
the Child Support Legislation Amendment (Reform
of the Child Support Scheme - New Formula and Other Measures) Act 2006;
-
the Families, Community Services and Indigenous
Affairs and Veterans' Affairs Legislation Amendment (2006 Budget Measures) Act
2006;
-
the Families, Community Services and Indigenous
Affairs and Veterans' Affairs Legislation Amendment (2006 Budget and Other
Measures) Act 2006; and
-
the Families, Community Services and Indigenous
Affairs and Veterans' Affairs Legislation Amendment (Child Support Reform
Consolidation and Other Measures) Act 2007.
Amendments
that apply to WA ex-nuptial cases from 1 November 2007
Amendments to the Assessment Act made by the Child
Support Legislation Amendment(Reform of the Child Support Scheme - New Formula
and Other Measures) Act 2006 (Cth) now apply to cases involving WA
ex-nuptial children. Those amendments, which apply to WA ex-nuptial children
from 1 November 2007 and all other cases from 1 January 2007, are as follows:
-
The Social Security Appeals Tribunal provides a
process for parents who want a review of a CSA decision made under the
Assessment Act or the Registration and Collection Act.
-
A payee is able to apply directly to a court if
CSA has refused their application for assessment because they were unable to
satisfy CSA that the person named is a parent of the child or children.
-
A court has increased powers to make orders
staying a child support assessment or collection pending the determination of
an objection, application for review, or appeal to a court.
-
CSA is unable to make change of assessment
decisions that affect a period more than 18 months earlier than the date of the
application unless the court has granted leave. If a court grants leave it can
specify a period for which an assessment can be changed of up to seven years
prior to the application.
Amendments
that apply to WA ex-nuptial cases from 1 January 2008
Amendments to the Assessment Act made by the Families,
Community Services and Indigenous Affairs Legislation Amendment (Child Support
Reform Consolidation and Other Measures) Act 2007 (Cth) apply to cases
involving WA ex-nuptial children. Those amendments, which apply to WA
ex-nuptial children from 1 January 2008 and all other cases from 22 June 2007,
are as follows:
-
Some changes to the secrecy provisions including
the following:
-
CSA can communicate protected information to
persons as necessary to prevent a credible threat to the life, health or
welfare of a person.
-
CSA can communicate protected information to
brief the Minister in respect of a range of circumstances relating to the
Minister's duties.
-
CSA can communicate protected information to a
person who has the consent of the person to whom the information relates to
obtain that information.
-
CSA can communicate protected information in
specific circumstances relating to missing people and locating a relative or
beneficiary of a deceased person.
-
A new offence for unauthorised disclosure of
information.
-
Removal of the restriction that CSA information
gathering (under section 161) in respect of third parties is limited to
financial information.
-
Stay order provisions have been removed from the
Assessment Act. All of the stay order provisions are located within the
Registration and Collection Act regardless of whether the relevant proceeding
has commenced under the Assessment Act or the Registration and Collection Act.
All other provisions of the Assessment Act which
came into effect on 1 January 2008 also came into effect for cases involving WA
ex-nuptial children on the same date.
Amendments
that apply to WA ex-nuptial cases from a later date
Provisions of the Assessment Act which will come
into effect on 1 July 2008 will also come into effect for cases involving WA
ex-nuptial children on the same date.
Version 1.6
Issued 1 January 2008
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