Example 2: Application of basic formula where liable parent has a liability to 2 carers and shares daily care of one of the children
Facts:		Peter is liable to 2 carers—Mary and Jane. He is liable to Mary for 3 children. Mary’s 3 children will be 10, 14 and 17 at the end of the child support year. Peter shares daily care of the 10 year old child and Mary has sole daily care of the other 2 children. Peter is liable to Jane for 2 children. Jane has sole daily care of both children. Peter’s 1996/97 taxable income for the calculation of the liability is $32,000. Mary’s 1996/97 taxable income is $28,000 and Jane’s income is too low to affect the assessment.
Step 1:		Calculate the child support percentage for each carer. (Paragraph 54(1)(b))
		The total number of children is 4.5 (2 + 0.5 for Mary + 2 for Jane). The table at paragraph 54(1)(c) is used when the liable parent and at least one of the carers have shared or divided children between them, or when substantial contact is involved. The table shows the child support percentage for a total of 4.5 children is 35%.
		Mary has 2.5 children. Therefore the child support percentage for Mary is:
		Jane has 2 children. Therefore the child support percentage for Jane is:
Step 2:		Do an assessment for Peter to pay Jane using the child support percentage calculated in Step 1. (Part 5, Division 1)
	For Peter to pay Jane:
		Peter’s taxable income for 1 July 1996 to 30 June 1997	=	$32,000
		Adjust by inflation factor of 4%	+	$1,280
		Peter’s child support income amount	=	$33,280
		Less exempted income amount	−	$11,842
		Peter’s adjusted income amount	=	$21,438
		Multiply by child support percentage	×	15.55%
		Peter’s 1998/99 child support annual rate	=	$3,334
Step 3:		Do assessments for Peter and Mary as if they were liable to each other (using the Division 1 basic formula with modification). (Section 48)
	For Peter to pay Mary:
		Peter’s taxable income for 1 July 1996 to 30 June 1997	=	$32,000
		Adjust by inflation factor of 4%	+	$1,280
		Peter’s child support income amount	=	$33,280
		Less exempted income amount	−	$11,842
		Peter’s adjusted income amount	=	$21,438
		Multiply by child support percentage	×	19.45%
		Peter’s 1998/99 child support annual rate	=	$4,170
	For Mary to pay Peter:
		Mary’s taxable income for 1 July 1996 to 30 June 1997	=	$28,000
		Adjust by inflation factor of 4%	+	$1,120
		Mary’s child support income amount	=	$29,120
		Less exempted income amount	−	$24,909
		Mary’s adjusted income amount	=	$4,211
		Multiply by child support percentage	×	12%
		Mary’s 1998/99 child support annual rate	=	$505
		Peter owes Mary $4170. Mary owes Peter $505. Therefore Peter pays Mary $3,665 ($4,170 − $505).

Note: The table at section 48 provides that 0.5 children attracts a child support percentage of 12%.

9 At the end of subsection 98C(2)

Add:

; and (c) sub-subparagraph 117(2)(b)(i)(C) has effect subject to subsections 117(3A) and (3B).

10 At the end of subparagraph 117(2)(b)(i)

Add:

(C) high child care costs in relation to the child; or

11 After subsection 117(3)

Insert:

(3A) The ground for departure mentioned in sub-subparagraph 117(2)(b)(i)(C) is taken not to exist unless:

(a) the costs are incurred by the carer entitled to child support; and

(b) the child is younger than 12 at the start of the child support year; and

(c) the liable parent is not an eligible carer of any eligible child of whom both the liable parent and the entitled carer are the parents.

(3B) For the purposes of sub-subparagraph 117(2)(b)(i)(C), child care costs in a child support year are not taken to be high unless the total of the costs during the child support year is more than 5% of the carer’s child support income amount for the year.

12 Section 154

After “weekly total earnings”, insert “, or of the all employees average weekly total earnings,”.

Note: The heading to section 154 is altered by inserting “or EAWE” after “AWE”.

13 Paragraph 155(a)

After “AWE amount”, insert “, and of the EAWE amount,”.

Schedule 2—Information disclosure on assessment notice

Child Support (Assessment) Act 1989

1 Paragraph 76(2)(d)

Repeal the paragraph, substitute:

(d) the number of relevant dependent children of the liable parent in each of the age groups specified in subsection (2A);

2 Paragraph 76(2)(f)

Omit “and the names and dates of birth of any relevant dependent children of that parent”, substitute “and the number of relevant dependent children of that parent in each of the age groups specified in subsection (2A)”.

3 Subparagraph 76(2)(g)(iii)

Repeal the subparagraph, substitute:

(iii) the number of relevant dependent children of the other parent in each of the age groups specified in subsection (2A);

4 After subsection 76(2)

Insert:

(2A) For the purposes of subsection (2), the age groups are the following:

(a) younger than 13;

(b) 13 or older, but younger than 16;

(c) 16 or older, but younger than 18.

Schedule 3—Minimum liability ($260)

Child Support (Assessment) Act 1989

1 Subdivision B of Division 2 of Part 5

Repeal the Subdivision.

2 Paragraph 48(a) and section 51

Omit “they are applicable, Subdivisions B and C of this Division (which deal respectively with Liable parents with low child support income and”, substitute “it is applicable, Subdivision C of this Division (which deals with”.

3 Section 59 (sub-subparagraph (b)(i)(C) of the definition of income amount order)

Omit “41,”.

4 Section 66

Repeal the section, substitute:

66 Minimum rate of child support

(1) Subject to section 66B, if, in relation to a day in a child support year, the total annual rate of child support payable for a child or children by a liable parent to one or more carers entitled to child support would, apart from this section, be assessed as an amount per annum less than $260, the total annual rate of child support in relation to the day is to be assessed as $260.

(2) In working out for the purposes of subsection (1) whether or not the total annual rate of child support in relation to a day in a child support year is less than $260, account must not be taken of an annual rate of child support:

(a) payable by a person in his or her capacity as a parent of the kind referred to in subsection 66B(1); or

(b) arising out of an order made under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances); or

(c) arising out of provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent.

(3) If:

(a) child support is payable by a liable parent to 2 or more carers entitled to child support; and

(b) an assessment is to be made under subsection (1) in relation to any one or more of those carers;

the annual rate, or each annual rate, is to be assessed by apportioning a notional total annual rate of $260 per annum between the carers, in accordance with the regulations, and taking into account the total number of children of the liable parent who are in the care of each of the carers mentioned in paragraph (a).

66A Registrar may reduce an assessment to nil in certain cases

(1) If the Registrar has made an assessment under section 66, the Registrar may, on application made by the liable parent in accordance with the regulations, reduce the annual rate of child support payable by the parent in relation to a day in the child support year to nil.

(2) The Registrar must not grant an application under subsection (1) unless satisfied that the applicant’s income for the child support year to which the application relates will be less than $260.

(3) If the Registrar grants an application under subsection (1), the nil rate does not remain in force after the end of the child support year to which the application relates.

(4) In this section:

income, in relation to a person, means:

(a) any money earned, derived or received by the person for his or her own use or benefit; or

(b) a periodical payment by way of a gift or allowance.

66B Section 66 does not apply in certain cases

(1) Section 66 does not apply in relation to the child support payable by the parent of a child or children to the other parent of the child or children in respect of one of their children, if either or both of the following paragraphs apply:

(a) both of the parents are eligible carers of the child or of one or more of the children;

(b) one of the parents is an eligible carer of one or more of the children and the other parent is an eligible carer of another or other of the children.

(2) Section 66 also does not apply in relation to the child support payable in respect of a child:

(a) in accordance with an order made under Division 4 of Part 7 (Orders for departure from administrative assessment in special circumstances); or

(b) in accordance with provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent.

5 At the end of section 98A

Add:

(3) The Registrar is not empowered under this Part to make a determination that varies, or that has the effect of varying, the annual rate of child support payable by a liable parent under an assessment made under subsection 66(1) to a rate below $260 per annum.

6 Subsection 98D(1)

Omit “The determinations”, substitute “Subject to section 98A, the determinations”.

7 Subparagraph 98D(1)(f)(i)

Repeal the subparagraph.

8 At the end of section 115

Add:

; or (d) where the child support is for a period beginning on or after 1 July 1998 and the administrative assessment was made under subsection 66(1).

9 Subparagraph 118(1)(f)(i)

Repeal the subparagraph.

Child Support (Registration and Collection) Act 1988

10 After section 72A

Insert:

72AA Deductions from social security pensions and benefits

(1) If the payer of an enforceable maintenance liability covered by subsection 17(2) is in receipt of a social security pension or a social security benefit, the Registrar may give a written notice to the Secretary to the Department of Social Security:

(a) specifying the payer’s name and setting out sufficient particulars to enable the Secretary to identify the payer; and

(b) instructing the Secretary to make the prescribed periodic deduction from the payer’s social security pension or social security benefit as from the specified day.

(2) If:

(a) a person by whom a child support debt is due (whether before or after the commencement of this section) has not paid the debt; and

(b) the person is in receipt of a social security pension or a social security benefit;

the Registrar may give a written notice to the Secretary to the Department of Social Security:

(c) specifying the person’s name and setting out sufficient particulars to enable the Secretary to identify the person; and

(d) instructing the Secretary to make the prescribed periodic deduction from the person’s social security pension or social security benefit as from the specified day until the debt is paid.

(3) A notice may be given by electronic transmission or by any other means.

(4) Subsection (2) does not apply to an amount due in respect of a liability covered by section 18.

(5) An amount received by the Commissioner of Taxation under subsection 1359(2) of the Social Security Act 1991 is taken to have been received by the Commissioner in his or her capacity as the Child Support Registrar.

(6) In this section:

social security benefit and social security pension have the same respective meanings as in the Social Security Act 1991.

Social Security Act 1991

11 At the end of section 1359

Add:

(2) The Secretary must, in accordance with a notice given to the Secretary under section 72AA of the Child Support (Registration and Collection) Act 1988 in relation to the recipient of a social security pension or a social security benefit:

(a) make deductions from the instalments of the pension or benefit payable to the person; and

(b) pay the amounts deducted to the Commissioner of Taxation.

Note: The heading to section 1359 is replaced by the heading “Payments to the Commissioner of Taxation”.

Schedule 4—Private collection between parties

Child Support (Registration and Collection) Act 1988

1 Subsection 4(1) (paragraph (b) of the definition of appealable refusal decision)

Omit “38”, substitute “38A”.

2 Paragraph 33(1)(b)

Omit “38”, substitute “38A or a decision of the Registrar under section 38B”.

3 Subsections 37B(6) and (7)

Omit “38”, substitute “38A, 38B”.

4 Sections 38 and 39

Repeal the sections, substitute:

38 Variation of Register to have enforceable maintenance liability no longer enforced under Act

The Registrar must vary the particulars in the Child Support Register in relation to an enforceable maintenance liability so that the liability is no longer enforced under this Act if:

(a) the payee of the liability makes an election under section 38A; or

(b) the payee and payer of the liability jointly make an election under section 38A; or

(c) the Registrar makes a decision under section 38B.

38A Election by payee or by payee and payer jointly

(1) The payee of an enforceable maintenance liability, or the payee and payer jointly, may make an election to have the liability no longer enforced under this Act.

(2) An election under this section must be made in the manner specified by the Registrar.

Note: Section 16A provides for the Registrar to specify the manner in which an election may be made.

(3) Within 28 days after receiving the election, the Registrar must:

(a) vary the particulars relating to the liability in the Child Support Register by specifying a day (not later than 60 days after the day on which the Registrar received the election) as the day on which the liability ceases to be enforceable under this Act (the terminating day); and

(b) if the payee, or the payee and payer jointly, have elected to have amounts payable under the liability in relation to the child support enforcement period that are unpaid on the terminating day also no longer enforced under this Act—vary the particulars so as to ensure that, in spite of section 30, those amounts cease to be debts due by the payer to the Commonwealth.

(4) The Registrar must not make a variation under paragraph (3)(a) by specifying a day that is included in a period that is a low-income non-enforcement period under section 37B in relation to the liability. If that day is included in that period, the Registrar must not take action under paragraph (3)(b) in relation to that day.

38B Decision by Registrar based on payment record and other factors

(1) The Registrar may decide that an enforceable maintenance liability should no longer be enforced under this Act if all the following conditions are met:

(a) the payer is taken, under the regulations, to have a satisfactory payment record in relation to the previous 6 months;

(b) the Registrar is satisfied that the payer is likely to continue to have a satisfactory payment record;

(c) the Registrar is satisfied that a decision under this section is appropriate in relation to the liability.

(2) If the Registrar makes a decision under subsection (1), the Registrar must vary the particulars relating to the liability in the Child Support Register by specifying a day (not earlier than 28 days after the day on which the Registrar makes the decision) as the day on which the liability ceases to be enforceable under this Act.

(3) If, before the day specified in a variation under subsection (2), the Registrar decides to revoke the decision that gave rise to the variation, the Registrar must vary the particulars concerned in the Child Support Register to give effect to the revocation.

(4) The revocation takes effect on the day the Registrar varies the particulars concerned.

39 Application for variation to enable liability to again become enforceable under Act

(1) If a registered maintenance liability is not enforceable under this Act because of an election made under section 38A or a decision by the Registrar under section 38B, the payee may apply to the Registrar for the liability to again become enforceable under this Act.

(2) The application must be made in the manner specified by the Registrar.

Note: Section 16A provides for the Registrar to specify the manner in which an application may be made.

(3) An application cannot be made in relation to a liability during a period that is a low-income non-enforcement period under section 37B in relation to the liability.

(4) Within 28 days after receiving an application under subsection (1), the Registrar must grant or refuse the application.

(5) The Registrar must grant the application if:

(a) the payer is taken, under the regulations, to have an unsatisfactory payment record; or

(b) the Registrar is satisfied that special circumstances exist in relation to the liability which make it appropriate to grant the application.

(6) If the Registrar grants the application, the Registrar must:

(a) vary the particulars relating to the liability in the Child Support Register by specifying a day (not later than 60 days after the day on which the Registrar received the application) as the day on which the liability again becomes enforceable under this Act; and

(b) may make any variations to those particulars that the Registrar considers necessary or desirable:

(i) to enable a court order or court registered maintenance agreement that varies or otherwise affects the liability to be given effect under this Act; or

(ii) to take account of the happening of an affecting event in relation to the liability.

(7) The Registrar must not make a variation under subsection (6) by specifying a day that is included in a period that is a low-income non-enforcement period under section 37B in relation to the liability. If that day is included in that period, the Registrar must not take action under paragraph (6)(b) in relation to that day.

5 Subsection 39A(2)

Omit “38” (wherever occurring), substitute “38A or 38B”.

Note: The heading to section 39A is altered by omitting “38 election” and substituting “38A election or 38B decision”.

Note: The heading to subsection 39A(2) is altered by omitting “38” and substituting “38A or 38B”.

6 Subsection 39A(3)

Omit “38” (wherever occurring), substitute “38A or 38B”.

7 Subsection 39A(7)

Omit “38” (wherever occurring), substitute “38A or 38B”.

8 Transitional

(1) If, before the commencement of this Schedule, the Registrar had received an election under section 38 of the Child Support (Assessment) Act 1989 but had not varied the particulars of the Child Support Register as required by section 38 of that Act as in force immediately before the commencement of this Schedule, the Registrar must deal with the election as if the amendments made by this Schedule had not been made.

(2) If, before the commencement of this Schedule, the Registrar had received an application under section 39 of the Child Support (Assessment) Act 1989 as required by section 39 of that Act as in force immediately before the commencement of this Schedule, the Registrar must deal with the application as if the amendments made by this Schedule had not been made.

(3) The reference in subsection 39(1) of the Child Support (Assessment) Act 1989 as in force immediately after the commencement of this Schedule to an election made under section 38A includes a reference to an election made under section 38 of that Act as in force immediately before the commencement of this Schedule.

Schedule 5—Effect of child care arrangements on assessments

Child Support (Assessment) Act 1989

1 Section 5 (definition of relevant dependent child)

Repeal the definition, substitute:

relevant dependent child, in relation to a liable parent, means a child or step-child of the parent, but only if:

(a) the parent:

(i) is the sole or principal provider of ongoing daily care for the child or step-child; or

(ii) has major contact with the child or step-child; and

(b) the child or step-child is under 18 and is not a member of a couple; and

(c) in the case of a step-child:

(i) an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step-child; or

(ii) the parent has the duty, under section 58D of the Family Court Act 1975 of Western Australia, of maintaining the step-child.

2 Section 5 (definition of child support percentage)

Omit “and 54(b) and (c)”, substitute “, 54(1)(b) and (c) and 54B(f)”.

3 Section 5 (definition of major contact)

Omit “subsection 8(3)”, substitute “subsections 8(3) and 8A(5).

4 Section 5 (definition of substantial contact)

Omit “subsection 8(3)”, substitute “subsections 8(3) and 8A(4).

5 Before subsection 8(1)

Insert:

(1A) This section operates subject to section 8A.

6 Paragraph 8(3)(b)

Repeal the paragraph, substitute:

(b) either:

(i) another person has care of the child for at least 30%, but less than 40%, of the nights of the child support year concerned; or

(ii) another person has care of the child for less than 30% of the nights of the child support year concerned, but the principal provider of care and the other person agree that the other person has substantial contact with the child;

7 After section 8

Insert:

8A Interpretation—modification of meaning of care/contact if court order etc. contravened

(1) This section applies if:

(a) a court order or registered parenting plan in force in relation to a child deals with the person or persons with whom the child is to live, or with the contact between a child and another person or persons; and

(b) the Registrar is notified, or otherwise becomes aware, of the fact that a person is contravening the order or parenting plan; and

(c) the Registrar is satisfied, in accordance with the regulations, that the person does not have a reasonable excuse for contravening the order or parenting plan; and

(d) as a result of the contravention, a person has more care of the child than is provided for in the order or parenting plan and another person has less care of the child than is provided for in the order or plan.

(2) If this section applies, then for all purposes under this Act:

(a) a person who has more care of the child than is provided for in the court order or registered parenting plan is taken to have care of the child only to the extent (if any) permitted by the court order or parenting plan (as the case may be); and

(b) if another person has less care than is provided for in the court order or registered parenting plan, the amount of care that person has of the child is to be worked out on the basis of the care (if any) that the person actually has of the child; and

(c) section 8 does not apply to any person referred to in paragraph (a) or (b) in relation to the child; and

(d) the kind of care (if any) that each of those persons is taken to have is worked out under subsections (3), (4) and (5).

(3) If a carer has care of the child for at least 40%, but less than 60%, of the days of the child support year concerned, he or she is taken to have care of the child for 50% of those days and to share the ongoing daily care of the child with another person.

(4) If a carer has care of the child for at least 30%, but less than 40%, of the nights of the child support year concerned, he or she is taken to have care of the child for 35% of those nights, and is referred to in this Act as having substantial contact with the child.

(5) If a carer has care of the child for at least 60%, but less than 70% of the nights of the child support year concerned, he or she is taken to have care of the child for 65% of those nights and is referred to in this Act as having major contact with the child.

(6) If a person is taken, under this section, to share care of a child, or to have substantial or major contact with a child, the person cannot also be taken to be the sole or principal provider of ongoing daily care for the child.

(7) In this section:

court order means:

(a) a parenting order within the meaning of section 64B of the Family Law Act 1975; or

(b) a family violence order within the meaning of section 60D of the Family Law Act 1975; or

(c) an overseas child order registered under section 70G of the Family Law Act 1975; or

(d) a State child order registered under section 70D of the Family Law Act 1975.

registered parenting plan means a parenting plan registered under section 63E of the Family Law Act 1975.

Example 1: Rob and Chris separate on 28 April 1997. They have one child Yvonne. A parenting plan is registered by them in the Family Court at Melbourne on 3 March 1998. The plan provides that Yvonne will live with Rob at Rob’s home in Brisbane. It also provides that Yvonne will stay with Chris at Chris’s home in Adelaide for one half of Yvonne’s school holidays. Yvonne goes to stay with Chris for the last 2 weeks of the June school holidays. At the end of the holidays, Yvonne does not return to stay with Rob. Chris applies for child support for Yvonne on 14 December 1998.

To be eligible for an assessment of child support Chris must have lawful care that amounts to at least substantial contact. Under the terms of the registered parenting plan, Chris’s “lawful care” would amount to 39 days out of the 198 days remaining in the child support year (from 14 December to 30 June—i.e. 22 days in Dec/Jan; 7 days in April; 10 days in June) or 19.69% of days in the year. This equates to less than substantial contact. Chris, therefore, is not eligible for an assessment of child support (unless a new parenting plan is registered).

Example 2: A court order provides that Dani and Alex are to have joint parental and residential responsibility for Paul. The order provides that Paul is to reside with Dani each alternate week commencing Monday 30 June 1997. Paul is to reside with Alex each alternate week commencing Monday 7 July. The arrangement is to continue during the school holidays.

On 5 January Paul stays with Dani and does not go to live with Alex. Paul will now only be living with Alex every third week. Based on the current arrangement, over the 177 days remaining in the child support year, Alex will have care of Paul for 56 days and Dani will have care of Paul for 121 days.

Alex’s level of care (56 days out of 177 days) works out to be 31.63% and falls within the definition of substantial contact. Dani’s level of care (121 days out of 177 days) works out to be 68.36% and falls within the definition of major contact. However, under the court order, Dani would have had care of Paul for 86 days of the remaining 177 days i.e. 48.59%. Dani’s lawful care therefore amounts to shared care and Dani’s entitlement will be calculated on this basis, and not on the basis of Dani’s actual care.

Under the terms of the court order, Alex would have had care of Paul for 91 days of the remaining 177 days i.e. 51.41%. Alex’s lawful care therefore amounts to shared care. However, as Alex does not actually have care of Paul for that amount of time, Alex is entitled to be paid child support only to the level of Alex’s actual care. This works out to be 31.63% and falls within the definition of substantial contact.

8 At the end of Division 2 of Part 5

Add:

Subdivision H—Parents whose care is modified by effect of court order/parenting plan

54A Cases in relation to which Subdivision applies

(1) This Subdivision applies in relation to the parents of a child or children eligible for administrative assessment if:

(a) section 8A (which deals with the meaning of care and contact in situations where a court order or registered parenting plan has been contravened) applies to the parents; and

(b) as a result of the application of section 8A:

(i) one parent (the liable parent) is taken not to be an eligible carer of the child or any of the children (as the case requires); and

(ii) the other parent (the carer) is taken to share care of the child or all of the children (as the case requires) or to have substantial or major contact with the child or all of the children (as the case requires).

Note 1: If both the parents are eligible carers of one or more children of the parents, Subdivision E applies rather than this Subdivision.

Note 2: If the carer is the sole or principal provider of care for the child or children, Division 1 applies rather than this Subdivision.

54B Application of basic formula etc.

(1) In working out the annual rate of child support that is payable, in relation to a day in a child support year, by the liable parent to the carer:

(a) Division 1 (the basic formula) and, to the extent that it is applicable, Subdivision C of this Division (which deals with liable parents with high child support income) are to be applied to the carer and the liable parent in turn, but with the modifications made by paragraphs (c), (d), (e) and (f); and

(b) Subdivision D (carer parents with child support income of more than disregarded income amount) is not to be applied in relation to the carer; and

(c) the liable parent is taken to be a liable parent in relation to each of his or her children who is a child eligible for administrative assessment and for whom the other parent is an eligible carer, and the other parent is taken to be a carer entitled to child support in relation to each such child; and

(d) if either of the parents is a parent of a shared care child or children, the exempted income amount of that parent is to include an additional amount, worked out under subsection 39(2), for the child, or for each of the children; and

(e) in determining the exempted income amount of either parent, a child with whom the parent has substantial contact is to be disregarded; and

(f) the child support percentage of the carer is the percentage ascertained using the following table, with:

(i) the number attributed to each child with whom the carer has major contact taken to be 0.65; and

(ii) the number attributed to each child with whom the carer has substantial contact taken to be 0.35; and

(ii) the number attributed to a child with whom the carer has shared care taken to be 0.5.