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Child Support (Assessment) Regulations 1989

Authoritative Version
SR 1989 No. 259 Regulations as amended, taking into account amendments up to SLI 2008 No. 97
Principal Regulations
Administered by: Families, Housing, Community Services and Indigenous Affairs
Registered 01 Jul 2008
Start Date 01 Jul 2008
End Date 30 Jun 2011
Date of repeal 20 Mar 2018
Repealed by Child Support (Assessment) Regulations 2018

Child Support (Assessment) Regulations 1989

Statutory Rules 1989 No. 259 as amended

made under the

This compilation was prepared on 1 July 2008
taking into account amendments up to SLI 2008 No. 97

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra


Contents

                        1     Commencement                                                              3

                        2     Name of regulations [see Note 1]                                      3

                        3     Interpretation                                                                   3

                        4     Exclusion of certain children — section 22 of the Act          3

                      4B     Prescribed overseas jurisdictions (Act s 29)                       4

                      4C     Actions that may be taken by an overseas authority of a reciprocating jurisdiction         4

                        5     Excluded reciprocating jurisdictions (Act s 30A)                 4

                        7     Taxable income — prescribed provisions and circumstances 5

                      7A     Factor for making a determination                                     6

                      7B     Adjusted taxable income — prescribed circumstances        6

                      7C     Overseas income — conversion of currency                       7

                      7D     Prescribed payments                                                       7

                        8     Conversion of annual rates into daily rates of payment — child support period starting on or after 1 July 1999                                                                     8

                      8A     Conversion of periodic amounts into annual rates                9

                      9A     Circumstances in which Registrar’s jurisdiction ceases (Act s 150DA) 10

                       10     Scale of expenses under subsection 161 (2) of the Act      10

                       11     Service of orders                                                            10

                    11A     Service of notices etc                                                     11

                  11AA     Service of documents in Australia for overseas authority    12

                    11B     Address for service                                                         12

                    11C     Giving notices or other communications in reciprocating jurisdictions (Act s 162B)        12

                       12     Date of making of application etc                                     13

                       13     Documents taken to be duly signed                                 13

Schedule                Expenses to be allowed to person required to attend under section 161 of the Act          14

Notes                                                                                                          15

 


  

  

1              Commencement

                These Regulations commence on 1 October 1989.

2              Name of regulations [see Note 1]

                These regulations are the Child Support (Assessment) Regulations 1989.

3              Interpretation

                In these Regulations, unless the contrary intention appears:

Tax Act means the Income Tax Assessment Act 1936.

the Act means the Child Support (Assessment) Act 1989.

Note   Several other terms used in these Regulations have the meanings given by subsection 4 (1) of the Child Support (Registration and Collection) Act 1988. For example:

·      international maintenance arrangement

·      overseas authority

·      reciprocating jurisdiction.

4              Exclusion of certain children — section 22 of the Act

                A child is not an eligible child if he or she is in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law:

                (a)    of the State of:

                        (iv)    South Australia; or

                         (v)    Western Australia; or

               (b)    in force in:

                          (i)    Norfolk Island; or

                         (ii)    Christmas Island; or

                         (iii)    Cocos (Keeling) Islands.

4B           Prescribed overseas jurisdictions (Act s 29)

                For subsection 29 (2) of the Act, each reciprocating jurisdiction is a prescribed overseas jurisdiction.

4C           Actions that may be taken by an overseas authority of a reciprocating jurisdiction

                For subsections 29B (2) and (3) of the Act, the following actions are prescribed:

                (a)    making an election of any kind under a provision of the Act;

               (b)    under Part 6A of the Act, applying for a departure determination;

                (c)    under Part 7 of the Act, filing an application for leave to appeal and appealing against a decision;

               (d)    under Part 7 of the Act, applying for a departure order;

                (e)    subject to Part VII of the Registration and Collection Act, lodging an objection to a decision;

                (f)    subject to Part VIIA of the Registration and Collection Act, applying to the SSAT for review of a decision;

                (g)    subject to Part VIII of the Registration and Collection Act, appealing a decision of the SSAT on an error of law.

5              Excluded reciprocating jurisdictions (Act s 30A)

                For section 30A of the Act, the following reciprocating jurisdictions are specified:

                (a)    Brunei Darussalam;

               (b)    Cook Islands;

                (c)    Israel;

               (d)    Niue;

                (e)    Papua New Guinea;

                (f)    Samoa;

                (g)    the Yukon Territory of Canada.

7              Taxable income — prescribed provisions and circumstances

         (1)   For paragraphs 56 (2) (b) and (c) of the Act, the following provisions and circumstances are prescribed:

                (a)    sections 78A, 82KJ, 82KK, 82KL, 136AF and 177F of the Tax Act;

               (b)    a provision that is a prescribed provision within the meaning of subsection 170 (14) of the Tax Act;

                (c)    the circumstances in which subsection 170 (9B) of the Tax Act applies.

         (2)   The following circumstance is also prescribed for paragraph
56 (2) (c) of the Act:

                (a)    the Commissioner has written to a person (the taxpayer):

                          (i)    about an announcement by the Commissioner, on
14 February 2002, allowing taxpayers who were investors in schemes identified by the Commissioner as mass marketed tax effective schemes a deduction for certain actual cash outlays; and

                         (ii)    proposing to amend the tax assessment of the taxpayer to the effect that the taxable income of the taxpayer for a particular year of income is reduced, taking into account that kind of cash outlay; and

               (b)    the taxpayer has responded, accepting the Commissioner’s proposal; and

                (c)    the Commissioner has later amended the tax assessment of the taxpayer, making a reduction in the taxable income of the taxpayer for the year of income in accordance with the Commissioner’s proposal.

         (3)   For paragraph 57 (7) (a) of the Act, the following circumstances are prescribed:

                (a)    the circumstance in which a tax assessment under the Tax Act could be amended to give effect to the provisions of the Tax Act; or

               (b)    the circumstances mentioned in paragraph (1) (c) or subregulation (2).

7A           Factor for making a determination

                For subsection 58 (3A) of the Act, the factor for determining a parent’s adjusted taxable income for a year of income in relation to a child support period is the change in the all employees average weekly total earnings amount for persons in Australia (trend estimate) for the relevant September quarter, from the corresponding quarter of the previous year, as published by the Australian Statistician before the calendar year in which the child support period started.

7B           Adjusted taxable income — prescribed circumstances

         (1)   For paragraph 58A (2) (c) of the Act, the following circumstances are prescribed:

                (a)    the parent was unable to provide information about adjusted taxable income to the Registrar at the time the administrative assessment was made because at that time:

                          (i)    the parent did not know that an application for the assessment had been made and accepted; or

                         (ii)    the parent had a serious illness or injury; or

                         (iii)    the parent was under detention or imprisonment; or

                        (iv)    the parent resided in a remote location which made it difficult to contact the Registrar; or

                         (v)    a natural disaster prevented the parent from being able to contact the Registrar; or

                        (vi)    there was some other exceptional circumstance that prevented the parent from providing the information;

               (b)    the Registrar confirms that the parent was unable to provide the information because of a circumstance mentioned in paragraph (a);

                (c)    the parent later provides the information to the Registrar as soon as is practicable in the circumstances.

         (2)   For paragraph 58A (2) (c) of the Act, the following circumstance is also prescribed:

                (a)    during the last relevant year of income for the child support period for which the Registrar made the administrative assessment, the parent resided overseas and was not, under the Tax Act, required to lodge a tax return;

               (b)    the parent provides the information about adjusted taxable income to the Registrar within a reasonable time in the circumstances.

7C           Overseas income — conversion of currency

         (1)   For the purpose of determining, under Subdivision BA of Division 7 of Part 5 of the Act, an amount of income expressed in foreign currency to be a person’s overseas income, the Registrar must convert the amount into an equivalent amount in Australian currency.

         (2)   The amount must be worked out in accordance with:

                (a)    the average exchange rate for the foreign currency for the financial year in which the income was derived, being the average of the telegraphic transfer rates published by the Commonwealth Bank of Australia for that currency for that financial year; or

               (b)    if no such rate is available for the foreign currency for that financial year — an exchange rate for the foreign currency that the Registrar considers appropriate.

7D           Prescribed payments

         (1)   For paragraph (b) of the definition of income in subsection 66A (4) of the Act, the following payments are prescribed:

                (a)    payments, in the nature of an amenity allowance or gratuity, authorised by the Governor of a prison, to a person serving a term of imprisonment in the prison, to the extent that the payment is not for:

                          (i)    work done by the person inside or outside the prison; or

                         (ii)    approved study undertaken by the person inside or outside the prison; or

                         (iii)    participation by the person in any other program approved by the Governor;

               (b)    support pension payments of the following kinds:

                          (i)    disability support pension paid to a person under the social security law;

                         (ii)    pension paid to a veteran who is totally and permanently incapacitated as mentioned in paragraph 24 (1) (b) of the Veterans’ Entitlements Act 1986;

                         (iii)    Special Rate Disability Pension paid to a person under Part 6 of Chapter 4 of the Military Rehabilitation and Compensation Act 2004.

         (2)   For paragraph (1) (b), a pension is a support pension only if the Registrar is satisfied that:

                (a)    at least 85% of the pension is paid by, or on behalf of, the pension recipient to another person; and

               (b)    the other person provides ongoing care to the pension recipient in return for the payment.

         (3)   In this regulation:

amenity allowance or gratuity means periodical payments of an incidental nature to a person for any of the following:

                (a)    the purchase of personal items such as toiletries;

               (b)    other minor expenses.

Governor means the person in charge of a prison, however described.

social security law has the same meaning as in subsection 3 (3) of the Social Security (Administration) Act 1999.

8              Conversion of annual rates into daily rates of payment — child support period starting on or after 1 July 1999

         (1)   For section 69 of the Act, an annual rate of child support is to be converted into a daily rate by using the formula:

where:

DR is the daily rate of payment; and

AR is the annual rate of payment.

         (2)   In calculating a conversion, the calculation must be made to 6 decimal places and:

                (a)    if the final figure is greater than 4 — the second‑last figure must be increased by 1 and the final figure then disregarded; and

               (b)    if the final figure is 4 or less, it must be disregarded.

8A           Conversion of periodic amounts into annual rates

                If a child support agreement refers to a periodic amount of payment (in this regulation referred to as the periodic amount) the annual rate of payment (in this regulation referred to as the annual rate) in respect of the periodic amount is to be assessed as follows:

                (a)    in the case of a daily amount — in accordance with the following formula: ; and

               (b)    in the case of a weekly amount — in accordance with the following formula: ; and

                (c)    in the case of a periodic amount that is in respect of a period that is a multiple of one week — in accordance with the following formula:; and

               (d)    in the case of a monthly amount — in accordance with the following formula: ; and

                (e)    in the case of a periodic amount that is in respect of a period that is a multiple of one month — in accordance with the following formula: ; and

                (f)    in the case of a yearly amount — in accordance with the following formula: ;

where:

AR is the annual rate; and

NM is the number of months in respect of which the periodic amount is specified; and

NW is the number of weeks in respect of which the periodic amount is specified; and

PA is the periodic amount.

9A           Circumstances in which Registrar’s jurisdiction ceases (Act s 150DA)

         (1)   For section 150DA of the Act, Article 5.2 of the Australia‑New Zealand Agreement is prescribed.

         (2)   In this regulation:

Australia‑New Zealand Agreement means the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance done at Canberra on 12 April 2000, a copy of the text of which is set out in Schedule 1 to the Child Support (Registration and Collection) Regulations 1988.

10            Scale of expenses under subsection 161 (2) of the Act

         (1)   For the purposes of subsection 161 (2) of the Act, the scale of expenses set out in the Schedule is prescribed.

         (2)   A reference in the Schedule to the High Court Rules is a reference to the High Court Rules as in force from time to time.

11            Service of orders

                A copy of an order under subsection 162 (1) of the Act must be served on the person to whom the order is addressed:

                (a)    where the person is a natural person:

                          (i)    by delivering the copy to the person personally; or

                         (ii)    by leaving the copy at, or sending the copy by pre‑paid post to, the address of the person last known to the proper officer of the court; or

               (b)    where the person is a body corporate — by leaving the copy at, or sending the copy by pre‑paid post to, the head office, a registered office or a principal office of the body corporate.

11A         Service of notices etc

         (1)   Any notice or other communication by or on behalf of the Registrar may be served on a person:

                (a)    if the person is a natural person:

                          (i)    by causing it to be personally served on the person; or

                         (ii)    by leaving it at the person’s address for service; or

                         (iii)    by sending it by pre‑paid post to the person’s address for service; or

               (b)    if the person is a body corporate:

                          (i)    by leaving it at the person’s address for service; or

                         (ii)    by leaving it at, or sending it by pre‑paid post to, the head office, a registered office or a principal office of the body corporate;

and in any case in which service has been attempted by use of the pre‑paid post, unless the contrary is proved, service will be taken to have been effected at the time when the notice or other communication would, in the ordinary course of the post, have arrived at the place to which it was addressed.

         (2)   For subregulation (1), if the person has consented to receiving the notice or other communication, or notices or communications of that kind, by way of electronic communication:

leaving it at the person’s address for service includes delivering the notice or other communication by means of electronic communication.

         (3)   In this regulation:

consent has the meaning given by section 5 of the Electronic Transactions Act 1999.

electronic communication has the meaning given by section 5 of the Electronic Transactions Act 1999.

11AA      Service of documents in Australia for overseas authority

                If a document is required to be served by an overseas authority of a reciprocating jurisdiction on a person who is in Australia, the Registrar (or a person authorised to do so on the Registrar’s behalf) may serve the document on behalf of the overseas authority if it is necessary or convenient to do so for the purposes of an international maintenance arrangement with the reciprocating jurisdiction.

11B         Address for service

         (1)   The address last notified by a person to the Registrar as the address for service of the person is, for all purposes under the Act and Regulations, that person’s address for service.

         (2)   If no address for service has been notified to the Registrar but the Registrar’s records nevertheless contain an address attributed to the person, the last such address in any record held by the Registrar is the person’s address for service under the Act and Regulations.

         (3)   For this regulation:

address for service includes both:

                (a)    the person’s address for the physical delivery of notices; and

               (b)    the person’s address for the electronic delivery of notices.

11C         Giving notices or other communications in reciprocating jurisdictions (Act s 162B)

                For section 162B of the Act, a notice or other communication that is required to be given to a person who is a resident of a reciprocating jurisdiction may be given to an overseas authority of the reciprocating jurisdiction, if the Registrar considers that it is desirable or appropriate to do so.

12            Date of making of application etc

         (1)   An application for administrative assessment or for the acceptance of a child support agreement is to be taken to have been made on the day on which the application is received in an office of:

                (a)    Commonwealth Services Delivery Agency (Centrelink); or

               (b)    the Child Support Agency; or

                (c)    the Australian Taxation Office.

         (2)   An election under section 60 of the Act, or a revocation under section 62, is to be taken to have been made on the day on which the form of election or revocation is received in any of the offices referred to in subregulation (1).

         (3)   Where any other matter is required by the Act to be done in an approved form, the form is to be taken to have been received on the day on which the form is received in any of the offices referred to in subregulation (1).

13            Documents taken to be duly signed

         (1)   A certificate, notice or other document bearing the written, printed or stamped name (including a facsimile of the signature) of a person who is, or was at any time, the Registrar or a delegate of the Registrar in place of that person’s signature must, unless it is proved that the document was issued without authority, be taken to have been duly signed by that person.

         (2)   Judicial notice must be taken of the names and signatures of the persons who are, or were at any time, the Registrar or a delegate of the Registrar.


Schedule           Expenses to be allowed to person required to attend under section 161 of the Act

(regulation 10)

  

       1.       Any person required to attend:

              (a)     in the case of a person remunerated by wages, salary or fees — such amount as is provided for in the High Court Rules in relation to expenses of witnesses so remunerated; or

                      (b)     in any other case — such amount as is provided for in the High Court Rules in relation to expenses of witnesses generally.

       2.       Any person required to attend — such amount as is reasonable:

                        (a)     in respect of that person’s conveyance to and from the place at which that person so attends; and

                        (b)     if that person is required to be absent overnight from his or her usual place of residence — in respect of meals and accommodation.

     (3)       Any person required to attend who is a payer, payee or a personal representative of either — nil.


Notes to the Child Support (Assessment) Regulations 1989

Note 1

The Child Support (Assessment) Regulations 1989 (in force under the Child Support (Assessment) Act 1989) as shown in this compilation comprise Statutory Rules 1989 No. 259 amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non-exempt legislative instruments to be registered on the Federal Register of Legislative Instruments.  From 1 January 2005 the Statutory Rules series ceased to exist and was replaced with Select Legislative Instruments (SLI series).  Numbering conventions remain the same, ie Year and Number.

Table of Instruments

Year and
number

Date of
notification in
Gazette or FRLI registration

Date of
commencement

Application, saving or
transitional provisions

1989 No. 259

29 Sept 1989

1 Oct 1989

 

1991 No. 81

30 Apr 1991

30 Apr 1991

1992 No. 63

5 Mar 1992

5 Mar 1992

1993 No. 131

17 June 1993

17 June 1993

1994 No. 129

3 May 1994

3 May 1994

1995 No. 179

30 June 1995

30 June 1995

1995 No. 292

10 Oct 1995

1 Nov 1995

1996 No. 142

1 July 1996

1 July 1996

1996 No. 273

11 Dec 1996

1 Jan 1997

1997 No. 170

30 June 1997

1 July 1997

1997 No. 374

23 Dec 1997

23 Dec 1997

1998 No. 164

25 June 1998

1 July 1998

1999 No. 5

8 Feb 1999

8 Feb 1999

1999 No. 103

17 June 1999

1 July 1999

1999 No. 286

2 Dec 1999

15 Dec 1998

1999 No. 313

15 Dec 1999

15 Dec 1999

2001 No. 204

2 Aug 2001

2 Aug 2001

2002 No. 340

20 Dec 2002

14 Feb 2002

2004 No. 122

18 June 2004

18 June 2004

2004 No. 177

1 July 2004

1 July 2004

2006 No. 146

27 June 2006 (see F2006L01936)

1 July 2006 (see r. 2)

2007 No. 219

19 July 2007 (see F2007L02265)

19 July 2007 (see r. 2)

2008 No. 97

2 June 2008 (see F2008L01898)

1 July 2008

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted

 

Provision affected

How affected

R. 2.........................................

rs. 1999 No. 5

R. 3.........................................

am. 2008 No. 97

Note to r. 3.............................

ad. 2007 No. 219

R. 3A.......................................

ad. 1999 No. 103

 

am. 2006 No. 146

 

rep. 2008 No. 97

R. 4.........................................

rs. 1993 No. 131

 

am. 1995 No. 292; 1996 No. 273; 1999 No. 5; 2008 No. 97

R. 4A.......................................

ad. 2007 No. 219

 

rep. 2008 No. 97

R. 4B......................................

ad. 2007 No. 219

R. 4C......................................

ad. 2008 No. 97

R. 5.........................................

rep. 1993 No. 131

 

ad. 2007 No. 219

R. 6.........................................

rs. 1991 No. 81

 

am. 1992 No. 63; 1993 No. 131; 1994 No. 129; 1995 No. 179;1996 No. 142; 1997 No. 170; 1998 No. 164

 

rep. 2007 No. 219

R. 7.........................................

am. 2002 No. 340

 

rs. 2008 No. 97

R. 7A.......................................

ad. 1993 No. 131

 

rs. 2008 No. 97

R. 7AA....................................

ad. 2007 No. 219

 

rs. 1997 No. 374; 1999 No. 286

 

rep. 2008 No. 97

R. 7B......................................

ad. 1993 No. 131

 

rep. 1997 No. 374

 

ad. 1999 No. 103

 

am. 2006 No. 146

 

rs. 2008 No. 97

R. 7C......................................

ad. 1993 No. 131

 

rep. 1997 No. 374

 

ad. 1999 No. 103

 

rs. 1999 No. 313; 2008 No. 97

R. 7CA....................................

ad. 2001 No. 204

 

am. 2004 No. 177

 

rep. 2008 No. 97

R. 7D......................................

ad. 1999 No. 286

 

rs. 2008 No. 97

Heading to r. 8......................

rs. 1999 No. 286

R. 8.........................................

am. 1991 No. 81; 1997 No. 374; 1999 No. 286

R. 8A.......................................

ad. 1991 No. 81

R. 9.........................................

am. 1994 No. 129; 1997 No. 170

 

rep. 2008 No. 97

R. 9A.......................................

ad. 2007 No. 219

R. 11A....................................

ad. 1994 No. 129

 

am. 2004 No. 122

R. 11AA..................................

ad. 2007 No. 219

R. 11B....................................

ad. 1994 No. 129

 

am. 2001 No. 204

 

rs. 2004 No. 122

R. 11C....................................

ad. 2007 No. 219

R. 12.......................................

am. 1999 No. 103

R. 13.......................................

ad. 1991 No. 81

 

am. 1994 No. 129

Schedule

 

Schedule...............................

am. 1994 No. 129