House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families, Community Services and Indigenous Affairs, the Hon Mal Brough MP)

Schedule 4 - Other amendments commencing 1 January 2007

Summary

This Schedule provides for the other reforms that will commence on 1 January 2007. In particular, the relationship between the courts and the new Child Support Scheme will be simplified, particularly in relation to parentage. Parents will have better access to court enforcement of child support debts and courts will have increased powers to seek information and evidence in those cases and to make interim arrangements for their child support cases generally. A further measure addresses the fact that, currently, the Child Support Registrar can backdate changes of assessment for an almost unlimited period of time. This will be amended so that the Registrar can only backdate changes of assessment for 18 months, or a court for up to seven years.

Background

BACKDATING OF CHANGES OF ASSESSMENT TO BE LIMITED TO 18 MONTHS EXCEPT IN CERTAIN CIRCUMSTANCES

Currently, an application for a change of assessment may be made for an almost unlimited period of time. Section 98B of the Child Support Assessment Act provides that 'at any time when an administrative assessment is in place in relation to a child', the liable parent or carer may make an application for a departure from that assessment. Subsection 98K(1) provides that if at any time when an administrative assessment is in force in relation to a child, the Registrar is of the view that special circumstances exist, the Registrar may make a determination that the administrative assessment should be departed from. That is, an application for a change of assessment may open past periods of child support to review. In some circumstances, if a parent wishes to avoid paying a large outstanding child support debt, he or she may apply for a change of assessment for a past period, thus making it difficult for the Child Support Agency to enforce that debt. This would occur if a Senior Case Officer determined it was just and equitable and otherwise proper to backdate a reduction to the assessment. A change of assessment can also be used retrospectively to create debt.

The changes in this Schedule limit the time period for which a change of assessment can be backdated to 18 months before the liable parent or carer lodged the application, or the Registrar notified the parties of his or her intention to make a determination. The exception to this rule is where the parent or liable carer, or the Registrar applies to the court for leave for the change of assessment to be backdated for a period of up to seven years. The court can grant leave for the Registrar to backdate the matter for a period of longer than 18 months. In this case, the court may order that the matter can be backdated for a specific period, such as three years, or allow the Registrar to determine the period, not longer than seven years, for which the change of assessment will be backdated. Alternatively, the court can grant leave to itself to make an order in relation to the matter.

In making its decision, either in granting leave to the Registrar, or making an order itself, the court must consider a series of factors. These factors include the responsibility and reason for the delay in making the application, and any hardship which may result if leave is not granted, as well as any other relevant factors.

PARENTAGE DECLARATION WHERE THE PAYER IS NOT A PARENT OF THE CHILD

These measures are to address the perception that it is difficult for a person who has paid child support and later discovers that they are not the parent of the child to recover the child support they have paid. In order to recover child support paid, the former payer must obtain a court declaration of parentage, and seek repayment of the amounts paid to the child's carer. The role of determining the parentage of a child will remain with the courts. As with the present legislative provisions, a person who believes that they are not the parent of the child they are supporting under a child support assessment must make application to a court for a declaration that the child support assessment should not have been made. Instead of the non-parent then being required to make a separate application seeking repayment of amounts paid, the court must proceed as soon as is practicable to consider making an order under section 143 about repayment. This is in order to minimise court costs and uncertainty for both parties. Accordingly, this Schedule also inserts subsection 107(6) which requires the court to consider immediately whether any repayments should be made.

This Schedule also amends section 143 of the Child Support Registration and Collection Act, and clarifies the factors a court must consider when deciding whether or not to order that child support should be repaid. These factors allow the court to consider the situation of all parties, including the biological father, and to consider all aspects of the relationship between the former payer and the child in determining whether the child support mistakenly paid should be repaid. However, even if a payer obtains a court order that the payee should repay amounts of child support, their position in terms of enforcement of the order is subject to the former payee's resources. Accordingly, the former payer's ability to enforce this order may be quite limited. By contrast, the Registrar has powers to intervene to recover debts from a payer under a child support assessment using powers to access bank accounts, tax returns and wages. This Schedule amends the definition and application of a registrable maintenance liability . In particular, an order under section 143 for a former payee to repay child support to a former payer becomes a registrable maintenance liability. This means that a former payer of a child support liability is put in the same position as the former payee where the former payer is owed repayment of a child support related debt.

PAYEE PRIVATE ENFORCEMENT OF CHILD SUPPORT DEBTS

Currently, a payee who has registered a child support liability for collection with the Registrar assigns responsibility for the debt entirely. If such a payee is involved in court action to resolve, for example, the division of property, he or she must ask the Registrar to intervene in relation to the child support matters. Such a payee has no power to require the Registrar to take any particular step. A payee may opt for private collection, and cease to have the liability registered with the Registrar for collection. However, a payee cannot take action to enforce the debt, while the ongoing liability is registered with the Registrar for collection.

The present amendments allow the payee to take private enforcement action, in relation to child support debts, while the Registrar may undertake other enforcement action at the same time. This results in benefits for payees, is efficient in terms of court time and saves administrative costs.

Explanation of the changes

Part 1 - Amendments

Child Support Assessment Act

Item 1 omits from paragraph 76(3)(aa) ',subject to subsection 98(3)'. This change is required because section 98 is being repealed.

Item 2 repeals paragraph 76(3)(b). This paragraph provides that a notice of assessment must draw the attention of the carer entitled to child support parent and the liable parent to the right to apply to a court for review in certain circumstances. As court review is being replaced, in the first instance, with review by the SSAT, this paragraph is no longer relevant.

Item 3 repeals the heading of Part 6A and substitutes:

Part 6A - Departure from administrative assessment of child support (departure determinations) Item 4 repeals and substitutes Division 1 of Part 6A.

Division 1 - Preliminary

New section 98A sets out a simplified outline of Part 6A.

Item 5 omits from the note at the end of subsection 98B(1) the word 'Note' and substitutes 'Note 1,'

Item 6 adds at the end of subsection 98B(1) a further note. Section 98B provides that a parent may apply for a determination that the provisions of the Act dealing with administrative assessments should be departed from in relation to the child. This section does not include any time limits on such an application. This note clarifies that the Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant application is made with a court's leave under section 112. This relates to the amendments to subsection 98S(3B) below.

Item 7 omits from the note at the end of subsection 98K(1) the word 'Note' and substitutes 'Note 1,'

Item 8 adds at the end of subsection 98K(1) a further note. Section 98K provides that the Registrar may initiate a determination under Part 6A. This section does not include any time limits on such an application. This note clarifies that the Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant application is made with a court's leave under section 112. This relates to the amendments to subsection 98S(3B) below.

Item 9 omits from subsection 98S(1) the words 'Subject to section 98A, the' and substitutes 'The'. This change is required because section 98A now sets out a simplified outline of Part 6A and does not have any effect on section 98S.

Item 10 inserts at the end of subsection 98S(1) a note which states that there are limitations on the Registrar making a determination that varies an annual rate of child support below the minimum annual rate of child support (see section 98SA).

Item 11 inserts after subsection 98S(3A) new subsections 98S(3B) and (3C). Subsection 98S(3B) provides that the Registrar may only make a determination under Part 6A that is in respect of a day in a child support period that is more than 18 months earlier than the day on which the liable parent or carer lodged the application under section 98B, or the Registrar notified the relevant parties under subsection 98M(1) if the court has granted leave for such a determination under section 112.

Subsection 98S(3C) provides that if a court has granted leave under section 112, the Registrar may only make a determination in respect of a day if the day is within the period specified by the court. For example, if the court specifies that the change of assessment may be backdated for up to three years, the Registrar cannot make a determination that is backdated for longer than three years.

Item 12 inserts at the end of Division 4 of Part 6A a new section 98SA. Subsection 98SA(1) provides that the Registrar must not make a determination that varies, or has the effect of varying, the child support payable by a liable parent in respect of a day to less than the minimum annual rate of child support. Subsection 98SA(2) creates an exception to the general rule in subsection 98SA(1) and provides that the Registrar may make a determination that varies, or has the effect of varying, the child support payable by a liable parent to less than the minimum annual rate of child support if section 66 does not apply in relation to the child. Section 98SA will be amended by the amendments which will commence on 1 July 2008.

Item 13 inserts at the end of section 107 a new subsection 107(6). It provides that if the court grants the declaration, the court must, as soon as practicable, consider making an order under section 143. In other words, as soon as the court grants the declaration that the person is not a parent of the child, the court must consider whether to make an order that the payee is to pay back certain amounts of child support (see item 23 ).

Item 14 repeals and substitutes Division 3 of Part 7.

Division 3 - Application for amendment of administrative assessment that is more than 18 months old

New section 110 sets out a simplified outline of Division 3.

New section 111 deals with applications by a parent or carer. Subsection 111(1) provides that a liable parent or a carer entitled to child support may apply to a court for leave for the Registrar to make a determination under section 98S, or for a court to make an order under section 118, that the determination or order can be backdated for longer than 18 months, but for less than seven years. Subsection 111(2) sets out that, subject to the Registrar's right to intervene in proceedings, the parties to the application under subsection 111(1) are the applicant and either the liable parent or the carer entitled to child support. Subsection 111(3) deals with applications by the Registrar and provides that the Registrar may apply to a court for leave to make a determination that is backdated for longer than 18 months, but less than seven years. Subsection 111(4) provides that the parties to the application under subsection 111(3) are the applicant (that is, the Registrar), and either the liable parent or the carer entitled to child support.

New section 112 provides that a court may grant leave to amend an administrative assessment that is more than 18 months old. Subsection 112(1) provides that the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118.

Subsection 112(2) provides that the court may proceed to consider the matter under section 118 at the same time as it considers whether to grant leave, if the court considers it would be in the interests of the parties to do so.

Subsection 112(3) provides that the court may otherwise grant leave for the Registrar to make a determination under section 98S.

Subsection 112(4) sets out the matters that the court must consider, including the responsibility for any delay in making an application or determination, and any hardship to the applicant and other parties (other than the Registrar) if leave is granted. Subsection 112(5) provides that the court may consider any other factors.

Subsection 112(6) provides that the court must specify the period in respect of which the Registrar may make a determination, or the court may make an order. Subsection 112(7) provides that the period specified in subsection 112(6) must not include a day in a child support period if the day is more than seven years earlier than the day on which the application under section 111 was made and is not limited by the terms of that application. In other words, even if the liable parent or carer, or the Registrar specified in their application that any order should relate to a period of two years, the court is not limited by this, and make choose another period, such as five years prior to the date of application. However, the court is still limited to making this period less than seven years prior to the date of application.

Subsection 112(8) provides that the granting of leave under subsection 112(1) does not imply that the Registrar is required to make a determination or that the court is required to make an order.

New section 113 provides that when a decision of a court is made under Division 3, the Registrar must immediately take such action (if any) as is needed to give effect to the decision.

Section 113A provides that subject to any stay orders made, the fact that a proceeding is pending under this Division does not, in the meantime, interfere with or affect, any administrative assessment made in relation to the person. It also provides that any such assessment may be registered under the Child Support Registration and Collection Act, and amounts of child support and other amounts recovered in relation to the assessment as if no proceeding were pending.

Item 15 repeals the heading of Division 4 of Part 7 and substitutes:

Division 4 - Orders for departure from administrative assessment in special circumstances (departure orders)

Item 16 inserts before section 114 new section 113B, which sets out a simplified outline of Division 4.

Item 17 repeals section 115. Because the range of matters in relation to which courts will have jurisdiction is more limited as a result of this Bill, section 115 is no longer correct.

Item 18 repeals and replaces subsections 116(1), (1A) and (1B) with new subsection 116(1). New subsection 116(1) sets out the matters in relation to which a person may apply to a court. Because the SSAT will be established in order to review many matters (see Schedule 3), direct applications to the court will be limited. As with the current subsection 116(1), the person must first go through the internal review procedure. Subsection 116(1) provides that a person may apply to a court if:

(a)

all of the following apply:

(i)

the Registrar has refused to make a departure determination, under section 98E or 98R because the matters are too complex to be dealt with administratively; and

(ii)

an objection to the refusal has been lodged under section 80 of the Child Support Registration and Collection Act; and

(iii)

the Registrar has disallowed the objection; or

(b)

both of the following apply:

(i)

the person is a liable parent carer entitled to child support who is a party to an application pending in a court;

(ii)

the court is satisfied that it would be in the interest of the carer entitled to child support and the liable parent for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.

That is, if there are other matters before the court that involve one or the other of the parents, for example, family law or bankruptcy matters, then the parent can ask the court also to consider the child support matter, without first going through internal review. The court may consider whether to hear the child support matter together with the other matter. If the court chooses not to hear the child support matter, the parent must go through the internal review processes. In accordance with paragraph 116(1)(a), the parent may appeal to the court after the internal review process is complete if he or meets one of the conditions in paragraph 116(1)(a). If the court chooses to hear the child support matter, regardless of whether the other matter is finalised before the child support matter is heard, the court retains its jurisdiction in relation to the child support matter. The inclusion of the words in the present paragraph 116(1B)(b) 'at the same time as it hears that application' does not allow this.

Alternatively, a person may apply to a court in the situation set out in paragraph 116(1)(c), which provides that in the case of a liable parent, the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1). That is, a person may apply if under subsection 66(1) the amount of child support payable by that person has been determined to be the minimum annual rate. As subsection 66(1) only applies to a payer, a payee cannot apply under paragraph 116(1)(c).

Two notes following the section explain that the orders a court may make are set out in section 118, and that the court may make an order for a period that is more than 18 months ago if the court gives leave.

Applications made under subsection 116(1) must only relate to a period 18 months prior to the date of application. If the applicant wants the court to consider a period longer than 18 months, but less than seven years, in accordance with section 111, he or she must apply to the court for leave for a court order, or departure determination to be made in relation to a period longer than 18 months prior to the day of application.

Item 19 inserts after subsection 118(2A) new subsections 118(2B) and (2C). Subsection 118(2B) provides that a court may only make an order under this Division in respect of a day in a child support period that is more than 18 months earlier than the day on which the application for that order is made under section 116 if the court has granted leave under section 112. Subsection 118(2C) provides that the court may only make an order if it is within the period specified by the court, under subsection 112(6), in the order granting leave. Subsections 118(2B) and 118(2C), together with subsection 116(1), ensure that applications to, and orders by, the court cannot relate to a period longer than 18 months prior to the application unless the process in sections 111 and 112 is followed.

Item 20 amends subsection 123(3) by omitting 'Division 4 (Orders for departure from administrative assessment in special circumstances)' and substitute 'Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders)'. This change ensures that the court must determine any application for orders in relation to administrative assessments more than 18 months old before considering any applications for provision of child support otherwise than in the form of periodic amounts paid to carer.

Item 21 inserts after paragraph 124(2)(a) a new paragraph 124(2)(aa). It provides that in determining orders for provision of child support otherwise than in the form of periodic amounts, the court must consider any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent. Item 21 is to ensure that the court considers all the circumstances, including any changes to the child support assessment, when making orders for child support to be paid non-periodically.

Item 22 omits from paragraph 124(2)(b) the words '(Orders for departure from administrative assessment in special circumstances)' and substitutes '(departure orders),'

Item 23 inserts after subsection 143(3) new subsections 143(3A) and (3B). Subsection 143(3A) provides that it applies if a payer has paid child support to the payee, and the court has made a declaration under section 107 that the administrative assessment of child support should not have been made for that child the court must consider whether to make an order for repayment of child support, and if so whether the amount is to be repaid by instalments or in a lump sum. In that case, the court must have regard to the matters set out in subsection 143(3B). Subsection 143(3A) does not limit subsection 143(3). The matters set out in subsection 143(3B) are:

(a)

whether the payee or the payer knew, or ought reasonably to have known, that the parent was not a parent of the child;

(b)

whether the payer or payee engaged in any conduct that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;

(c)

whether there was any delay by the payer in applying under section 107 for a parentage declaration once he or she knew, or should reasonably have known, that he or she was not the parent of the child;

(d)

whether there is any other child support that is, or may become, payable to the payee for the child by the person who is the parent of the child;

(e)

the relationship between the payer and the child;

(f)

the financial circumstances of the payee and the payer.

Child Support Registration and Collection Act

Item 24 amends the definition of registrable maintenance liability in subsection 4(1) by inserting ', 17A' after '17'. This change is required because an order under section 143 for a payee to repay child support to the payer where the payer was not a parent of a child will become a registrable maintenance liability (see item 25 ).

Item 25 inserts after section 17 a new section 17A. Section 17A provides that if a liability is a liability of a person (the payer) to pay an amount to another person (the payee), and resulted from the payer being granted a declaration under section 107 that he or she was not a parent of the child, and the court made an order under section 143 requiring the person who received the child support to repay some or all of it, that liability is a registrable maintenance liability. In other words, payer and payee , for the purposes of section 17A have a different meaning to what they usually do for child support purposes.

Item 26 amends paragraph 19(2)(a) by inserting ', 17A' after '17'. This change is required because an order under section 143 for a payee to repay child support to the payer where the payer was not a parent of a child will become a registrable maintenance liability (see item 25 ).

Item 27 repeals and substitutes subsection 30(3). The current subsection 30(3) provides that if a registrable maintenance liability is registered under the Child Support Registration and Collection Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability. This means that that payee cannot bring enforcement proceedings in a court in relation to a child support debt. New subsection 30(3) also provides that if a registrable maintenance liability is registered under the Child Support Registration and Collection Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability. However, it creates an exception to this general prohibition where the payee takes enforcement action under section 113A (see item 39 ) to recover a debt due in relation to the liability.

Item 28 inserts after subsection 37B(7) a further subsection 37B(7A). Subsection 37B(7A) provides that section 37B does not prevent a payee of a registered maintenance liability from instituting a proceeding under section 113A during a low-income non-enforcement period to recover a debt due in relation to the liability. In general, a registered maintenance liability which is a debt under subsection 30(1) is not to be enforced by the Registrar during a low-income non-enforcement period. However, this change ensures that a payee can take action to recover a child support debt during a low-income non-enforcement period. Private enforcement proceedings brought by the payee may allow the payer to apply for the court to vary the order for child maintenance, given the payer's circumstances.

Item 29 omits from section 70 'where' and substitutes '(1) If'. This change is required because of the insertion of a new subsection 70(1).

Item 30 adds at the end of section 70 a new subsection 70(2). Subsection 70(2) provides that apportionment of payment between payees does not apply to amounts paid to the Registrar in accordance with a court order made in relation to a proceeding instituted by a payee of a registered maintenance liability under section 113A to recover a debt due in relation to the liability. This ensures that a payee, who has taken court action to recover child support debts, still receives any money recovered, even if the money is paid first to the Registrar, rather than directly to the payee himself or herself.

Item 31 amends paragraph 71AA(1)(a), which provides that the Registrar may offset debts where two persons each have a child support debt arising from a liability referred to in section 17, by inserting ', 17A' after '17'. This change is required because an order under section 143 for a payee to repay child support to the payer where the payer was not a parent of a child will become a registrable maintenance liability . This amendment may mean that in a child support case, there may be one person with a debt under section 17, and one person with a debt under section 17A. These debts can be offset against each other.

Item 32 repeals and substitutes paragraphs 71AA(b) and (c). Currently, paragraph 71AA(b) deals with debts that arose in respect of a registered maintenance liability that provided for child support. However, a section 17A debt is a debt that a person is repaying because the person was not entitled to receive the child support from the person to whom they are repaying the debt. Consequently, new paragraph 71AA(b) removes the reference to a debt being in relation to child support, and provides that the Registrar may offset debts if in respect of each debt, the Commonwealth would be required, under section 76 to pay the amount paid by one of the persons to the other person. Paragraph 71AA(1)(c) deals with the matters that are currently dealt with in paragraph 71AA(1)(b). It provides an additional requirement that the Registrar may only offset debts if in respect of a debt that arose from a liability referred to in section 17 - the liability provided for child support for a child of the two persons.

Subsection 72AA(1) is limited to the Registrar requesting that deductions be made from social security pensions or benefits in relation to liabilities under subsection 17(2). However, subsection 72AA(2) is broad enough to allow the Registrar to request that deductions be made from a social security pension or benefit where a person has a liability under section 17A.

Item 33 repeals and substitutes paragraph 72D(1)(c). New paragraph 72D(1)(c) extends the Registrar's power to make departure prohibition orders on the grounds that the person has persistently and without reasonable grounds failed to pay child support from liabilities under section 17, to liabilities under section 17A also. This change is required because an order under section 143 for a payee to repay child support to the payer where the payer was not a parent of a child will become a registrable maintenance liability.

Item 34 repeals and substitutes subsection 72D(2), which sets out the matters to which the Registrar must have regard when deciding whether paragraph 72D(1)(c) is made out. Paragraphs 72D(2)(a), (b) and (e) are identical to the current paragraphs 72D(2)(c), (b) and (d). However, current paragraph 72D(2)(a) is no longer appropriate because it requires the Registrar to consider the number of occasions on which the debt has not been paid. This is still appropriate for debts arising from a registrable maintenance liability under section 17, which occur because a payer has not paid child support on one or more occasions. However, a registrable maintenance liability arising under section 17A is a debt which occurs once, when a court order is made. Accordingly, paragraph 72D(2)(c), which deals with section 17 liabilities, requires the Registrar to consider the number of occasions on which the debt had not been paid. Paragraph 72D(2)(d), which deals with section 17A debts, requires the Registrar to consider the length of time during which the debt has remained unpaid.

Item 35 amends paragraph 72E(a), which provides that for the purposes of Part VA, a child support liability is a registrable maintenance liability mentioned in section 17, by inserting ', 17A' after '17'. This change is required because an order under section 143 for a payee to repay child support to the payer where the payer was not a parent of a child will become a registrable maintenance liability.

Item 36 inserts before Part IX:

Part VIIIB - Other provisions relating to courts

Section 111A sets out a simplified outline of Part VIIIB.

Section 111B sets out the general powers of court. Subsection 111B(1) sets out what a court may do in exercising its powers under the Child Support Registration and Collection Act. It also reflects the powers that a court may exercise under section 141 of the Child Support Assessment Act. Subsection 111B(2) provides that the making of an order of the kind referred to in paragraph 111B(1)(c), that is, an order that a specified transfer or settlement of property be made, does not prevent the court from making a subsequent order (whether under this Act or otherwise) in relation to the child. Subsection 111B(3) provides that the applicable Rules of Court may make provision with respect to the making of orders under this Act for the purpose of facilitating their enforcement and the collection of any child support payable under them.

Section 111C sets out the powers of a court to make stay orders. Subsections 111C(1) and (2) set out the situations in which section 111C applies, and provide that a party to a proceeding before a court, before the Registrar under Part VII, or before the SSAT under Part VIIA may apply to either the court in which the proceedings are initiated, or a court having jurisdiction, for a stay order. Subsection 111C(3) provides that pending the hearing and final determination of the proceeding, the court may make such orders as it considers appropriate, staying or otherwise affecting the operation or implementation of the Child Support Assessment Act. The court must take into account the interests of the persons who may be affected by the outcome of the proceeding. Subsection 111C(4) provides that the court may make a further order varying or revoking a stay order it has made. Subsection 111C(5) provides that a stay order made by the court is subject to any terms and conditions specified in the order, and operates for such period as is specified, or until the decision of the court determining the proceeding becomes final. Subsection 111C(6) provides that for the purposes of subparagraph 11C(5)(b)(i), that is, for such period as is specified in a court order, a decision of the Registrar becomes final at the end of the period within which an application could have been made to the SSAT under Part VIIIA, if an application has not been made within that period.

Section 111D provides that copies of an order are to be forwarded to the Registrar. Subsection 111D(1) provides that if a court makes an order under the Child Support Registration and Collection Act, the court's registrar or other responsible officer must within 28 days after the order is made, send a certified or sealed copy to the Child Support Registrar. Subsection 111D(2) provides that the Registrar may, by written notice served on the registrar of the court or other responsible officer, vary the requirements in subsection 111D(1). This means that the Registrar may specify that the court can provide orders in another form, for example, by fax, email or telephone.

Section 111E provides that the Registrar may intervene in proceedings. If the Registrar does intervene in any proceedings, the Registrar is taken to be a party to the proceedings with all the rights, duties and liabilities of a party. For example, costs may be awarded against the Registrar if he or she intervenes in proceedings. Subsection 111E(3) provides that section 111E does not limit Part IX of the Family Law Act. Part IX deals with the right of other people to intervene in cases, for example, the right of the Attorney-General to intervene in cases in the public interest, and the right of child welfare officers to intervene in cases affecting child welfare. Section 111E does not apply in relation to proceedings before the SSAT, because the Registrar is automatically a party to SSAT proceedings (see section 102).

Section 111F provides that if, in relation to a proceeding instituted under section 113A, the court makes an order for payment of an amount, the court may specify in the order that payment may be made to either the payee or the Registrar.

Section 111G makes it clear that if a person has instituted proceedings, or is joined as a party under the Child Support Registration and Collection Act, and the Registrar is not a party to the proceeding, the Commonwealth is not liable for costs in the proceeding.

Item 37 repeals and substitutes subsection 113(1). New subsection 113(1) is similar to the current subsection 113(1) but adds that in relation to debts due by a payer may being sued for and recovered by the Registrar, the payee may also undertake recovery action in accordance with section 113A.

Item 38 amends subsection 113(2) by inserting after 'taken' the words 'by the Registrar'. This amendment makes clear that the Registrar need only take appropriate steps to keep the payee informed of recovery action, undertaken by the Registrar and not a payee. A note states that a heading is also added to subsection 113(2): 'Registrar to keep payee informed of action taken to recover debt,'

Item 39 inserts a new section 113A, which deals with recovery of debts by a payee. Subsection 113A(1) provides that a payee of a registered maintenance liability who wants to sue to recover a child support debt must notify the Registrar in writing of his or her intention to institute proceedings to recover the debt:

(a)

at least 14 days before instituting proceedings; or

(b)

in exceptional circumstances, within such shorter period as the court allows.

This requirement is to ensure that the Registrar is aware of enforcement action that is being taken in relation to a child support debt, so that the Registrar can accordingly make decisions about his or her own enforcement action. The shorter notification period in paragraph 113A(1)(b) is to deal with situations such as where the payee becomes aware that the payer is about to deal with a major asset, such as property, and wants to take action urgently to recover child support debts. A note following subsection 113A(1) explains that for provisions relating to proceedings instituted under this section, see sections 111F and 111G.

Subsection 113A(2) provides that the payee is to notify the Registrar of orders made and payments received. A payee of a registered maintenance liability who has instituted proceedings under subsection 113A(1) must notify the Registrar, in the manner specified by the Registrar, of:

(a)

any orders, including costs orders, made by the court in relation to the payee and the debt due in relation to the liability; and

(b)

any payments received by the payee from the payer under any such orders

within 14 days of the order being made or the payment being received. A note following subsection 113A(2) explains that section 16A provides for the Registrar to specify the manner in which a notice may be given.

Subsection 113A(3) provides that the payee commits an offence if he or she does not comply with the obligations set out in subsection 113A(2). The reason for this is that the Registrar needs to be informed of any orders made or payments received so that the Registrar can amend the Register accordingly. If the Registrar is not informed of any successful enforcement action taken by a payee, the Registrar may take enforcement action for the same amounts against the payer, with the result that the payer may pay the same debt twice. This could lead to the payee being paid more than the amount to which he or she is entitled. Subsection 113A(4) provides that this offence is one of strict liability and the penalty is 10 penalty units. Strict liability is an appropriate basis for the offence because of:

•

the difficulty the prosecution would have in proving fault (especially knowledge or intention) in this case;

•

the fact that the offence is minor; and

•

the fact that the offence does not involve dishonesty or other serious imputation affecting the person's reputation.

Subsection 113A(5) provides that it is a defence to an offence committed under subsection 113A(3) if the person charged proves that the person gave notice to the Registrar as soon as reasonably practicable after becoming aware of the making or registration of the relevant order or the receipt of the relevant payment, as the case may be. This is to ensure that the offence in subsection 113A(3) does not apply in an unfair way, if there are genuine reasons why a person did not immediately give notice to the Registrar about the court order.

Item 40 inserts after subsection 120(1) a new subsection 120(1A). It provides that a court having jurisdiction under the Child Support Registration and Collection Act may, in a proceeding instituted by a payee of a registered maintenance liability under section 113A, exercise all of the powers of the Registrar under subsection 120(1). This gives any court undertaking enforcement at a payee's instigation, powers to obtain information and evidence.

Item 41 amends subsection 102(3) by inserting after 'subsection (1)' ', or by a court in accordance with subsection (1A)'. This extends the offence in that subsection of failing to comply with a requirement made by the Registrar in relation to information and evidence to a requirement made by the court in relation to information and evidence.

Part 2 - Application provisions

Item 42 sets out the application of the items in Schedule 3. It provides that the amendments made by items 11, 14, 17, 18 and 19 , applications for amendment of administrative assessments more than 18 months old, apply in respect of:

(a)

applications made under section 98B after this Schedule commences;

(b)

determinations in respect of which the parties were notified under section 98M after this Schedule commences (that is, after 1 January 2007). In other words, if a person is notified under section 98M before 1 January 2007, then the current procedure - that the Registrar may make a determination for an almost unlimited past period - applies.

(c)

an application made under section 116 after this Schedule commences (that is, after 1 January 2007), even if the application relates to a decision made before that date to make or refuse to make a determination under Part 6A, or to make an administrative assessment under subsection 66(1).

Item 43 provides that the amendments made by items 13 and 23 , that is, the requirement for the court to consider, once it has made a declaration that a payer is not a parent of the child, making a repayment order under section 143, and the consideration itself under section 143, apply in respect of parentage declarations made under section 107 after commencement.

Item 44 provides that the amendments made by items 24 to 26 and 31 to 35 , that is, the changes setting out that an order made under section 143 is a registrable maintenance liability, apply from the commencement date of this Schedule, whether the order made under section 143 was made before or after the commencement of this Schedule.

Item 45 sets out the application arrangements for the amendments made by items 27 and 37 to 41 , that is, the amendments relating to a payee's ability to take enforcement action. It provides that the amendments apply to debts due to the Commonwealth under the Child Support Registration and Collection Act that are outstanding on and after the commencement of this Part (that is, 1 January 2007), whether the debt arose before or after the commencement of this Schedule.

Item 46 sets out the application arrangements of the amendments in relation to Western Australian exnuptial children. Under the Constitution, the Commonwealth child support legislation applies in the states in relation to exnuptial children only if the states either refer to the Commonwealth their power to make such laws, or adopt the relevant Commonwealth laws. All states have referred their power except Western Australia, which has chosen instead to adopt the child support legislation from time to time through a series of Acts.

Therefore, these amendments will apply in relation to exnuptial children in Western Australia only when the amendments have been adopted. Therefore, the application provisions discussed above are modified so that they generally apply to applications to a court or the Registrar made after the date of adoption, with matters in train at the date of adoption being treated in the same way as matters in train at 1 January 2007 for all other cases, as discussed above.