Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (65 of 2010)
Schedule 2 Percentage of care
Part 1 Amendments
A New Tax System (Family Assistance) Act 1999
18 At the end of Division 1 of Part 3
Add:
Subdivision D - Determination of percentage of care
35A Determination o f percentage of care - child is not in the adult's care
Initial determination
(1) If:
(a) the Secretary is satisfied that an individual (the adult ) has no care of a child but that:
(i) the child is an FTB child of the adult under section 23; or
(ii) the child would, under subsection 22(2), (3), (4) or (6), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period ) under a care arrangement relating to the child; and
(b) the adult, or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c) the adult is not a partner of at least one other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the other individual or individuals; and
(d) section 35C, 35D or 35G applies in relation to the adult;
the Secretary must determine the adult's percentage of care for the child during the care period in accordance with that section.
Determination after revocation
(2) If:
(a) the Secretary revokes, under Subdivision E of this Division, a determination of an individual's (the adult ) percentage of care for a child that was made under this section or section 35B; and
(b) the Secretary is satisfied that the adult has no care of the child but that:
(i) the child is an FTB child of the adult under section 23; or
(ii) the child would, under subsection 22(2), (3), (4) or (6), be an FTB child of the adult if there had been, or were to be, a pattern of care for the child over a period (the care period ) under a care arrangement relating to the child; and
(c) the adult is not a partner of at least one other individual who has a pattern of care for the child such that the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the other individual or individuals; and
(d) section 35C, 35D or 35G applies in relation to the adult;
the Secretary must determine the adult's percentage of care for the child during the care period in accordance with that section.
35B Determination of percentage of care - child is in the adult's care
Initial determination
(1) If:
(a) the Secretary is satisfied that there has been, or will be, a pattern of care for a child over a period (the care period ) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of more than one individual; and
(b) one of those individuals (the adult ), or the partner of the adult, makes or has made a claim under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 for payment of family tax benefit in respect of the child for some or all of the days in the care period; and
(c) the adult is not a partner of at least one of the other individuals referred to in paragraph (a);
the Secretary must determine the adult's percentage of care for the child during the care period.
Determination after revocation
(2) If:
(a) the Secretary revokes, under Subdivision E of this Division, a determination of an individual's (the adult ) percentage of care for a child that was made under section 35A or this section; and
(b) the Secretary is satisfied that there has been, or will be, a pattern of care for the child over a period (the care period ) such that, for the whole, or for parts (including different parts), of the care period, the child was or will be, under subsection 22(2), (3), (4) or (6), an FTB child of the adult and at least one other individual; and
(c) the adult is not a partner of at least one of those other individuals;
the Secretary must determine the adult's percentage of care for the child during the care period.
Percentage of care
(3) The percentage determined under subsection (1) or (2) must be a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult has had, or will have, during the care period.
(4) Despite subsection (3), if section 35C, 35D or 35G applies in relation to the adult, the Secretary must determine the adult's percentage of care under subsection (1) or (2) in accordance with that section.
35C Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1) This section applies in relation to an individual (the adult ) if:
(a) a care arrangement applies in relation to a child; and
(b) the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and
(c) an individual who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances, see section 35F.
(2) The Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4) The second percentage of care is to be:
(a) if section 35A applies in relation to the adult - 0%; or
(b) if section 35B applies in relation to the adult - a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed.
35D Percentage of care if action taken to make a new care arrangement in relation to a child
(1) This section applies in relation to an individual (the adult ) if:
(a) a care arrangement (the current care arrangement ) applies in relation to a child; and
(b) the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during the care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and
(c) an individual who has reduced care of the child:
(i) has not taken reasonable action to ensure that the current care arrangement is complied with; but
(ii) has taken reasonable action to make another care arrangement (the new care arrangement ) in relation to the child; and
(d) the Secretary is satisfied that, if the new care arrangement were to be made, the extent of care that the individual who has reduced care of the child would have under that arrangement during the care period would be:
(i) more than the actual care of the child that the Secretary is satisfied that the individual has had, or will have, during that period; but
(ii) less than the extent of care of the child that the individual should have had, or is to have, under the current care arrangement during that period; and
(e) the Secretary is satisfied that special circumstances exist in relation to the individual who has reduced care of the child.
Note: This section does not apply in certain circumstances, see section 35F.
(2) The Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult would have under the new care arrangement during the care period if it were to be made.
(4) The second percentage of care is to be:
(a) if section 35A applies in relation to the adult - 0%; or
(b) if section 35B applies in relation to the adult - a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the new care arrangement were not to be made.
35E Application of sections 35C and 35D in relation to claims for family tax benefit for a past period
Initial determination
(1) If:
(a) the Secretary is required by section 35A or 35B to determine an individual's percentage of care for a child; and
(b) subsection 35A(1) or 35B(1) applies; and
(c) the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit for a past period;
sections 35C and 35D apply in relation to the individual as if the determination were being made on the first relevant day of the past period.
Determination after revocation
(2) If:
(a) the Secretary is required by section 35A or 35B to determine (the new determination ) an individual's percentage of care for a child; and
(b) subsection 35A(2) or 35B(2) applies; and
(c) the determination (the earlier determination ) referred to in paragraph 35A(2)(a) or 35B(2)(a) relates to a claim for payment of family tax benefit for a past period;
sections 35C and 35D apply in relation to the individual as if the new determination were being made on the relevant day after the revocation of the earlier determination.
35F Sections 35C and 35D do not apply in certain circumstances
(1) Sections 35C and 35D do not apply in relation to an individual if:
(a) subsection 35A(1) or 35B(1) applies; and
(b) either:
(i) if the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit for a past period - the first day of the past period is 14 weeks or more after the change of care day for the individual; or
(ii) otherwise - the day on which the claim referred to in that paragraph is or was made is 14 weeks or more after the change of care day for the individual.
(2) If the Secretary is satisfied that special circumstances exist in relation to an individual who has reduced care of the child, the Secretary may determine that subsection (1) applies as if the reference to 14 weeks in subparagraph (1)(b)(i) or (ii) were a reference to such longer period as the Secretary determines to be appropriate.
(3) The period determined under subsection (2) must not be more than 26 weeks.
35G Percentage of care if claim is made for payment of family tax benefit because of the death of a child
(1) This section applies in relation to an individual (the adult ) if:
(a) the adult, or the partner of the adult, has made a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual; and
(b) the claim relates to a child who has died; and
(c) a determination (the earlier determination ) of the adult's percentage of care for the child applied, immediately before the child's death, in relation to a claim by the adult or the partner for payment of family tax benefit by instalment.
(2) The Secretary must determine, under section 35A or 35B, the adult's percentage of care for the child to be the percentage of care that applied under the earlier determination immediately before the child's death.
35H When an individual has reduced care of a child
An individual has reduced care of a child if:
(a) a care arrangement applies in relation to the child; and
(b) the individual should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and
(c) the Secretary is satisfied that the actual care of the child that the individual has had, or will have, during the care period is less than that extent of care.
35J Working out actual care, and extent of care, of a child
(1) The actual care of a child that an individual has had, or will have, during a care period may be worked out based on the number of nights that the Secretary is satisfied that the child was, or will be, in the care of the individual during the care period.
(2) The extent of care of a child that an individual should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the individual during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one individual at the same time.
(4) This section does not limit section 35B, 35C, 35D or 35H.
35K Days to which the percentage of care applies if sections 35C and 35D did not apply in relation to an individual etc.
(1) If:
(a) a determination of an individual's percentage of care for a child during a care period is made under section 35A or 35B; and
(b) either of the following apply:
(i) sections 35C and 35D did not apply in relation to the individual;
(ii) section 35G applied in relation to the individual;
the percentage of care applies on and from the application day unless a revocation of the determination under Subdivision E of this Division takes effect.
(2) If subsection 35A(1) or 35B(1) applies in relation to the determination, the application day is:
(a) if:
(i) the claim referred to in paragraph 35A(1)(b) or 35B(1)(b) is a claim for payment of family tax benefit by single payment/in substitution because of the death of another individual; and
(ii) the claim relates to a child who has died;
the day on which the claim referred to in that paragraph is or was made; or
(b) otherwise - the first day of the care period.
(3) If subsection 35A(2) or 35B(2) applies in relation to the determination, the application day is the first day of the care period that begins after the revocation of the determination referred to in paragraph 35A(2)(a) or 35B(2)(a) takes effect.
35L Days to which the percentage of care applies if section 35C or 35D applied in relation to an individual
(1) If:
(a) a determination of an individual's percentage of care for a child is made under section 35A or 35B; and
(b) section 35C or 35D applied in relation to the individual;
then:
(c) the percentage of care referred to in subsection 35C(3) or 35D(3) applies during the interim period for the determination unless a revocation of the determination under Subdivision E of this Division takes effect; and
(d) the percentage of care referred to in subsection 35C(4) or 35D(4) applies after the end of the interim period for the determination unless a revocation of the determination under Subdivision E of this Division takes effect.
(2) The interim period for the determination:
(a) starts on the application day for the determination; and
(b) ends at the end of the earliest of the following days:
(i) the day specified by the Secretary;
(ii) if section 35C applied in relation to the individual - the day before the day on which the action referred to in paragraph 35C(1)(c) ends;
(iii) if section 35D applied in relation to the individual - the day before the day on which the action referred to in subparagraph 35D(1)(c)(ii) ends;
(iv) if a care arrangement in relation to the child begins to apply on a day after the application day for the determination - the day before the day on which the care arrangement begins to apply.
(3) The day specified by the Secretary under subparagraph (2)(b)(i) must be the last day in the 14 week period, or such other longer period as is specified under subsection (4), that starts on the change of care day for the individual.
(4) If the Secretary is satisfied that special circumstances exist in relation to the individual who has reduced care of the child, the Secretary may specify a period of up to 26 weeks for the purposes of subsection (3).
35M Rounding of a percentage of care
If an individual's percentage of care determined under this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50% - the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50% - the percentage is rounded down to the nearest whole percentage.
35N Guidelines about the making of determinations
(1) The Secretary may, by legislative instrument, make guidelines relating to the making of determinations under this Subdivision.
(2) In making a determination under this Subdivision, the Secretary must have regard to any guidelines in force under subsection (1).
Subdivision E - Revocation of determination of percentage of care
35P Determination must be revoked if there is a change to the individual's shared care percentage etc.
(1) If:
(a) a determination of an individual's percentage of care (the existing percentage of care ) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual - the interim period for the determination has ended; and
(c) the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child; and
(d) the Secretary is satisfied:
(i) that the individual's shared care percentage for the child would change if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual's percentage of care for the child; or
(ii) that, if the Secretary were to determine under that section another percentage to be the individual's percentage of care for the child, the other percentage would not be in the same percentage range as the individual's existing percentage of care;
the Secretary must revoke the determination.
Note: The Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) Each of the following is a percentage range :
(a) 0% to less than 14%;
(b) 14% to less than 35%;
(c) 48% to 52%;
(d) more than 65% to 86%;
(e) more than 86% to 100%.
(3) The revocation of the determination takes effect at the end of:
(a) if the change of care day for the individual occurs during the interim period for the determination - the day on which the interim period ends; or
(b) otherwise - the day before the change of care day for the individual.
35Q Secretary may revoke a determination of an individual's percentage of care
(1) If:
(a) a determination of an individual's percentage of care (the existing percentage of care ) for a child has been made under section 35A or 35B; and
(b) if section 35C or 35D applied in relation to the individual - the interim period for the determination has ended; and
(c) the Secretary or the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child; and
(d) the Secretary is satisfied that, if the Secretary were to determine, under section 35A or 35B, another percentage to be the individual's percentage of care for the child, the other percentage would not be the same as the individual's existing percentage of care for the child; and
(e) section 35P does not apply;
the Secretary may revoke the determination.
Note: If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) If the Secretary revokes the determination, the revocation takes effect at the end of:
(a) if the change of care day for the individual occurs during the interim period for the determination - the day on which the interim period ends; or
(b) otherwise - the day before the change of care day for the individual.
35R Secretary may revoke a determination relating to a claim for payment of family tax benefit for a past period
(1) If:
(a) a determination of an individual's percentage of care for a child has been made under section 35A or 35B; and
(b) the determination relates to a claim for payment of family tax benefit for a past period; and
(c) if section 35C or 35D applied in relation to the individual - the interim period for the determination has ended;
the Secretary may revoke the determination.
Note: If the Secretary revokes the determination, the Secretary must make a new determination under section 35A or 35B to replace the revoked determination: see subsection 35A(2) or 35B(2).
(2) If the Secretary revokes the determination, the revocation takes effect at the end of:
(a) if the change of care day for the individual occurs during the interim period for the determination - the day on which the interim period ends; or
(b) otherwise - the day before the change of care day for the individual.
35S Guidelines about the revocation of determinations
(1) The Secretary may, by legislative instrument, make guidelines relating to the revocation of determinations under this Subdivision.
(2) In revoking a determination under this Subdivision, the Secretary must have regard to any guidelines in force under subsection (1).
Subdivision F - Percentages of care determined under the child support law
35T Percentages of care determined under the child support law that apply for family assistance purposes
(1) If:
(a) the Secretary is required by a provision of Subdivision D of this Division to determine an individual's percentage of care for a child in relation to a claim for payment of family tax benefit; and
(b) the Child Support Registrar has determined the individual's percentage of care for the child (the child support care determination ) under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; and
(c) the child support care determination has not ceased to apply or been revoked;
then:
(d) the child support care determination has effect, for the purposes of this Act as it applies to such a claim, as if it were a determination of the individual's percentage of care for the child that has been made by the Secretary under a corresponding provision of Subdivision D of this Division; and
(e) the individual's percentage of care for the child applies, for the purposes of this Act as it applies to such a claim, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Secretary under such a provision; and
(f) the child support care determination may cease to apply, or be revoked, under Subdivision D or E of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision D of this Division may cease to apply, or be revoked.
(2) This section ceases to apply to the child support care determination if the determination ceases to apply, or is revoked, under Subdivision B or C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989.
35U Reviews of percentages of care under child support law apply for family assistance purposes
(1) Subject to subsections (2) and (3), if:
(a) the Child Support Registrar considers an objection to a decision under Part VII of the Child Support (Registration and Collection) Act 1988; and
(b) considering the objection involves (wholly or partly) a consideration of a determination that:
(i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or
(ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and
(c) the Child Support Registrar's decision on the objection has the effect of varying the determination or substituting a new determination;
section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.
(2) Subject to subsection (3), if:
(a) the SSAT reviews a decision under Part VIIA of the Child Support (Registration and Collection) Act 1988; and
(b) reviewing the decision involves (wholly or partly) a review of a determination that:
(i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or
(ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and
(c) the SSAT's decision on the review has the effect of varying the determination or substituting a new determination;
section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.
(3) If:
(a) the AAT reviews a decision under the AAT Act; and
(b) reviewing the decision involves (wholly or partly) a review of a determination that:
(i) was made under a provision of Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989; or
(ii) has effect, under section 54K of that Act, as if it were a determination made under such a provision; and
(c) the AAT's decision on the review has the effect of varying the determination or substituting a new determination;
section 35T of this Act applies as if the determination as varied or substituted were the child support care determination referred to in that section.