PART 3
-
ELIGIBILITY FOR FAMILY ASSISTANCE (OTHER THAN CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY)
History
Pt 3 heading substituted by No 22 of 2017, s 3 and Sch 1 item 34, effective 2 July 2018. For application, saving and transitional provisions, see note under Pt
4A
heading. The heading formerly read:
PART 3
-
ELIGIBILITY FOR FAMILY ASSISTANCE
Division 1
-
Eligibility for family tax benefit
Subdivision D
-
Determination of percentage of care
History
Subdiv D inserted by No 65 of 2010, s 3 and Sch 2 item 18, effective 1 July 2010. Act No 65 of 2010 contains the following transitional and application provisions:
100 Definitions
100
In the Part:
Assessment Act
means the
Child Support (Assessment) Act 1989
.
commencement day
means the day on which this Schedule commences.
[
ie 1 July 2010]
Family Assistance Act
means the
A New Tax System (Family Assistance) Act 1999
.
Family Assistance Administration Act
means the
A New Tax System (Family Assistance) (Administration) Act 1999
.
Registration and Collection Act
Act means the
Child Support (Registration and Collection) Act 1988
.
Division 3
-
Amendments of the family assistance law
107 Transitional
-
existing percentage of care under the Family Assistance Act
(1)
This item applies if:
(a)
before the commencement day, the Secretary has determined (the
existing care determination
), under subsection 22(6A) of the Family Assistance Act, a percentage of a period during which a child was, or will be, in the care of an individual; and
(b)
the individual
'
s percentage of care under the existing care determination applies immediately before the commencement day.
(2)
The existing care determination is taken to have been revoked immediately before the commencement day.
(3)
The Secretary is taken, on the commencement day, to have determined (the
new care determination
) under section 35B of the Family Assistance Act, as inserted by this Act, a percentage that is equal to the individual
'
s percentage of care under the existing care determination to be the individual
'
s percentage of care for the child during the period.
(4)
Sections 35C and 35D of the Family Assistance Act, as inserted by this Act, are taken not to have applied in relation to the individual.
(5)
The individual
'
s percentage of care for the child under the new care determination applies, for the purposes of the Family Assistance Act as amended by this Act, on and from the commencement day unless a revocation of the determination under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, takes effect.
(6)
The new care determination may be revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act, in the same way, and in the same circumstances, in which a determination made under Subdivision D of that Division, as inserted by this Act, may be revoked.
(7)
If:
(a)
the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and
(b)
the date of effect of the revocation under that Subdivision would, apart from this subitem, be a day before the commencement day;
then, despite that Subdivision, the revocation of the determination takes effect at the beginning of the commencement day.
(8)
If:
(a)
the new care determination is revoked under Subdivision E of Division 1 of Part 3 of the Family Assistance Act, as inserted by this Act; and
(b)
on the revocation of the new care determination, another determination of the individual
'
s percentage of care for the child during the care period is made under section 35A or 35B of the Family Assistance Act, as inserted by this Act; and
(c)
the application day for the other determination would, apart from this subitem, be a day before the commencement day;
then, despite subsections 35K(2) and (3) of the Family Assistance Act as inserted by this Act, the application day for the other determination is the commencement day.
(9)
Sections 54K and 54L of the Assessment Act do not apply in relation to the new care determination.
(10)
The Secretary is taken, on the commencement day, to have notified the individual of the effect of this item.
108 Transitional
-
family tax benefit for a past period
(1)
This item applies if:
(a)
a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit for a past period is made before, on or after the commencement day; and
(b)
the past period occurs before the commencement day.
(2)
Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.
109 Transitional
-
pending family tax benefit claims
(1)
This item applies if:
(a)
a claim under Part 3 of the Family Assistance Administration Act for payment of family tax benefit was made before the commencement day; and
(b)
the claim is not a claim for payment of family tax benefit for a past period; and
(c)
the claim has not been determined before the commencement day.
(2)
Despite the amendments made by this Schedule to the Family Assistance Act and the Family Assistance Administration Act, those Acts, as in force immediately before the commencement day, continue to apply in relation to the claim as if those amendments had not been made.
(3)
If the Secretary makes a determination under subsection 22(6A) of the Family Assistance Act, as it continues to apply under subitem (2) in relation to the claim, the Secretary is taken, for the purposes of item 107 of this Schedule, to have made the determination before the commencement day.
110 Application
-
sections 35A and 35B of the Family Assistance Act
(1)
Sections 35A and 35B of the Family Assistance Act, as inserted by this Act, apply in relation to a claim under Part 3 of the Family Assistance Administration Act that is made on or after the commencement day.
(2)
Subitem (1) does not apply to a claim under that Part if:
(a)
the claim is a claim for payment of family tax benefit for a past period; and
(b)
the past period occurs before the commencement day.
111 Application
-
section 35T of the Family Assistance Act
111
Section 35T of the Family Assistance Act, as inserted by this Act, applies in relation to a determination that is made under Subdivision B of Division 4 of Part 5 of the Assessment Act, as inserted by this Act, on or after the commencement day.
SECTION 35B
Determination of percentage of care
-
child is in the adult
'
s care
Initial determination
35B(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)
or
(4)
, 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.
History
S 35B(1) amended by No 98 of 2012, s 3 and Sch 3 item 8, by substituting
"
or (4)
"
for
"
, (4) or (6)
"
in para (a), effective 1 January 2013. For application provisions, see note under s
22(4)
.
Determination after revocation
35B(2)
If:
(a)
the Secretary revokes or suspends, under Subdivision E of this Division (except under paragraph
35PA(3)(b)
or
35QA(3)(b)
), 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)
or
(4)
, 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.
History
S 35B(2) amended by No 36 of 2018, s 3 and Sch 1 item 8, by substituting
"
revokes or suspends, under Subdivision E of this Division (except under paragraph 35PA(3)(b) or 35QA(3)(b)),
"
for
"
revokes, under Subdivision E of this Division,
"
in para (a), applicable in relation to any change of care day that occurs on or after 23 May 2018.
S 35B(2) amended by No 98 of 2012, s 3 and Sch 3 item 8, by substituting
"
or (4)
"
for
"
, (4) or (6)
"
in para (b), effective 1 January 2013. For application provisions, see note under s
22(4)
.
Percentage of care
35B(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.
35B(4)
Despite subsection (3), if section
35C
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.
History
S 35B(4) amended by No 36 of 2018, s 3 and Sch 1 item 9, by omitting
"
, 35D
"
after
"
section 35C
"
, applicable in relation to any change of care day that occurs on or after 23 May 2018.
History
S 35B inserted by No 65 of 2010, s 3 and Sch 2 item 18, effective 1 July 2010. Act No 65 of 2010 contains the following application provision:
110 Application
-
sections 35A and 35B of the Family Assistance Act
(1)
Sections 35A and 35B of the Family Assistance Act, as inserted by this Act, apply in relation to a claim under Part 3 of the Family Assistance Administration Act that is made on or after the commencement day.
(2)
Subitem (1) does not apply to a claim under that Part if:
(a)
the claim is a claim for payment of family tax benefit for a past period; and
(b)
the past period occurs before the commencement day.
For transitional provisions see note under Pt 3 Div 1 Subdiv
D
heading.
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