House of Representatives

Explanatory Memorandum

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

Schedule 3 - Amendments relating to access to courts and review process

Summary

This Schedule makes amendments to improve equity between parents in access to court in relation to decisions about parentage of a child and to streamline certain review processes.

Background

The Child Support Registration and Collection Act provides a system of internal reconsideration ('objections') for decisions made by the Child Support Registrar and first tier external review by the SSAT. That Act and the Child Support Assessment Act also deal with access to court in child support matters.

Essentially, any appeal against a decision relating to parentage of a child must be made to a court - that is, there may be no objection, nor review by the SSAT. As a general principle, any decision other than relating to parentage may be reviewed on objection and then by the SSAT, with possible further review by a court on a question of law alone. Notably, if an objection has been lodged by one of the parties to a child support assessment, SSAT review may be pursued by either party, not just the one who lodged the objection.

Despite this comprehensive general structure, there are some inequities in the current system, whereby one party affected by a parentage decision may have a lesser right of access to a court. This streamlining initiative is largely to make the system of court access in parentage decisions fairer. Certain minor refinements to the objection procedure are also made. The amendments fall into several categories.

Equal court access - disputed parentage

Objections and SSAT review are not available if the issue is parentage of the child in question. Instead, access to a court to resolve the issue is the appropriate mechanism. However, there is currently some inequity between parents having court access when parentage is under dispute.

If the Registrar refuses to accept a carer application for administrative assessment of child support because he or she is not satisfied that the person from whom child support payment is sought is a parent of the child (or if this is one of the reasons for the refusal), the carer applicant may apply to a court under section 106A of the Child Support Assessment Act to challenge the decision on the basis of parentage.

Similarly, if the Registrar accepts a carer application , and if the liable parent claims not to be a parent of the child concerned, the liable parent may apply to a court under section 107 for review on the basis of parentage.

However, this structure does not cover two scenarios that may arise from a liable parent application. Firstly, a liable parent applicant whose application is refused because the Registrar is not satisfied that the applicant is a parent of the child may want to apply to court to assert parentage.

Secondly, a liable parent applicant whose application is accepted may later have reason to doubt the fact of parenthood and may therefore want to apply to court to have the acceptance of the application overturned on that basis.

Most of the amendments in this Schedule are to make sure either party has access to a court if the issue is that the party, or the other party (as relevant), is, or is not (as relevant), a parent of the child concerned.

Serving copy of objection on other party

The objection procedure includes, in section 85 of the Child Support Registration and Collection Act, a requirement for the Registrar to serve a copy of the objection, and the accompanying documents, on the other party affected by the decision. In the case of an objection to the making of, or to the refusal to make, a Part 6A departure determination, amendments will provide that the Registrar now not be subject to this requirement if satisfied that the other party's rights will not be affected by any possible decision in relation to the objection.

This is likely to arise in relation to representations that purport to be 'objections' but do not in fact raise any new issues, to the extent that they may not in fact be valid objections. Some of these representations are essentially arguments about whether there is sufficient evidence to support a particular decision. Some are essentially reiterations of previous objections. Nevertheless, these representations are handled as objections so that, once finalised, there is access to the SSAT for those who want to pursue the matter. Relaxing the requirement to send copies, when it is clear that no purpose would be served by that, will speed up the process so that this access is available as soon as possible.

A minor clarification is also made to make sure that the other party is given a copy of a relevant objection to a decision on an application for administrative assessment, whether the application was accepted or refused.

Applications for extension of time to lodge objection

Objections must be lodged within a set time frame (see section 81 of the Child Support Registration and Collection Act). However, section 82 allows an application for an extension of time in which to lodge an objection. This application must be in writing and must be lodged with the objection.

Amendments in this Schedule will allow the Registrar to specify the manner in which such an application may be made. Oral applications, for example, could be allowable on this basis.

An additional amendment is made, to deal with the fact that, in practice, people often lodge objections without realising that the period has passed and then have to be reminded to apply for the extension. The requirements in this process are being eased so that an application for an extension of time is valid even if lodged after the objection itself. The application for extension will then be considered under the current provisions.

Explanation of the changes

Commencement

The amendments will commence on 1 January 2008 and be refined from 1 July 2008 to reflect the 2006 reforms, while preserving as far as possible the original effect of the provisions.

Items 1 to 17 and 29 to 49 amend the Child Support Assessment Act.

Items 18 to 28 and 50 to 55 amend the Child Support Registration and Collection Act.

Items 11 and 12 make the substantive amendments related to the measure discussed above: equal court access - disputed parentage . The items insert new sections 106B and 107A of the Child Support Assessment Act to provide court access for a liable parent applicant disputing a parentage decision in the situations described above.

Items 1, 2, 3, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 26 all make amendments to various provisions in the Child Support Assessment Act and the Child Support Registration and Collection Act that are consequential to items 11 and 12 , that is, they reflect the effect of new sections 106B and 107A.

All of the above items commence on 1 January 2008.

From 1 July 2008, the new provisions inserted by the New Formula Act require similar amendments. Items 29 to 55 achieve this. In particular, items 39 and 42 repeal the new sections inserted by items 11 and 12 above. This is because new section 106B will be subsumed by section 106A, and new section 107A will be subsumed by section 107. Notably, the amendments commencing on 1 July 2008 will reflect the new child support formula, in which the concept is of a person applying for a parent or parents to be assessed in respect of the costs of a child, rather than the previous concept of carers and liable parents applying for child support to be paid from or to each other. The outcome, however, will be the same - each parent will be able to apply to court to challenge a decision on the basis of parentage.

Item 4 makes a minor amendment to clarify that SSAT review is available to either party following an objection process, regardless of which party lodged the objection.

Item 24 makes the amendment relating to allowing an application for an extension of time to lodge an objection to be lodged after the objection, as discussed above under: applications for extension of time to lodge objection .

Item 25 makes the amendment relating to the manner of applying for an extension of time to lodge an objection, as discussed above under: applications for extension of time to lodge objection .

Item 27 makes a minor clarification to section 85 of the Child Support Registration and Collection Act, which requires copies of objections to be served on other parties. The clarification is to ensure that, if one party makes an objection to a decision on an application for administrative assessment, whether the decision was to accept or refuse the application, a copy of the objection is given to the other party.

Item 28 makes the amendment relevant to the measure discussed above: serving copy of objection on other party .