A New Tax System (Family Assistance) Act 1999

PART 3 - ELIGIBILITY FOR FAMILY ASSISTANCE (OTHER THAN CHILD CARE SUBSIDY AND ADDITIONAL CHILD CARE SUBSIDY)

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Division 1 - Eligibility for family tax benefit

Subdivision D - Determination of percentage of care

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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The existing care determination is taken to have been revoked immediately before the commencement day.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 35FA Meaning of interim period

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35FA(1)
An interim period for a determination under section 35A or 35B of an individual ' s percentage of care for a child is (subject to subsection (4)) the period:

(a) beginning on:

(i) the individual ' s change of care day, unless subsection (2) applies; or

(ii) if subsection (2) applies - the day specified in that subsection; and

(b) ending:

(i) as set out in the applicable item of the following table, unless subparagraph (ii), (iii) or (iv) applies; or

(ii) if the individual referred to in paragraph 35C(1)(c) who has reduced care of the child ceases to take reasonable action to ensure that the care arrangement is complied with - on the day the individual so ceases; or

(iii) if a care arrangement in relation to the child ceases to apply on a day - on that day; or

(iv) if a care arrangement in relation to the child begins to apply on a day - on the day before that day.

Interim period
Item	If the following conditions are met …	the interim period ends …
1	(a) the care arrangement for the child is a court order; (b) the Secretary is not satisfied that special circumstances exist in relation to the child; (c) assuming table item 2 applied, the period that would apply under that item ends before the end of the period of 52 weeks starting on the day the court order first takes effect	at the end of that 52 week period.
2	(a) the care arrangement for the child is a court order; (b) the Secretary is not satisfied that special circumstances exist in relation to the child; (c) table item 1 does not apply	at the end of: (a) the period of 26 weeks starting on the change of care day, unless paragraph (b) applies; or (b) the period of 14 weeks starting on the day the individual who has increased care of the child began continuously taking reasonable action to participate in family dispute resolution if: (i) that 14 week period ends before the end of the 26 week period referred to in paragraph (a); and (ii) the individual takes that reasonable action throughout that 14 week period.
3	(a) the care arrangement for the child is a written agreement or a parenting plan; (b) the Secretary is not satisfied that special circumstances exist in relation to the child; (c) the change of care day occurs before the end of the period of 38 weeks after the day the agreement or plan first takes effect	at the end of the period of 14 weeks starting on the change of care day.
4	(a) the care arrangement for the child is a written agreement or a parenting plan; (b) the Secretary is not satisfied that special circumstances exist in relation to the child; (c) the change of care day occurs after the end of the period of 38 weeks, but before the end of the period of 48 weeks, starting on the day the agreement or plan first takes effect	at the end of: (a) the period of 14 weeks starting on the change of care day, unless paragraph (b) applies; or (b) the period of 4 weeks starting on the day the individual who has increased care of the child began continuously taking reasonable action to participate in family dispute resolution if: (i) that 4 week period began at or after the end of the period of 48 weeks starting on the day the agreement or plan first takes effect; and (ii) that 4 week period ends before the end of the 14 week period referred to in paragraph (a); and (iii) the individual takes that reasonable action throughout that 4 week period.
5	(a) the care arrangement for the child is a written agreement or a parenting plan; (b) the Secretary is not satisfied that special circumstances exist in relation to the child; (c) the change of care day occurs after the end of 48 weeks after the agreement or plan first takes effect	at the end of: (a) the period of 14 weeks starting on the change of care day, unless paragraph (b) applies; or (b) the period of 4 weeks starting on the day the individual who has increased care of the child began continuously taking reasonable action to participate in family dispute resolution if: (i) that 4 week period ends before the end of the 14 week period referred to in paragraph (a); and (ii) the individual takes that reasonable action throughout that 4 week period.
6	the Secretary is satisfied that special circumstances exist in relation to the child	on the day determined by the Secretary, being a day before the day the period would otherwise end if the special circumstances did not exist in relation to the child.

Beginning of later interim periods

35FA(2)
If:

(a) an interim period for the determination ends under item 2, 4 or 5 of the table in subsection (1) before the end of the maximum interim period for the determination; and

(b) the individual referred to in paragraph 35C(1)(c) who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with; and

(c) the individual (the second carer ) who has increased care of the child ceases to take reasonable action to participate in family dispute resolution before the end of the maximum interim period;

then a further interim period for the determination begins on the day the second carer ceases to take such reasonable action.

When an individual takes reasonable action to participate in family dispute resolution

35FA(3)
An individual who has increased care of a child takes reasonable action to participate in family dispute resolution if:

(a) the individual:

(i) initiates and participates in family dispute resolution; or

(ii) participates in family dispute resolution that was initiated by the individual referred to in paragraph 35C(1)(c) who has reduced care of the child; and

(b) in relation to determining whether an interim period begins on the change of care day for the individual - the individual takes an action referred to in paragraph (a) within a reasonable period of that day.

Determinations made before the end of a maximum interim period

35FA(4)
A determination under section 35A or 35B of an individual ' s percentage of care for a child does not have an interim period if the determination is made under that section before the end of the maximum interim period for another determination under either of those sections of the individual ' s percentage of care for the child (see sections 35PA and 35QA ).

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