EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 147
Issued by the Authority of the Minister for Families, Community Services and Indigenous Affairs
Child Support (Assessment) Act 1989
Child Support (Assessment) (Overseas-related Maintenance Obligations) Amendment Regulations 2006 (No. 1)
The Child Support (Assessment) Act 1989 (the Act) provides for the assessment of the level of parents’ child support liabilities for their children.
Section 164 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Section 163B of the Act provides that regulations, which may be inconsistent with the Act, may make provision for, or in relation to, giving effect to an international maintenance agreement that relates to maintenance obligations arising from family relationship, parentage or marriage, or maintenance obligations arising from family relationship, parentage or marriage where the maintenance is claimed from, by or on behalf of a person in a reciprocating jurisdiction.
Section 58 of the Act provides how a person’s taxable income, for the purposes of the Act, is to be calculated if the taxable income is not readily ascertainable. In part, the calculation is based on the reference point ‘AWE’ (that is, average weekly earnings for full‑time adults) to provide the figure that sets the ‘cap’ on a liable parent’s income for child support purposes.
Section 58 of the Act is has been amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006 (the Amending Act), with effect from 1 July 2006, to lower the cap on income by changing the reference point to ‘EAWE’ (that is, average weekly earnings for all employees).
The Regulations reflect this change to ‘EAWE’ as a reference point in the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 (the Principal Regulations). The Principal Regulations prescribe matters relevant to giving effect to an international maintenance agreement that relates to maintenance obligations arising from family relationship, parentage or marriage, or maintenance obligations arising from family relationship, parentage or marriage where the maintenance is claimed from, by or on behalf of a person in a reciprocating jurisdiction. Regulation 25 prescribes how a person’s income is to be calculated if the person or an overseas authority has been requested to provide information or documents relevant to that income but has not done so. As does section 58 of the Act, regulation 25 currently refers to ‘AWE’ for the cap on a liable parent’s income.
The regulations amend the Principal Regulations to replace a reference to ‘relevant AWE amount’ with ‘EAWE amount’, to reflect the change to section 58 of the Act made by the Amending Act (that is, the lowered cap on income). While regulation 25 of the Principal Regulations is not made under section 58 of the Act, the change made to section 58 needs to be duplicated for regulation 25 so that the provisions work consistently.
The Regulations commence on the commencement of Part 1 of Schedule 2 to the Amending Act, with effect from the later of 1 July 2006 or the day after Royal Assent to the Amending Act, to coincide with the commencement of the amendment to section 58 of the Act.
Consultation
No consultation in relation to these Regulations was undertaken because they do not have a direct or significant indirect impact on business and do not restrict competition.
Overview
The Child Support (Assessment) (Overseas-related Maintenance Obligations) Amendment Regulations 2006 (No. 1) were enacted to align the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 with changes introduced by the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006. This legislation was designed to address the gap in the calculation of a liable parent’s income for child support purposes by modifying the reference point from 'average weekly earnings for full-time adults' (AWE) to 'average weekly earnings for all employees' (EAWE). This amendment, which effectively lowers the cap on income, was made to better reflect the current economic conditions and to ensure consistency in the child support assessment process. The regulations were issued by the Minister for Families, Community Services and Indigenous Affairs, in accordance with the authority granted under the Child Support (Assessment) Act 1989. These regulations commenced on the later of 1 July 2006 or the day after Royal Assent to the Amending Act, to ensure they took effect concurrently with the changes to section 58 of the principal Act.
Scope and Application
The Child Support (Assessment) (Overseas-related Maintenance Obligations) Amendment Regulations 2006 (No. 1) amend the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000 to align with the changes made to the Child Support (Assessment) Act 1989 by the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006. The Act itself pertains to the assessment of child support liabilities for parents of children, extending its reach to both domestic and international contexts where maintenance obligations arise from family relationships, parentage, or marriage. The Act applies to individuals and entities involved in child support proceedings, as well as to those who may be subject to maintenance obligations under international agreements. The regulations, which are subordinate instruments of the Act, further define and implement the provisions of the Act, including those relating to the calculation of a liable parent's income for the purposes of determining child support payments. The geographic scope of these regulations is national, given the federal nature of the Child Support (Assessment) Act 1989. The amendment made by the Regulations ensures that the reference point for calculating the income cap for child support purposes is consistent with the legislative changes, transitioning from 'average weekly earnings for full-time adults' (AWE) to 'average weekly earnings for all employees' (EAWE). The Regulations do not specify any exclusions or exemptions, and they do not extend or restrict the application of the Act beyond what is already outlined in the primary legislation.
Key Provisions
The primary sections of the Child Support (Assessment) (Overseas-related Maintenance Obligations) Amendment Regulations 2006 (No. 1) amend the Child Support (Assessment) (Overseas-related Maintenance Obligations) Regulations 2000, specifically addressing how a person's income is calculated for child support purposes when the person or an overseas authority has not provided necessary information or documents. Regulation 25, which pertains to the calculation of income in such circumstances, has been altered to reflect the change in the reference point for the income cap from 'average weekly earnings for full-time adults' (AWE) to 'average weekly earnings for all employees' (EAWE). This change aligns with the amendments made to section 58 of the Child Support (Assessment) Act 1989 by the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006, which lowered the cap on income for child support purposes.
The Act imposes obligations on the parties involved, including the requirement for liable parents to provide accurate information about their income. If such information is not provided, the regulation stipulates that the income cap should be based on the EAWE, which is a lower benchmark compared to the AWE. This ensures that the calculation of child support remains fair and consistent with the recent legislative changes. Additionally, the regulations require any overseas authorities involved to furnish the necessary information or documents pertaining to the income of the liable parent, ensuring that all relevant data is considered in the assessment process.
Failure to comply with the requirements set out in the Act and the regulations may result in various consequences. While specific offences and penalties are not detailed within the explanatory statement, it is understood that non-compliance with child support obligations can lead to legal action, including enforcement measures by the Child Support Agency. This can include recovery of unpaid child support through deductions from income or other assets, and potentially more severe legal action in cases of deliberate non-compliance. The precise penalties would depend on the nature and extent of the breach, and could involve both civil and criminal sanctions, as outlined in the relevant sections of the Child Support (Assessment) Act 1989.