Legislative Amendments Required to Put a Tribunal into Place

Mr TONY SMITH (Dickson) (1.44 p.m.)—by leave—I move:

(1) Schedule 13, page 69, before item 1 (after line 5)
insert:
1A Section 5
Insert:
applicant, for the purposes of Part 6A, means a liable parent, an eligible custodian or any other person affected by an administrative assessment or a departure order;

(2) Schedule 13, page 69, before item 1 (after line 5)
insert:
1B Section 5
Insert:
arrears assessment means an administrative assessment of arrears of child support;

(3) Schedule 13, page 69, before item 1 (after line 5)
insert:
1C Section 5
Insert:
order, for the purposes of Part 6A means an order made by a magistrate varying or suspending the operation of:

(a) an administrative assessment of child support; or
(b) an arrears assessment; or
(c) an earlier order under Part 6A.

(4) Schedule 13, page 69, before item 1 (after line 5)
insert:
1D Section 5
Insert:
Tribunal for the purposes of Part 6A means a Small Claims (Child Support) Tribunal constituted by a magistrate sitting alone.

(5) Schedule 13, item 2, page 69 (line 8) to page 80 (line16),
omit the item, substitute:
2 Part 6A
Repeal the Part, substitute:
Part 6A—Departure from administrative assessment of child support
Division 1—Object of Part
98A Object of Part

(1) The object of this Part is, subject to subsection (2), to give power to a Tribunal established under this

Part to make an order having the effect that the provisions of this Act relating to administrative

assessment of child support will be departed from in relation to a child.

(2) Under this Part, the Tribunal may make a determina-tion or an order in 2 circumstances:

(a) upon application by a liable parent or carer entitled to child support; or

(b) when the Registrar initiates the making of an order.

(3) The Tribunal is not empowered under this Part to make an order in relation to child support payable in the child support year ending on 30 June 1992 or any earlier child support year unless the Tribunal deter-mines that special circumstances exist that would warrant an examination of child support prior to that date.

Division 2—Application to Small Claims (Child Support) Tribunal 98B Application to Tribunal

(1) An applicant may make an application for review to a Small Claims (Child Support) Tribunal established under this Division.

(2) An applicant may make an application under this Division where the applicant considers that special circumstances exist in respect of all or any of the following:

(a) the needs of the child and the capacity to pay of both parents;

(b) the history of support by both parents to the child;

(c) the existence of any order in respect of residency and/or contact;

(d) whether the applicant (being an applicant with an order for contact) is permitted and is able to exercise such contact; and

(e) any other relevant circumstances in relation to the exercising of contact.

(3) An order under this Division may make different provisions in relation to different child support years and in relation to different parts of a child support year.

(4) The Tribunal must give, in writing, the reasons for making the order.

(5) A contravention of subsection (4) in relation to an order does not affect the validity of the order.

98C Small Claims (Child Support) Tribunal

Any Magistrate�s Court or Court of Petty Sessions constituted by or under a law of a State or Territory is invested with federal jurisdiction to sit as a Small Claims (Child Support) Tribunal for the purposes of this Division.

98D Formal requirements for application

An application made under section 98B must be in the manner specified in the regulations.

98E Other party to be notified

(1) The Tribunal must cause a copy of:

(a) an application received under section 98B; and

(b) any document accompanying it to be served on:

(c) such other party as the Tribunal considers appro-priate; and

(d) where the Registrar is not the applicant—the Registrar.

(2) The Tribunal must, at the same time, inform the other party to the proceedings, in writing, that he or she may make any representation (a reply) regarding the application that he or she considers relevant.

(3) If the other party to the proceedings makes a reply, the Tribunal must cause a copy of the reply, and any accompanying documents, to be served on the applicant.

(4) If the Registrar provides any documents to the Tribunal, the Tribunal must cause a copy of such documents to be served on the other party or parties.

98F Procedure before Tribunal etc

(1) In proceedings for an application for an order under this Division the Tribunal:

(a) the applicant shall be entitled to be heard;

(b) the parties cannot be represented by solicitors or counsel unless, because of exceptional circumstances, the Tribunal determines otherwise;

(c) expert evidence is not admissible;

(d) evidence of the costs of supporting a child may be adduced by the parties;

(e) except as provided otherwise by this Act or by the regulations, the rules of evidence do not apply; and

(f) a witness giving evidence must do so on oath or affirmation.

(2) Where an applicant alleges that a course of conduct exists which constitutes deliberate and wilful breaches of an order for contact the onus is on that applicant to satisfy the Tribunal as to that conduct.

(3) No appeal shall lie from the Tribunal in such proceedings, except for error of law on the face of the record or going to jurisdiction.

(4) The Tribunal may not make an order for costs.

98G Factors to be considered by Tribunal

In considering an application under this Division the Tribunal may have regard to all or any of the following factors:

(a) the history of support by both parents to the child;

(b) the existence of any order in respect of residency and/or contact;

(c) whether the applicant (being an applicant with an order for contact) is

(i) permitted, and

(ii) able to exercise such contact; or

(d) any other relevant circumstances in relation to the exercising of contact.

98H Powers of Tribunal

(1) In considering all matters involving the support of children upon application by the Registrar the Tribunal shall have power to order that any person liable to pay child support appear before it to be orally examined and to show cause as to why child support should not be paid as ordered by the Tribu-nal.

(2) The Tribunal may issue an order for the arrest of a person who fails to attend before the Tribunal when ordered to do so.

(3) A person appearing before the Tribunal in accordance with this section may be represented by counsel or a solicitor.

(4) A person may be required by the Tribunal to produce documents in accordance with an order of the Tribunal, including documents concerning business or company affairs potentially related to the person�s obligations under this Act.

(5) After hearing all the evidence, the Tribunal may make an order requiring the person to pay child support.

(6) The Tribunal may make an order for costs in connection with a proceeding under this section.

98I History of non-payment of child support—Action by Tribunal

Upon an order being made by the Tribunal requiring a liable parent to pay child support and prima facie evi-dence being later brought before the Tribunal by the Registrar that the liable parent has a history of non-payment of child support, the Tribunal may summons the liable parent to appear before it to show cause why he or she should not be punished for contempt of the Tribunal..

98J Deliberate, wilful etc failure to pay child support

(1) A liable parent found by the Tribunal to have deliberately, wilfully and without lawful excuse failed to pay a sum of child support pursuant to an administrative assessment or pursuant to an order under this Division is guilty of contempt of the Tribunal.

Maximum penalty: Imprisonment for 6 months or a fine not exceeding $5000

(2) In addition to any penalty imposed by the Tribunal under subsection (1), a liable parent found guilty of an offence under this section may be required by the Tribunal to pay any sum of child support owing by the liable parent.

Division 3—Determinations that may be made under this Part

98K Orders that may be made by Tribunal

If the Tribunal is satisfied that the requirements of section 98G have been satisfied in respect of an application, the Tribunal may make:

(a) an order varying the rate of child support payable by the liable parent concerned;

(b) an order varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

(c) an order varying an amount of child support which would, if not varied, be owed by the liable parent;

(d) an order making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the liable parent;

(e) an order varying the child support income amount or disregarded income amount of the carer entitled to child support concerned;

(f) an order making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled to child support;

(g) an order directing that one or more of the following provisions is not to apply:

(i) section 42 (Cap on child support if child support income amount exceeds 2.5 times yearly equivalent of relevant AWE amount);

(ii) section 52 (Cap on combined child support liabilities of 2 liable parents);

(h) an order varying a factor ascertained under para-graph 54(1)(b); and

(i) where the Tribunal is satisfied that a course of conduct exists where there are deliberate and wilful breaches of an order for contact—an order directing that child support payable by the liable parent is not payable unless and until the Tribunal is satisfied that the order for contact is able to be exercised.

Division 4—Child Support Agreements 98L Parties may enter into child support agreement

The parties to proceedings under this Part may, at any time before a determination is made in relation to the proceedings, enter into an agreement, purporting to be a child support agreement, in relation to the child support payable for the child in relation to whom the determination may be made.

98M Decision on child support agreement

(1) Subject to subsection (2), if the Tribunal is satisfied that an agreement entered into by the parties to proceedings is a child support agreement, the Tribunal must accept the agreement.

(2) If the carer entitled to child support who is party to the agreement is in receipt of an income tested pension, allowance or benefit, the Tribunal must not accept the agreement unless he or she is also satisfied that it would be:

(a) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and

(b) otherwise proper; to accept the agreement.

(3) Subsections 117(4) to (9) (inclusive) apply to the Tribunal in the exercise of his or her functions under

subsection (2) as if:

(a) any reference in those subsections to the court were a reference to the Tribunal; and

(b) any reference to the making of a particular order under Division 4 of Part 7 were a reference to the acceptance of an agreement.

(4) If the Tribunal accepts the agreement:

(a) sections 94, 95 and 96 apply; and

(b) the Tribunal may not make a determination under this Part in relation to the proceedings.

(5) If the Tribunal is not satisfied as required by subsections (1) and (2), the Tribunal must refuse to accept the agreement.

(6) If the Tribunal refuses to accept the agreement:

(a) section 96 applies; and

(b) the Tribunal must proceed to make a determination under this Part.

Division 7—Pending applications

98AG Pending application not to affect assessment

Subject to section 140 (Stay orders), the fact that proceedings are pending under this Part in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person.

Any such assessment may be registered under the Child Support (Registration and Collection) Act 1988, and amounts of child support and other amounts recovered in relation to the assessment, as if proceedings were pending.

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