1.4.2 Application of the CSRC Act to WA Ex-nuptial Cases

Context

The CSRC Act as amended, applies to WA ex-nuptial cases to the extent that it has been adopted by the WA Parliament.

The WA Parliament has adopted the CSRC Act and certain amendments made to this Act. The arrangement by which the WA Parliament has adopted these laws means that, from time to time, the Registrar must treat WA ex-nuptial cases differently to other cases.

Act references

CSRC Act (Cth)

Child Support (Adoption of Laws) Act 1990 (WA)

Child Support (Adoption of Laws) Amendment Act 2007 (WA)

Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (Cth)

Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth)

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008

Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008

Child Support (Adoption of Laws) Amendment Act 2011 (WA)

Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010

Paid Parental Leave (Consequential Amendments) Act 2010

Child Support (Adoption of Laws) Amendment Act 2012 (WA)

Statute Law Revision Act 2011

Human Services Legislation Amendment Act 2011

Child Support (Registration and Collection) Amendment Act 2011

Acts Interpretation Amendment Act 2011

Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012

Child Support (Adoption of Laws) Amendment Act 2014 (WA)

Social Security and Other Legislation Amendment (Further 2012 Budget and Other Measures) Act 2012

Personal Liability for Corporate Fault Reform Act 2012

Federal Circuit Court of Australia (Consequential Amendments) Act 2013

Statute Law Revision Act 2013

Treasury Legislation Amendment (Repeal Day) Act 2015

Tribunals Amalgamation Act 2015

Crimes Legislation Amendment (Penalty Unit) Act 2015

Civil Law and Justice (Omnibus Amendments) Act 2015

Australian Immunisation Register (Consequential and Transitional Provisions) Act 2015

Norfolk Island Legislation Amendment Act 2015

Territories Legislation Amendment Act 2016

Crimes Amendment (Penalty Unit) Act 2017

Commencement of the CSRC Act

The CSRC Act came into operation on 1 June 1988. From 1 June 1988, WA residents who were entitled to maintenance under court orders or court registered agreements for ex-nuptial children were able to apply for the Registrar to register and collect the liability.

WA adoption of CSRC Act amendments from 1 November 2007, 1 January 2008 & 1 July 2008

The Child Support (Adoption of Laws) Amendment Act 2007 (WA) amended the Child Support (Adoption of Laws) Act 1990 (WA) to adopt the amendments to the CSRC Act made by:

  • the Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (Cth), and
  • the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth).

Amendments to the CSRC Act made by the Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (Cth) apply to cases involving WA ex-nuptial children from 1 November 2007. Certain amendments apply to all other cases from 1 January 2007, as follows:

  • The Social Security Appeals Tribunal (SSAT) provides a process for parents who want a review of a Registrar decision made under the CSA Act or the CSRC Act.
  • A payee can pursue court enforcement of a debt whilst it is registered for collection by the Registrar.
  • A court hearing an enforcement application made by a payee has the same powers as the Registrar to obtain information in order to collect child support.
  • A court has increased powers to make orders staying a child support assessment or collection pending the determination of an objection, application for review, or appeal to a court.
  • The Registrar can register for collection an amount repayable by a former payee to a former payer under a parentage overpayment order.

Amendments to the CSRC Act made by the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) apply to cases involving WA ex-nuptial children from 1 January 2008. Certain amendments apply to all other cases from 22 June 2007, as follows:

  • All stay order provisions (4.3.6) are located within the CSRC Act regardless of whether the relevant proceeding has commenced under the CSA Act or the CSRC Act.
  • Some minor changes to SSAT arrangements-including provision for an applicant to withdraw their SSAT application.
  • Objections and accompanying documents (4.1.6) are to be sent to the other party.
  • Where a court orders a payer to make a payment in private payee enforcement (5.4.7) proceedings, that payment must be made to the Registrar.
  • An employer's obligation to withhold money from a payer's salary and wages is extended to include payments to independent contractors.
  • Some changes to the secrecy provisions (6.3.3), including the following:
    • The Registrar can communicate protected information to persons as necessary to prevent a credible threat to the life, health or welfare of a person.
    • The Registrar can communicate protected information to brief the Minister in respect of a range of circumstances relating to the Minister's duties.
    • The Registrar can communicate protected information to a person who has the consent of the person to whom the information relates to obtain that information.
    • The Registrar can communicate protected information in specific circumstances relating to missing people and locating a relative or beneficiary of a deceased person.
    • There is a new offence for unauthorised disclosure (6.8.6) of information.

All other provisions of the CSRC Act which came into effect on 1 January 2008 and 1 July 2008 also came into effect for cases involving WA ex-nuptial children on the same dates.

WA adoption of CSRC Act amendments from 3 March 2011

The Child Support (Adoption of Laws) Amendment Act 2011 (WA) commenced on 3 March 2011. It adopted amendments to the CSRC Act contained in several Acts including the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008; the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008; the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008; the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010; and the Paid Parental Leave (Consequential Amendments) Act 2010.

Amendments to the CSRC Act made by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (2008 Budget and Other Measures) Act 2008 apply to cases involving WA ex-nuptial children from 3 March 2011.

Those amendments, which apply to all other cases from 1 July 2008, are as follows:

  • The Registrar has some discretion in the amount deducted from social security pensions or benefits and Veterans' Affairs pensions and allowances (5.2.7) if the paying parent contacts DHS and establishes that they have serious financial hardship.

Amendments to the CSRC Act made by the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008 apply to cases involving WA ex-nuptial children from 3 March 2011. Those amendments, which apply to all other cases from 10 December 2008, are as follows:

  • The Registrar may make a departure prohibition order where the liability is of the kind arising under sections 18A(1), 18A(3)(a) or 18A(4).

Amendments to the CSRC Act made by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 apply to cases involving WA ex-nuptial children from 3 March 2011. Those amendments, which apply to all other cases from 1 March 2009, are as follows:

  • The definition of registrable maintenance liability at section 18 is extended to include a liability of a party to a de facto relationship to pay periodic maintenance (3.1.5) to the other party of the de facto relationship.

Amendments to the CSRC Act made by the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 apply to cases involving WA ex-nuptial children from 3 March 2011. Those amendments, which apply to all other cases from 1 July 2010, are as follows:

  • The way that care percentage decisions are reviewed has changed as a result of sharing care decisions (2.2.5) across DHS for child support and FTB purposes. A party to an assessment can now object (4.1.2) to a DHS care decision, either orally or in writing, and at any time. Also, a party to an assessment who is dissatisfied with DHS' objection care percentage decision can now apply to the AAT or SSAT for review of the decision (4.1.2), at any time.
  • The provisions relating to estimates of income have changed. As a result, a parent can now object to the Registrar's decision to refuse to accept an election for a new year to date income amount (4.1.2). A parent can now object to the Registrar's determination of a year to date income amount (4.1.2).

Amendments to the CSRC Act made by the Paid Parental Leave (Consequential Amendments) Act 2010 apply to cases involving WA ex-nuptial children from 3 March 2011. Those amendments, which apply to all other cases from 1 October 2010, are as follows:

  • Section 72AD allows the Registrar to give written notice to the Secretary of DSS to deduct an amount from a parent's parental leave pay (5.2.10) to collect the parent's child support or spousal maintenance debt.

WA adoption of CSRC Act amendments from 22 November 2012

The Child Support (Adoption of Laws) Amendment Act 2012 (WA) commenced on 22 November 2012. It adopted amendments to the CSRC Act contained in several Acts including the Statute Law Revision Act 2011; the Human Services Legislation Amendment Act 2011; the Child Support (Registration and Collection) Amendment Act 2011; the Acts Interpretation Amendment Act 2011; and the Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012 Schedule 7.

Amendments to the CSRC Act made by the Child Support (Registration and Collection) Amendment Act 2011 apply to cases involving WA ex-nuptial children from 22 November 2012. Those amendments, which apply to all other cases from 4 August 2011, are as follows:

  • The changes provide for the Registrar to delegate functions outside the Commonwealth. For example, the Registrar could delegate certain debt recovery functions to another authority of the Commonwealth or to an organisation that performs services for the Commonwealth.
  • The amendments also provide for strengthening of criminal penalty provisions, making it clear that employers commit offences when they fail to comply with the relevant requirements.

WA adoption of CSRC Act amendments from 4 December 2014

The Child Support (Adoption of Laws) Amendment Act 2014 (WA) commenced on 4 December 2014. It adopted amendments to the CSRC Act contained in several Acts including the Social Security and Other Legislation Amendment (Further 2012 Budget and Other Measures) Act 2012 Schedule 3 and Schedule 4; the Personal Liability for Corporate Fault Reform Act 2012; the Federal Circuit Court of Australia (Consequential Amendments) Act 2013; and the Statute Law Revision Act 2013.

Amendments to the CSRC Act made by the Social Security and Other Legislation Amendment (Further 2012 Budget and Other Measures) Act 2012 Schedule 4 apply to cases involving WA ex-nuptial children from 4 December 2014. Those amendments, which apply to all other cases from 17 November 2012, are as follows:

  • A new subsection (1A) is inserted after subsection 26(1) and clarifies the particulars which must be recorded in respect to each registered maintenance liability under subsection 26(1)(g). Subsection 26(1)(g) requires that where an entry relates to the maintenance of 2 or more people, periodic amounts attributable to each person must be recorded. The intention of subsection 26(1)(g) was directed at cases where there is spousal maintenance and maintenance for children. This amendment clarifies that, if an entry relates to 2 or more children only, the entry needs to record the periodic amount attributed to all the children collectively.

Amendments to the CSRC Act made by the Personal Liability for Corporate Fault Reform Act 2012 apply to cases involving WA ex-nuptial children from 4 December 2014. Those amendments, which apply to all other cases from 11 December 2012, are as follows:

  • Removes any potential for directors or other company officers to be made personally liable for corporate fault. This new section clarifies that the Registrar may give a notice or serve a process on a company, by giving it or serving it on a director or other particular company officers.

WA adoption of CSRC Act amendments from 28 November 2015

The amendment of the Child Support (Adoption of Laws) Act 1990 (WA) by the Child Support (Adoption of Laws) Amendment Act 2015 (WA) commenced on 28 November 2015. From that day, the amended Child Support (Adoption of Laws) Act 1990 (WA) adopted the amended CSRC Act as it existed on 1 July 2015, which included amendments to the CSRC Act made by the Treasury Legislation Amendment (Repeal Day) Act 2015 and the Tribunals Amalgamation Act 2015.

The amendment to the CSRC Act made by the Treasury Legislation Amendment (Repeal Day) Act 2015 applies to cases involving WA ex-nuptial children from 28 November 2015. The amendment, which applies to all other cases from 1 July 2015, is as follows:

  • The definition of a resident of Australia was amended due to amendments to the definition of Australia under taxation legislation. This amendment to the CSRC Act provides that the definition of a resident of Australia continues to exclude residents of the external territories for child support purposes.

The Tribunals Amalgamation Act 2015 merged the AAT, the SSAT, Migration Review Tribunal and Refugee Review Tribunal. The amalgamated tribunal is called the AAT. The amendments to the CSRC Act made by the Tribunals Amalgamation Act 2015 apply to cases involving WA ex-nuptial children from 28 November 2015. The amendments, which apply to all other cases from 1 July 2015, include:

  • child support decisions reviewed by the previous SSAT are now reviewed by the amalgamated tribunal, with these reviews being allocated to the Social Services and Child Support Division of the AAT,
  • new defined terms of 'AAT first review' and 'AAT second review' that correspond with the previous SSAT and AAT reviews of child support matters respectively,
  • amendments to preserve existing procedures for merits review of child support matters,
  • amendments to streamline pathways for judicial review, so that judicial review of AAT decisions in relation to child support would be conducted by the Federal Circuit Court and Federal Court under the AAT Act, which is a departure from the previous policy that allowed various courts to have jurisdiction to hear appeals from SSAT decisions under Division 3 of Part VIII of the CSRC Act, and
  • consequential amendments to replace references to the SSAT with references to the AAT.

CSRC Act amendments which do not apply to WA ex-nuptial cases

On 31 July 2015, section 4AA of the Crimes Act 1914 was amended by the Crimes Legislation Amendment (Penalty Unit) Act 2015 to increase the penalty unit amount to $180. Due to amendments made by the Child Support (Adoption of Laws) Amendment Act 2015 (WA), the Child Support (Adoption of Laws) Act 1990 (WA) has adopted the amended CSRC Act as it existed on 1 July 2015. Therefore, the penalty unit amount remains at $170 for WA ex‑nuptial cases because this was the penalty unit that applied on 1 July 2015.

The Civil Law and Justice (Omnibus Amendments) Act 2015 repealed section 96B of the CSRC Act and this commenced on 14 October 2015. The Australian Immunisation Register (Consequential and Transitional Provisions) Act 2015 inserted the Australian Immunisation Register Act 2015 into subsection 16AB(3) of the CSRC Act and this commenced on 1 January 2016. As these amendments occurred after the WA Parliament adopted the Commonwealth CSRC Act as it existed on 1 July 2015, these amendments will not apply to WA ex-nuptial children until the WA Parliament adopts the CSRC Act as it existed on 14 October 2015 and/or 1 January 2016 or a later date.

On 1 July 2016, the definition of 'resident of Australia' in the CSRC Act was amended by the Norfolk Island Legislation Amendment Act 2015. This amendment provided that residents of Norfolk Island are residents of Australia for child support purposes, and enables residents of Norfolk Island to apply for child support. As this amendment occurred after the WA Parliament adopted the CSRC Act as it existed on 1 July 2015, the definition of a 'resident of Australia' in section 4 of the CSRC Act that is to apply to WA ex-nuptial cases will continue to exclude Norfolk Island residents as residents of Australia for child support purposes.

On 1 July 2016, the definition of 'resident of Australia' in the CSRC Act was further amended by the Territories Legislation Amendment Act 2016. This amendment provided that residents of Christmas Island and Cocos (Keeling) Islands are residents of Australia for child support purposes, and enables these residents to apply for child support. As this amendment occurred after the WA Parliament adopted the CSRC Act as it existed on 1 July 2015, the definition of 'resident of Australia' in section 4 of the CSRC Act that is to apply to WA ex-nuptial cases will continue to exclude residents of Christmas Island and Cocos (Keeling) Islands for child support purposes.

On 1 July 2017, section 4AA of the Crimes Act was amended by the Crimes Amendment (Penalty Unit) Act 2017 to increase the penalty unit amount to $210, and for this amount to be automatically indexed in line with changes in the CPI on 1 July 2020 and each third 1 July following that day. As this amendment occurred after the WA Parliament adopted the CSRC Act as it existed on 1 July 2015, the penalty unit amount remains at $170 for WA ex‑nuptial cases.

Last reviewed: 3 July 2017