Saturday, 11 April 2009

The incomprehensible words of our child support legislation

I just came across a post by a Texan lawyer, Jimmy Verner, about the quirky language of child support laws in Texas. When I read it, it immediately made me think about the incomprehensible child support laws in Australia, with drafting so thick that it would do the Richmond maze proud (the place that says that you arrive and then get lost).

Despite all that lawyers have been taught about plain language, all this has been lost on the framers of this legislation. I won't bore you with buckets of drafting, but just give you a snippet.

Recently I have had to look at sections 111 and 112 of the Child Support(Assessment) Act. I set them out in total:

CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 111 Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to child support.
Registrar application
(3) The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4) The parties to the proceeding under subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child support.

CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 112 Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b) is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a) the Registrar is required to make a determination under section 98S; or
(b) the court is required to make an order under section 118.

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