2.2.1 Basics of Care

Context

A parent or non-parent carer's percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period. The percentage of care is used in a child support assessment to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent's percentage of care for a child will change when the care arrangements change, with some exceptions (see 2.2.2).

Act references

CSA Act Part 5, Division 4

FL Act section 63C

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Determining whether care exists

An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

  • To what extent the person has control of the child, including having overall responsibility for the child and making:
    • major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
    • arrangements for others to meet the needs of the child (delegated care).
  • To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
  • To what extent the person pays for the costs of meeting the needs of the child.
  • To what extent the person otherwise provides financial support for the child.
  • To what extent the child provides for his or her own needs or has those needs met from another source.
  • To what extent the child is financially independent or financially supported from another source.

Older children living away from home

Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

Example: M and F have one child, A, who is 16 and working part time after leaving school early. M helps A find a suitable flat and pays the bond so that A can move closer to work. M helps A to pay for rent and utilities, and assists with other expenses such as buying work clothes and arranging and paying for medical appointments. M also helps A with decisions about things like finding alternative study options for further education. Every weekend M does A's laundry and provides cooked meals for the week. The Registrar would determine that M continues to care for A for child support purposes despite A living separately from M.

Example: M and F have one child, A, who is 17 and working as an apprentice. A decides to rent a room in a share house. F helps A move in and pays the cost of petrol on the occasions A comes back for a visit. F also makes deposits into A's bank account every now and then if A needs some extra cash to make ends meet. A pays for rent, utilities and any other expenses, and shares in household chores including meal preparation and cleaning. Unless there were other relevant factors, the Registrar would determine that A is living independently and F does not care for A for child support purposes.

Care period

A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

Care periods other than 12 months

While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.

Care periods longer than 12 months

A care period of more than 12 months might be appropriate where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months.

Example: M and F have one child, A. M and F have a parenting plan which provides M with care of A every Saturday night and half of each of the school holiday periods except Christmas.

M and F alternate care of A over Christmas such that A stays with M for all of the Christmas school holidays one year and then with F for all of the Christmas school holidays the next year.

Depending on which parent has care of A during the Christmas school holidays, both M and F's care percentage would change each year if the care was determined over a care period of 12 months. In this case, it would be appropriate to consider a care period of 24 months to properly account for the alternating pattern of care for the Christmas school holidays.

Care periods shorter than 12 months

A care period of less than 12 months may be appropriate where the pattern of care will gradually change over a definable period of less than 12 months in a specific and measurable way.

Example: M and F have one child, A. There is no care arrangement in place for A, however, M is currently assessed to have 100% care of A. M's circumstances change such that M is no longer able to care for A full time. M asks F if A can live with them until M is able to resume caring for the child. F agrees but says that they won't be able to do this permanently due to their travel commitments for work.

M and F come to an informal arrangement that M will look after A one night per week for the next 2 months, and then will increase their care by one night per week every 2 months thereafter until M resumes full time care of A.

F calls DHS to advise of the new arrangement. Because the parents have come to a specific arrangement to increase M's care in a staggered but foreseeable way over a definable period, it would be appropriate to use a care period of 2 months for each of the periods that M is due to increase their care of A. This ensures the care percentage accurately reflects the care that each parent is providing during each 2 month period.

Determining the care percentages over a care period of less than 12 months may also be appropriate where a parent's pattern of care is set out in a care arrangement between the parents over a definable period of less than 12 months and the actual care is occurring in accordance with that care arrangement.

Example: M and F have one child, A. There is a care arrangement in place for A which states that M and F are to share the care of A equally for the next 6 months. At the conclusion of the 6 months, the parents agree to come to a new care arrangement. The Registrar will determine the care percentages for M and F using the 6 month care period provided in the care arrangement.

Percentage of care

The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.

A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care. See 2.2.2 for more information on how percentages of care are worked out.

A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.

Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).

Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.

Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.

A parent or non-parent carer's percentage of care for a child will be used to determine the parent's or non-parent carer's cost percentage for the child. The percentage of care will be rounded to a whole percentage (CSA Act section 54D). See 2.4.5 for more information on these percentages in the child support formula.

Care other than in nights

Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

Example: M and F have one child A. M works night shifts and so can only provide care for A during the daytime. M cares for A for 45 hours per week while F cares for A every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for A and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for A.

Example: M and F have one child, A. M has 98% care of A and F has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, A stays 7 Saturday nights (from 4pm Saturday to 12 noon on Sunday) with F and the rest of the nights with M. F works night shifts and takes care of A every weekday from 8am until M returns from work at 6pm. This occurs for 40 weeks over 12 months. F requests that his care percentage be calculated using hourly care.

Calculation
Saturday nights 7 × 20 hours = 140 hours
Daytime care 5 weekdays × 40 weeks × 10 hours = 2,000 hours
Total hours care   2,140 hours
Care percentage 2,140 hours ÷ 8,760 hours = 24%

Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

Example: M and F have 2 children, A and B, who live mainly with M. F has care of the children every second Friday and Saturday night and some school holidays. F also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to M's house for the night. As the daytime care F provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.

Agreements & orders regarding care

A written agreement is an agreement in writing and signed by both parents or the parent/s and a non-parent carer regarding how a child will be cared for.

A parenting plan is a type of written agreement signed and dated by both parents. It is made under section 63C of the FL Act between separated parents regarding how their child or children will be cared for and supported (which may include the parents agreeing to care being provided by a non-parent carer).

If a non-parent carer is a party to a written agreement, it is not a parenting plan for child support purposes.

A court order is an order made by the Family Court of Australia, the Federal Circuit Court of Australia or a court of summary jurisdiction in each state or territory (e.g. state magistrates courts and local courts exercising jurisdiction under the FL Act) which makes provision for the care of the children.

Where a non-parent carer has made an application against one parent only (because, for example, the other parent is deceased or is not resident in Australia or a reciprocating jurisdiction (1.5.1)), any relevant orders or agreements will be between the assessed parent and the non-parent carer.

Definitions used to describe care for child support assessments

Once a care percentage has been determined, there are 5 different terms that may be used by the Registrar to describe a parent or non-parent carer's care:

Below regular care: A care percentage of 0% to less than 14%. This level of care does not affect the child support assessment.

Regular care: A care percentage of 14% to less than 35% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent or carer will not receive child support if they have a care percentage of less than 35% for a child.

Shared care: A care percentage of 35% to 65% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent with shared care can receive or be required to pay child support. A non-parent carer with at least shared care can receive child support.

Primary care: A care percentage of more than 65% to 86% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent will not be assessed to pay child support if they have more than 65% care.

Above primary care: more than 86% to 100% - will be recognised in the child support assessment as meeting all of the costs of the child. A parent with this amount of care is not required to pay child support.

The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.

Term Percentage of care Number of nights
Below regular 0 to less than 14% 0 to 51
Regular 14% to less than 35% 52 to 127
Shared 35% to 65% 128 to 237
Primary More than 65% to 86% 238 to 313
Above primary More than 86% to 100% 314 to 365

In some circumstances, the percentage of care a parent or carer has will influence other decisions, such as decisions about prescribed non agency payments (5.3.1). A paying parent must have less than 14% care of all children of the relevant administrative assessment to have prescribed non agency payments credited.

A parent's percentage of care can also be relevant for some applications for a Change of Assessment. In particular, the parent's percentage of care may impact upon the costs that can be claimed in an application under reason 1 (2.6.7).

Pattern of care

When an application for a child support assessment is received, or a change in care percentage is being considered, the Registrar will ask for information about the care of the child or children. Care determinations are made in different ways before and after 1 July 2010 (see 2.2.6 for details of pre-1 July 2010 rules).

In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

Supporting evidence

Parents may be able to support their claims by providing records of the nights the children have spent in their care. The Registrar will consider a wide range of evidence, including records of visits to health care providers, other services, or diary entries. The Registrar may also have records of past contact with the parent or carer that is relevant and can also use Centrelink information.

The Registrar can consider statements provided by third parties. The Registrar will advise the third party and the parent who provided the statement that the other parent will be told the source and details of the information contained in the statement so that they can comment. If the third party or parent providing the information does not want the details provided to the other parent, the Registrar will not consider the statement when making a decision.

The Registrar will respect the privacy of the parents and the children involved. The Registrar will not contact third parties without the consent of the parent who provided the information and will not imply that the third party is obliged to provide information to the Registrar. If a parent provides a written statement from a third party, the Registrar will infer that they have consented to the third party being contacted.

Conflicting information or disputed facts

The information given to the Registrar by a parent or carer regarding the care being provided for a child may be in conflict with the information provided by the other parent or carer. The Registrar encourages parents to resolve between themselves any disputes they may have about the care arrangements for a child. However, it is recognised that sometimes parents do not agree about the care that each parent has of the child, and as a result the Registrar cannot immediately determine a care percentage to be used in an assessment. In these cases, the Registrar will request additional information or supporting evidence of the claims made by each parent.

If parents provide conflicting information, the Registrar will give each parent the opportunity to comment on the information provided by the other parent before a determination is made. If the facts regarding the care arrangements are disputed, the Registrar will attempt to determine a new percentage of care of a child on the basis of the information provided and obtained. If the information and evidence provided by the parents cannot be reconciled, the Registrar will weigh the evidence and information provided by the parents to determine the pattern of care likely to occur over the care period.

The Registrar may use or request information about past care to form a judgment about likely future care. The Registrar will make a decision on the basis of the information provided by the parents to substantiate their claims.

In rare circumstances, the information provided by the parents or carers may be inconclusive to the extent that the Registrar is unable to determine what care percentage each parent or carer is likely to have over the relevant care period. In these cases, the Registrar will assume that the state of affairs known to it at the time the existing care determination was made is continuing. As there is no change in the care percentage, the existing care determination cannot be revoked and the child support assessment will not be amended.

Review of care decisions

If a parent or carer is dissatisfied with a decision concerning the percentage of care, they may object to that decision. See 4.1.2 for more information on objections.

When making a decision about an objection, the Registrar will either allow it, partly allow it or disallow it. If a person is dissatisfied with the objection decision, they may seek a review of the decision in the AAT. See 4.2 for more information on applying to the AAT.

Where the AAT has undertaken a first review of a care percentage decision a party dissatisfied with the first review decision may apply to the AAT for a second review of the decision.

Care percentage decisions made by the Social Security Appeals Tribunal prior to 1 July 2015 may still be reviewed by the AAT as a second review, subject to application time limits and other application requirements being met (Tribunals Amalgamation Act 2015 Schedule 9 item 15AC).

Where a child support parent or carer also receives FTB the same care percentage will be used for both child support and FTB purposes but may have a different date of effect (see 4.1.8).

Relevant dependent children

All of the care provisions discussed in this topic relate to relevant dependent children (2.4.7) as well as children of a child support assessment. See 2.9.5 for the rules that identify the date to be used when first adding a relevant dependent child to an assessment.

Last reviewed: 3 July 2017