2.2.2 Care Determinations & Changes in Care

Context

The Registrar must determine a care percentage for use in the child support formula. There are different ways in which the care percentage can be determined and the method used will depend on the parents' circumstances. The Registrar can change the care percentage used in an assessment in certain situations.

Act references

CSA Act Part 5 Division 4

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Types of care determinations

When determining a percentage of care, the Registrar can make the following types of determinations:

  • a determination of the percentage of the actual care that each parent provides (sections 49 and 50),
  • a determination, for an interim period, of a percentage of care based on a written agreement, parenting plan, or court order rather than on the actual care, in certain circumstances (sections 51, 52, and 54C), or
  • a below regular care determination, where a parent's care falls below 14% despite the child being made available to the person (section 54G).

The Registrar will usually determine a percentage of care based on the actual care that each parent or carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or carer is not complying with a written agreement, court order or parenting plan and an interim care decision is in effect (see 2.2.4 for information about disputed care arrangements).

When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances. If the Secretary has made a care determination for FTB purposes in relation to the change, the Registrar will use that determination (see 2.2.5).

Change in pattern of care

When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.

Example: M and F are the parents of A, B and C. The children live mainly with M. F has care every second Saturday night, some Friday nights and some holiday care, totaling 52 nights. This is a care percentage of 14%.

M calls DHS advising F did not have care as expected last Friday and Saturday. M states that the parents have not made an agreement about the care, but, rather, the arrangements had evolved in line with their habits. M requests that the assessment be amended.

F advises that they did not have care of the children due to an unexpected family situation. They anticipate that the usual arrangements will resume with their next scheduled care. M advises that they are uncertain of future care arrangements. They confirm that care arrangements have followed the same pattern for the last 2 years.

The Registrar determines that the pattern of care that was used to determine the current care percentages is likely to continue. The Registrar determines that F is likely to have a care percentage of 14% for the care period. As the care percentage has not changed, the assessment is not amended.

What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

  • the parent misses 3 care events in a row,
  • the parent misses 5 events of care out of 8, or
  • the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

See 2.2.3 for more information about below regular care determinations.

A care event is a night of care or several consecutive nights of care that follow a recurring pattern. For example, Friday evening to Sunday afternoon is one event, one night mid-week is an event and 5 consecutive nights is one event. Daytime care with no planned overnight stay is not generally a care event, unless it occurs over a substantial period of time and is taken into account in determining a percentage of care based on hours (2.2.1).

If a care event is missed but substitute care occurs at another time, it is not considered as a missed event.

The Registrar will consider the date the care changed to be the date of the earliest event that is used to demonstrate that the pattern of care has ceased - for example, the date of the first missed event when a parent misses 3 care events in a row.

Example: The care percentages were calculated based on child A staying with M every Saturday night from March. M's care followed this pattern until September. In September, M missed the Saturday night care on the first and following 2 weekends. F contacts DHS on 23 September to advise that M missed care on 5 September and all subsequent weekends. F asks for a determination of a new care percentage.

M has missed 3 care events in a row. The Registrar will consider that the pattern of care has changed from the date of the first event, i.e. 5 September.

If there is a change in the care arrangements such that a parent now has more care, but the 3 tests listed above do not assist the Registrar to determine whether there has been a change in the pattern of care, then the Registrar will consider all the information provided to determine if there has been a change in the pattern of care.

Example: M and F are the parents of A, B and C. The children live mainly with M. F has care every Saturday night, some Friday nights and some holiday care, totaling 92 nights or 25%.

F calls DHS on 22 March advising that they now have more care of the children, as the children are spending every Friday night with them. M confirms that the children are staying with F every Friday night so that they can attend Little Athletics on Saturday mornings. The change happened about 6 weeks ago and is likely to continue for the school year.

The Registrar is satisfied that there has been a change in the pattern of care from the first Friday when F had care.

When considering whether the increased care demonstrates a change in the pattern of care, the Registrar will consider the information presented or obtained to determine the care that is likely to be provided by the parents in the care period.

Example: M and F are the parents of A, B and C. The children live mainly with M. F has care every Saturday night, some Friday nights and some holiday care, totaling 92 nights or 25%.

F calls DHS on 22 March advising that they now have more care of the children, as the children have spent the last 3 Friday nights with them. Based on these arrangements they will have significantly more care of the children.

M advises that the children have stayed with F for the last 3 Friday nights as M has been undertaking a course on those nights. There is only one more night of the course to attend and then the previous care arrangements will resume.

The Registrar is not satisfied that there has been a change in the pattern of care. The Registrar determines that the pattern of care that was used to determine the current care percentages is likely to continue. It determines that F is likely to have a care percentage of 25% for the care period. As the care percentage has not changed, the assessment is not amended.

No pattern of care - point of agreement

There may be situations where the Registrar is advised that the care of a child will change, or has changed, but no pattern of care exists that will assist in determining the care percentages for a new care period. In these situations, the Registrar will consider the information provided by the parents to decide whether care percentages can be determined. If the information provided by both parents is consistent, then the Registrar will determine the care percentages based on that information.

If conflicting information has been provided by the parents, the Registrar will consider whether there is some common expectation about future care. If the information provided shows that a different care percentage would be calculated, and there is agreement to a certain point on what the new care arrangements will be, then the Registrar will use that 'point of agreement' to determine the new care percentage.

Example: M and F are the parents of A, B and C. The children live mainly with M. F has care every second Saturday night and some holiday care, totaling 42 nights or 11%.

F calls DHS on 27 May to advise that the care of A has changed. A has just started a part time job near F's home and will be staying with F after work. F expects that A will be in their care for 2 nights per week during school terms and at least 3 nights per week during school holidays. This would be a care percentage of 31% (40 × 2 = 80 and 12 × 3 = 36, a total of 116 nights).

When contacted by DHS, M confirms that the care has changed and that A is now spending more time with F. However, M advises that A will be working and staying with F 2 nights per week during school terms and 2 nights every second week of the school holidays. This is a care percentage of 25% (40 × 2 = 80 and 6 × 2 = 12, a total of 92 nights).

As the new care arrangements have only recently commenced, there is no established pattern of care for the school holidays. Both parents agree that A will spend at least 92 nights with F. The Registrar determines, based on that 'point of agreement', that F will have a care percentage of 25% and M 75% for A. The assessment is amended using these care percentages.

No pattern of care - no change to the assessment

Where the information provided is insufficient for a pattern of care to be determined, and there is no common expectation about future care, the Registrar will assume that the percentage of care known at the time the assessment was made is continuing. As there is no change to the care percentages, the assessment will not be amended.

In making a determination, the Registrar will seek and consider information from both parents. If further information becomes available, the Registrar can consider making a new determination at that time.

One-off block of 100% care

Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (subsections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.

The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

Example: M and F have one child, A. A usually lives with M 100% of the time. M needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where M will not be able to care for A. F will look after A during this time. The Registrar makes a one-off block of 100% care decision. When A returns to M's care, M contacts DHS and the Registrar makes a new care decision based on the ongoing care of each parent.

When can a new percentage of care be determined?

A new percentage of care can be determined whenever the care of a child has changed (sections 54F, 54G and 54H). The Registrar will not give effect to future expected care changes until either of the parents advise the Registrar that the anticipated change has actually occurred. If neither parent advises the Registrar when the care subsequently changes, a new care percentage determination will not be made. The child support assessment will continue to be based upon the existing care percentage until one or both of the parents advise the Registrar that the actual care has changed and the Registrar is able to make a new care percentage determination.

The Registrar can only give effect to a new care percentage determination after revoking the existing care percentage determination (sections 49(1)(b)(i) and 50(1)(b)(i)). The new care percentage determination takes effect the day after the existing determination is revoked. There are 3 circumstances in which the existing determination can be revoked:

  • where a new care percentage determination would affect the cost percentage, the Registrar must revoke the existing determination (section 54F),
  • where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent, the Registrar must revoke the existing determination from the day the parent ceased having at least regular care (section 54G), and
  • where a new care percentage determination, if it was to be made, would affect the care percentage (but not the cost percentage), the Registrar may revoke the existing determination (section 54H).

Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

Example: M and F have one child support child, A, for whom M has regular care of 14% and F has primary care of 86%. M calls DHS to advise that their care percentage of A has increased from 14 % care to 25% care. DHS contacts the other parent, F, who confirms that M's care of A has increased from 14% care to 25% care. Even though M's increased level of care of A is still within the regular care range and will therefore not affect the cost percentage, the Registrar is satisfied that M's new care percentage of A is 25% and decides to revoke the existing care percentage determination to enable a new care percentage determination to be made that reflects M's 25% care of A.

Example: M and F have one child support child, A, for whom M has regular care of 14% and F has primary care of 86%. M calls DHS to advise that their care percentage of A has increased from 14 % care to 25% care. DHS contacts the other parent, F, who advises that M's care of A has only increased from 14% care to 20% care. Each parent has provided evidence of their care levels and the Registrar is satisfied on the basis of this evidence that M's level of care of A has increased from 14% care and remains within the regular care range. However, the current evidence does not enable the Registrar to be satisfied as to the specific new percentage of care. There would be no change to the cost percentage from a new care percentage determination. The Registrar decides not to conduct further investigations and not to revoke the existing care percentage determination.

For the purposes of sections 54F and 54H, where an interim period has been in place, revocation of the existing care determination can only occur if the interim period has ended (see 2.2.4 for more information on disputed care).

Date of effect of a care change

If the Registrar is notified or otherwise becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred (subsection 54F(2)(a)).

If the Registrar is not notified, or does not become aware, within 28 days, the assessment will generally be amended using the new care percentage from the date the Registrar was notified of the care change (subsection 54F(2)(b)).

The Registrar can be notified or otherwise become aware of a change of care in other ways, for example, from information provided by the Secretary in relation to FTB, or by a parent's authorised representative.

Where a parent's care has fallen below 14% despite the child being made available to them, and the other parent notifies the Registrar within a reasonable time, the Registrar will change the assessment from the date the first parent's pattern of care ceased (see 2.2.3).

Example: M called DHS on 23 January 2014 to advise of a care change that occurred on 3 January 2014. The Registrar contacted the other parent F who confirmed that the care changed on that date. As the Registrar was notified within 28 days of the care change, the Registrar changed the parents' percentages of care and amended the assessment from 3 January 2014.

Multiple care change notifications

Where a parent or non-parent carer delays notifying a change in the percentage of care of a child to the Registrar, they might also advise more than one change in care has occurred. The Registrar will treat each care change as a separate event and determine the percentage of care for each care event as though subsequent care changes had not occurred.

Note: If a care change is not notified within 28 days of the event occurring, it will only affect the child support assessment from the date of notification. However, the Registrar must still determine a percentage of care for each event as there may be an effect on any FTB payable to the relevant carer.

Last reviewed: 1 July 2016