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, 53A 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: Jane and Gary are the parents of 3 children. The children live mainly with Jane. Gary has care every second Saturday night, some Friday nights and some holiday care, totalling 52 nights. This is a care percentage of 14%.

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

Gary advises that he did not have care of the children due to an unexpected family situation. He anticipates that the usual arrangements will resume with his next scheduled care. Jane advises that she is uncertain of future care arrangements. She confirms 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 Gary 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 are calculated based on Xiu's child staying with her every Saturday night from March. Xiu's care followed this pattern until September. In September, Xiu missed the Saturday night care on the first and following 2 weekends. Xiu's former partner, Robin, contacts DHS on 23 September to advise that Xiu missed care on 5 September and all subsequent weekends. Robin asks for a determination of a new care percentage.

Xiu 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: Marissa and Ryan are the parents of 2 children. The children live mainly with Marissa. Ryan has care every Saturday night, some Friday nights and some holiday care, totalling 92 nights or 25%.

Ryan calls DHS on 22 March advising that he now has more care of the children, as the children are spending every Friday night with him. Marissa confirms that the children are staying with Ryan 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 Ryan began to consistently have more 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: Nic and Jo are the parents of 3 children. The children live mainly with Nic. Jo has care every Saturday night, some Friday nights and some holiday care, totalling 92 nights or 25%.

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

Nic advises that the children have stayed with Jo for the last 3 Friday nights as Nic 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. The Registrar determines that Jo 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: Mel and Faraj are the parents of 3 children. The children live mainly with Mel. Faraj has care every second Saturday night and some holiday care, totalling 42 nights or 11%.

Faraj calls DHS on 27 May to advise that the care of his son, Ben, has changed. Ben has just started a part time job near Faraj's home and will be staying with Faraj after work. Faraj expects that Ben will be in his 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, Mel confirms that the care has changed and that Ben is now spending more time with Faraj. However, Mel advises that Ben will be working and staying with Faraj 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 Ben will spend at least 92 nights with Faraj. The Registrar determines, based on that 'point of agreement', that Faraj will have a care percentage of 25% and Mel will have a care percentage of 75% for Ben. 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: Jason and Anita have one child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason 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, 54FA, 54G, 54H and 54HA). 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 several circumstances in which the existing determination can be revoked:

  • where a new care percentage determination would affect the cost percentage (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 (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) (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: John and Sarah have one child, Michelle, for whom John has regular care of 14% and Sarah has primary care of 86%. John calls DHS to advise that his care percentage of Michelle has increased from 14% care to 25% care. DHS contacts the other parent, Sarah, who confirms that John's care of Michelle has increased from 14% care to 25% care. Even though John's increased level of care of Michelle is still within the regular care range and will therefore not affect the cost percentage, the Registrar is satisfied that John's new care percentage of Michelle is 25% and decides to revoke the existing care percentage determination to enable a new care percentage determination to be made that reflects John's 25% care of Michelle.

Example: Sally and Marco have one child, Lincoln, for whom Sally has regular care of 14% and Marco has primary care of 86%. Sally calls DHS to advise that her care percentage of Lincoln has increased from 14% care to 25% care. DHS contacts the other parent, Marco, who advises that Sally's care of Lincoln has only increased from 14% care to 20% care. Each parent has provided evidence of their care levels and DHS is satisfied on the basis of this evidence that Sally's level of care of Lincoln has increased from 14% care and remains within the regular care range. However, the current evidence does not enable DHS 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. DHS decides not to conduct further investigations and not to revoke the existing care percentage determination.

For the purposes of sections 54F, 54FA, 54H and 54HA, where an interim period has been in place, revocation of the existing care determination can occur if:

  • the maximum interim period has ended, or
  • the maximum interim period has not ended, if there has been a change to the actual care of the child during a period where the interim period does not apply (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(3)(a)).

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

If the Registrar is not notified or does not otherwise become aware of a change of care within 28 days of the change, and:

  • the parent or non-parent carer's care has increased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the Registrar was notified or otherwise became aware of the care change (unless care changes again prior to this date),
  • the parent or non-parent carer's care has decreased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the change of care occurred (subsection 54F(3)(b)).

The parties have an obligation to notify the Registrar of increases or decreases in care. If they fail to comply with that obligation, neither party should benefit from that failure. Where there is a delayed notification of a care change, an increased care percentage will only apply from date of notification.

For FTB purposes, the actual date of the change in care will be used.

Different rules apply to care changes that result in an interim care determination. See 2.2.4 for more information.

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: Soo-Min called DHS on 23 January 2018 to advise of a care change that occurred on 3 January 2018. The Registrar contacted the other parent, Hyun, 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 2018.

Example: Fatima advised DHS on 16 December 2018 that a change of care had occurred on 15 September 2018, with Fatima's care increasing to 80% and Abdul's care decreasing to 20%. The Registrar received confirmation from the other parent, Abdul, that the care changed on that date. As the Registrar was notified more than 28 days after the care change, the Registrar changed the parents' percentages of care and amended the assessment: Fatima's care from 16 December 2018, the day of notification; and Abdul's care from 15 September 2018, the day of the care change.

See 2.10.4 for rules on suspensions when notification has been delayed and made within 26 weeks. See 2.10.3 for rules on terminating events when notification has been delayed and made outside of 26 weeks.

Increased or decreased care percentage

When determining the date of effect of a care change, first the Registrar must determine if a parent or non-parent carer's care has increased or decreased (section 54F(3)(b)). The Registrar will determine if a parent or non-parent carer's care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed.

The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

Multiple care change notifications or care advised out of order

Where a parent or non-parent carer delays notifying a change in the percentage of care of a child to the Registrar, they may advise more than one change in care has occurred or advise of a care change that occurred earlier than one that is already used in the assessment. 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.

When a care determination is made and it is one of multiple care changes or is a care change advised out of order it will have the following effect on the assessment:

  • decreased care percentages will apply to the assessment from the date of the care change, and
  • increased care percentages will apply to the assessment from the date of notification, if the care in the assessment doesn't change between the date of the care change and the date of notification.

When applying multiple care changes to the child support assessment, they are applied in order of event from oldest to most recent. The care percentages for the older care changes will be used when later care changes are compared to the care used in the assessment on the day the care changed.

Last reviewed: 13 August 2018