2.2.3 Below Regular Care Determinations

Context

Where a parent is assessed to have at least regular care of a child (a care percentage of 14% or more), the child support assessment will reflect that they meet a portion of the costs of the child directly through care. If they do not have that care, despite the child being made available to them, a parent or non-parent carer can ask the Registrar to determine the care percentage based on the actual pattern of care. This is because a parent who is not providing at least regular care should not be recognised as meeting some of the child's costs directly.

The Registrar may determine a new care percentage for a person if a change in care means that the person now has less than 14% care of the child.

When this change will be reflected in the child support assessment will depend on the circumstances of the change and the timing of notification to the Registrar.

Act reference

CSA Act section 54G

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When can a below regular care determination be made?

Most care decisions where a parent's care has fallen below 14% are made according to the rules set out in 2.2.2. The rules set out here apply when a parent's care falls below 14% despite the child being made available to them, and it would be appropriate for the decision to have a date of effect more than 28 days before the date of notification due to the particular pattern of care involved (section 54G).

Example: F and M have an informal arrangement where F mostly cares for their child, A, and M has most of the school holidays. The Registrar has made a decision that M is likely to have 19% care (about 70 nights) of A.

M does not have care over the spring holidays, but tells F that things will be back to normal for the summer holidays. When the summer holidays start and M indicates that they will not have care then either, F realises that the pattern of care has changed, and contacts DHS within a reasonable time. The Registrar considers the information from both parents and makes a below regular care decision as M is likely to have 0% care according to the information provided.

The date of event is when M's pattern of care changed - at the start of the spring holidays. Because F could not have reasonably known that the pattern was changing until the start of the summer holidays, it is appropriate for the decision to have effect from the date of event, despite F notifying the Registrar of the change more than 28 days after the change occurred. The Registrar makes a below regular care decision effective from the date of event, i.e. the start of the spring holidays.

Making the child available

A below regular care determination can only be made if a parent has no care, or a pattern of less than regular care of a child despite the child being made available to them (sections 49, 50 and 54G(1)(b)).

The Registrar will be satisfied that a child is being made available if both parents confirm that the child was made available. When this is disputed the Registrar will need to consider many factors, including:

  • whether the parent/carer with increased care is making the child available,
  • whether the parent/carer with reduced care is genuinely seeking care, and
  • if both parties are genuinely attempting to facilitate care, whether the child is refusing to have the planned care.

A parent or carer should make a child available for care to take place. The parent or carer with more care should be encouraging the contact and requiring the child to see the other parent. They should be facilitating the care by providing reasonable transport and communication options (for example, phone and internet), and not be organising or encouraging alternative activities that would prevent or hinder the care. Their actions should include:

  • dropping the child off as agreed,
  • having the child ready to be picked up as agreed,
  • taking the child to the agreed exchange location, and
  • not making conflicting appointments or arrangements for the child, for example, booking swimming or music lessons that limit the other party's ability to have care.

Evidence of a parent or carer's action could include a written account of the steps they have taken to make the child available.

A parent or carer will be considered to be genuinely seeking care if they:

  • are available to receive the child at the planned time and place, and
  • have participated in necessary communication to facilitate the planned care arrangements.

Generally, in the absence of a parent or carer genuinely seeking care, the other parent or carer will be considered to be making the child available.

The Registrar will consider that care is not taking place despite the genuine attempts of both parents to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).

In these circumstances, the Registrar will generally consider that the parent or carer is making the child available, and a below regular care determination can be made.

Date of effect of a below regular care determination

The date of effect of a below regular care determination will depend on whether the person notifies the Registrar within a reasonable period of time of the pattern of care changing or not being established.

Reasonable period of time

The Registrar will be satisfied that a parent or carer notified the Registrar within a reasonable period if they notified the Registrar within 28 days of becoming aware that:

  • the parent or carer never established the pattern of at least regular care, or
  • the parent or carer ceased their established pattern of at least regular care.

Never established a pattern of care

If a parent or carer notifies the Registrar within a reasonable period of time that the other parent never established a pattern of regular care, despite the child being made available, the determination will have effect from the first day that the care percentage of more than 14% was used in the assessment. Where the parent who never established a pattern of care has a liability to the other parent or carer, arrears will generally result.

A parent will not have established a pattern of care if they never have care in accordance with an expected pattern. The Registrar will consider that a pattern was not established if, from the date the pattern of care was to start, the parent:

  • missed 3 consecutive expected care events,
  • missed 5 care events out of 8 expected, or
  • missed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern), and
  • they had not yet had:
    • 3 consecutive events,
    • 5 events out of 8, or
    • 20% of the expected nights of care over 12 months.

A care event is a night of care or several consecutive nights of care. 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 is a significant amount of care and calculated as a percentage of care based on hours (see 2.2.1).

If a care event is missed but substitute care occurs at another time with the agreement of both parents, it is not considered a missed event.

Example: M and F's parenting plan was made in March 2014 and states that M will have their child, A, for 9 weeks over the Christmas school holiday period. The actual care is in line with the plan. In March 2014, the Registrar determines the percentage of care for the child support assessment. The Registrar determines that M has 17% care and that F has 83%. The child support assessment recognises that M is meeting 24% of the costs of A directly through that care.

In November 2014, M tells F that they cannot care for A for the 2014-15 Christmas school holiday period due to their work commitments. As M will not provide this care they will not meet the costs of A directly through care. M will miss 20% of their nights of care before they will have any nights of care, so M has never established a pattern of care in accordance with the expected pattern.

Until November 2014, F could not reasonably have known that M would not provide the care over the Christmas holiday period. If F advises the Registrar within a reasonable period of time (28 days) of realising the pattern of care was never established (i.e. November 2014), the Registrar would determine that M never established a pattern of regular care and that M's care percentage is 0%.

The determination will have effect from the date the regular care percentage was first used in the assessment, March 2014. Child support arrears are likely to be created.

Ceases a pattern of care

If a parent or non-parent carer notifies the Registrar within a reasonable period of time that the other parent ceased an established pattern of care of the child, the determination will have effect from the date the parent ceased the previously established pattern (section 54G(2)).

A parent ceases a pattern of care when they stop having care of a child in accordance with the care arrangements. The Registrar will consider that a pattern of care ceases when a pattern of care was established in accordance with a written agreement, parenting plan or court order, and the parent:

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

The Registrar will consider the date care ceases to be the date of the first event that is used to demonstrate that at least regular care has ceased. For example, if a parent misses 5 care events out of 8, the date of the first missed event would be the date of effect of the below regular care determination.

Example: M and F had agreed that child A would stay with M every Saturday night from March 2014. M has the care as agreed until September 2014. In September 2014, M misses the Saturday night care on the first and second weekend. F contacts the Registrar when M misses their Saturday night care on the third weekend.

When F contacts DHS on 23 September 2014, they advise that M missed care on 5 September 2014 and all subsequent weekends. As F has advised the Registrar within a reasonable period of time that 3 care events in a row have been missed, the date of effect of the care change will be the date of the first event used to demonstrate that M ceased their pattern of care: 5 September 2014.

Notification not made within a reasonable period of time

If a parent or non-parent carer fails to notify the Registrar within a reasonable period of time that the other parent has less than regular care, the determination will have effect from the date the Registrar was notified or otherwise becomes aware of the care change (section 54F(2)(c)).

Revoking or varying a below regular care determination

The Registrar may revoke a below regular care decision when notified or otherwise becoming aware that the care of the child has changed. For example, the person who was to have at least 14% care may re-establish their pattern of care, or establish a new pattern of care, requiring a new care determination under section 49 or 50.

Last reviewed: 16 May 2016