2.2.6 Care Determinations Prior to 01/07/2010

Context

As a result of legislative changes made by the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010, the rules relating to the determination of care percentages differ before and after 1 July 2010. This section describes the provisions relating to care determinations prior to 1 July 2010.

Note: All references to the CSA Act in this section refer to the CSA Act as at 30 June 2010.

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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 the period 12 months from:

  • the day on which an application for assessment is made (section 48(1)(a)),
  • the date the care changed if the Registrar was notified or became aware of the care change within 28 days of that date (section 48(b)(vii)), or
  • the date the Registrar was notified or became aware of the care change if the Registrar was not notified or did not become aware within 28 days of the care change (section 48(b)(viii)).

Percentage of care

A person's percentage of care will generally be determined by the most recent care arrangements agreed upon by the parents. This agreement might take the form of an oral agreement, written agreement, parenting plan or court order in relation to a child's care.

A person's percentage of care for a day in a child support period is the percentage of care that person is likely to have of the child during the care period (section 48(2)). Generally, care will be calculated prospectively over a 365-day period, regardless of leap years. The number of nights of care is divided by the number of days in the care period and then multiplied by 100 to arrive at a percentage.

Parents and carers can also agree to a percentage of care to be used in the assessment if they agree that the number of nights do not appropriately represent their care.

When applying the percentage of care to determine the cost percentage for the child, the percentage of care will be rounded to a whole percentage (section 48(3)).

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 seek information about the arrangements that have been made for the care of the children.

In making a determination about a parent's percentage of care of a child, the Registrar will take into account such period of time as is necessary to determine whether there is, has been or will be an identifiable pattern of care for the child (section 50(2)). This may include a pattern of care which has been established in recent months. The Registrar will determine a care percentage based on the pattern of care and the likelihood of it continuing during the care period.

Example: M and F have one child, A. M has had care of the children every second weekend for the past 3 months. Both M and F indicate that this pattern is likely to continue. In this case, the Registrar can take this past pattern into account in determining the care percentage.

Supporting evidence

Parents may be able to support their claims by providing a copy of a diary or other record 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 or other services.

The Registrar will not treat information from the Secretary about the percentage of care used in working out a parent's rate of FTB as conclusive evidence. The amount of care a parent has of the child may be measured over a different time period and the criteria for determining care vary for family assistance and child support purposes.

Care determinations

Types of care determinations

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

  • a percentage of care determination based on an agreement, parenting plan or court order (section 49),
  • a percentage of care determination where there is no agreement, parenting plan or court order, or where that agreement, plan or order does not allow the Registrar to determine a percentage of care (section 50),
  • an interim care determination where the percentage of care determined based on an agreement, plan or order no longer reflects the actual level of care for the child (section 52), or
  • a below regular care determination where a parent's percentage of care falls below 14% (section 53).

The Registrar must determine the most appropriate method to calculate the care percentage over the care period. To do this, the Registrar must consider all the possible care determinations that could be made and make the most appropriate one for the parents' circumstances. This is not limited to the type of care determination requested.

The parent or carer is not required to formally make an application for an interim or below regular care determination. It is sufficient for the parent to provide the Registrar with information about the care being provided and the status of any agreements, plans or orders. The Registrar will then make the type of care determination that is relevant to the circumstances.

Oral agreements about care

Aside from written agreements, parenting plans and court orders, the Registrar can also accept oral agreements. An oral agreement is a mutually accepted verbal agreement made by the parents (or a parent and non-parent carer) regarding the care arrangements for a child.

The Registrar will base a percentage of care determination on an oral agreement that continues to be in force (that is, where parents continue to agree). The Registrar will be satisfied that an oral agreement exists after obtaining confirmation from each of the parties to the assessment of the agreement about care happening in a particular way.

Oral agreements cease to exist once the parents or non-parent carers no longer agree about the care arrangements.

The order in which determinations are considered when there is a written agreement, parenting plan or court order

In deciding the kind of determination to be used in making a care percentage decision, the Registrar will consider the different determinations in the order explained below. The type of determination that the Registrar will consider when deciding a care percentage depends on the circumstances of the parents.

The Registrar will determine the percentage of care based on the agreement, parenting plan or court order (section 49), where:

  • a percentage of care can be determined based on an agreement, parenting plan or court order, and
  • care is occurring in accordance with the agreement, parenting plan or court order.

The Registrar may determine the percentage of care by making a below regular care determination (section 53), where:

  • a percentage of care can be determined based on an agreement, parenting plan or court order,
  • care is not occurring in accordance with the agreement, parenting plan or court order, and
  • one of the parent's actual care falls below 14%.

The Registrar may determine the percentage of care by making an interim care determination (section 52), where:

  • a percentage of care can be determined based on an agreement, parenting plan or court order,
  • care is not occurring in accordance with the agreement, parenting plan or court order, and
  • a below regular care determination cannot be made.

The Registrar will determine the percentage of care based on the agreement, parenting plan or court order (sections 49 and 51), where:

  • a percentage of care has been determined based on an oral agreement,
  • one party no longer agrees with the care arrangements specified in the oral agreement,
  • there is a written agreement, parenting plan or court order that allows a care percentage to be determined, and
  • a below regular care determination or interim care determination cannot be made.

If more than one agreement, plan or order exists, the Registrar will use the most recent one that permits the calculation of a care percentage (section 55).

Where there is no agreement, plan or order

Where no written or oral agreement, parenting plan or court order exists, or one does exist but the Registrar is unable to use it to determine a care percentage, the Registrar must determine the care percentage that a parent or carer is likely to have during the relevant care period (section 50).

Change in care & determining a new care percentage

If the Registrar is informed that the care arrangements have changed since a care percentage was determined, the Registrar will consider whether a new care percentage can be determined.

The Registrar will amend an assessment only if a new percentage of care can be determined. If the circumstances of the change in care arrangements does not allow for the calculation of a new care percentage then the assessment will not be amended. This includes situations where the facts are disputed, but there is no conclusive evidence to allow the Registrar to determine a new percentage of care.

The Registrar may amend an assessment where a written agreement, parenting plan or court order exists but the parents have made an oral agreement about a different care arrangement. The exception to this is where a court has made an order which expressly forbids the parties from agreeing to something different than the care outlined in the order (section 55(2)).

When can a new percentage of care be determined?

A new percentage of care will only be determined if there is:

  • a change of less than 7.1% because of a new agreement, plan or order, including a variation of such an agreement, plan or order (section 48(1)(b)(i)) (see note),
  • a change in care arrangements of at least 7.1% (i.e. one night per fortnight) that alters the person's cost percentage for the child (section 48(1)(b)(ii)),
  • a change in care arrangements where a person's percentage of care for the child has fallen below 14% (section 48(1)(b)(iii)),
  • a change in care arrangements where a person's percentage of care for the child has increased to 14% or above (section 48(1)(b)(iv)),
  • a change in care arrangements where a person's percentage of care for the child has fallen below 35% (section 48(1)(b)(v)), or
  • a change in care arrangements where the percentage of care has increased to 35% or above (section 48(1)(b)(vi)).

In other circumstances, the percentage of care used in the assessment will remain unchanged regardless of the actual care being provided.

Note: A change of less than 7.1% because of a new or varied agreement, plan or order only applies to an agreement, plan or order made on or after 1 July 2008 where the notification of the new agreement, plan or order was made after 6 January 2009. This is because the legislation that provides for changes of less than 7.1% to be reflected in the assessment specified the date of 1 July 2008 for new agreements, plans or orders and that Act commenced on 6 January 2009 (Part 1, Schedule 3 of the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008).

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 (section 74A(e)).

If the Registrar is not notified, or does not become aware, of a change of care within 28 days the assessment will generally be amended using the new care percentage from the date of notification (section 74A(f)).

If the Registrar is in the process of considering whether a care determination should be made, and during this process a parent or non-parent carer makes an application for an interim care determination (section 52) or a below regular care determination (section 53), the care period will continue to be measured from the date the Registrar was first notified or otherwise became aware of a change in the care arrangements. If the assessment is amended, it will be amended from the date the issue of the care percentage was first raised.

However, if the Registrar was notified on or after 6 January 2009 of a care change within 28 days of the change occurring and the care changed prior to 6 January 2009, the assessment can only be amended to reflect the person's new percentage of care from 6 January 2009. This is because the legislation that amended the care provisions to allow changes in care to be backdated up to 28 days in some circumstances only took effect from this date (Part 1, Schedule 3 of the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008).

Where care no longer complies with an agreement, plan or order

Where a parent or a non-parent carer believes that the care of a child is no longer occurring as specified in a written agreement, parenting plan or court order, and they are unable to come to a new agreement with the other parent, they may apply to the Registrar for a below regular care determination or an interim care determination.

Where one party no longer agrees with an oral agreement

If the care percentage for a child has been determined by an oral agreement and the Registrar becomes aware that one party no longer agrees with the care provided for by the oral agreement, the parties can make another oral agreement.

If the parties cannot come to another oral agreement and the previous care determination was based on a written agreement, parenting plan or court order that allowed for a care percentage to be determined, then the Registrar will determine a new care percentage in accordance with that agreement, plan or order (section 51 - see example below).

If there was an agreement, plan or order that allowed for a care percentage to be determined, but the parties advise that care is not being provided in accordance with that document, then on application from one of the parents, the Registrar will consider making a below regular care determination (section 53) or an interim care determination (section 52).

Example: M and F enter into a parenting plan that provides F with a care percentage of 80% and M with a care percentage of 20%. After 6 months, both parents advise the Registrar that they have agreed verbally to change to shared care arrangements where both will have a care percentage of 50%.

A year after the oral agreement is entered into, F advises the Registrar that the shared care arrangements are no longer in place and that F now has 70% care. DHS contacts M who states that although the parents have not made a new agreement, the care arrangements have changed. M does not agree with F's description of the new arrangements.

As the parents no longer agree with the oral agreement for shared care, and have not made a new agreement about care, the assessment will be amended to revert to the care percentages determined in accordance with the parenting plan, 80% for F and 20% for M.

Where the Registrar is unable to determine a care percentage based on an agreement, plan or order

The Registrar may not be able to determine a care percentage where an agreement, parenting plan or court order does not contain sufficient information to enable the Registrar to calculate a care percentage. For example, a parenting plan might provide that one parent has 2 nights of care for each week the parent is in the same city as the child, but the parent's travel arrangements are irregular and they are unable to predict the pattern of care they will have over the care period.

Where the Registrar is unable to determine a care percentage from an agreement, parenting plan or court order, the Registrar will advise the parents. Where possible and appropriate, the Registrar will seek an oral agreement or new written agreement. If this isn't possible, and there is no other relevant agreement, order or plan, the Registrar will make a decision on the care percentage to be used based on the actual care being provided, using the information available (section 50).

Below regular care determinations

A below regular care determination can be made when:

  • a parent's care has fallen below 14% despite the child being made available to them (section 53(1)(b)). This includes situations where a pattern of care was never established or where a pattern of care ceases,
  • the Registrar has been notified within a reasonable time of the parent becoming aware of the change, and
  • the parent was entitled to at least 14% care according to a written or oral agreement, parenting plan or court order.

When the Registrar is notified, or otherwise becomes aware, that the care percentage is potentially different from that used in the assessment, a care period will start from a date specified by section 48 and the care will be determined over this (mainly) prospective 12-month period. The Registrar may determine the percentage of care for a child that a parent (or non-parent carer) is likely to have in this care period where:

  • a parent is assessed, based on an oral or written agreement, parenting plan or order, to have at least regular care (section 53(1)(a)),
  • the parent will either have no care of the child or will have a pattern of care that is less than regular care over the care period (section 53(5)(b)), despite the child being made available (2.2.3) to them (section 53(1)(b)), and
  • the other parent (or non-parent carer) advises the Registrar that they want the actual care pattern reflected in the assessment (section 53(1)(c)).

When determining whether a parent will have a pattern of care that is less than regular care, the Registrar will take into account such period as is required in order to be satisfied that there is, has been, or will be a pattern of care for the child.

The Registrar can revoke or vary a below regular care determination at any time (section 53(7)). The Registrar will do this by making a new care determination.

Interim care determinations

If the care is not occurring in compliance with a written agreement, parenting plan or court order and both parties do not have an oral agreement about the new care arrangements, a parent or non-parent carer may apply for the Registrar to make an interim care determination (section 52). In making an interim care determination, the Registrar must make a decision on the actual percentage of care that the person will have of the child in the care period. To do this, the Registrar will take into account such period of time necessary to be satisfied that there is, has been, or will be, a pattern of care for the child (section 52(2)).

If the circumstances allow the Registrar to make both an interim determination and a below regular care determination, the latter determination must be made (section 53(8)).

The Registrar may make an interim care determination where:

  • in the circumstances of the case, the care percentage provided by the agreement, plan or order when used in the child support assessment provides an unjust and inequitable level of financial support for the child (section 52(1)(c)), and
  • at least one of the parents, or non-parent carer, has taken reasonable action to seek a new agreement or court order about the care arrangements for the child, or has sought to enforce a court order dealing with care arrangements (section 52(1)(d)).

In most cases, the interim care determination will remain in place for 6 months in order to provide parents or carers with the time to reach an agreed arrangement in relation to the care of the child.

Unjust & inequitable level of financial support

In making an interim care determination, the Registrar must decide if, in the circumstances of the case, the care percentage when used in the child support assessment provides an unjust and inequitable level of financial support for the child. In most situations an unjust and inequitable level of financial support is considered to exist where there is:

  • a significant difference between the agreed, planned or ordered care and the actual care, and
  • an acceptable reason for the written agreement, parenting plan or court order not being complied with.

Significant difference

The Registrar will be satisfied that there is a significant difference between the agreed, planned or ordered care and the actual care where:

  • the difference between the agreed, planned or ordered care percentage and the actual care percentage is more than 7.1% and affects the cost percentage used in the assessment,
  • the actual percentage of care for a parent or non-parent carer increases to or above 14% or 35% (even where the change is less than 7.1%), or
  • the actual percentage of care for a parent or non-parent carer decreases below 14% or 35% (even where the change is less than 7.1%).

If the Registrar is satisfied that there is a significant difference between the agreed, planned or ordered care and the actual care, the Registrar must then consider if there is an acceptable reason for non-compliance with the agreement, plan or order.

Acceptable reason

The Registrar will consider the following to be acceptable reasons for a written agreement, parenting plan or court order not being complied with:

If the circumstances do not fall within any of these reasons, the Registrar will advise the applicant that they do not meet the unjust and inequitable consideration, and an interim determination will not be made.

Domestic violence or abuse

The Registrar must be satisfied that the agreement, plan or order is not being complied with because of abuse that would or could result if the agreement, plan or order was followed.

Abuse could include sexual, physical or psychological abuse, or a genuine fear of violence or abuse (of the carer, parent or a child). Parents will need to provide evidence to substantiate this claim, such as police reports, letters from medical practitioners or applications for a restraining order.

Health concerns

The Registrar must be satisfied that the agreement, plan or order is not being complied with because a child's health would or could be at risk if the agreement, plan or order was followed.

This could include situations where a parent or carer does not properly take care of a child's medical needs or where a child's health is at risk because the living conditions provided by the parent or carer do not meet basic health and safety standards. Parents will need to provide evidence to substantiate this claim such as letters from relevant state government departments or medical practitioners.

Teenage child refuses to see the parent

The Registrar must be satisfied that the agreement, plan or order is not being complied with because a teenage child is refusing to see a parent or carer, even though they are being encouraged to do so. Generally this will only be an acceptable reason for children of 15 years or older (although in some circumstances younger children will be considered). In these situations, the parent or carer with more care should be requesting, encouraging and/or facilitating the child to see the other parent. They should not be organising or encouraging alternative activities that would prevent or hinder the care arrangements. Parents need to provide details of their actions for consideration under this reason.

Parent fails to seek or sustain contact

The Registrar must be satisfied that the agreement, plan or order is not being complied with because a parent fails to seek or sustain contact despite the child being made available.

This could include situations where a parent has never taken care, or ceases to take care, in accordance with the agreement, plan or order. The parent may still have some care but not the percentage determined from the terms of the agreement, plan or order. If their care percentage has dropped below 14% the Registrar must consider making a below regular care determination, rather than an interim care determination (section 53(8)).

Significant period of time has passed since the written agreement, parenting plan or court order has been followed

The Registrar must be satisfied that the agreement, plan or order has not been followed for a significant period of time and because of this it is not appropriate to require the parents to immediately comply with the agreement, plan or order.

This reason can only be considered where:

  • the agreement, plan or order has not been complied with for a significant period of time (generally 24 months or more),
  • the child support assessment does not use a care percentage based on the agreement, plan or order, or a care percentage based on the agreement, plan or order has only very recently been used in the assessment (e.g. in the past 28 days), and
  • a below regular care determination cannot be made.

It may not be possible for the Registrar to determine why the care arrangements have changed. This is particularly so where parents have not previously told the Registrar about the changes because the care arrangements in the agreement, plan or order would not have resulted in a changed assessment prior to 1 July 2008.

This reason is only applicable for agreements, plans and orders made prior to 1 July 2008, as any care changes made after this date would be reflected in the assessment in a timely way. The Registrar will only find it is acceptable for the agreement, plan or order not to be complied with, under this reason, for a maximum period of 6 months from when the Registrar was notified of the existence of the agreement, plan or order. The Registrar will not find that this reason applies where the parent with less care than set out in the agreement, plan or order has been taking formal action in order to have the care as set out (e.g. contravention or recovery proceedings in court, or attempted mediation through a Family Relationship Centre).

Other situations that would justify not complying with the written agreement, parenting plan or court order

This may include situations where there are cultural customs or traditions that require children to live with members of their extended family.

Reasonable action to formalise a new care arrangement

If the Registrar considers that in the circumstances of the case, the care percentage used in the assessment would provide an unjust and inequitable level of financial support for the child, the Registrar must be satisfied that reasonable action has been taken or is being taken to make new arrangements for the care of the child.

The Registrar will consider the particulars of the case to determine what constitutes reasonable action. In most cases, the parent or non-parent carer who has more care than is provided for under the written agreement, parenting plan or court order, will be required to take the reasonable action to make new arrangements for the care of the child. The Registrar will need enough information to be satisfied that the reasonable action has been taken.

Reasonable action may include:

  • encouraging a child to comply with the care arrangements where they are refusing to visit the other party,
  • making the child available to enable the care to take place,
  • negotiating with the other party in a genuine attempt to reach a new agreement (either verbally or in writing, including electronically) and supporting reasonable alternative arrangements,
  • making an appointment at a Family Relationship Centre or similar dispute resolution service to discuss parenting issues (and the date of that appointment has not passed),
  • attending family dispute resolution at a Family Relationship Centre or similar service,
  • receiving or seeking legal advice regarding the making, enforcement or variation of a court order,
  • filing an application to a Court to have an order made, enforced or varied,
  • attending a hearing at Court to seek an order be made, enforced or varied,
  • where one parent is unable to locate the other parent, showing the efforts made to locate them,
  • participating in the action the other parent has commenced,
  • taking action when a teenage child is refusing to see the other parent, or
  • action following a significant period of time since the written agreement, parenting plan or court order has been followed.

Sometimes no action or a delay in taking action may be considered reasonable action due to:

  • domestic violence or abuse,
  • significant health issues which prevent the applicant from taking action,
  • the other parent undertaking long-term, long-distance relocation, or
  • there are other circumstances that the Registrar considers to be appropriate.

Evidence of a parent or carer's reasonable action could include written documentation or official letters. In some cases verbal advice may also be satisfactory, as long as there is no evidence to the contrary.

Where a parent is not taking reasonable action, the Registrar will advise them that an interim care determination cannot be made. The child support assessment will continue to be based on the care percentage determined in accordance with the agreement, plan or order.

Reviewing an interim care determination

If the Registrar does make an interim care determination, the Registrar must generally review the determination within 6 months (section 52(4)(a)) or earlier if a parent or carer requests that a new care percentage be determined (section 48). The Registrar may review an interim care determination sooner if it is appropriate to do so, for example, if the Registrar becomes aware that the circumstances have changed. The period between making an interim care determination and the review provides parents and carers with an opportunity to resolve any issues regarding the care of the children and to reach agreed care arrangements.

If the Registrar is satisfied that special circumstances exist, then the review may be set for a time that is more than 6 months into the future (section 52(5)). A new care determination will be made starting from the date the review begins based on the current circumstances of the case. Depending on the circumstances, this will result in a new determination of a different type or another interim care determination.

Example: M and F have a parenting plan for the care for their child. M has a care percentage of 70% and F has a care percentage of 30%. In April 2009 F accepts a contract to work at a remote location. The contract is for 18 months and during that time F will not be able to have care of the child as specified in the parenting plan. M makes an application for an interim care determination. F advises that they will have care of the child for 10% of the time during the contract, however the parents have not been able to make a new agreement about the care arrangements.

The Registrar considers the case and decides that it is appropriate to make an interim care determination. The review date is set at October 2010, the time the contract will finish.

Special circumstances

The Registrar will be satisfied that special circumstances exist if the facts of the case show that the circumstances relevant to the making of the interim care determination are unlikely to change for a period of greater than 6 months. This would include circumstances such as:

  • family violence,
  • one parent is unable to be located,
  • one parent has undertaken a long-term, long-distance relocation, or
  • a teenage child (15 years or older) is refusing to see a parent.

The Registrar will review these determinations at a time appropriate to the circumstances of the case, usually no later than 2 years after the determination was made.

This does not limit the Registrar from reviewing an interim care determination at any time and making a new care decision where appropriate.

Revoking or varying an interim care determination

The Registrar may revoke or vary an interim care determination (section 52(3)) by making a new care determination. For example, a parent or a carer may advise the Registrar that they have resolved their care arrangements and have come to an oral or written agreement, have entered into a parenting plan, or that a court has made an order which specifies the care arrangements. The Registrar will ask the parent or carer to provide a copy of any relevant agreement, plan or order so that new percentages of care can be determined.

Alternatively, the Registrar may determine that it is now appropriate to make a determination under section 49 in accordance with the previous order, plan or agreement. For example, where the acceptable reason for not complying with the order, plan or agreement may no longer exist, due to changed circumstances.

Refusal to make an interim care determination

If the Registrar refuses to make an interim care determination, the applicant must be advised in writing (section 54). The notice must include, or be accompanied by, a statement to the effect that the person may (subject to CSRC Act) object (4.1.2) to the particulars of the assessment and, if the person is aggrieved by the objection decision, they can apply to the AAT (4.2) for a first review of the decision.

If the person disagrees with the AAT decision, they can apply to the AAT for a second review of the decision.

WA ex-nuptial cases

The Further 2008 Budget Measures Act amended sections 48, 52, 74A and 75 from 6 January 2009. These amendments also apply to WA ex-nuptial cases.

Also, the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 significantly amended the care provisions from 1 July 2010. These amendments also apply to WA ex-nuptial cases.

See 1.4.3 for details of the date from which various provisions had effect for WA ex-nuptial cases.

Last reviewed: 1 July 2015