4.1.8 Care Percentage Decisions

Context

The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 introduced new rules for objections to care percentage decisions made for periods after 1 July 2010.

Act references

CSRC Act section 80, section 80A, section 85A, section 86A, section 87, section 87AA, section 89, section 90, section 95M, section 95N, section 96A, section 97E, section 110Y, section 110Z

CSA Act section 54K, section 54L

Overview

Parents and eligible non-parent carers may lodge with the Registrar or the Secretary (responsible for FTB) an objection to a care percentage decision made under the CSA Act or having effect under the CSA Act (CSRC Act section 80A). The objection may be made orally or in writing.

If an objection to a care percentage decision is allowed and different care percentages will be determined, the assessment will be amended to use those percentages. The date from which the assessment will be amended will depend on when the objection was lodged (CSRC Act section 87AA).

The Secretary may make care percentage decisions under the FTB legislation which also apply for child support purposes (CSA Act section 54K). For decisions made by the Secretary, it is generally more efficient to request a review under the FTB legislation rather than to lodge an objection under the child support legislation. If a care percentage decision is reviewed by the Secretary and the review varies or substitutes a new care determination for FTB, the FTB care determination will also apply for child support purposes (CSA Act section 54L(1)).

A person dissatisfied with an objection care percentage decision may apply to the AAT for an AAT first review of the objection decision. The usual time restrictions on making an application to the AAT do not apply (CSRC Act section 90(1)), but the date of effect of the AAT review decision may be affected (see below).

Making an objection

The objection may be made orally or in writing. Section 80(6) states that the requirements of section 80, which requires that objections to a decision be made in writing, do not apply to care percentage objections.

Time limits on lodging objections

A person may object to a care percentage decision at any time. However if the objection is made more than 28 days (or 90 days for a person in a reciprocating jurisdiction) after notification, the date of effect will be identified in accordance with section 87AA.

Grounds of the objection

A person objecting to a care percentage decision must explain 'fully and in detail' the grounds relied on (section 84). Where the person fails to explain the grounds for their objection, the Registrar will attempt to clarify their grounds before making an objection decision.

Other parties to the objection

The Registrar must notify each other person who may have objected to the care percentage decision of the objection (section 85A).

Example: M and F are assessed for the costs of the child A, who is in the shared care of F and G, the maternal grandmother. The Registrar makes a care percentage decision. F objects to that decision. The Registrar must notify both M and G of F's objection.

A person notified of the lodgement of a care percentage objection may, within 28 days (90 days for a person in a reciprocating jurisdiction), oppose or support the objection (section 86A(1)). When informing the Registrar of their support or opposition the person must give fully and in detail the grounds they rely on (sections 86A(2) and (3)).

Considering the objection

In making a care percentage objection decision, the Registrar must consider any information provided by the objector and other persons about the decision that is the subject of the objection (section 87(1)(a)). The Registrar will not make a decision on an objection before a response is received from the persons notified of the objection, unless the period for providing a response to the Registrar has ended or a parent advises that they do not wish to lodge a response to an objection.

The Registrar will also make reasonable efforts to obtain information that is relevant to the original decision from either parent or from third parties. The Registrar's policy about obtaining information from children (6.2.2) applies. The departmental officer dealing with the objection must use their judgment about the appropriate method of obtaining information in each case.

The Registrar will provide each person with an opportunity to comment on information that may be taken into account in a way that is adverse to them.

Making the objection decision

The Registrar must make a decision within 60 days of the objection being received (section 87(1)(b)). However, if the parent making the objection, or a person notified of the objection is a resident of a reciprocating jurisdiction, the time to make a decision is extended to 120 days (section 87(1A)).

If the Secretary has reviewed the care percentage decision that is the subject of the objection, the Registrar must not allow the objection (section 87(1B)).

For information on the decisions an objections officer may make see 4.1.6.

The Registrar will inform the person who lodged the objection, and the persons who were notified of the objection, of the decision in writing (section 87(2)). That letter will include reasons for the decision and information about further review rights (section 87(3)).

Date of effect of allowed care percentage objections

If an objection to a care percentage decision is allowed and different care percentages will be determined, the assessment will be amended to use those percentages. The date from which the assessment will be amended will depend on when the objection was lodged (section 87AA).

If the objection was lodged within 28 days of the person being notified of the care percentage decision, then the objection decision will replace the original care percentage decision.

Example: M and F are assessed for the costs of the child A, who is in the shared care of F and M. M notified the Registrar on 13 August that the care of A had changed on 1 August. The Registrar made a care percentage decision on 26 August that M has 40% care and F has 60% care with effect from 1 August. F objected to that decision on 11 September. The Registrar considered the objection and decided on 6 November to allow the objection as M's care percentage is 36% and F's care percentage is 64%. The assessment is amended from 1 August to use the objection decision percentages (M 36% and F 64%).

If the objection is lodged more than 28 days after the person was notified of the care percentage decision (90 days for a person in a reciprocating jurisdiction) then the date of effect of the objection decision is the date the objection was lodged (section 87AA(1)).

Example: M and F are assessed for the costs of the child A, who is in the shared care of F and M. M notified the Registrar on 13 August that the care of A had changed on 1 August. The Registrar made a care percentage decision on 26 August, deciding that a change had occurred, that M now has 40% care and F has 60% care. F objected to that decision on 11 December. The Registrar considered the objection and decided on 6 February to allow the objection, as M's care percentage is 36% and F's care percentage is 64%. The assessment is amended from 11 December, the day the objection was lodged, using the objection care decision percentages (M 36% and F 64%).

Objection decision to apply from an earlier date

The care percentage objection decision may have effect from an earlier day if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (section 87AA(2)). The Registrar must first be satisfied that special circumstances exist, and then the Registrar has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from the earlier date.

Special circumstances

In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:

  • the parent was seriously ill or had an accident that stopped them from lodging an objection
  • the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
  • the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
  • the parent reasonably relied upon inaccurate or misleading information.

If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (section 87AA(2)). The Registrar will consider if:

  • the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension that results in an earlier date of effect for the objection decision create a significant overpayment or significant arrears of child support?
  • the applicant rested on their rights. For example, did the applicant make any efforts to lodge the objection earlier, communicate to DHS that the decision was being contested or raised their concerns in other ways - e.g. a complaint to DHS or the Ombudsman?

If the Registrar makes a determination under section 87AA(2) to extend the period in which to lodge the objection, then the objection is considered to have been received within the prescribed timeframe. The objection decision will then replace the original care percentage decision from the first day that original decision had effect.

Example: M and F are assessed for the costs of the child A, who is in the shared care of F and M. M notified the Registrar on 13 August that the care of A had changed on 1 August. The Registrar made a care percentage decision on 26 August that M now has 40% care and F has 60% care with effect from 1 August. F objected to that decision on 11 December, explaining that they were not able to lodge the objection earlier. The Registrar considered the objection and decided on 6 February to allow the objection, as M's care percentage is 36% and F's care percentage is 64%.

The Registrar considered if special circumstances prevented F from lodging the objection within 28 days. The Registrar is satisfied that special circumstances did exist. The Registrar then considered if the discretion to extend the period should be exercised. The Registrar is satisfied that F did not rest on their rights and that M would not be prejudiced by a decision to extend the period in which to lodge the objection. The Registrar makes a determination under s87AA(2) that the objection was lodged within time.

The assessment is amended from 1 August to use the objection decision percentages (M 36% and F 64%) to replace the original care percentage decision.

If the Registrar considers a determination should be made under section 87AA, and decides to make a determination, or refuses to make the determination, then the Registrar must provide written notice of the decision to the persons affected by the decision (section 87AA(3)). A person dissatisfied with the Registrar's decision regarding special circumstances may apply to the AAT for an AAT first review of that decision (item 3, section 89(1)).

Date of effect for child support purposes of Secretary review under FTB legislation of care percentage decision

The Secretary may make care percentage decisions under the FTB legislation which also apply for child support purposes (CSA Act section 54K). If a care percentage decision is reviewed by the Secretary and the review varies or substitutes a new care determination for FTB, the FTB care determination will also apply for child support purposes (CSA Act section 54L(1)).

If the application for FTB review was made more than 28 days after a person received notification of the care percentage decision (90 days for a person in a reciprocating jurisdiction), then the review decision will apply from the date of the application for the review (CSRC Act section 110Y(2)(b)). If the Secretary initiated the review of the decision, the review decision will apply from the date of the review decision (CSRC Act section 110Y(2)(a)).

When applying the Secretary's review decision for child support purposes, the Registrar can consider if special circumstances exist so that the Secretary's review decision should have effect from an earlier date (CSRC Act section 110Y(3)). In making this decision the Registrar will consider the same factors as when deciding if an objection decision should apply from an earlier date. In making this decision the Registrar will consider why the application for FTB review was not made within the 28 or 90 day timeframes.

If the Registrar is satisfied that special circumstances do exist and the application for review should be considered to have been made within time, then the Registrar will determine that the Secretary's review decision will have effect for child support purposes from the date of effect of the original care percentage decision (CSRC Act section 110Y(3)).

If the Registrar considers a determination under CSRC Act section 110Y(3), and decides to make the determination, or refuses to make the determination, the Registrar must provide written notice of the decision to the persons affected by the decision (CSRC Act section 110Y(4)). A person dissatisfied with the Registrar's decision regarding special circumstances may apply for an AAT first review of that decision (CSRC Act section 89(1) item 4).

AAT first review of care percentage objection decisions

A person dissatisfied with an objection care percentage decision may apply to the AAT for an AAT first review of the objection decision. The usual time restrictions on making an application to the AAT do not apply (section 90(1)).

If an AAT first review of a care determination has already been decided under the FTB legislation, the AAT cannot vary the care determination if an AAT first review of the same care determination is sought under the child support legislation (section 95M).

If the person applied to the AAT more than 28 days after they received the objection decision (90 days for a person in a reciprocating jurisdiction) and the AAT decision varies or sets aside the objection decision, identifying different care percentages, then the AAT decision will have effect from the date the application to the AAT was made (section 95N(1)).

The AAT can consider if special circumstances prevented the application being made within time. If it is satisfied that special circumstances do exist then the AAT may decide that the application to the AAT for a first review was lodged within time (section 95N(2)).

If the AAT is not satisfied that special circumstances prevented the application being made within time, a dissatisfied party may apply for an AAT second review of that decision (section 96A(c)).

Date of effect for child support purposes of AAT first review under FTB legislation of care percentage decision

The Secretary may make care percentage decisions under the FTB legislation which also apply for child support purposes (CSA Act section 54K). A care percentage decision may be reviewed under the FTB legislation by the Secretary. A person dissatisfied with that review decision may apply for an AAT first review under FTB legislation of the care percentage decision. If the AAT decision varies or substitutes a new care determination for FTB, the FTB care determination will also apply for child support purposes (CSA Act section 54L(2)).

If the application for AAT first review for FTB was made more than 28 days after the person received notification of the Secretary's review decision (90 days for a person in a reciprocating jurisdiction), the AAT first review decision will apply from the date of the application for the AAT first review (CSRC Act section 110Z(2)).

When applying the AAT first review decision for child support purposes, the Registrar can consider if special circumstances exist so that the AAT first review decision should have effect from an earlier date (section 110Z(3)). In making this decision the Registrar will consider the same factors as when deciding if an objection decision should apply from an earlier date. In making this decision the Registrar will consider why the application for AAT first review was not made within the 28 or 90 day timeframes.

If the Registrar is satisfied that special circumstances do exist and the application for AAT first review should be considered to have been made within time, the Registrar will determine that the AAT first review decision will have effect for child support purposes from the date of effect of the original care percentage decision (section 110Z(3)).

If the Registrar considers a determination under section 110Z(3), and decides to make the determination, or refuses to make the determination, the Registrar must provide written notice of the decision to the persons affected by the decision (section 110Z(4)). A person dissatisfied with the Registrar's decision regarding special circumstances may apply for an AAT first review of that decision (section 89(1) item 4).

AAT second review of care percentage decision

A person dissatisfied with an AAT first review of a care percentage decision may apply for an AAT second review of the decision (section 96A(b)).

If an AAT second review of a care determination has already been decided under the FTB legislation, the AAT cannot vary the care determination if an AAT second review of the same care determination is sought under the child support legislation (section 97E).

More information on the AAT review process is available at the AAT website.

Last reviewed: 15 August 2016