2.2.3 Below regular care determinations

Context

Where a parent or non-parent carer 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, another 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 or non-parent carer 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 49, section 50, section 54G

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When can a below regular care determination be made?

Most care decisions where a parent's or non-parent carer'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 or non-parent carer's care falls below 14% despite the child being made available to them by the other parent or non-parent carer, and it would be appropriate for the decision to have a date of effect more than 28 days before the date of notification. It can only be appropriate for the date of effect of the decision to be backdated by more than 28 days from the date of notification if the parent or carer with care of the child notified the Registrar of the care change in a reasonable timeframe from becoming aware of the care change (section 54G).

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

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

The date of event is when Marie's pattern of care changed - at the start of the spring holidays. Because Jean 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 Jean notifying the Registrar of the change more than 28 days after the change occurred. The Registrar makes a below regular care determination 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 or non-parent carer has no care, or a pattern of less than regular care of a child despite the child being made available to them (section 49, section 50 and section 54G(1)(b)).

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

  • whether the parent/non-parent carer with increased care is making the child available
  • whether the parent/non-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 non-parent carer should make a child available for care to take place. The parent or non-parent carer with more care should be encouraging the contact and requiring the child to see the other party. 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 non-parent carer's action could include a written account of the steps they have taken to make the child available.

A parent or non-parent 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 non-parent carer genuinely seeking care, the other parent or non-parent 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 parties 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 non-parent 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 a pattern of regular care was established and subsequently ceased, or was never established.

Reasonable period of time

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

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

Never established a pattern of care

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

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

  • the parent or non-parent carer
    • 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.

For the purposes of below regular care determinations, 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 each party, it is not considered a missed event.

Example: Brian and Holly's parenting plan was made in March 2019 and states that Brian will have their child, Mia, for 9 weeks over the Christmas school holiday period. In March 2019, the Registrar determines the percentage of care for the child support assessment. The Registrar determines that Brian has 17% care and that Holly has 83%. The child support assessment recognises that Brian is meeting 24% of the costs of Mia directly through that care.

In November 2019, Brian tells Holly that he cannot care for Mia for the 2019-20 Christmas school holiday period due to his work commitments. As Brian will not provide this care, he will not meet the costs of Mia directly through care. Brian will miss 20% of his nights of care before he will have any nights of care, so Brian has never established a pattern of care in accordance with the expected pattern.

Until November 2019, Holly could not reasonably have known that Brian would not provide the care over the Christmas holiday period. If Holly advises the Registrar within a reasonable period of time (28 days) of realising the pattern of care was never established (i.e. November 2019), the Registrar would determine that Brian never established a pattern of regular care and that his care percentage is 0%.

The determination will have effect from the date the regular care percentage was first used in the assessment, March 2019. 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 another party ceased an established pattern of care of the child, the determination will have effect from the date the other party ceased the previously established pattern (section 54G(2)).

A parent or non-parent carer ceases a pattern of care when they stop having care of a child in accordance with the previously established pattern. The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:

  • 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 ceased 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 new care percentages resulting from the below regular care determination.

Example: Kieran and Fiona had agreed that their son would stay with Kieran every Saturday night from March 2019. Kieran has the care as agreed until September 2019. In September 2019, Kieran misses the Saturday night care on the first and second weekend. Fiona contacts the Registrar when Kieran misses their Saturday night care on the third weekend.

When Fiona contacts Services Australia on 23 September 2019, she advises that Kieran missed care on 5 September 2019 and all subsequent weekends. As Fiona 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 Kieran ceased their pattern of care: 5 September 2019.

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 another party has less than regular care, the rules under 2.2.2 apply. The determination for the parent or non-parent carer with the increase in care will have effect from the date the Registrar was notified or otherwise becomes aware of the care change (section 54F(3)(b)). However, the determination for the parent or non-parent carer with the decrease in care will have effect from the day the change of care occurred (section 54F(3)(b)).

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

Revoking or varying a below regular care determination

The Registrar may revoke the care percentages resulting from a below regular care determination 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 CSA Act section 49 or section 50.

Last reviewed: 8 February 2021