The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

2.2.4 Interim care provisions & disputed care arrangements

Context

A person's percentage of care (1.1.P.70) is generally determined according to the actual care (1.1.C.10) that they have of the child. However, in limited circumstances where there is disputed care (1.1.D.70), a person's percentage of care for both child support (1.1.C.60) and FTB purposes may be determined according to a written agreement, parenting plan or court order for an interim period, rather than being based on actual care.

This topic describes how the law applies following enactment of the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Technical Amendments Act), which impacts disputed care changes where the:

  • care determination for the care change is to be or has been made on or after 29 March 2024, and
  • relevant change of care day is also on or after 29 March 2024.

Act references

CSA Act section 5, section 49, section 50, section 51, section 53, section 53A, section 53B, section 54, section 54B, section 54C, section 54F, section 54FA, section 54G, section 54H, section 54HA

FAAct section 3(1)-'care arrangement'

FL Act section 4-'family violence order', section 63C, section 64B, section 70D, section 70G

On this page

What is a care arrangement?

For child support purposes, a care arrangement has the same meaning used for family assistance purposes (FA Guide 1.1.C.05). That is, a care arrangement in relation to a child means:

  • a written agreement (see details below) between the parents (1.1.P.10) of the child, or between a parent of the child and another person that relates to the care of the child
  • a parenting plan for the child within the meaning of section 63C of the FL Act, or
  • any of the following orders relating to the child
    • a family violence order within the meaning of section 4 of the FL Act
    • a parenting order within the meaning of section 64B of that Act
    • a state child order registered in accordance with section 70D of that Act, or
    • an overseas child order registered in accordance with section 70G of that Act.

A care arrangement (written agreement) exists between separated (1.1.S.30) parents (or a parent and another person who cares for the child) if:

  • there is a document in writing
  • the document is signed and dated by both parties
  • both parties agree on the care arrangements for the child, which are specified in the document.

A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it is signed by both parties. The written agreement must indicate that the care arrangement constitutes an agreed, ongoing care arrangement for the child.

Disputed care (1.1.D.70) is different from situations where there is disagreement about the facts regarding the care of a child, whether or not a care arrangement is in place for the child. See 2.2.1 for information about how the Registrar deals with conflicting information or disputed facts about a care arrangement.

Situations where there is no care arrangement

Where there is no care arrangement in place for the care of the child, an interim period will not apply. A care arrangement does not exist where parents only have a verbal agreement for the care of a child.

In cases where individuals are in dispute about care and they do not have a care arrangement in place, the care in the assessment will be based on the actual level of care each parent is providing. Similarly, if a non-parent carer was caring for a child on the basis of a verbal understanding with the child's parent, an interim period would not apply if the child returned to live with their parent against the wishes of the non-parent carer.

When can an interim period determination be made?

If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care.

If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act.

  • The first percentage is the amount of care the person should have of the child under the care arrangement. This percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors.
  • The second percentage is the amount of care the person actually has of the child. This percentage of care will apply after the interim period has ended.

There are a range of circumstances where a child support assessment (1.1.C.70) may be based on a care arrangement during an interim period, such as situations where contact has been prevented by one party, or where a child has not been returned after a contact visit, or where the child chooses to live with the other carer. An interim period may apply where it is the first care percentage determination at the start of a child support assessment or in relation to a new relevant dependent child (1.1.R.60) on an assessment. An interim period may also apply where there is a subsequent care percentage determination after a care change and the care change occurs on or after 29 March 2024.

Example: Jim and Keith have a court order made on 2 May 2021 providing them with 50% care each of their child, Fran, which they had been following since the start of the order. On 15 September 2023, when applying for a child support assessment for Fran, Jim advises Services Australia that Fran has been living with him full time from 1 August 2023. When Services Australia contacts Keith, he advises that he disputes the care change and is negotiating directly with Jim to resume the court-ordered care. Services Australia makes a decision to apply an interim period in the assessment from 15 September 2023 and the assessment recognises 50% care each for Jim and Keith for the interim period. The interim period may last up to 26 weeks from 1 August 2023, depending on whether Jim takes reasonable action to participate in family dispute resolution.

Example: Bill and Haley have a court order, made on 1 September 2018, providing them with 50% care each of their child, Lauren. Bill and Haley have had a child support case for Lauren since 15 February 2019. Bill and Haley have been following the care percentages provided for in the court order. On 20 July 2024, Haley refuses to return Lauren to Bill's care and contacts Services Australia to advise that she will now have 100% care of Lauren. When Services Australia contacts Bill, he advises that he agrees care has changed as described by Haley, but disputes the change in care and is seeking legal advice about his options. Services Australia makes a decision to apply an interim period in the assessment from 20 July 2024 and the assessment recognises 50% care each for Bill and Haley for the interim period. The interim period may last up to 26 weeks from 20 July 2024, depending on whether Haley takes reasonable action to participate in family dispute resolution.

Note: An interim period determination cannot be made if the application for a child support assessment is made after the end of the maximum interim period for the care percentage determination (see paragraph 53(1)(a) CSA Act).

Note: An interim period determination cannot be made in relation to a responsible person if a previous care determination made by the Registrar (or the Secretary for the purpose of FTB) in relation to the person has been revoked and the change in care occurred prior to 29 March 2024.

Note: If the Registrar has revoked a care percentage determination on the basis of a finding that a responsible person who was to have at least regular care (1.1.R.50) under a care arrangement did not take up that level of care despite the child being made available to that person by another responsible person (that is, a “below regular care determination” under CSA Act section 54G) then it is unlikely that an interim period will be able to apply in relation to the care determination that the Registrar is to make following that revocation (Child Support Registrar v CMU23 (2024) FCA 109). This will typically be because the Registrar is not able to be satisfied that the parent with reduced care of the child is taking reasonable action to have a care arrangement complied with when they continue to not have care of the child, despite the child being made available to them. In some circumstances where a revocation has occurred under section 54G, the Registrar may not apply an interim period on the basis that they are satisfied that special circumstances apply in relation to the child. See 2.2.3 for further information about below regular care determinations under CSA Act section 54G.

Note: An interim period does not apply in cases where the child is taken by state or territory welfare authorities, as removal by the state under relevant child protection legislation has legal authority. For child support purposes, a care arrangement ceases to apply when the child has been removed by state or territory child welfare authorities.

Parent with reduced care - taking reasonable action to ensure compliance with care arrangement

The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

  • negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement
  • making themselves available in a genuine attempt to take up care of their child as provided for in the care arrangement
  • making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to
  • seeking or obtaining legal advice regarding the making of a court order
  • filing an application to a court to have an order made or enforced
  • attending a hearing at court to seek an order to be made or enforced, or
  • notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

  • a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative
  • documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or
  • documentation of police or court action.

Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (that is, an interim period determination was not made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply.

Parent with increased care - taking reasonable action to participate in family dispute resolution

The person with increased care must take continuous reasonable action to participate in family dispute resolution in order for a shorter interim period to apply, and to avoid a later interim period applying. Reasonable action means participating in family dispute resolution, whether or not initiated by the person with increased care, with an accredited family dispute resolution practitioner within a reasonable period of the change of care day (CSA Act subsection 53A(3)). If the action did not occur within a reasonable period of the change of care day, the Registrar may determine that reasonable action started on a later date.

It is up to the Registrar to determine what is considered a 'reasonable period' in which the reasonable action started, and it will depend on the individual circumstances of each case. If the person with increased care does not take reasonable action within a reasonable period, the end of the interim period will be the end of 14 weeks starting on the day the person began taking reasonable action, rather than the change of care day.

Example: Joan and Kim have a court order made on 2 May 2015 providing them with 50% care each of their son, Fred. On 30 July 2024, Joan advises Services Australia that Fred has decided to live with her full time. When Services Australia contacts Kim, she advises that she disputes the care change and is negotiating directly with Joan to resume the court-ordered care. Kim also advises that Joan has been refusing her requests to attend family dispute resolution to resolve the issue, which Services Australia confirms with Joan. Services Australia makes a decision to apply an interim period from 30 July 2024. Because Joan is not taking reasonable action to attend family dispute resolution, the interim period will end on 27 January 2025 (26 weeks from the change of care day).

On 14 September 2024, Joan contacts Services Australia to advise that she decided to attend a family dispute resolution session arranged by Kim on the same day. Because Joan has started taking reasonable action to participate in family dispute resolution, the interim period will end earlier, on 20 December 2024 (14 weeks starting on the day Joan began to take reasonable action).

If the reasonable action ceases within the maximum interim period (for example, the person with increased care fails to attend a family dispute resolution session), then it is not considered continuous reasonable action. The effect of ceasing reasonable action to participate in family dispute resolution will depend on when the reasonable action ceased. If the reasonable action ceased while a shorter interim period applied, the interim period will be extended to the maximum interim period. If the reasonable action ceased after a shorter interim period has ended but before the end of the maximum interim period, a later interim period will apply.

If the person with increased care starts to take reasonable action to participate in family dispute resolution again (for example, they failed to attend an earlier session, but do attend a subsequent session), then the interim period may end earlier, subject to the rules outlined above.

The Registrar may seek evidence that reasonable action has been taken, has ceased, or has re-started. This may include verification by the other party, documentation from a family dispute resolution practitioner, or a certificate issued under section 60I of the FL Act.

For a shorter interim period to apply, there is no requirement for the parent with increased care to take action other than taking reasonable action to participate in family dispute resolution. Section 60I certificates are part of the family dispute resolution framework and may be issued by a practitioner to a person for various reasons based on the conduct and outcome of the family dispute resolution process. 

In certain circumstance a certificate may indicate that the person with increased care took reasonable action to participate in family dispute resolution, and that it is no longer reasonable to continue to do so. On the other hand, a certificate could demonstrate that the person with increased care has not participated in family dispute resolution.

Where a certificate is presented as evidence, the Registrar will examine the details of the relevant certificate. A certificate will not always provide sufficient or conclusive evidence on its own to apply a shorter interim period. The Registrar will consider all the circumstances of the individual case to determine the duration of an interim period. 

Length of interim period

The interim period begins on the first day that the actual care of the child ceased to correspond with the care provided for under the care arrangement (CSA Act paragraph 53A(1)(a)).

The length of the interim period depends on a number of factors, including whether the care arrangement is a court order, parenting plan or written agreement; when the care arrangement was made; when the disputed care change occurred; whether the person with reduced care is taking reasonable action to ensure the care arrangement is complied with; and whether the person with increased care is taking reasonable action to participate in family dispute resolution (paragraph 53A(1)(b)). The maximum interim period will apply in situations where the person with increased care does not take reasonable action to participate in family dispute resolution at any time during that period.

Court orders

For court orders, the maximum interim period that can apply is the later of:

  • 52 weeks from the day the care arrangement provided by the court order takes effect, or
  • 26 weeks from the change of care day.

A shorter interim period may apply if the change of care occurs after the first 26 weeks from the day the court order takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution. The shorter interim period will end at the earlier of:

  • 14 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the court order took effect), or
  • 26 weeks from the change of care day.

Example: Zhiyan and Gavin have a court order, made on 1 June 2015, providing Zhiyan with 60% care and Gavin with 40% care of their 2 children. On 20 June 2024, Gavin refuses to return the children to Zhiyan's care and contacts Services Australia to advise that he will now have 100% care of both children. When Services Australia contacts Zhiyan, she advises that she disagrees with the change in care and has made an appointment with a Family Relationship Centre (FRC). Services Australia makes a decision that an interim period will apply from 20 June 2024.

Gavin subsequently attends the dispute resolution session at the FRC. Because he is taking reasonable action to participate in family dispute resolution and the change of care occurred more than 38 weeks after the court order took effect, the interim period will end on 25 September 2024 (14 weeks starting from the change of care day, which is the day Services Australia is satisfied that Gavin began to take reasonable action to participate in family dispute resolution).

Parenting plans & written agreements

For parenting plans and written agreements, the maximum interim period that can apply is 14 weeks from the change of care day.

A shorter interim period may apply if the change of care occurs after the first 38 weeks from the day the parenting plan or written agreement takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution. The shorter interim period will end at the earlier of:

  • 4 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the parenting plan or written agreement took effect), or
  • 14 weeks from the change of care day.

At the end of the interim period, the care percentage will be determined according to actual care from the day after the end of the interim period.

Example: George and Mariam have a parenting plan, made on 13 December 2017, that provides George with 80% care and Mariam with 20% care of their teenage son, Aaron. On 30 November 2024, Mariam advises George that Aaron wants to start living with her, and contacts Services Australia to advise that she will be having at least 80% care of Aaron from now on. Mariam also advises Services Australia that she has made an appointment with a family dispute resolution practitioner to re-negotiate the parenting plan. When Services Australia contacts George, he advises that he disagrees with the care change and has spoken directly with Mariam about resuming the pattern of care provided for by the parenting plan.

Services Australia makes a decision that an interim period will apply from 30 November 2024. Because Mariam has taken reasonable action to participate in family dispute resolution and the change of care occurred more than 48 weeks after the parenting plan takes effect, the interim period will end on 27 December 2024, 4 weeks from the change of care day.

Later interim periods

If a shorter interim period has ended, and the person with increased care ceases to take reasonable action to participate in family dispute resolution before the maximum interim period has ended, a later interim period may apply (CSA Act subsection 53A(2)). The person with reduced care must still be taking reasonable action to ensure the care arrangement is complied with in order for the later interim period to apply. The later interim period will start on the day the person with increased care ceased to take reasonable action to participate in family dispute resolution, and will end according to the same rules that apply for shorter interim periods.

Example: Alison and Will have a court order, made on 10 February 2016, that provides them with 50% care each of their twin daughters. On 30 August 2024, Will advises Services Australia that he will now have 100% care of his daughters. When Services Australia contacts Alison, she advises that she disagrees with the care change and is seeking legal advice about her options. Services Australia makes a decision to apply an interim period from 30 August 2024. Both parents attend a family dispute resolution session in September 2024, which means the interim period ends on 5 December 2024 (14 weeks from the change of care day, which is the day the Registrar is satisfied Will began taking reasonable action to participate in family dispute resolution).

On 20 December 2024, Alison advises Services Australia that Will failed to attend a subsequent family dispute resolution session that day. Services Australia confirms this with Will and makes a decision that a later interim period will apply. The later interim period begins on 20 December 2024 (the date Will ceased taking reasonable action to participate in family dispute resolution) and ends on 26 February 2025 (26 weeks from the change of care day).

If a later interim period applies, and the person with increased care begins to take reasonable action to participate in family dispute resolution again, the later interim period may end earlier, according to the same rules that apply for shorter interim periods.

In some situations, an interim period may end early and no later interim period can apply in relation to the same care arrangement. For example, if the person with reduced care ceases to take reasonable action to ensure the care arrangement is complied with, or the care arrangement itself ceases to apply (for example, it has an 'end date'), the interim period will end on the day those events occur. Other examples include where:

  • a new care arrangement begins to apply, or
  • special circumstances exist in relation to the child (where those special circumstances were not present at the time the interim determination was made).

In these circumstances, the interim period will end the day before any of the above events occur.

Changes in care where an interim period applied

Where a shorter interim period has ended, the care percentages are determined according to the actual care that is occurring. If there is a subsequent change to the actual care of the child before the end of the maximum interim period, the new actual care percentages may be reflected in the child support assessment. The Registrar may suspend the earlier determination of actual care that was made under section 51 of the CSA Act, and the new actual care percentages will take effect from the day the Registrar is notified or otherwise becomes aware of the change in care (CSA Act section 54FA). If the change in actual care occurred before the end of a shorter or later interim period, the new actual care percentages will be reflected in the child support assessment from the day after the shorter or later interim period ends. If there are further changes to actual care before the end of the maximum interim period, the date of effect of those changes are subject to the rules outlined in section 54F.

If a later interim period applies, the Registrar must revoke the suspension of the earlier actual care determination and the subsequent actual care determination. The revocation takes effect from the day before the person with increased care ceased to take reasonable action to participate in family dispute resolution (subsection 54FA(3)).

After the maximum interim period has ended, the Registrar must revoke the actual care determination (that is, the second percentage of care that corresponded with the actual care of the child) and make a new care determination under sections 49 or 50 of the CSA Act (subsection 54FA(4)).

However, if the Registrar made a subsequent actual care determination that applied after the shorter interim period ended, the subsequent actual care determination will continue to apply after the maximum interim period has ended, until a change in care occurs. See 2.2.2 for information about care determinations and changes in care that apply outside of the interim period provisions.

Where the change in care affects the person's care percentage but not their cost percentage (1.1.C.200), the Registrar has discretion to revoke the previous care determination. These provisions are outlined in sections 54H and 54HA.

Special circumstances where an interim period does not apply

In order to apply an interim period, the Registrar must be satisfied that there are no special circumstances that relate to the child. Where the Registrar is satisfied that there are special circumstances that relate to the child, an interim period will not apply. The special circumstances could relate to the child directly or relate to another individual, such as the person with increased care, to the extent that those circumstances relate to the child. 

The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed.

Special circumstances include, but are not limited to, situations where violence or other inappropriate behaviour by the person who has reduced care has contributed to the change in care. Examples of unreasonable or inappropriate behaviour of the parent include:

  • violence towards the child or the person with increased care
  • exposing the child to family violence (within the meaning of section 4AB of the FL Act)
  • directly involving the child in a criminal act
  • exposing the child to alcohol, drugs or substance abuse
  • substantially failing to comply with legal schooling requirements, and/or
  • neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

Suitable evidence may include (but is not limited to):

  • a police report detailing violent behaviour towards a child or the person with increased care
  • an intervention order preventing contact with the child or person with increased care, or
  • statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care

Example: Joanne and Adam have a court order which states that they will have equal shared care of their son, Max. Joanne asks the Registrar to make a new care determination on the basis that Adam is no longer having any care of Max. 

Joanne states she is denying care of Max to Adam after Max was returned from Adam's house with severe bruises and soreness. Max said that his father had been physically violent towards him and the GP who treated him provided a statement that the injuries were consistent with the explanation provided by Max. 

Adam has instituted proceedings in the Federal Circuit and Family Court of Australia for a Recovery Order for Max. 

Given the special circumstances, the Registrar will amend the assessment using care percentages based on the care that is actually occurring despite Adam taking reasonable action to have the care arrangement complied with. 

Special circumstances are not limited to the inappropriate or unreasonable actions of a person. This means an interim period may not apply for reasons of special circumstances even where all parties have acted reasonably. The Registrar must be satisfied that the special circumstances relate in some way to the child. For example, a care arrangement may be unable to be complied with due to the illness, injury or actions of the child or another person to the extent that the circumstances relate to the child (such as where that person is unable to provide care for the child). If the Registrar is satisfied that there are special circumstances that relate to the child in such a situation then an interim period will not apply because the reason the person is not able to have care of their child has not resulted from the child being withheld from them by the other parent or carer. 

Example: Paul and Sheree have a court order which states that they will have equal shared care of their daughter, Stella, who is 17. Paul asks the Registrar to make a new care determination on the basis that Sheree is no longer having any care of Stella. 

Paul states he is not denying care of Stella to Sheree, as Stella is adamant she does not want to return to Sheree’s house. Paul has been trying to facilitate care of Stella for Sheree in accordance with the court order, and has packed her bag every week, and is ready and waiting to drive Stella to Sheree’s house at the normal drop off time each week. Paul does not drop Stella at Sheree’s house, as Stella will not get in the car. No conflicting activities are arranged by Paul for Stella. 

Sheree regularly reminds Paul that she expects him to comply with the orders, and is ready and waiting at home to receive Stella at the usual drop off time. 

Sheree books a family counselling session at Relationships Australia with the objective that a discussion with a mediator may help Stella agree to go back to 50/50 care. The earliest available session is in two months. Paul agrees to attend, however Stella refuses to attend. 

Given the circumstances the Registrar decides to revoke Paul and Sheree’s 50 per cent care percentage determinations under section 54G of the CSA Act on the basis that Paul has been required to take on increased care of Stella and this should be recognised in the assessment. 

Given the special circumstances, the Registrar will amend the assessment using care percentages based on the care that is actually occurring, despite Sheree taking reasonable action to have the care arrangement complied with.

Validation of past interim period determinations

The Technical Amendments Act provides that the legal validity of an interim care decision made between 23 May 2018 and 28 March 2024 inclusive is unimpacted by an earlier determination being revoked under section 54F or 54H of the CSA Act (notwithstanding repealed paragraph 53(1)(c) of the CSA Act, which was in force during that period).

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