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.

4.1.8 Care percentage decisions

Context

Note: From 14 October 2024, the ART replaced the AAT for external merits review of child support decisions.

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 110Y, section 110Z

CSA Act section 54K, section 54L

ARTAct Part 5A

On this page

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 family assistance law for the purposes of FTB 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 family assistance 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 ART for review of the decision. The usual time restrictions on making an application to the ART do not apply (CSRC Act section 90(1)), but the date of effect of the ART review decision may be affected (see below).

Making an objection

The objection to the care percentage decision may be made orally or in writing. CSRC Act 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.

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 generally be the date the objection was lodged, unless the Registrar is satisfied that there were special circumstances that prevented the person from lodging the objection within 28 days (CSRC Act section 87AA).

Grounds of the objection

A person objecting to a care percentage decision must explain 'fully and in detail' the grounds relied on (CSRC Act 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 (CSRC Act section 85A).

Example: Adam and Adelaide are assessed for the costs of the child Jack, who is in the shared care of Adelaide and Sally, the maternal grandmother. The Registrar makes a care percentage decision. Adelaide objects to that decision. The Registrar must notify both Adam and Sally of Adelaide'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 (CSRC Act sections 86A(1) and (4)). When informing the Registrar of their support or opposition the person must give fully and in detail the grounds they rely on (CSRC Act 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 (CSRC Act 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 Registrar 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 (CSRC Act 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 (CSRC Act section 87(1A)).

In considering an objection to a care percentage decision which has already been reviewed by the Secretary, the Registrar is limited to reviewing whether the review decision made by the Secretary has been correctly applied to the child support assessment. The Registrar cannot make a different decision to the Secretary's decision on review (CSRC Act section 87(1B)).

For information on the decisions the Registrar 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 (CSRC Act section 87(2)). That letter will include reasons for the decision and information about further review rights (CSRC Act 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 (CSRC Act 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 from the day it took effect.

Example: Noah and Lena are assessed for the costs of the child Oscar, who is in the shared care of Lena and Noah. Noah notified the Registrar on 13 August that the care of Oscar had changed on 1 August. The Registrar made a care percentage decision on 26 August that Noah has 40% care and Lena has 60% care with effect from 1 August. Lena objected to that decision on 11 September. The Registrar considered the objection and decided on 6 November to allow the objection as Noah's care percentage is 36% and Lena's care percentage is 64%. The assessment is amended from 1 August to use the objection decision percentages (Noah 36% and Lena 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 (CSRC Act section 87AA(1)).

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

Objection decision to apply from date of original decision

The care percentage objection decision may have effect from day the original decision took effect if the Registrar is satisfied that there are special circumstances that prevented the person from lodging their objection within the required timeframe (CSRC Act 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 date of the original decision.

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 the date of the original decision. 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 (CSRC Act 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 create a significant overpayment or significant arrears of child support?
  • the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?

If the Registrar makes a determination under CSRC Act 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: Harry and Mia are assessed for the costs of the child Kiara, who is in the shared care of Mia and Harry. Harry notified the Registrar on 13 August that the care of Kiara had changed on 1 August. The Registrar made a care percentage decision on 26 August that Harry now has 40% care and Mia has 60% care with effect from 1 August. Mia 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 Harry's care percentage is 36% and Mia's care percentage is 64%.

The Registrar considered if special circumstances prevented Mia 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 Mia did not rest on their rights and that Harry would not be prejudiced by a decision to extend the period in which to lodge the objection. The Registrar makes a determination under CSRC Act section 87AA(2) that the objection was lodged within time.

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

The Registrar must provide written notice of a decision to make, or to not make a determination, under CSRC Act section 87AA(2) to the persons affected by the decision (CSRC Act section 87AA(3)). A person dissatisfied with the Registrar's decision may apply to the ART for review of that decision (CSRC Act section 89(1) item 3).

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

The Secretary may make care percentage decisions under the family assistance 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 the date of the original decision (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 the date of the original decision. 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 should be made under CSRC Act section 110Y(3) and decides to make a determination, or if the Registrar decides not to make a 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, which determines the date of effect of the varied or substituted care percentage decision, may apply for an ART review of that decision (CSRC Act section 89(1) item 4).

ART review of care percentage objection decisions

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

If an ART review of a care determination has already been decided under the family assistance law for the purposes of FTB, the ART cannot vary the care determination if an ART review of the same care determination is sought under the child support legislation (CSRC Act section 95M).

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

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

The ART must provide written notice of a decision to make, or not make a determination, under CSRC Act section 95N(2) to the persons affected by the decision (CSRC Act section 95N(3)). A person dissatisfied with the ART’s decision in relation to special circumstances may apply to the ART for second review of that decision (ART Act sections 131C(e), 131D(3)(e), Part 5A).

Date of effect for child support purposes of ART review under family assistance legislation of care percentage decision

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

If the application for ART review under the family assistance law 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 ART review decision will apply from the date of the application for the ART first review (CSRC Act section 110Z(2)).

When applying the ART review decision for child support purposes, the Registrar can consider if special circumstances exist so that the ART review decision should have effect from the date of the decision subject to review (CSRC Act section 110Z(3)). In making this decision the Registrar will consider the same factors as when deciding if an objection decision should apply from the date of the original decision. In making this decision the Registrar will consider why the application for ART 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 ART review should be considered to have been made within time, the Registrar will determine that the ART review decision will have effect for child support purposes from the date of effect of the decision subject to review (CSRC Act section 110Z(3)).

The Registrar must provide written notice of a decision to make, or not make a determination under CSRC Act section 110Z(3) to the persons affected by the decision (CSRC Act section 110Z(4)). A person dissatisfied with the Registrar's decision, regarding the date of effect of the varied or substituted care percentage decision, may apply to the ART for review of that decision (CSRC Act section 89(1) item 4).

ART second review of care percentage decision

A person dissatisfied with an ART review of a care percentage decision may apply for an ART second review of the decision (ART Act sections 131C(d), 131D(3), Part 5A)).

If an ART second review of a care determination has already been decided under the family assistance legislation, the ART cannot vary the care determination if an ART second review of the same care determination is sought under the child support legislation (ART Act section 131Q(4)).

More information is available at the ART website.

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