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.

4.2.1 When can an interim care determination be made?

Context

If a person is prevented from having the child in their care (1.1.C.10) in accordance with the care arrangement (4.1.6) 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.

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.

If an interim care determination is made, the Registrar will determine 2 percentages of care (1.1.P.70) 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 (1.1.C.60) (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.

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 (1.1.C.80) 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 4.1.7 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.

Act reference: CSA Act section 51 Percentage of care if action taken …, section 53(1)(a) Section 51 does not apply in certain circumstances, section 54G Determination must be revoked …

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