CSA will work out a parent's level of care according to the actual time that the parent is responsible for providing care for the child. This is usually based on the number of nights that the parent has, or will have, the responsibility of caring for the child in the 12 months immediately after the start of a child support period. (See chapter 2.3 Child support periods)

However, care is not restricted to where the child lives or stays overnight. A person can be a principal provider of ongoing daily care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent, a schoolteacher) does not provide ongoing daily care. The issue is who has responsibility for making arrangements for, and decisions about, the child's welfare, not the accommodation arrangements themselves. A child's income is not a conclusive factor in deciding whether a person provides ongoing daily care for a child.

Determining "ongoing daily care"

There are a number of factors that should be considered in determining whether a person is providing "ongoing daily care". Some of these factors, which are provided for guidance only, are:

Living arrangements - where is the child residing and who is making decisions about where the child is residing;
Daily Physical needs - how are the daily needs being met for the child and who is meeting the costs of these needs;
Social and other activities - who is responsible for making decisions about the child's daily activities and who is meeting the costs of these activities;
Representations to others - who takes responsibility for liaising with others about a child's daily care and how does this occur.

Shared care

The care of a child is shared when 2 people care for a child substantially equally. This can happen in 2 ways, either:

one parent is the principal provider of ongoing daily care and the other parent has care for at least 40% (146) of the nights in the first 12 months of a child support period (section 8(1)), or
the care each parent provides is substantially equal. To decide whether parents care for a child substantially equally CSA will take into account the amount of time during both day and night that each parent cares for the child as well as who is responsible for making arrangements for, and decisions about, the child's welfare. CSA will give weight to statements from both parents that they share care for a child; but CSA will not be satisfied that parents share the care of a child if the amount of time the child spends with each person does not appear to be substantially equal.

Example

A child, A, spends a week with each parent in turn. In the first 12 months of the child support period A spends 182 nights (50%) with M and 185 nights (50%) with F. M and F share care of A substantially equally.

Example

A child, A, stays each weeknight with M. M takes A to F's home at 7am each weekday morning. F provides A with breakfast and takes A to school. F is the emergency contact for the school and carries out parental responsibilities during the day. F collects A from school. M collects A from F's home at 5.30pm, then gives A dinner and supervises homework and bathing.

A also stays with F for 2 nights every second weekend except when M has annual leave when 2 weeks are spent with M and 2 weeks with F.

M and F tell CSA that they believe that they share care of A. CSA is satisfied that M and F care for A substantially equally.

Where parents are separated but are living in the same house CSA will generally accept that the parents share care of their children substantially equally unless either parent is able to show that this is not the case.

Major contact

A parent has major contact with a child when they are the principal provider of ongoing daily care of the child, but another person has substantial contact with the child.

Substantial contact

A parent can have substantial contact with a child in 2 ways, either:

by caring for a child for at least 30% (110 nights), but less than 40% (146 nights) of the nights in the first 12 months of a child support period (section 8(3)(b)(i)), or
the principal provider of ongoing daily care and the other person agree that the other person has substantial contact, even though they provide care for less than 30% of the nights, (section 8(3)(b)(ii)).

Example

A child, A, stays with M for 2 nights every week and for 3 weeks during the school holidays (119 nights or 33% of the nights in the first 12 months of the child support period). A stays with F for the remaining nights (246 or 67% of the nights). M has substantial contact with A and F has major contact.

If the principal provider of ongoing daily care and the other parent agree that the other parent has substantial contact, even though they provide care for less than 30% of the nights, CSA will base its assessment on that level of care until it is aware they no longer agree. This will be the date that either or both parents inform CSA that they no longer agree.

CSA will then decide whether it should amend the assessment for the remaining part of the child support period by looking at the number of nights that each parent actually had care in the first 12 months of that period.

If a parent will not have care for 30% of the nights in the first 12 months of the child support period CSA will decide that they ceased to be an eligible carer from the date CSA was advised that there was no longer an agreement.

Example

M was the sole provider of ongoing daily care for A and B. Care arrangements for A and B change so that they spend 5 nights a fortnight with F. As the care arrangements change in the 8th month of the child support period F will not care for A and B for 30% of the nights in the first 12 months of the child support period. However, the parents M and F, agree that F has substantial contact with A and B. The assessment is calculated on that basis from the date M advised CSA of the agreement.

Four weeks later M advises CSA that although the care arrangements remain the same they no longer agree that F has substantial contact with A and B. CSA must now count the actual number of nights that F will have care of A and B in the first 12 months of the child support period. F has actual care of the children for less than 30% of nights in the first 12 months of the child support period. CSA amends the assessment from the date of M's call. CSA does not vary the assessment for the 4 weeks before M's call because F was an eligible carer until M advised that they no longer agreed F had substantial contact.

If the care of the children remains unchanged CSA will assess F as having substantial contact with A and B from the start of the next child support period.

Sole provider of ongoing daily care

A parent has sole care of a child when they care, or will care, for the child for 70% or more of the nights during the 12 months immediately after the start of the child support period. Care for 256 nights or more during that 12 month period amounts to sole care.

Example

In the first 12 months of the child support period a child, A, lives with M for most of the time but spends one night a week with their parent, F. F also has care of A for 2 weeks during the Christmas school holidays. The total number of nights A will stay with M is 304 nights, or 83% of the nights in the first 12 months of the child support period. M has sole care of A.

Care arrangements covered by a court order or registered parenting plan

If:

CSA is aware that a court order or registered parenting plan is in force which deals with residency and contact for a child, and
CSA is notified, or becomes aware, that a person is contravening that order or parenting plan, and
there is no reasonable excuse for the contravention, and
as a result, one person has more care of the child and the other person has less care of the child than they are supposed to under the order or parenting plan, then

the person with more care than they are supposed to under the order or parenting plan is taken to have the level of care set out in the order or parenting plan (i.e. their 'lawful' care), and

the person with less care than they are supposed to under the order or parenting plan will be assessed on the basis of the actual care that they have (i.e. their 'actual' care).

Is a court order or registered parenting plan in force?

A 'registered parenting plan' is a parenting plan registered under section 63E of the Family Law Act. A parenting plan can cover issues such as residence, contact or specific issues relating to a child. Unless a parenting plan is registered it is not 'in force' and has no effect on a child support assessment (section 8A(7)).

A court order includes (section 8A(7)):

a 'parenting order' as defined by section 64B of the Family Law Act which deals with residence, maintenance, contact or specific issues,
a 'Family violence order' under section 60D of the Family Law Act. A Family violence order can be an interim order. There may be situations where the parents have both a parenting order and a Family violence order. If a Family violence order is inconsistent with a parenting order, the parenting order prevails and the Family violence order is invalid to the extent of the inconsistency. However, the Family violence order may indicate that the person has a reasonable excuse for contravention of the parenting order.
an 'overseas child order' is an order under section 70G of the Family Law Act which is an order of a prescribed overseas jurisdiction providing for residence or contact for a child who is under 18. Schedule 1A of the Family Law Regulations 1984 lists the prescribed overseas jurisdictions for section 70G. An interim or exparte order cannot be registered under section 70G.
a 'State child order' is an order registered under section 70D of the Family Law Act that provides for residence or contact for a child who is under 18. Once registered it has the same effect as an order made by a court under the Family Law Act.

Is a person contravening the court order or registered parenting plan?

Court orders and parenting plans dealing with residency and contact usually include clauses setting out where the child will live and when the child will have contact with the other parent. A parent may be contravening an order or plan if they are not meeting their obligations under that order or plan.

An order or plan specifying contact with a parent obliges the parent with a residence order to enable that contact. If a child refuses to participate in contact, the parent with the care of the child must take reasonable steps to ensure that contact occurs. That parent has an active role and an obligation to positively encourage contact.

However an order or plan does not bind a parent to exercise the contact ordered. If a parent fails to seek or sustain contact they are not contravening the order or plan.

CSA will consider an order or parenting plan to be contravened where a parent:

intentionally failed to comply with the order or parenting plan, or
made no reasonable attempt to comply with the order or parenting plan.

Is there a reasonable excuse for the contravention?

A parent who contravenes a court order or parenting plan does not have a reasonable excuse unless (regulation 3A):

at the time of the contravention, the parent did not understand the obligations imposed by the order or plan on the parent who was bound by it, or
both parents agreed to the contravention, or
the contravention happened because the contravening parent believed, on reasonable grounds, that their actions were necessary to protect the health and safety of a person at risk.

Order or plan misunderstood

There can be a reasonable excuse for a contravention if a parent clearly did not understand the terms of the order or plan. CSA will consider:

whether the order or plan was clear,
the parent's capacity to understand it,
whether the parent had legal representation when the order or plan was made, and
whether the parent attempted to clarify the meaning of the order or plan.

CSA may acknowledge that a misunderstanding of the terms of an order or parenting plan provides a reasonable excuse for contravention in the past. Once any misunderstanding has been cleared up, it will no longer provide a reasonable excuse.

Agreement to contravene

If parents have agreed to the contravention of an order or parenting plan, the contravening parent has a reasonable excuse for the breach. An agreement may be in writing but may also be inferred from the behaviour of the parents over a period of time.

CSA will consider:

any correspondence between the parents;
the period of time over which the order or plan has been contravened,
the age/s of the child/ren and any wishes they have expressed. (However, it is important to note CSA's policy about information from children. See chapter 6.2 Collecting information),
whether either of the parents has sought to enforce or vary the order or parenting plan.

Belief on reasonable grounds that contravention is necessary to protect the health or safety of a person

A parent can have a reasonable excuse for contravening an order if they believed, on reasonable grounds, that the breach of the order or plan is necessary to protect the health or safety of a person. The child must not be deprived of contact for any longer than is necessary to protect the health and safety of that person.

The person at risk is not necessarily the child or the contravening parent.

To establish a reasonable excuse, the contravening parent must have a 'reasonable' belief'. It is not sufficient that the parent believes that they are acting in the child's best interests or that their belief is sincere. CSA must assess the grounds for the belief objectively to determine whether they are reasonable.

Reasonable grounds for a belief that a parent is acting to protect the health and safety of a person can include the existence of:

ongoing Family violence,
ongoing health problems of the child, or another person, which prevent contact, or
ongoing sexual, emotional or physical abuse.

Example

On 10 September 2004 F applied for child support from M for A and B based on sole care. F's application was accepted and an assessment made.

In October 2004 M contacts CSA and advises that F moved interstate in July 2004 and has denied contact with A and B since that time. M provides a copy of a parenting plan which states that A and B are to spend 4 days a week with F and 3 days a week with M.

F advises that they moved interstate as the situation with M had become intolerable. F alleges that M was stalking F and that F feared for their safety. F provides a copy of a domestic violence order and details of calls to police stations concerning alleged breaches of that order. F also provides the name of the police officer that investigated the matter.

F has established a reasonable excuse for contravening the order. The assessment will continue to be based on F's actual care of A and B (sole care). Both parents are advised of CSA's decision and their objection rights.

Example

F applies for an assessment of child support payable by M based on the sole care of A (age 4). During a pre-registration interview M advises that a residence order provides that A is to reside with M and to have contact with F for 2 nights each second weekend. M provides a copy of the order and claims F abducted A.

CSA contacts F who acknowledges the order but states that A has said that they want to live with F, rather than M. F does not feel that A should be returned to live with M against their wishes.

CSA decides that the court order is being contravened as F has not taken reasonable steps to ensure compliance with the order. F has no reasonable excuse for the breach.

F actually has sole care of A. But as the court order provides for contact for less than 30% of nights, F is not an eligible carer and is not entitled to an assessment. F's application for an assessment is refused. F is advised of their right to object to CSA's decision to refuse the application.

Example

M applies for a child support assessment from F for their child, A. During a pre-registration interview F complains that M abducted A and should not be able to receive child support. F provides a copy of an order that states that A should reside with F and have contact with M for 2 nights each fortnight.

M advises that F arranged for A to stay with M whilst F was on holiday for a week. During the stay A was unsettled and M took A to a doctor. The doctor considered that A showed signs of sexual abuse and reported those concerns to the child welfare authorities. M provides a letter from the doctor and written confirmation from the child welfare authorities that the matter was being investigated. F denies any knowledge of the alleged abuse.

CSA decides that the order is being contravened but that M believed, on reasonable grounds, that the contravention was necessary to protect A's health and safety. CSA accepts M's application for child support and advises both parents of the decision and their objection rights.

Some months later F contacts CSA and advises that a neighbour was convicted of abusing A. F has been exonerated. M is still caring for A and is still refusing F contact. F has moved house and wants A to live there. M states that if F let the abuse happen once, it could happen again.

CSA decides that the order is being contravened but there is no longer a reasonable excuse for the contravention. Under the terms of the court order M is not an eligible carer. CSA ends the case from the date the offender was convicted, as from that date there was no longer a reasonable belief that M's actions were necessary to protect A safety. CSA advises both parents of the decision and their objection rights.

Lawful care

If a parent is contravening a court order or parenting plan without a reasonable excuse and one parent has more care than provided for in the order or plan, that parent is taken to have the level of care provided by the order or plan (the lawful level of care) during the first 12 months of the child support period.

Actual care

If a court order or parenting plan is being contravened without a reasonable excuse and one parent has less care than provided for in the order or plan, that parent will be assessed on the level of care they actually have (the actual level of care) during the first 12 months of the child support period.

Date of effect of changes in the level of care

If CSA is notified of a change in the level of care from one category to another (e.g. shared care to major contact) the date of effect of any change to the child support assessment is the date that CSA was notified (section 74A).

However, if CSA is notified of a change in level of care that happened after the twelfth month of a child support period the change can't have any effect until the next child support period because the level of care is measured in the first 12 months of a child support period.

Example

A child support assessment is based on M having substantial contact with A and F having major contact during a child support period which runs from 1 February 2005 to 30 April 2006. On 1 March 2005 CSA is notified of a change in A's care arrangements. A will stay with M every second week beginning from 1 April 2005. Both parents confirm the arrangement.

CSA counts the number of nights that A will have spent with M and F in February and March under the existing care arrangements, then adds the number of nights that A will spend with each parent from April to January under the new arrangements. M will have shared care of A during the first 12 months of the child support period rather than substantial contact. The date of effect of the change to the assessment is 1 March 2005 the date that CSA was notified of the change.

Example

In the 13th month of a child support period, F, a payee, advises CSA that care arrangements for A have just changed. The other parent, M, confirms that they will now have care of A for 5 nights a fortnight rather than 7 nights.

M and F shared care of A in the first 12 months of the child support period. The assessment cannot be amended to take into account the changed level of care until the start of the next child support period.

Example

In the 8th month of a child support period, F, a payee, advises CSA that care arrangements for A have just changed. The other parent, M, confirms that they will now have care of A for 5 nights a fortnight rather than 7 nights.

Despite the change in care arrangements M will still care for A for more than 40% of the nights (146) in the first 12 months of the child support period. The assessment cannot be amended to take into account the changed level of care until the start of the next child support period.

Date of effect of a terminating event in relation to the care of a child

A child support assessment must end if a parent entitled to receive child support for a child ceases to be an eligible carer of that child (section 12(2)) (See chapter 2.8 Terminating events).

Date of effect where there is a change in care of a child/ren who is shared/divided between parents.

Where care of a child/ren is shared or divided between parents, and

a terminating event occurs for one or more child/ren, and
CSA is not immediately advised of the terminating event, and
both parents remain eligible carers (Subdivision E, Asst Act).

The Assessments will be modified to reflect:

a terminating event, effective from the day that the child/ren ceased to be in the former carer's ongoing care, and
an increase in the level of care of that child/ren to the gaining parent from the date of notification.

Disputes about a child's care

When a parent makes a claim about the level of care of a child CSA will seek to confirm the information with the other parent. If the other parent does not confirm the information CSA will ask both parents to provide details of the care arrangements since the start of the child support period and future care arrangements for the remainder of the first 12 months of the child support period.

CSA will make a decision on the basis of the information provided by parents to substantiate their claims.

Documentary records

Parents may be able to support their claims by providing a copy of a diary or other record of contact. CSA will consider a wide range of evidence provided including records of visits to health care providers or other services. CSA may also have records of past customer contact that is relevant and can utilise Centrelink information.

CSA cannot treat information from Centrelink about the percentage of care it has used in working out a parent's rate of Family Tax Benefit as conclusive evidence. Centrelink's criteria for working out the amount of care of a child for Family Tax Benefit differ from CSA criteria. CSA will still need to ascertain the actual number of nights that a person provided care for a child in the first the first 12 months of the child support period.

Statements from third parties

CSA can consider statements provided by third parties and may contact a third party to clarify their statement if necessary. CSA will advise the third party and the parent who provided the statement that the other parent will be told the source and given details of the information contained in the statement so that they can comment on the information. If the third party or parent providing the information does not want the details provided to the other parent, CSA will not consider the statement when making a decision.

CSA will respect the privacy of parents and the children involved. It will not obtain, or have regard to, information from children. It will not contact third parties without the consent of the parent concerned and will not imply that any person is obliged to provide information to CSA. If a parent provides a statement from a third party CSA will infer that they have consented to the third party being contacted.

CSA will do everything possible to make a valid finding of fact on the basis of the information provided and obtained. However, if the evidence provided by parents is impossible to reconcile, CSA cannot be satisfied that the level of care has changed. In these circumstances, CSA will assume that the state of affairs known to it at the time it made the assessment are continuing and it will not amend the assessment.

Version 1.7

Issued 23 January 2008

Feedback

<<< Previous | Next >>>



	CSA's previous online law & policy guide Effective until 30 June 2008