Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (65 of 2010)
Schedule 2 Percentage of care
Part 1 Amendments
Child Support (Assessment) Act 1989
55 Division 4 of Part 5
Repeal the Division, substitute:
Division 4 - Percentage of care
Subdivision A - Preliminary
48 Simplified outline
The following is a simplified outline of this Division:
• A responsible person's percentage of care for a child during a care period is the percentage of care determined by the Registrar under Subdivision B of this Division.
• A responsible person's percentage of care for a child is used in section 55C to work out the responsible person's cost percentage for the child.
Subdivision B - Determination of percentage of care
49 Determination of percentage of care - responsible person has had etc. no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of care for a child that was made under this section or section 50; and
(ii) is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.
50 Determination of percentage of care - responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances: see section 53.
(2) The Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4) The second percentage of care is to be:
(a) for a determination under section 49 - 0%; or
(b) for a determination under section 50 - a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
52 Percentage of care if action taken to make a new care arrangement in relation to a child
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and
(b) a care arrangement (the current care arrangement ) applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the current care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child:
(i) has not taken reasonable action to ensure that the current care arrangement is complied with; but
(ii) has taken reasonable action to make another care arrangement (the new care arrangement ) in relation to the child; and
(e) the Registrar is satisfied that, if the new care arrangement were to be made, the extent of care that the person who has reduced care of the child would have under that arrangement during the care period would be:
(i) more than the actual care of the child that the Registrar is satisfied that that person has had, or is likely to have, during that period; but
(ii) less than the extent of care of the child that that person should have had, or is to have, under the current care arrangement during that period; and
(f) the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child.
Note: This section does not apply in certain circumstances: see section 53.
(2) The Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person would have under the new care arrangement during the care period if it were to be made.
(4) The second percentage of care is to be:
(a) for a determination under section 49 - 0%; or
(b) for a determination under section 50 - a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the new care arrangement were not to be made.
53 Sections 51 and 52 do not apply in certain circumstances
Initial determination
(1) Sections 51 and 52 do not apply in relation to a responsible person for a child if:
(a) in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies - the day on which the application referred to in that subparagraph is made is 14 weeks or more after the change of care day for the responsible person; or
(b) in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies - the day referred to in that subparagraph is 14 weeks or more after the change of care day for the responsible person.
Later determination
(2) Sections 51 and 52 do not apply in relation to a responsible person for a child if:
(a) the Registrar has revoked, under section 54F or 54H, a determination of the responsible person's percentage of care for the child; and
(b) the revocation of the determination takes effect at the end of the day referred to in paragraph 54F(2)(c) or 54H(2)(c); and
(c) the day after that day is 14 weeks or more after the change of care day for the responsible person.
Extension of 14 week period
(3) If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may determine that subsection (1) or (2) applies as if the reference to 14 weeks in paragraph (1)(a) or (b) or (2)(c) were a reference to such longer period as the Registrar determines to be appropriate.
(4) The period determined under subsection (3) must not be more than 26 weeks.
54 When a person has reduced care of a child
A person has reduced care of a child if:
(a) a care arrangement applies in relation to the child; and
(b) the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and
(c) the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.
54A Working out actual care, and extent of care, of a child
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 52 or 54.
54B Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person
(1) If:
(a) a determination of a responsible person's percentage of care for a child is made under section 49 or 50; and
(b) sections 51 and 52 did not apply in relation to the responsible person;
the percentage of care applies to each day in a child support period on and from the application day unless a revocation of the determination under Subdivision C of this Division takes effect.
(2) The application day is:
(a) if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination - the day on which the application referred to in that subparagraph is made; or
(b) if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination - the day referred to in that subparagraph; or
(c) if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:
(i) in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a) - that day; or
(ii) otherwise - the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect.
54C Days to which the percentage of care applies if section 51 or 52 applied in relation to a responsible person
(1) If:
(a) a determination of a responsible person's percentage of care for a child is made under section 49 or 50; and
(b) section 51 or 52 applied in relation to the responsible person;
then:
(c) the percentage of care referred to in subsection 51(3) or 52(3) applies to each day in a child support period that occurs in the interim period for the determination unless a revocation of the determination under Subdivision C of this Division takes effect; and
(d) the percentage of care referred to in subsection 51(4) or 52(4) applies to each day in a child support period that occurs after the interim period for the determination unless a revocation of the determination under Subdivision C of this Division takes effect.
(2) The interim period for the determination:
(a) starts on the application day for the determination; and
(b) ends at the end of the earliest of the following days:
(i) the day specified by the Registrar;
(ii) if section 51 applied in relation to the responsible person - the day before the day on which the action referred to in paragraph 51(1)(d) ends;
(iii) if section 52 applied in relation to the responsible person - the day before the day on which the action referred to in subparagraph 52(1)(d)(ii) ends;
(iv) if a care arrangement in relation to the child begins to apply on a day after the application day for the determination - the day before the day on which the care arrangement begins to apply.
(3) The day specified by the Registrar under subparagraph (2)(b)(i) must be the last day in the 14 week period, or such other longer period as is specified under subsection (4), that starts on the change of care day for the responsible person.
(4) If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may specify a period of up to 26 weeks for the purposes of subsection (3).
54D Rounding of a percentage of care
If a responsible person's percentage of care determined under this Subdivision is not a whole percentage:
(a) if the percentage is greater than 50% - the percentage is rounded up to the nearest whole percentage; and
(b) if the percentage is less than 50% - the percentage is rounded down to the nearest whole percentage.
54E Registrar must have regard to guidelines about the making of determinations
In making a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35N(1) of the Family Assistance Act.
Subdivision C - Revocation of determination of percentage of care
54F Determination must be revoked if there is a change to the responsible person's cost percentage
(1) If:
(a) a determination of a responsible person's percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person - the interim period for the determination has ended; and
(c) the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(d) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(e) section 54G does not apply;
the Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination - the day on which the interim period ends; or
(ii) otherwise - the day before that change of care day; or
(b) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended - the day on which the interim period ends; or
(c) otherwise - the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.
54G Determination must be revoked if there is less than regular care etc.
(1) If:
(a) a responsible person (the first responsible person ) for a child was to have at least regular care of the child during a care period under a determination (the first care determination ) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person's percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Family Assistance Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
(2) The revocation of each determination takes effect:
(a) if the first responsible person never established a pattern of care in accordance with the first care determination - at the beginning of the application day for that determination; or
(b) if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care - at the end of the day before the day on which the person ceased the previously established pattern of care.
(3) To avoid doubt, a responsible person never establishes a pattern of care if:
(a) the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and
(b) the responsible person does not establish that pattern during that particular period.
54H Registrar may revoke a determination of a responsible person's percentage of care
(1) If:
(a) a determination of a responsible person's percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person - the interim period for the determination has ended; and
(c) the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(d) the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person's percentage of care for the child, the other percentage would not be the same as the person's existing percentage of care for the child; and
(e) sections 54F and 54G do not apply;
the Registrar may revoke the determination.
Note: If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) If the Registrar revokes the determination, the revocation takes effect at the end of:
(a) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination - the day on which the interim period ends; or
(ii) otherwise - the day before that change of care day; or
(b) if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended - the day on which the interim period ends; or
(c) otherwise - the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.
54J Registrar must have regard to guidelines about the revocation of determinations
In revoking a determination under this Subdivision, the Registrar must have regard to any guidelines in force under subsection 35S(1) of the Family Assistance Act.
Subdivision D - Percentages of care determined under the Family Assistance Act
54K Percentages of care determined under the Family Assistance Act that apply for child support purposes
(1) If:
(a) the Registrar is required by a provision of Subdivision B of this Division to determine a responsible person's percentage of care for a child; and
(b) the Family Assistance Secretary has determined the responsible person's percentage of care for the child (the family assistance care determination ) under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; and
(c) the family assistance care determination was made in relation to a claim for payment of family tax benefit; and
(d) the family assistance care determination has not ceased to apply or been revoked;
then:
(e) the family assistance care determination has effect, for the purposes of this Act, as if it were a determination of the responsible person's percentage of care for the child that has been made by the Registrar under a corresponding provision of Subdivision B of this Division; and
(f) the responsible person's percentage of care for the child applies, for the purposes of this Act, in the same way, and in the same circumstances, in which it would apply if it had been determined by the Registrar under such a provision; and
(g) the family assistance care determination may cease to apply, or be revoked, under Subdivision B or C of this Division in the same way, and in the same circumstances, in which a determination made under Subdivision B of this Division may cease to apply, or be revoked.
(2) This section ceases to apply to the family assistance care determination if the determination ceases to apply, or is revoked, under Subdivision D or E of Division 1 of Part 3 of the Family Assistance Act.
54L Reviews of percentages of care under the Family Assistance Administration Act apply for child support purposes
(1) Subject to subsections (2) and (3), if:
(a) the Family Assistance Secretary reviews a decision under section 105 or 109A of the Family Assistance Administration Act; and
(b) reviewing the decision involves (wholly or partly) a review of a determination that:
(i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or
(ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and
(c) the Family Assistance Secretary's decision on the review has the effect of varying the determination or substituting a new determination;
section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.
(2) Subject to subsection (3), if:
(a) the SSAT reviews a decision under section 113 of the Family Assistance Administration Act; and
(b) reviewing the decision involves (wholly or partly) a review of a determination that:
(i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or
(ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and
(c) the SSAT's decision on the review has the effect of varying the determination or substituting a new determination;
section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.
(3) If:
(a) the AAT reviews a decision under the Administrative Appeals Tribunal Act 1975; and
(b) reviewing the decision involves (wholly or partly) a review of a determination that:
(i) was made under a provision of Subdivision D of Division 1 of Part 3 of the Family Assistance Act; or
(ii) has effect, under section 35T of that Act, as if it were a determination made under such a provision; and
(c) the AAT's decision on the review has the effect of varying the determination or substituting a new determination;
section 54K of this Act applies as if the determination as varied or substituted were the family assistance care determination referred to in that section.