Recognition of care for child support purposes

(Clause 9)

Summary of proposed amendments

The bill contains amendments which allow Inland Revenue to rely on parenting orders and agreements when establishing care levels. It also makes it easier for other daytime care to be recognised when recognising care.

Application date

The amendments will apply from 1 April 2013.

Key features

Clause 9 introduces new section 15.

New section 15 identifies how the Commissioner establishes levels of ongoing daily care. It provides:

• that the Commissioner can rely on the content of care orders or agreements relating to the child;
• that the default position is that the proportion of nights that a child spends with a carer equates to the proportion of ongoing daily care that the person provides to the child;
• that a carer may challenge the above positions by providing evidence that a care order or agreement should not be relied on, or that the number of nights should not be taken to equate to the proportion of care provided; and
• that, if the Commissioner is satisfied on the evidence provided that the number of nights should not be taken to equate with the proportion of care, then the Commissioner may determine the proportion of care on the basis set out in new section 15(5).

Section 15(5) states that the Commissioner must have regard primarily to the periods the child is in the care of the carer, and then to the following factors:

• how the responsibility for decisions about the daily activities of the child is shared;
• who is responsible for taking the child to and from school and supervising the child’s leisure activities;
• how decisions about the education or health care of the child are made;
• the financial arrangements for the child’s material support; and
• which parent or carer pays for which expenses of the child.

Background

Inland Revenue cannot currently rely on a parenting order or agreement to establish the number of nights a child spends with each parent for child support purposes. Doing so would, however, reinforce what the courts have determined to be in the best interests of the child. This initiative would extend to parenting agreements which, while not enforceable by the courts, nonetheless convey the intentions and expectations of both parents.

Parents should, however, be able to rebut a presumption made on the basis of a parenting order or agreement when it can be shown that the order or agreement was not being followed in practice.