2.2.4 Disputed Care Arrangements

Context

A person's percentage of care is generally determined according to the actual care that they have of the child. However, in limited circumstances where care is disputed, a person's percentage of care may be determined according to a written agreement, parenting plan or court order for an interim period, rather than being based on actual care. The parent with less care must take reasonable action to have the written care arrangement complied with or to seek a new care arrangement in order for the child support assessment to be based on the care arrangement for the interim period.

Act references

CSA Act section 5, section 51, section 52, section 54C, section 54F

FAAct section 3(1)

FL Act section 4, section 64B, section 70D, section 70G

Social Security and Other Legislation Amendment (2012 Budget and Other Measures) Act 2012

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What is a disputed care arrangement?

A dispute in relation to the care of a child exists where a care arrangement for the child is in place and there is a departure from the terms of the arrangement by one of the parties.

For child support purposes, a care arrangement in relation to a child means:

  • a written agreement (see details below) between the parents of the child, or between a parent of the child and another person that relates to the care of the child,
  • a parenting plan for the child, or
  • any of the following orders relating to the child:
    • a family violence order within the meaning of section 4 of the FL Act,
    • a parenting order within the meaning of section 64B of that Act,
    • a state child order registered in accordance with section 70D of that Act, or
    • an overseas child order registered in accordance with section 70G of that Act.

A written agreement exists between separated parents (or a parent and another person who cares for the child) if:

  • there is a document in writing,
  • the document is signed and dated by both parties, and
  • both parties agree on the care arrangements for the child which are specified in the document.

A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it is signed by both parties. The written agreement must indicate that the care arrangement constitutes an agreed, ongoing care arrangement for the child.

Disputed care is different from situations where there is disagreement about the facts regarding the care of a child, whether or not a care arrangement is in place for the child. See 2.2.1 for information about how the Registrar deals with conflicting information or disputed facts about a care arrangement.

When can an interim determination be made?

If a parent is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement (or a different care arrangement) complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. There must be a care arrangement in place and being followed at the time the care changed in order for an interim care determination to be considered. If an interim care determination is made, child support will continue to be assessed in accordance with the care arrangement for a period of up to 14 weeks, or 26 weeks in special circumstances.

There are a range of circumstances where a child support assessment may continue to 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.

Example: According to the terms of a court order, M provides 80% care for her 15 year old son, B. B's father, F, provides care for the remaining 20% of the time. F advises M that he will not be returning B to her after one of his periods of care and states that B wishes to live with him on a permanent basis. M does not consent to this arrangement and advises F that she will seek to have the court order enforced. M advises DHS of the circumstances of her case and an interim determination is made which reflects that M has 80% care of B, despite M's actual care being different.

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.

Taking reasonable action to ensure compliance with care arrangement

The parent must take reasonable action to ensure compliance with the care arrangement in order to have the child support assessment continue to be based on the care arrangement for the interim period. Reasonable action could include:

  • negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,
  • making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,
  • seeking or obtaining legal advice regarding the making of a court order,
  • filing an application to a court to have an order made or enforced,
  • attending a hearing at court to seek an order to be made or enforced, or
  • notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

  • a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,
  • documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or
  • documentation of police or court action.

Example: M and F have a care arrangement in place for their child C. M is refusing to return C into F's care as per the care arrangement due to concerns for the child's safety. M has filed a police report and the allegations are currently being investigated. F's lawyer has recommended in a letter that F should not attempt to have the care arrangement enforced until the investigation is completed. F seeking advice from his lawyer would be seen as taking reasonable action to have the care arrangement complied with and an interim care determination can be made.

If the investigation is completed within the interim period and allegations against F are unfounded, and F subsequently does not seek to have the care arrangement complied with, this would be deemed as not taking reasonable action. The Registrar may review the interim period and may make a decision to end the interim period from an earlier date.

Example: M and F have a care arrangement for their child. F is refusing to return the child into M's care due to concerns for the child's safety. The allegations are currently being investigated and M is cooperating with police and state community services. M seeks advice from a lawyer regarding enforcing the care arrangement. The lawyer advises M of the legal cost to enforce the care arrangement. M is currently not working and cannot afford to pay the legal costs quoted. M contacts DHS to inform them of this outcome. As M would continue action if the cost was not prohibitive, this would be seen as taking reasonable action, as it is not within her financial means to continue and she is cooperating with all aspects of the investigation.

Note: Where a parent has not taken reasonable action and their percentage of care has been determined according to the actual care they have of the child, and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F).

Taking reasonable action to make a new care arrangement

Where there are special circumstances, a parent or carer may seek a new care arrangement for a lesser amount of care than they are entitled to under the existing care arrangement, but for a greater amount of care than they are actually having.

Special circumstances are those circumstances that can be considered unusual, uncommon or exceptional. Special circumstances indicate something out of the ordinary and may include situations where the parent could not continue to have the previous level of care:

  • due to serious medical problems relating to the child or themselves, or
  • because the other parent has moved a substantial distance away from their previous home without making arrangements with the other parent about the care arrangements for the child.

This list is not exhaustive as what may constitute special circumstances will, by definition, depend on the particular circumstances of the case. Situations that may occur in the ordinary course of events will not be considered to be special. For example, changing preferences of the parents or child in relation to care will not constitute special circumstances.

Example: M and F have a court order which states that they each have 50% care of their child, and this is reflected in the child support assessment. M's family circumstances unexpectedly change as her parents were involved in a car accident where her mother died and her father is left severely injured, and M must now care for her father. Due to this situation, M is not able to continue with 50% care but wishes to exercise 35% care. M contacts F to advise him of this situation and that she will be seeking a new court order to reflect the new care arrangements. M also informs DHS of the change and advises she is seeking 35% care.

F later contacts DHS asking for a new care determination based on M's actual level of care, which is 20%. F believes this level of care is in the best interests of their child, given M's ongoing caring responsibility for her father, and he does not agree to M having 35% care. DHS contacts M and she agrees that her actual care percentage is 20%, but states that she is able to exercise 35% care and is therefore seeking a court order. M provides DHS with documentation showing she is seeking a new court order for 35% care and includes evidence that she is currently caring for her father.

Examples of reasonable action to seek a new care arrangement could include:

  • negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,
  • making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,
  • seeking or obtaining legal advice regarding the making of a court order,
  • filing an application to a court to have an order made or enforced, or
  • attending a hearing at court to seek an order to be made or enforced.

Interim period

A decision to base a care determination on the agreed, planned or ordered care will have effect for a limited period. Generally, this will be a period of 14 weeks from the day the care ceased to be in accordance with the agreement, plan or order.

In special circumstances, the interim period may be extended to up to 26 weeks. Whether a person's circumstances are considered special will depend on the facts of the case, but will include circumstances that are out of the ordinary and affect the resolution of the issues relating to care. For example, a parent may have travelled overseas with a child without the consent of the other parent, resulting in delays in mediation and/or court action. Normal delays associated with mediation or the court process will not generally be considered to constitute special circumstances unless there are other factors that make the case unusual.

Once it is determined that there are special circumstances, it is then necessary to determine whether the interim period should be for 26 weeks or a period of more than 14 weeks but less than 26 weeks. The length of the period will depend on the reasons as to why the standard period of 14 weeks would be unjust, unreasonable or inappropriate. It is necessary to consider all the relevant circumstances of the case to determine what further period is appropriate. This would include considering the impact of a decision to extend the interim period on the child's need for financial support.

The interim period may be determined to be a period less than 14 weeks in special circumstances that warrant actual care being used in the assessment from an earlier date. If such special circumstances did not exist at the time the interim care determination was made but arises during the interim period, the Registrar may make a decision to give effect to actual care immediately from the date that the special circumstances arose.

The interim period may also end earlier if an outcome is reached. For example, if care changes again during the interim period, and the parent who was taking reasonable action ceases to do so, the Registrar can make a new determination based on the newly established actual care of the child. Additionally, if the parent who was taking reasonable action ceases to do so, the interim period may cease from the point at which the parent ceased to take action.

Otherwise, the interim determination will apply for the period as set out above. At the end of the interim period, the care percentage will be determined according to actual care from the day after the end of the interim period.

Special circumstances where an interim period does not apply

The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from a 14-week interim period, even if they are seeking the return of the child.

The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:

  • violence towards the child,
  • exposing the child to family violence (within the meaning of section 4AB of the FL Act),
  • violence towards the person with increased care,
  • directly involving the child in a criminal act,
  • exposing the child to alcohol, drugs or substance abuse,
  • substantially failing to comply with legal schooling requirements, and/or
  • neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

Suitable evidence may include (but is not limited to):

  • a police report detailing violent behaviour towards a child or the person with increased care,
  • an intervention order preventing contact with the child or person with increased care, or
  • statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

Example: M and F have a court order which states that they will have equal shared care of their 2 children, A and B. M asks the Registrar to make a new care determination on the basis that F is no longer having any care of A and B.

M states they are denying care of A and B to F after the children returned from F's house with severe bruises and soreness. The children said that F had been physically violent towards them and the GP who treated the children provided a statement that the injuries were consistent with the explanation provided by the children.

F has instituted proceedings in the Federal Circuit Court for a Recovery Order for A and B.

Given the special circumstances, the Registrar will amend the assessment using care percentages based on the care that is actually occurring despite F taking reasonable action to have the care arrangement complied with.

Situations where there is no care arrangement

Where there is no care arrangement in place for the care of the child, an interim period will not apply. A care arrangement does not exist where parents only have a verbal agreement for the care of a child.

In cases where individuals are in dispute about care and they do not have a care arrangement in place, the care in the assessment will be based on the actual level of care each parent is providing. Similarly, if a non-parent carer was caring for a child on the basis of a verbal understanding with the child's parent, an interim period would not apply if the child returned to live with their parent against the wishes of the non-parent carer.

Last reviewed: 14 August 2017