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 for both child support and FTB purposes 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 person with less care than specified in the care arrangement must take reasonable action to have the care arrangement complied with in order for the child support assessment to be based on the care arrangement for the interim period. The length of the interim period will depend on the type of care arrangement, how long ago the care arrangement was made, and in some circumstances, whether the person with increased care is taking reasonable action to participate in family dispute resolution.

Act references

CSA Act section 5, section 49, section 50, section 51, section 52, section 53, section 53A, section 53B, section 54B, section 54C, section 54F, section 54FA, section 54H, section 54HA

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

Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018

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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 and the other party disputes the care change.

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 person 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 complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. If an interim care determination is made, the Registrar will determine 2 percentages of care 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. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to 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 of care will apply after the interim period has ended.

Generally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply.

However, there may be some situations where an interim determination can be made when the care arrangement had not been followed. This includes where the disputed care change occurs before the other party had the opportunity to exercise the care provided for under the care arrangement (e.g. if one parent withholds care from the other parent from the day the care arrangement takes effect).

An interim determination could also be made where there is no care arrangement at the time the care change occurs, but a subsequent care arrangement is made while either party still disputes the care that is occurring (e.g. if one parent withholds care from the other parent, and the other parent successfully obtains a parenting order that provides them with a level of care, despite not actually being able to exercise the level of care provided for under the parenting order).

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.

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 person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. 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 both parties 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.

Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was not made), 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).

Length of interim period

The interim period begins on the first day that the actual care of the child ceased to correspond with the care provided for under the care arrangement (paragraph 53A(1)(a)). The length of the interim period depends on a number of factors, including whether the care arrangement is a court order, parenting plan or written agreement; when the care arrangement was made; when the disputed care change occurred; and whether the person with increased care is taking reasonable action to participate in family dispute resolution (paragraph 53A(1)(b)). The maximum interim period will apply in situations where the person with increased care does not take reasonable action to participate in family dispute resolution at any time during that period.

Court orders

For court orders, the maximum interim period that can apply is the later of:

  • 52 weeks from the day the care arrangement provided by the court order takes effect, or
  • 26 weeks from the change of care day.

A shorter interim period may apply if the change of care occurs after the first 26 weeks from the day the court order takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution. The shorter interim period will end at the earlier of:

  • 14 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the court order took effect), or
  • 26 weeks from the change of care day.

Example: Bill and Haley have a court order, made on 1 September 2018, providing them with 50% care each of their daughter, Lauren. On 15 February 2019, Haley refuses to return Lauren to Bill's care and contacts DHS to advise that she will now have 100% care of Lauren. When DHS contacts Bill, he advises that he disputes the change in care and is seeking legal advice about his options. DHS makes a decision that an interim period will apply from 15 February 2019. This means the child support assessment will reflect that Bill and Haley have 50% care of Lauren until the end of the interim period, 30 August 2019 (52 weeks starting from the date the court order took effect).

Example: Zhiyan and Gavin have a court order, made on 1 June 2015, providing Zhiyan with 60% care and Gavin with 40% care of their 2 children. On 20 June 2018, Gavin refuses to return the children to Zhiyan's care and contacts DHS to advise that he will now have 100% care of both children. When DHS contacts Zhiyan, she advises that she disagrees with the change in care and has made an appointment with a Family Relationship Centre (FRC). DHS makes a decision that an interim period will apply from 20 June 2018.

Gavin subsequently attends the dispute resolution session at the FRC. Because he is taking reasonable action to participate in family dispute resolution and the change of care occurred more than 38 weeks after the court order took effect, the interim period will end on 25 September 2018 (14 weeks starting from the change of care day, which is the day DHS is satisfied that Gavin began to take reasonable action to participate in family dispute resolution).

Parenting plans & written agreements

For parenting plans and written agreements, the maximum interim period that can apply is 14 weeks from the change of care day.

A shorter interim period may apply if the change of care occurs after the first 38 weeks from the day the parenting plan or written agreement takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution. The shorter interim period will end at the earlier of:

  • 4 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the parenting plan or written agreement took effect), or
  • 14 weeks from the change of care day.

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.

Example: George and Mariam have a parenting plan, made on 13 December 2017, that provides George with 80% care and Mariam with 20% care of their teenage son, Aaron. On 30 November 2018, Mariam advises George that Aaron wants to start living with her, and contacts DHS to advise that she will be having at least 80% care of Aaron from now on. Mariam also advises DHS that she has made an appointment with a family dispute resolution practitioner to re-negotiate the parenting plan. When DHS contacts George, he advises that he disagrees with the care change and has spoken directly with Mariam about resuming the pattern of care provided for by the parenting plan.

DHS makes a decision that an interim period will apply from 30 November 2018. Because Mariam has taken reasonable action to participate in family dispute resolution and the change of care occurred more than 48 weeks after the parenting plan takes effect, the interim period will end on 27 December 2018, 4 weeks from the change of care day.

Later interim periods

If a shorter interim period has ended, and the person with increased care ceases to take reasonable action to participate in family dispute resolution before the maximum interim period has ended, a later interim period may apply (subsection 53A(2)). The person with reduced care must still be taking reasonable action to ensure the care arrangement is complied with in order for the later interim period to apply. The later interim period will start on the day the person with increased care ceased to take reasonable action to participate in family dispute resolution, and will end according to the same rules that apply for shorter interim periods.

Example: Alison and Will have a court order, made on 10 February 2016, that provides them with 50% care each of their twin daughters. On 30 May 2018, Will advises DHS that he will now have 100% care of his daughters. When DHS contacts Alison, she advises that she disagrees with the care change and is seeking legal advice about her options. DHS makes a decision to apply an interim period from 30 May 2018. Both parents attend a family dispute resolution session in June 2018,which means the interim period ends on 4 September 2018 (14 weeks from the change of care day, which is the day the Registrar is satisfied Will began taking reasonable action to participate in family dispute resolution).

On 20 September 2018, Alison advises DHS that Will failed to attend a subsequent family dispute resolution session that day. DHS confirms this with Will and makes a decision that a later interim period will apply. The later interim period begins on 20 September 2018 (the date Will ceased taking reasonable action to participate in family dispute resolution) and ends on 27 November 2018 (26 weeks from the change of care day).

If a later interim period applies, and the person with increased care begins to take reasonable action to participate in family dispute resolution again, the later interim period may end earlier, according to the same rules that apply for shorter interim periods.

In some situations, an interim period may end early and no later interim period can apply in relation to the same care arrangement. For example, if the person with reduced care ceases to take reasonable action to ensure the care arrangement is complied with, or the care arrangement itself ceases to apply (e.g. it has an 'end date'), the interim period will end on the day those actions occur. Other examples include where:

  • a new care arrangement begins to apply,
  • both parties agree to a new pattern of care, or
  • special circumstances exist in relation to the child (where those special circumstances were not present at the time the interim determination was made).

In these circumstances, the interim period will end the day before any of the above actions occur.

Taking reasonable action to participate in family dispute resolution

The person with increased care must take continuous reasonable action to participate in family dispute resolution in order for a shorter interim period to apply, and to avoid a later interim period applying. Reasonable action means initiating or participating in family dispute resolution with an accredited family dispute resolution practitioner within a reasonable period of the change of care day (subsection 53A(3)). If the action did not occur within a reasonable period of the change of care day, the Registrar may determine that reasonable action started on a later date.

It is up to the Registrar to determine what is considered a 'reasonable period' in which the reasonable action started, and it will depend on the individual circumstances of each case. If the person with increased care does not take reasonable action within a reasonable period, the length of the interim period will be determined from the day the person began taking reasonable action, rather than the change of care day.

Example: Jim and Keith have a court order made on 2 May 2015 providing them with 50% care each of their daughter, Fran. On 30 July 2018, Jim advises DHS that Fran has decided to live with him full time. When DHS contacts Keith, he advises that he disputes the care change and is negotiating directly with Jim to resume the court-ordered care. Keith also advises that Jim has been refusing his requests to attend family dispute resolution to resolve the issue, which DHS confirms with Jim. DHS makes a decision to apply an interim period from 30 July 2018. Because Jim is not taking reasonable action to attend family dispute resolution, the interim period will end on 27 January 2019 (26 weeks from the change of care day).

On 14 September 2018, Jim contacts DHS to advise that he decided to attend a family dispute resolution session arranged by Keith on the same day. Because Jim has started taking reasonable action to participate in family dispute resolution, the interim period will end earlier, on 20 December 2018 (14 weeks starting on the day Jim began to take reasonable action).

If the reasonable action ceases within the maximum interim period (e.g. the person with increased care fails to attend a family dispute resolution session), then it is not considered continuous reasonable action. The effect of ceasing reasonable action to participate in family dispute resolution will depend on when the reasonable action ceased. If the reasonable action ceased while a shorter interim period applied, the interim period will be extended to the maximum interim period. If the reasonable action ceased after a shorter interim period has ended but before the end of the maximum interim period, a later interim period will apply.

If the person with increased care starts to take reasonable action to participate in family dispute resolution again (e.g. they failed to attend an earlier session, but do attend a subsequent session), then the interim period may end earlier, subject to the rules outlined above.

The Registrar may seek evidence that reasonable action has been taken, has ceased, or has re-started. This may include verification by the other party, documentation from a family dispute resolution practitioner, or a certificate issued under 60I of the FL Act.

Changes in care where an interim period applied

Where a shorter interim period has ended, the care percentages are determined according to the actual care that is occurring. If there is a subsequent change to the actual care of the child before the end of the maximum interim period, the new actual care percentages may be reflected in the child support assessment. The Registrar may suspend the earlier determination of actual care that was made under section 51 of the CSA Act, and the new actual care percentages will take effect from the day the Registrar is notified or otherwise becomes aware of the change in care (section 54FA). If the change in actual care occurred before the end of a shorter or later interim period, the new actual care percentages will be reflected in the child support assessment from the day after the shorter interim period ends. If there are further changes to actual care before the end of the maximum interim period, the date of effect of those changes are subject to the rules outlined in section 54F.

If a later interim period applies, the Registrar must revoke the suspension of the earlier actual care determination and the subsequent actual care determination. The revocation takes effect from the day before the person with increased care ceased to take reasonable action to participate in family dispute resolution (subsection 54FA(3)).

After the maximum interim period has ended, the Registrar must revoke the interim care determination (that is, the 2 percentages of care that corresponded with the care arrangement and the actual care of the child) and make a new care determination under section 49 or 50 of the CSA Act (subsection 54FA(4)).

However, if the Registrar made a subsequent actual care determination that applied after the shorter interim period ended, the subsequent actual care determination will continue to apply after the maximum interim period has ended, until a change in care occurs. See 2.2.2 for information about care determinations and changes in care that apply outside of the interim period provisions.

Where the change in care affects the person's care percentage but not their cost percentage, the Registrar has discretion to revoke the previous care determination. These provisions are outlined in sections 54H and 54HA.

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 an 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: Joanne and Adam have a court order which states that they will have equal shared care of their son, Max. Joanne asks the Registrar to make a new care determination on the basis that Adam is no longer having any care of Max.

Joanne states she is denying care of Max to Adam after Max was returned from Adam's house with severe bruises and soreness. Max said that his father had been physically violent towards him and the GP who treated him provided a statement that the injuries were consistent with the explanation provided by Max.

Joanne has instituted proceedings in the Federal Circuit Court for a Recovery Order for Max.

Given the special circumstances, the Registrar will amend the assessment using care percentages based on the care that is actually occurring despite Adam 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: 2 July 2018