2.1.1.70 Disputed Care Arrangements

Note

From 1 July 2010, where an individual receives FTB for a child and the same child is recognised in a child support assessment, a care determination made by the Secretary (responsible for FTB decisions) is also recognised in the individual's child support assessment. Similarly, if a care determination is made by the Child Support Registrar (responsible for child support decisions) in relation to the same individual and child, it will also be used to assess the individual's eligibility for, and rate of, FTB (2.1.1.50).

Summary

This topic includes details about:

  • what is a disputed care arrangement,
  • situations where FTB can be paid during an interim period,
  • taking reasonable action to ensure compliance with a care arrangement,
  • length of interim period,
  • taking reasonable action to participate in family dispute resolution,
  • changes in care where an interim period applied,
  • special circumstances where an interim period does not apply,
  • situations where there is no care arrangement, and
  • review during the interim period for individuals who receive FTB instalment.

What is a disputed care arrangement?

For the purposes of FTB, 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. A care arrangement for a child is a written agreement between the parents, or between a parent and a carer relating to the care of the child, or a parenting plan or a court order for the child (1.1.C.05).

The dispute may relate to a departure from shared care arrangements between 2 or more individuals, or to a departure from arrangements for the sole care of a child, where care changes from one individual to another in contravention of the arrangement.

Disputed care is different from situations where there is disagreement between individuals over the facts regarding the care of a child, whether or not a care arrangement is in place for the child.

Explanation: Where separated parents, for example, disagree over how much care is actually being provided for the child by each parent in a shared care situation, the care arrangements need to be verified. This is dealt with in 2.1.1.30.

Disputed care is also different from abduction of a child, or where the child is missing or has left home without consent, which is in 2.1.1.90.

Situations where FTB can be paid during an interim period

Where the care of a child is shared and the actual care corresponds with that in a care arrangement, each individual's percentage of care can be determined based on the care arrangement. If the actual care is different from the percentage of care determined on the basis of the care arrangement then, in normal circumstances, actual care must be used to determine each individual's percentage of care. However, if an individual's FTB child is prevented from being in their care in accordance with a care arrangement without their consent and they take reasonable steps to have the care arrangement complied with then 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, Centrelink will determine 2 percentages of care for each party. 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 FTB (and child support, 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 has 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 (i.e. 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 disputed care change occurs, but a subsequent care arrangement is made while the care change is still in dispute (i.e. 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).

There are a range of situations where an individual may continue to be eligible for FTB 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.

The intention is to allow FTB to continue to be paid for the duration of the interim period despite the fact that the parent or carer does not have actual care (1.1.C.90) of the child.

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 FTB purposes, a care arrangement for a child ceases to apply when the child has been removed by state or territory child welfare authorities.

Act reference: FAAct section 3(1)-'care arrangement', section 35C Percentage of care if action taken to ensure that a care arrangement…, section 35L Days to which the percentage of care applies if 2 percentages of care…

Policy reference: FA Guide 2.1.1.85 Formal & Informal Care of an FTB Child, 2.1.1.20 Shared Care & Change of Care Summary, 2.1.1.90 Abducted, Absent or Missing Child

Taking reasonable action to ensure compliance with care arrangement

The person with reduced care must continue to take reasonable action to ensure compliance with the care arrangement in order for FTB to 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 a written agreement, or
  • making and/or attending an appointment at a Family Relationships Centre (FRC) or similar dispute resolution service with the aim of ensuring the care arrangement is adhered to, or
  • obtaining or seeking legal advice regarding the making of a court order, or
  • 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, or
  • notifying the police that the child has been taken without consent.

Individuals who receive either a past period or instalment payment must provide evidence that reasonable action has been taken to ensure compliance with the care arrangement. Acceptable evidence includes:

  • a written account of the steps an individual has taken to negotiate with the other parent, verified by Centrelink with the other parent and/or an independent third party, such as a legal representative, or
  • 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.

Where possible, a copy of the documentation should be attached to the individual's request. Otherwise Centrelink must sight the evidence and document the details with the individual's request.

The individual making the claim to continue to receive their FTB entitlement during the interim period must take reasonable action to ensure compliance with the existing care arrangement. Where an individual simply complains about the loss of care to Centrelink, this does not meet the requirement of taking reasonable action.

Example 1: Julie and Rob have legal responsibility for their child Zoe and have a care agreement in place. Julie is refusing to return the child into Rob's care as per the agreement due to concerns for the child's safety. Julie has filed a police report and the allegations are currently being investigated. Rob's lawyer has recommended in a letter that Rob should not attempt to have the care agreement enforced until the investigation is completed. This would be seen as taking reasonable action to have the current care agreement enforced and actual care would not apply. If the investigation is completed within the interim period and allegations against Rob are unfounded, and Rob does not subsequently seek to have the care agreement enforced, this would be deemed as not taking reasonable action and the Secretary may review the interim period.

Example 2: James and Sarah have legal responsibility for their child Jack and have a care agreement in place. James is refusing to return the child into Sarah's care as per the agreement due to concerns for the child's safety. The allegations are currently being investigated and Sarah is cooperating with Police and State Community Services requests. Sarah seeks advice from a lawyer regarding enforcing the care agreement. The lawyer advises Sarah of the legal cost to enforce this agreement. Sarah is currently not working, and cannot afford to pay the legal costs quoted. Sarah contacts Centrelink to inform them of this outcome. As Sarah would continue action if the cost was not prohibitive, this would be seen to be 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 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.

Act reference: FAAct section 35C Percentage of care if action taken to ensure that a care arrangement…, section 35P Determination must be revoked if…

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. The length of the interim period depends on a number of factors, including:

  • whether the care arrangement is specified under 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.

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 38 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, or
  • 26 weeks from the change of care day.

Example: Bill and Haley have a court order, made on 1 September 2017, providing them with 50% care each of their daughter, Lauren. On 15 February 2018, Haley refuses to return Lauren to Bill's care and contacts Centrelink to advise that she will now have 100% care of Lauren. When Centrelink contacts Bill, he advises that he disagrees with the change in care and is seeking legal advice about his options. Centrelink makes a decision that an interim period will apply from 15 February 2018. For the purposes of FTB, this means the care arrangement will reflect that Bill and Haley have 50% care of Lauren, as per the court order, until the end of the interim period, 30 August 2018 (52 weeks 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 March 2018, Gavin refuses to return the children to Zhiyan's care and contacts Centrelink to advise that he will now have 100% care of both children. When Centrelink contacts Zhiyan, she advises that she disagrees with the change in care and has made an appointment with a Family Relationship Centre (FRC). Centrelink makes a decision that an interim period will apply from 20 March 2018.

Gavin subsequently attends the dispute resolution session at the FRC. Because he took 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 26 June 2018 (14 weeks from the change of care day, which is the day Centrelink 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 but before 48 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 based on actual care from the day after the end of the interim period.

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

Centrelink makes a decision that an interim period will apply from 30 November 2018. Because Maria 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. 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 9 May 2018, Will advises Centrelink that he will now have 100% care of his daughters. When Centrelink contacts Alison, she advises that she disagrees with the care change and is seeking legal advice about her options. Centrelink makes a decision to apply an interim period from 9 May 2018. Both parents attend a family dispute resolution session in June 2018, which means the interim period ends on 15 August 2018 (14 weeks from the change of care day, which is the day Centrelink is satisfied Will began taking reasonable action to participate in family dispute resolution).

On 30 August 2018, Alison advises Centrelink that Will failed to attend a subsequent family dispute resolution session that day. Centrelink confirms this with Will and makes a decision that a later interim period will apply. The later interim period begins on 30 August 2018 (the date Will ceased taking reasonable action to participate in family dispute resolution) and ends on 7 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.

Act reference: FAAct section 3(1)-'change of care day', section 3(1)-'maximum interim period', section 35FA Meaning of interim period

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, or 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. If the action did not occur within a reasonable period of the change of care day, Centrelink may determine that reasonable action started on a later date.

It is up to Centrelink 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 Centrelink that Fran has decided to live with him full time. When Centrelink 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 Centrelink confirms with Jim. Centrelink 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 Centrelink 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 (i.e. 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 (i.e. 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.

Centrelink 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 the Family Law Act 1975.

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. Centrelink may suspend the earlier determination of actual care that was made, and the new actual care percentages will take effect from the day Centrelink is notified or otherwise becomes aware of the change in care. 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 from the day after the shorter interim period ends. If there are further changes to the 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 35P.

If a later interim period applies, Centrelink must revoke the suspension of the earlier actual care determination and the subsequent actual care determination. The revocation takes effect at the end of the day before the person with increased care ceased to take reasonable action to participate in family dispute resolution.

After the maximum interim period has ended, Centrelink 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.

However, if Centrelink 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 2.1.1.20 for information about care determinations and changes in care that apply outside of the interim period provisions.

Act reference: FAAct section 35A Determination of percentage of care - child is not in adult's care, section 35B Determination of percentage of care - child is in the adult's care, section 35C Percentage of care if action taken to ensure that a care arrangement…, section 35P Determination must be revoked if…, section 35PA Suspension of determination before the end of the maximum interim period if…, section 35Q Secretary may revoke a determination of an individual's percentage of care, section 35QA Suspension of determination of an individual's percentage of care before the end of the maximum interim period

Policy reference: FA Guide 2.1.1.20 Shared Care & Change of Care Summary

Special circumstances where an interim period does not apply

Centrelink has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual level of care and no interim period applies. The discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other unusual behaviour by the person who has reduced care which led to the change in care.

The discretion to immediately base the percentage of care on the actual level of care in special circumstances is designed to recognise that if a person's own unusual and unreasonable actions are a significant cause for the agreement, plan or order not being complied with, the person should not expect to benefit from an interim period, even if the person is seeking the return of the child.

The need for special circumstances to apply would ensure that the discretion has limited application. The discretion would not be exercised just because there is a dispute between separated parents about the care of a child.

Examples of unreasonable and unusual behaviour of the parent:

  • violence towards the child,
  • exposing the child to family violence (within the meaning of section 4AB of the Family Law 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,
  • involving the child in criminal, sexual or unhealthy activities,
  • 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.

Decisions should be made on the basis of evidence that supports relevant findings of fact. The decision should take into account any information provided by the person with reduced care, as well as information from the person with increased care. Where a parent has been violent towards their child, the absence of a child welfare order would not prevent the discretion being exercised. Allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

Examples of evidence Centrelink may use in deciding whether special circumstances apply:

  • police reports,
  • verification with the Department of Community Services and/or the police, or
  • statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

Whenever possible, written evidence should be sought. However, where Centrelink staff (such as a social worker) has sought and documented verbal verification from the relevant state department and/or the police. For example, this may be used to determine if special circumstances exist, and whether an interim period does not apply.

Note: Long-term decisions about the child's care arrangements should be determined under family law where relevant parties are unable to come to an arrangement.

Act reference: FAAct section 23 Effect of FTB child ceasing to be in individuals care without consent

Situations where there is no care arrangement

Where there is no care arrangement (1.1.C.05) in place for the care of the child, an interim period will not apply. A care arrangement does not exist where parents have only 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.

Example: When Karen and Tony separated, they entered into a verbal agreement for the care of their children. Under the agreement, Karen had care of their children. On one particular occasion, the children visit Tony, and he decides not to return the children to Karen as he wishes to retain care. Tony lodges a claim for FTB for the children. Karen does not consent to the change of care. Karen applies for a hearing at the Family Law Court to get sole legal responsibility for the children and have them returned to her care. Karen loses eligibility for FTB as soon as the children leave her care. She does not meet the requirements to have her eligibility extended because a verbal agreement does not constitute a care arrangement. Tony has retained joint legal responsibility for the children, they are in his care, and he meets the eligibility requirements for FTB.

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.

Example: Grace is Kelly's grandmother. Grace claimed FTB for Kelly because the child's parent was unable to care for her properly. There is no care arrangement relating to Grace's care of Kelly. Several months later, Kelly's parent decides to take Kelly back into her care and reclaims FTB for her. Grace wants to retain care and disputes that Kelly's parent should get FTB for her. Neither of them wants to share the care of Kelly. Grace applies for a review of the decision to cancel her FTB for Kelly. Grace cannot have her eligibility for FTB extended, as she does not have a care arrangement in place for the care of the child. Kelly's parent is eligible for FTB as she is caring for the child and meets all the eligibility and claim requirements.

Act reference: FAAct section 22 When an individual is an FTB child of another individual

Review during the interim period for individuals who receive FTB instalment

If payment has been continued to an individual during the interim period, entitlement may be reviewed within the interim period, if considered appropriate in the circumstances of the case.

If the individual is no longer taking reasonable action, or an outcome has been reached, the interim period ceases immediately and entitlement to FTB must be reassessed to reflect the circumstances at the time.

Last reviewed: 2 July 2018