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 individuals 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 care arrangement,
  • taking reasonable action to make a new care arrangement,
  • special circumstances where an interim period may be extended,
  • special circumstances where an interim period does not apply,
  • an interim period may end earlier if an outcome is reached,
  • 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. 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 (or a different care arrangement) complied with then there may be an interim period where care is determined by the care arrangement rather than actual care. This interim period can be up to 14 weeks for an individual (1.1.P.80), and in special circumstances up to 26 weeks. The child continues to be an FTB child of the individual during the interim period (1.1.I.105) if the individual takes reasonable action to ensure compliance with the care arrangement.

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.

Example: According to the terms of a court order, Gladys provides 80% care for her 15 year old son Matthew and she receives the full rate of FTB. Matthew's father, Martin, provides care for the remaining 20% of the time. Martin advises Gladys that he will not be returning Matthew to her after one of his periods of care and states that Matthew wishes to live with him on a permanent basis. Gladys does not consent to this arrangement and advises Martin that she will seek to have the order enforced. She advises Centrelink of the circumstances of her case.

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 in relation to a child is complied with, section 35D Percentage of care if action taken to make a new care arrangement in relation to a child, section 35L Days to which the percentage of care applies if section 35C or 35D applied in relation to an individual

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

To be paid FTB during an interim period of up to 14 weeks, the individual must take reasonable action to ensure compliance with the care arrangement. 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.

Act reference: FAAct section 35C Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

Taking reasonable action to make a new care arrangement

Where an individual has a reduced level of care for a child because of another party's non-compliance with an existing care arrangement, and the individual takes reasonable action to make a new care arrangement in relation to that child, they may still be entitled to some FTB for an interim period based on the extent of care being sought under the new care arrangement. In this situation, for an interim period to be granted, special circumstances must be established first.

Special circumstances are those circumstances that can be considered unusual, uncommon or exceptional. In order for circumstances to be considered special, they need to be different from the usual run of cases.

Where special circumstances exist, the individual takes reasonable action to make another care arrangement and the percentage of care that would apply in the proposed care arrangement is higher than the actual percentage of care the individual has, but is lower than the percentage of care the individual is supposed to have under the current care arrangement, the individual may be able to receive FTB in accordance with the percentage of care in the proposed care arrangement for an interim period. This means that the individual would still be paid FTB for the interim period, but at a reduced rate compared to the current care arrangement.

Example: Mark and Fiona have a court order which states that they are to equally share the care of their child. A determination exists that Mark and Fiona each have 50% care of their child based on the order. Mark's family circumstances unexpectedly change as his parents were involved in a car accident, his mother died and his father is left severely injured and Mark is now caring for his father. Due to this situation, Mark is not able to continue with 50% care but wishes to exercise 35% care of their child. Mark contacts Fiona to advise her of his situation and advises her that a new court order will need to be made to reflect the new care arrangements. He also informs Centrelink of the change and advises he is seeking 35% care. Fiona later contacts Centrelink asking for a new care determination based on Mark's actual level of care which is 20%. Fiona believes this level of care is in the best interests of their child, given Mark's ongoing caring responsibilities for his father and she does not agree to Mark having 35% care. Centrelink contacts Mark and he agrees that his percentage of actual care is 20%, but states he is able to exercise 35% care and is therefore seeking a court order. Mark provides Centrelink with documentation showing he is seeking a new court order for 35% care and includes evidence that he is currently caring for his father.

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

  • negotiating with the other party in a genuine attempt to reach a new written agreement, or
  • making and/or attending an appointment at a FRC or similar dispute resolution service with the aim of making a new care arrangement, or
  • obtaining or seeking legal advice regarding the making of a court order, or
  • attending a hearing at Court to seek an order to be made or enforced, or
  • filing an application to a Court to vary the terms of an order.

The same requirements regarding evidence as above for reasonable action to ensure compliance with a care arrangement apply.

Act reference: FAAct section 35D Percentage of care if action taken to make a new care arrangement in relation to a child

Special circumstances where an interim period may be extended

In special circumstances, the interim period specified by the Secretary may be extended from 14 weeks up to 26 weeks. This is intended to provide discretion to enable flexibility for unusual cases.

Special circumstances are those circumstances that can be considered unusual, uncommon or exceptional. In order for a circumstance to be considered special it needs to be different from the usual run of cases.

It is not possible to set out a complete list of the relevant factors to be taken into account in determining whether special circumstances exist. Each case must be considered on its own merits. Whether circumstances are deemed to be special depends upon the context in which they occur. It is the context which allows the decision maker to say that the circumstances in one case are markedly different from the usual run of cases thereby making it unjust, unreasonable or inappropriate to apply the standard 14 week timeframe.

Once it is determined that an individual does have special circumstances it is then necessary to determine whether the interim period should be for 26 weeks or whether it should be granted for 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.

A period longer than 14 weeks may also be appropriate if the actions of one individual unfairly disadvantages the other individual by delaying resolution of the disagreement between the parties about the care arrangements for the child and there are other circumstances that make the case unusual. However, the fact that one parent could be regarded as delaying resolution should not automatically result in extending the period beyond 14 weeks. Consideration of whether or not the individual has special circumstances should take that circumstance into account together with a consideration of other relevant circumstances. This would include considering the impact of a decision to extend the period on the child's need for financial support. For example, if the degree of actions by one parent in delaying resolution was considered to be unusual and extending the period would not adversely impact on the child's need for financial support, the discretion may be exercised.

Example: Suzanne has been granted an interim period in relation to her daughter Patricia, as her ex-partner Justin has not returned Patricia after a contact visit. According to the terms of their court order, Suzanne has 100% care of Patricia. Despite her attempts to negotiate the return of Patricia with Justin, he has not agreed to do so and he has stated he will not attend an FRC. Suzanne has therefore decided to seek enforcement of the court order. During the 14 week interim period, Suzanne had a work injury and was hospitalised for 8 weeks. Because of Suzanne's situation, the scheduled court hearing is moved to a date that is now 20 weeks since Patricia was removed from Suzanne's care. Suzanne continues to be involved in making key decisions regarding Patricia's welfare and is continuing to rely on the RA she has been receiving as part of her FTB entitlement to pay rent for the apartment she shares with her daughter. The cancellation of FTB prior to the resolution of the court case may put Suzanne at risk of being evicted from her apartment. Given Suzanne's circumstances, Centrelink decides that the interim period be extended to 20 weeks from the change of care day, pending the outcome of the court hearing.

Note: The combination of circumstances within the example above makes Suzanne's case unusual. A deferred court date on its own does not constitute special circumstances.

Examples where circumstances may not be considered as special on their own include delays in:

  • negotiating with the other party in a genuine attempt to reach a new agreement (either verbally or in writing, including electronically) and supporting reasonable alternative arrangements,
  • making an appointment at an FRC or similar dispute resolution service to discuss parenting issues (and the date of that appointment has not passed),
  • attending family dispute resolution at an FRC or similar service,
  • receiving or seeking legal advice regarding the making or varying of a court order,
  • filing an application to a court to have an order made, enforced or varied,
  • attending a hearing at court to seek an order to be made, enforced or varied.

Act reference: FAAct section 35L Days to which the percentage of care applies if section 35C or 35D applied in relation to an individual

Special circumstances where an interim period does not apply

The Secretary 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 apply. 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 the 14-week 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,
  • exposure of the child to alcohol, drugs or substance abuse,
  • involvement in criminal, sexual or unhealthy activities, and/or
  • disregard for well-being and daily needs of the child, e.g. food, shelter, health and 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 losing carer, as well as information from the gaining carer. 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 DHS may use in deciding whether special circumstances apply:

  • police reports,
  • verification with the Department of Community Services and/or the police.

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

An interim period may end earlier if an outcome is reached

Payment may continue in the interim period until an outcome is reached as long as reasonable action is being taken.

Where an outcome is reached before the end of the 14 (or 26) weeks the interim period event ends and therefore payment should be adjusted to reflect the outcome.

Example: Sandy resides with her parent Joan 100% of the time under the terms of a parenting plan. The plan does not take away legal responsibility from Sandy's other parent Alice. Alice does not return Sandy to Joan after a contact visit. Joan has taken the matter to court and a date for a court hearing is set. Alice immediately applies for full FTB. Joan tells Centrelink that the child has been taken without her consent and FTB continues during the interim period for Joan. The court issues a parenting order 8 weeks later. The order gives Alice sole legal responsibility and prevents Joan from having any contact with Sandy for a minimum period of 6 months. Sandy is no longer an FTB child of Joan from the date the parenting order is issued. Joan's FTB is cancelled from the date of the order. Alice is eligible for FTB and can be paid from the day of the order.

Explanation: Joan was eligible during the interim period of 8 weeks because under the terms of the original parenting plan Sandy was to reside with her 100% of the time and she took reasonable action to have the care arrangement complied with.

Act reference: FAAct section 35L Days to which the percentage of care applies if section 35C or 35D applied in relation to an individual

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: 16 May 2016