2.1.1.70 Disputed care arrangements

Note

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 describes how the law applies following enactment of the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Technical Amendments Act), which impacts disputed care changes where the:

• care determination for the care change is to be or has been made on or after 29 March 2024, and
• relevant change of care day is also on or after 29 March 2024.

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
• review during the interim period for individuals who receive FTB instalment, and
• validation of past interim period determinations.

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.

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.

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 for a person's rate of FTB to be maintained for the duration of the interim period to the parent or carer who has reduced care, despite the fact that the parent or carer does not have actual care (1.1.C.90) of the child in the way the care arrangement anticipates.

An interim period may apply where it is the first care percentage determination for a new FTB claim. An interim period may also apply where there is a subsequent care percentage determination after a care change and the care change occurs on or after 29 March 2024.

Note: An interim determination cannot be made where the claim for FTB is made after the end of the maximum interim period for the care percentage determination (FAAct section 35F(1)(a)).

Note: An interim period cannot be made in relation to an individual if a previous care determination made by the Secretary (or the Registrar for child support purposes) in relation to the individual has been revoked and the change in care occurred prior to 29 March 2024.

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.

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 to have their FTB 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
• 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
• obtaining or seeking 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.

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
• 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 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.

Note: Where a 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 (that is, 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.

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
• whether the person with reduced care ceases to take reasonable action to ensure the care arrangement is complied with, 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. If the person with reduced care ceases to take reasonable action to ensure the care arrangement is complied with, the interim period will end on the day they cease to take such action.

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.

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 based on actual care from the day after the end of the interim period.

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.

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 (for example, it has an 'end date'), the interim period will end on the day those events occur. Other examples include where:

• a new care arrangement begins to apply, 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 events 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, 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 end of the interim period will be the end of 14 weeks starting on the day the person began taking reasonable action, rather than the change of care day.

If the reasonable action ceases within the maximum interim period (that is, 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 (that is, 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 or later 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 actual care determination (that is, the second percentage of care that corresponded with 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.

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, this may be sufficient. 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.

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.

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.

Review during the interim period for individuals who receive FTB instalment

If payment is being made 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.

Validation of past interim period determinations

The Technical Amendments Act provides that the legal validity of an interim care decision made between 23 May 2018 and 28 March 2024 inclusive is unimpacted by an earlier determination being revoked under section 35P or 35Q (notwithstanding paragraph 35F(1)(c), which was in force during that period).