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Formula change could now impact shared care

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child support issue, shared care for the last 18 months. The new formula now levies mum for additional payments. This might result in mother reducing care time

Hi , just after some advice

My ex wife and i have shared care of both our children, 1 week at her place and 1 week at my place and half the school holidays each, this has been the case for the last 18 months.

I have just received advice from the child support agency that says she must now pay me child support. I am concerned that when i broach this subject with her, she will tell me i cant have the kids week about anymore.

My question is, can she legally do this? And do i have any rights if this is what happens?

Last edit: by Secretary SPCA

jarrodp said
Hi , just after some advice



My ex wife and i have shared care of both our children, 1 week at her place and 1 week at my place and half the school holidays each, this has been the case for the last 18 months.



I have just received advice from the child support agency that says she must now pay me child support. I am concerned that when i broach this subject with her, she will tell me i cant have the kids week about anymore.



My question is, can she legally do this? And do i have any rights if this is what happens?

Jarrodp,
           theoretically no, she shouldn't be able to. However the sceanrio you speak of i.e. a parent reducing the level of care for the other parent to get more CS is quite common and the CSA do appear to side with one parent, believing their story without recourse to the facts, although I believe that there has been a recent instance posted here where after some hassle this was quashed.

A few questions, is contact court ordered or do you have a parenting plan or agreement in writing? If you do then register these with the CSA ASAP, if not yesterday. You obviously have the care recorded with the CSA, as such this should also be proof as such that at least you did have the level of care and that it was agreed.

If you can get any evidence of the contact that you have had, especially the diary that you kept of the contact.

If you don't have a written and signed agreement then perhaps you need to go down that path and get some court orders filed (perhaps more on this depending upon your answers)

So let us know your answers to these questions, that would then let us be more selective in the responses.

Best Wishes, Mike.
MikeT said
jarrodp said
Hi , just after some advice



My ex wife and i have shared care of both our children, 1 week at her place and 1 week at my place and half the school holidays each, this has been the case for the last 18 months.



I have just received advice from the child support agency that says she must now pay me child support. I am concerned that when i broach this subject with her, she will tell me i cant have the kids week about anymore.



My question is, can she legally do this? And do i have any rights if this is what happens?
  Jarrodp,
           theoretically no, she shouldn't be able to. However the sceanrio you speak of i.e. a parent reducing the level of care for the other parent to get more CS is quite common and the CSA do appear to side with one parent, believing their story without recourse to the facts, although I believe that there has been a recent instance posted here where after some hassle this was quashed.

A few questions, is contact court ordered or do you have a parenting plan or agreement in writing? If you do then register these with the CSA ASAP, if not yesterday. You obviously have the care recorded with the CSA, as such this should also be proof as such that at least you did have the level of care and that it was agreed.

If you can get any evidence of the contact that you have had, especially the diary that you kept of the contact.

If you don't have a written and signed agreement then perhaps you need to go down that path and get some court orders filed (perhaps more on this depending upon your answers)

So let us know your answers to these questions, that would then let us be more selective in the responses.

Best Wishes, Mike.
 

Thank you for the prompt reply Mike.

No the contact is not court ordered, it is a verbal agreement between my ex wife and I. The only evidence that i have of this happening, is my partners work diary where she marked what weekends we had the kids and as you stated the CSA letters stating the level of care. I guess these would be legal documents?

I am hoping it doesn't come to court orders or anything else, i just have a feeling this may happen. About a month or so ago my ex wife asked we could go back me only having the children from wednesday to sunday every other week, as she was lonely and missing them, i now think she knew of the impending assessment, as she just got a propmotion at work and was trying to pull the wool over my eyes.

This is a first for me, as it has always been me that has had to pay child support in the past, which i did happily.

Last edit: by jarrodp

jarrodp said
Thank you for the prompt reply Mike.

No the contact is not court ordered, it is a verbal agreement between my ex wife and I. The only evidence that i have of this happening, is my partners work diary where sha marked what wekends we had the kids and as you stated the CSA letters stating the level of care. I guess these would be legal documents?

I am hoping it doesn't come to court orders or anything else, i just have a feeling this may happen. About a month or so ago my ex wife asked we could go back me only having the children from wednesday to sunday every other week, as she was lonely and missing them, i now think she knew of the impending assessment, as she just got a propmotion at work and was trying to pull the wool over my eyes.

This is a first for me, as it has always been me that has had to pay child support in the past, which i did happily.

Not the best of news then, although that fact that the level of care exists must mean that it has been agreed in that it hasn't been contested, as such you can perhaps rely on that in the near future.

I know that you don't want court orders who does, getting them isn't the greatest hassle, they can be written and filed for little financial cost. You should seriously consider this option. Say if you want to further consider this option. Another option would be to suggest the court process, which starts with mediation, which could stop there if an agreement was reached.

What if you were honest to her and say "I'm worried that you've suggested reducing the time the children get to see me and feel that to protect them I thinks it's best that we set down an agreement and have it filed in court. That could protect both of us from being too hasty at times when we perhaps aren't being the best parents that we can. perhaps say that you've looked around and the CSA do have a tendency to side with the payee and that as being the payee now, you could too easily take advantage of that." (or words along those lines)?

In response to the mother missing them, perhaps say something along the lines that you would miss them as well but more importantly that the children would miss out and it's that that you have to consider as the utmost importance, they have got into seeing a fair and balanced situation it would be disruptive to change that as drastically as you are asking.

If you don't do something, unfortunately some things could well happen. It's not really an area where hope is that good a companion, perhaps even something that you shouldn't get addicted to.



Thanx Mike,



I'll see how i go when i mention it to her, i'm thinking i may just let it lie for a month or so and see if she mentions anything first, that will give me an idea of what she thinks about it.
In the mean time jarrodp it will be in your benefit to accumulate evidence towards what time is currently being abided by, you will probably be receiving family tax benefit 50%, if you ask for a summary of payments from when this started it can also add to your proof pool.

I would also intensify the argument that the kids are settled with the current shared care arrangement and look for positives to put forward, the negatives come from a disruption to their routine as well as a reduction in time spent at your environment, look at getting things in order now and don't procrastinate about what you do behind the scenes, no doubt she will if not already be receiving the same informative letter.

The emphasis is for you to produce proof and for you to go forth if regaining contact is necessary, the biggest worry is the lack of orders so try not to upset the apple cart and keep things to yourself until forced to proceed.

And sorry Mike one of the first times I have to disagree with something you have suggested, try not to empower her by letting her know she could do something like

 " perhaps say that you've looked around and the CSA do have a tendency to side with the payee and that as being the payee now, you could too easily take advantage of that "

I know this was just an example but you may put an idea thats not there in her head, the last thing you need to relate it to is money people seem to get all greedy and stuff.

Anyway it's just opinions and possibilities and Mikes advice as usual is spot on try not to wait until the crunch though as far as preparation goes.

All best D4E
Thanx for the replys guys,



The information you have provided will help me on my journey :thumbs:
Isnt the simple answer to this just not to involve the CSA?

They can say what they like, but if you decide not to collect via them, they wont do a thing….

Do you want the money they say your ex has to pay?

Dont they only get involved if you ASK them to collect?

I get paid by my ex, and for two years did not collect, this was after a period of CSA involvement

I simply told them i no longer wanted them to collect, and that was the end of it

I dont see how, if i can do that, you cant as well..

If you dont need the money, and have survived without it, why rock the boat?

I know its your "right" to the money for your child, but is that "right" worth two years or more of court? (rhetorical question cos, trust me, it is NOT worth it)

ta

Last edit: by gooner


They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

Gooner,
           you're right, to not use the CSA is an option and from what I gather there are quite a few parents who don't involve them. However as it only takes either parent to involve them and that the CSA do not consider backdating "payments in kind (or payments of any sort if possible)" it's a risky option unless you then go to the stage of getting a binding agreement drawn up to cover this. In fact if my situation were to change and my son came to live here I'd consider a binding agreement if the ex didn't want to pay, drawn up so that at the minimum any care I had and hadn't received payment for, would be paid forward as payment should the situation change back.

A binding agreement (sheesh it seems to be binding agreement day today :) is an agreement that has to be in writing, signed by both parties and be certified that both parties have had legal advice before signing the agreement. Such an agreement can only be terminated by both parties also signing with legal advice. It's certainly an option for any who want consistency and protection from the CSA.

I guess the FCoA could override such an agreement (hint for an SRL-R's advice on this), but perhaps that would be unlikely due to it's nature of being an agreement signed and so on.

P.S. D4E, thanks for pointing that out to Jarrodp.

Oh one question JarrodP, not that it matters as such now, but how old are the children?

Oh and if you're not aware there are two Child Support Calculators on the site (you can get to them from the home page), for instance you might be interested to use them to work out things like if one of the children turns 18, or when they turn 13, if your incomes change and such things.
MikeT said
Gooner,
           you're right, to not use the CSA is an option and from what I gather there are quite a few parents who don't involve them. However as it only takes either parent to involve them
This is true but, would the ex of the OP really go to the CSA if she has not already? and if she did……… would she follow it through with them when she found out SHE would have to pay the OP?  Id say that if the above happened, THEN, if she was one of THOSE people…….. that she would think about going to court to reduce residence…..

The SAFEST way out if that scenario i think, is to get a parenting plan filed based on the current situation……. If im wrong, i stand to be corrected but…… if all is well between the OP and his ex in seperation he could EASILY make subtle hints about the benefits of a plan for ALL of them, then work WITH his ex to draw one up, and at the same time……… not even mentioning the CSA thing…. In fact…. i would take it further and say, if it was me…….. I would play the game of my life to get some kind of plan signed…….. Then…….. if it all goes pear shaped……. consent stuff LEGALLY is in place and to move the goalposts would be that much harder…….. (admin, tell me if i am wrong plz)

A LOT can happen with informal agreements… and its a bit of a nightmare to get it back to how it was (2years and three months and counting!! a bit of a digress i know but it links up)

MikeT said
and that the CSA do not consider backdating "payments in kind (or payments of any sort if possible)"
I dont get where all this "backdating" has come from or what it means, I remember, when i applied to go through them again, that they only took payment from the day i asked them to get involved. Can you explain further?

MikeT said
it's a risky option unless you then go to the stage of getting a binding agreement drawn up to cover this. In fact if my situation were to change and my son came to live here I'd consider a binding agreement if the ex didn't want to pay, drawn up so that at the minimum any care I had and hadn't received payment for, would be paid forward as payment should the situation change back.
A bit confusing Mike!! but…….. Its not "if the ex does not want to pay" its "if you do not want to collect" there is a BIG difference.. If you do not want to collect, that relieves your ex of her payment responsibilities because YOU have chosen it, They might still exist, but if you wont collect, it does not matter….

Not paying is something the ex of the OP can choose to do, but IF the OP wants the payments, then the trouble will begin….

this is all just my opinion remember ;-)

Ive NEVER had one single problem with the CSA EVER……. and ive been thought 3 changes of assessments (won one lost 2) and about three appeals for non agency payments……….

Op you DONT want to go to court mate, avoid it at ALL costs…. its years of burdened hell….


Thanks

A

Last edit: by gooner


They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

Hey gooner if you are in recepit in of anything other than the minimum ammount of Ftb you have to involved the CSA.

You know if he went to court the ex would have to make an agreement for 50/50 really because that is the status quo, she cant really fight her way out of that without throwing some serious curveballs. Court is not all years of losing $$$ and fighting in court. Most agreements are by consent, She sounds pretty resonable in that there allready is 50/50 agreement by consent.

He doesnt mention any conflict about anything other than financial issues. They could alway make a private agreement as well. They could very possibly make consent orders for no cs between them and 50/50 and that would be the end of it.

Rarghhhhhhhhhh!!!!!!!!!!!!

Han Solo routine "We're all fine here, thanks. How are you?" *weapons fire* "It was a boring conversation anyway!"
gooner said
MikeT said
Gooner,
           you're right, to not use the CSA is an option and from what I gather there are quite a few parents who don't involve them. However as it only takes either parent to involve them
This is true but, would the ex of the OP really go to the CSA if she has not already? and if she did……… would she follow it through with them when she found out SHE would have to pay the OP?  Id say that if the above happened, THEN, if she was one of THOSE people…….. that she would think about going to court to reduce residence…..

The SAFEST way out if that scenario i think, is to get a parenting plan filed based on the current situation……. If im wrong, i stand to be corrected but…… if all is well between the OP and his ex in seperation he could EASILY make subtle hints about the benefits of a plan for ALL of them, then work WITH his ex to draw one up, and at the same time……… not even mentioning the CSA thing…. In fact…. i would take it further and say, if it was me…….. I would play the game of my life to get some kind of plan signed…….. Then…….. if it all goes pear shaped……. consent stuff LEGALLY is in place and to move the goalposts would be that much harder…….. (admin, tell me if i am wrong plz)

A LOT can happen with informal agreements… and its a bit of a nightmare to get it back to how it was (2years and three months and counting!! a bit of a digress i know but it links up)

MikeT said
and that the CSA do not consider backdating "payments in kind (or payments of any sort if possible)"
I dont get where all this "backdating" has come from or what it means, I remember, when i applied to go through them again, that they only took payment from the day i asked them to get involved. Can you explain further?

MikeT said
it's a risky option unless you then go to the stage of getting a binding agreement drawn up to cover this. In fact if my situation were to change and my son came to live here I'd consider a binding agreement if the ex didn't want to pay, drawn up so that at the minimum any care I had and hadn't received payment for, would be paid forward as payment should the situation change back.
A bit confusing Mike!! but…….. Its not "if the ex does not want to pay" its "if you do not want to collect" there is a BIG difference.. If you do not want to collect, that relieves your ex of her payment responsibilities because YOU have chosen it, They might still exist, but if you wont collect, it does not matter….

Not paying is something the ex of the OP can choose to do, but IF the OP wants the payments, then the trouble will begin….

this is all just my opinion remember ;-)

Ive NEVER had one single problem with the CSA EVER……. and ive been thought 3 changes of assessments (won one lost 2) and about three appeals for non agency payments……….

Op you DONT want to go to court mate, avoid it at ALL costs…. its years of burdened hell….


Thanks

A

Gooner,
          having court orders filed is not going to court, the registrar deals with that aspect, unless they consider what is submitted as unfair (SRL's correct me). In simple terms it's a parenting plan, rewritten, taken to the registrar, registrar stamps it, court orders filed. That is the safest way unlike parenting plans, court orders have the backing of court enforcement, if one needs to go to that stage. I'm not sure of the cost, I thought it was about $200, there again I think I've also heard it's free.

Backdating "payment in kind", well assume that parent a says to parent b "I'm going to be nice and not make you pay CS" and this goes on over time, the situation changes, parent b becomes the recipient, there is no way that parent a's care over those years would be considered by the CSA, unless parent b agreed (in which case they probably wouldn't go to the CSA anyway) thus the "payment in kind" i.e. parent b being let off payment by parent a. Thus that's what I meant about backdating the "payment in kind".

With regard to the Ex. Currently she has primary care thus I pay her CS, if the situation were to change and I got primary care, then I would consider, a binding agreement in which she didn't have to pay. Obviously if she didn't want that, she wouldn't agree to it and have it legally endorsed, therefore her want would be the driver.

I think you have also missed a very pertinent point in Jarrodp's first post and that, is that the CSA are involved. I think JarrodP has been paying child support according to a child support assessment, but due to circumstances changing, Jarrodp is now to be the recipient according to the CSA's assessment and is therefore worried that his ex is trying to avoid her responsibility by trying to get greater care of the children.


I hope that's all a bit clearer for you now Gooner.

Monster said
Hey gooner if you are in recepit in of anything other than the minimum ammount of Ftb you have to involved the CSA.

Monster that is not the case, however I may be wrong and I'd accept that if you show me anything in the CSA legislation that actually compells a separated parent who receives FTB to register with the CSA.
If you receive FULL FTB you HAVE to register with CSA - you cannot agree to a private agreement, unless it is more than the CSA estimate.

Junior Executive of SRL-Resources

Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas. 
Artemis said
If you receive FULL FTB you HAVE to register with CSA - you cannot agree to a private agreement, unless it is more than the CSA estimate.
 

Not quite right Artemis - if you are entitled to and/or wish to receive more than the basic FTB you have to register with the CSA. You can have a private agreement for any amount on basic FTB. Above basic it can be equivalent to or more than what the CSA would assess.

" Perspective depends on which side of the barbed wire fence you sit, or indeed if you are sitting on it! "
Artemis, I believe a court order can also specify payments and as such not involve the CSA, but again to receive full FTB I think the payments have to match a notional assessment if I recall correctly.

You can also elect to not continue receiving the FULL FTB and opt out of CSA assessment, but only if the parties agree.
Artemis said
If you receive FULL FTB you HAVE to register with CSA - you cannot agree to a private agreement, unless it is more than the CSA estimate.
  The most FTB ive ever had is 55% so i guess the rules are different for full FTB receivers

everyone else thanks for clearing a few things up!

the whole system is a bit of a pain and ………im glad im not the one paying from what ive seen on hereAnd as for the going to court thing, I was just saying try to avoide full on final orders hearing……. I know a parenting plan does not have to go through all those hoops, sorry if i confused anyone

;-)

They must find it difficult, those who have taken authority as the truth, rather than truth as the authority

The unfortunate thing about parenting plans is that they are not enforceable in a legal sense.

They may carry weight when gaining consent orders or judgements but fall apart if the other party feels like they do not wish to carry on with the agreement.

Mediation is a possible solution to have parenting plans sighted into consent orders as is simply applying the parenting plan into orders by consent as suggested before.

My personal trouble started when I requested a parenting plan be put into orders to create a stable environment for the child, this was a few years back and my daughters mother took it as an affront that I question her right to abuse the parenting agreement.

This was eventually remedied with orders by consent 50/50, as soon as the realisation that we were both tied into this and that there was no power struggle thing became a lot easier and a humbling followed. In this case it came through the realisation that the shift in power was in my favour yet no grudges were borne and sacrifices were easily made to benefit the child when requested, perhaps a realisation that there was no need to take without consent as had been done in times gone by.

There is more than just one positive aspect to gaining orders, it can answer many of your problems in varying different ways but as mentioned there is also a true and real fear associated with many aspects, combined with the possibility that a judicial decision may not be in the favour of the parenting plan and may give one party more than was anticipated.

I have conversed with people who have an agreement regarding child support and FTB that works in advantage to both parties unfortunately this will hold little credence if the party concerned changes their mind and applies to CSA.

There is risk with everything pertaining to separation and when you feel you have been hit by everything something else comes along that disrupts the situation, at the very least when orders are in place there is an option open that may assist in maintaining a stable contact regime.

As a low income earner every cent is essential so to survive I have to abide by what is specified to gain that little extra.

The only truth is that you have to decide what is the best action in your situation when the time comes jarrodp and until then it's all hypothetical and to this point it brings me back to the original suggestion and do not sit on your hands waiting for it to happen start now and save time later, you can organise many things with out committing to anything at all.

Only you know the answers to the questions and ideas put forward tonight, all are relevant and I wish you luck with all in your future, keep us up to date with what your thoughts are and you may find it a valuable tool.

All best D4E    
In the particular scenario described by jarrodp
My ex wife and I have shared care of both our children, 1 week at her place and 1 week at my place and half the school holidays each, this has been the case for the last 18 months.

I have just received advice from the child support agency that says she must now pay me child support. I am concerned that when i broach this subject with her, she will tell me i cant have the kids week about anymore.

My question is, can she legally do this? And do i have any rights if this is what happens?
The situation seems very simple. Here the parties have decided to embark on shared care (An admirable solution dreamed of by many) so what is the problem with an agreement between the parties that there is no CSA liability. You don't need to involve the CSA in a case like this surely. Why can't the parties disengage for the CSA? I would be talking to CSA about ceasing arrangements.

Does the CSA require mandatory involvement if one or other party is on a benefit or receiving Centerlink payments?
jarrodp said
….Can she legally do this? in relation to cutting back contact.
Well there is no legal agreement  or court order in place in this case so either party can do what they like. A reasonable person would hope they would consider the children's current shared care arrangements and the impact that any changes would have… but unfortunately when it comes to money it seems often reasonable behaviours disappear. You could always pay the mother the difference in a private arrangement if all else fails (As you will be getting it via the CSA payments) so that the existing status quo remains and everyone is happy.

Executive Secretary - Shared Parenting Council of Australia
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