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Change of Care Percentage


My court orders state that the children live with me and spend every 2nd weekend and half of holidays with their father.  My percentage is 66% so I have not been receiving any child support because of my ex having 34% and supposedly having a low income.  In October last year I received my new assessment which said the same thing as before … no child support to be paid by either party etc. 

My ex has had no overnight contact with the children for approx 14 mths now so I let the CSA know of this when I received the new assessment.  They said they could chage the percentage of care if I could prove it and then after I proved it they would have to contact my ex to see what he had to say about it.  What they requested from me was a copy of our court orders (no idea how they made the last assessment without a copy of the orders) and also a letter from the after school care stating the children were always available for collection for my ex but he has never collected them.  While waiting to get this letter I decided that I would lot rock the boat and just let things be as they are so I did nothing more. 

Well today in the post I received a change of assessment showing that I have 100% care of the children.  What I am wondering is how the CSA can change the assessment with out any paperwork.  My ex has disconnected both his home and mobile numbers so they would not have been able to contact him.  Maybe they sent him a letter?? 

Anyway it has been a positive outcome for me and I look forward to receiving my just under $30 a month.  May not be much but it is a lot more than I have received in the past 8 years. 

It is funny how easy this was sorted and yet over the past year I have spoken to several other people at CSA all that told me they could not do anything and they can only go by what the order says and I would have to go back to court to get the orders changed if I wanted to have my percentage of care changed.  Just goes to show if you are not happy with the answer you get then just keep calling back and talk to different people and you might actually get someone that knows what they are talking about. 
Wouldn't the best situation be if the CSA had the power to persuade the other parent to uphold their responsibility toward the children and adhere to the court orders?

However I'm curious, you mention that there is no overnight care, which appears to indicate that there may be care at other times? Is that the case?

You said you have no idea of how they made a decision before without the court orders, that's simple they go by what is agreed, so if you say what the court orders are and the other parent does as well, then that is what is taken as being, no need for proof. It's a verbal agreement, which stands, as long as it's agreed to, at the highest level.

The problems occur when there is no agreement or more precisely a dis-agreement, then the last order made should apply unless that parent is not taking the care of their own accord (i.e. despite the other parent or a non parent carer making the child available to the first parent.) It would appear from the way that I have read what you have written that the letter in regards to the children being made available, wasn't received by the CSA. If that is the case then I believe the CSA may have wrongly allowed the below regular care determination that you appear to have been provided.

This is a matter very close to my heart, as this aspect, the "lives with" parent purposefully denying access and thus purposefully denying children their humane right to know and be cared for by both parents and thus also abusing such children by exploiting them for monetary gain, was one of the major changes of the new legislation. I know far too many people who have suffered due to such actions. Also care is perhaps the main area where the guide, and also I believe the procedural instructions used by the CSA, do not reflect the legislation at all well. I believe that is on purpose as reducing the level of care, is one of the easiest procedural ways to increase the amount collected or transferred and thus to reduce the FTB paid and thus for the CSA to appear to be doing a better job to FaHCSIA and thus to ministers.

Section 53 of the Child Support Assessment Act says, quite concisely :-

53  Registrar determination where parents care falls below 14%
Making a determination
   (1)   The Registrar may determine the percentage (if any) of care of a child that a parent or non parent carer is likely to have during a care period if:
   (a)   a parent (the first parent) was to have at least regular care of the child during the relevant care period under an oral agreement, parenting plan or court order; and
   (b)   the first parent has no care, or has a pattern of care that is less than regular care, of the child despite the other parent or a non parent carer making the child available to the first parent; and
   ©   the other parent or a non parent carer of the child applies for the determination.
Note:   If the Registrar refuses to make a determination under this section, the Registrar must give the applicant a notice under section 54.

Yet the guide (section 2.2.2) makes no reference at all to this legislated requirement.

Here's an extract from the guide :-
Where a percentage of care can be determined based on an agreement, parenting plan or court order and:

    * the care is not occurring in accordance with the agreement, parenting plan or court order; and
    * a parent's actual care falls below 14%;

CSA may be able to determine the percentage of care by making a below regular care determination (section 53). See Chapter 2.2.7 for further information on when a below regular care determination can be made.

Where a percentage of care can be determined based on a written agreement, parenting plan or court order and:

    * the care is not occurring in accordance with the agreement, parenting plan or court order; and
    * a below regular care determination cannot be made;

CSA may be able to determine the percentage of care by making an interim care determination (section 52). See Chapter 2.2.6 for further information on when an interim care determination can be made.

As you can see nothing about the legislated requirement that the care not being taken is not to be considered if the other parent/carer is not making the child available.

Sections 2.2.6 and 2.2.7 do mention this requirement, however I believe that this unnecessarily obfuscates the requirement and I believe intentionally to allow the requirement to be easily not considered/missed, especially considering the amount of pressure put on CSA employees to speedily process what I believe they call "in-trays". How hard would it be to include "despite the child being made available to them" in the above? Surely this is the more appropriate position for such a check?

I believe the change that you have seen may have many factors affecting it. Numerous reports/publications from persons such as the auditor general, the ombudsman, SSAT (i.e. the publishing of decisions), have not shown the CSA to be fairing that well, in short they have been lambasted. The creation of a new specialised care team, perhaps very relevant to your case as they deal specifically with these sort of care decisions. Perhaps changes in the hierarchy Matt Miller(was GM) and Mina Prodebski (was NSW state manager) leaving (my understanding is that Mina was not liked very much at all by the staff nor actually Matt Miller), thus perhaps the morale has risen a little. people are getting better acquainted with the new legislation and there is perhaps more order in what must have been a chaotic time.

Last edit: by MikeT

Thanks Mike T for your reply.  With regards to me mentioning that my ex has has no overnight access, I worded it like that because I was trying to be as honest as possible because he has had contact 3 times in the past year but each time was for a very short time at the children's school and were all unexpected visits.  I have mentioned this in previous posts and didn't want anyone coming back to say …. but you said in the last post etc.

I know that child support is a very touchy subject both for payers and receivers.   I have been on both sides and have to say I was definitely not the winner on either side and nor were my children.  While doing week on week off I had to pay my ex child support because I worked full time and my ex sat at home on the single parent payment (so a bit of a role reversal to what we are used to hearing from most of the people on this site) Although I paid him child support I was also still left to pay all the children's school expenses etc because he just refused to pay them and of course someone has to so not much I could do.   I think the change of the legislation has had a good result for some and a bad one for others.  In my personal case it has been a benefit due to my percentage of time (66%) and I am fortunate enough to receive the full amount of Family Tax payment and in turn I continue to pay all of the children's school expenses etc and I do not complain about this as I am receiving all the money.  But with that all said I think that the other party should also make an effort and contribute some how towards his children's upbringing.  As much as I would prefer that he had contact with his children rather than financial assistance.  I know that it is his choice to have no contact but at the end of the day the children still have needs whether he sees them or not.  I suppose for me I feel like this change of assessment was a sign to show that my children and I are worth something and that the fact of the matter is that a parent can not just walk away from their responsibility. 

While there are nasty, greedy and spiteful dishonest parents in this country there will never be a fair system for everyone!!!

I am not looking for revenge or to be spiteful etc I just really want my children to have a chance to have a relationship with their father and that is something one can never buy!!!
That damn MikeT said
However I'm curious, you mention that there is no overnight care, which appears to indicate that there may be care at other times? Is that the case?

I said this, and perhaps I should have explained, primarily because daytime care can according to the legislation can be taken into consideration. In fact and likely due to; an SSAT decision setting aside a CSA decision, which did not consider daytime care and those who have persisted in pushing for the recognition of the intent of the new legislation, a change as from July 2010 will see,at the minimum a parent being able to use FAO level of care decisions (however I envisage the scenario where parents continually use the alternatives (FAO/CSA)). However I also believe that the CSA and the FAO will also be required to use the same calculation methods from that date as well.

I too have been on both sides and thus realise how inflated the legislated cost of children can be (I believe that in my situation it was by a factor of 10). I unlike yourself though,  don't chase CS at all and in fact I elected to end the assessment when I became the "lives with parent", so perhaps I could say that I have thus potentially bought the care of the other parent. Certainly the original intention was to forsake CS so the other parent could more likely be able to afford contact. However circumstances are different now, I am still the lives with parent but the cost of contact is significantly less and also I'm glad to say far more frequent. I still consider that CS could interfere with the contact and thus don't chase it. So I'd suggest that your last statement is open to debate, especially if you're as pedantic as I can be. :) I'd say that you can buy relationships in some situations where the parent is money conscious or where the parent sees such matters as big issues (not really sure I've said that well, it's the type of person who would see CS as an affront, but not for the monetary aspect, perhaps they could see it as being a personal dig), however I would also agree that there are some situations where the relationship with the parent cannot be bought well at least via a monetary based transaction.
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