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Lobbying CSA to always assess 50/50

Either parent can unilaterally take the kids away or change the current (non-court ordered) arrangements for their care, and the CSA will immediately assess that they are entitled financially to do so. What can we do to stop this??

What I really can't stand about the CSA policies is exactly this: Either parent can unilaterally take the kids away or change the current (non-court ordered) arrangements for their care, and the CSA will immediately assess that they are entitled financially to do so.

I know a guy who had a signed (but not court-registered) parenting plan and well over 12 months after it had been in operation the mother decided to basically abduct the kids. CSA called him the next day and advised that he now had 0% care and his CS was going up significantly. Even when he told them what she had done, they responded with "well does she have them or not". This is just not right.

What can we do to stop this? I mean, should we be lobbying for CSA to always assess on 50/50 unless there's a court order?

I don't know the solution but I know that as things stand the CSAare pretty well enabling a lot of nasty dealings.
The SPCA lodged the following Emerging Issue 2009-0216 arising from this and many other requests

Description of issue

When applicants apply to the CSA for payments there can be a significant period where :
1. CSA are unsure of the care arrangements due to disputes between the parents over time spent with children.

2. Parents often cannot settle the question of spends time with arrangements until well after separation

3. Often there are no court orders or parenting plans until well after CSA collections are requested.

This lack of information makes it difficult to assess the actual care and the CSA are unable to easily apply the new formula.
Parents engage in more conflictual behaviours in an attempt to leverage financial advantage through the formula which takes into account care arrangements.

Who is impacted?

Payers and Payees

What are the impacts?

Primarily conflict for parents who cannot agree on care details necessary to effect a quick implementation of the formula.
Impacts CSA officers who have to spend a significant time trying to broker a position of care levels.

Outcome sought

A much quicker implementation of the calculation of Child Support amounts after initial applications are made through the application of a default status of time spent with children on the initiating application for child support.
The best way to resolve this is to set out a default care regime that applies on the initiating child support application

When:

 Parents cannot agree on levels of care
 Where there are no court orders in place
 Where there is no parenting plan in place
 Where there has been no agreement at mediation through an FRC or similar
 There is no documented evidence of care levels.
 There is no documented reason or statutory document as to why care should be assessed at another care level.

A default virtual care regime of 182 nights is set out as part of the initiating CSA application where one or more of the above supporting care level documents is not available.

This care level is in effect until one of the above documents or circumstances applies.

The results will be
 Less CSA disputes
 Benefits to children
 Less entrenched conflict around CSA payments
 A more immediate implementation of a child support payment regime

Notes:
The care level reasons above are to be made available to either party involved in a CSA application without subpoena

Has this been raised in other forums?


This has not been formerly raised in any other forums although it has been discussed with FaHCSIA.

What was the outcome?

No action has been taken to date

We have received a response as follows and will need comment to take back
ISSUE: SPCA 2009-0216  Emerging Issue 58

Issue history
Issue submitted by email for the 31 March 2009 meeting.

The SPCA is suggesting that, if parents are in dispute regarding the care levels of their children after separating and:

   there are no court orders or parenting plans in place;
   no agreement has been reached through the use of a mediation service; and
   there is no documented evidence of the care level or evidence that shows why the care level should be assessed at a different care level

then CSA should default to a shared care arrangement of 182 nights for one parent and 183 for the other. SPCA believes that if this occurs there will be less disputes, benefits to children, less entrenched conflict around CSA payments and a more immediate implementation of a child support payment regime.

RESPONSE

The SPCA suggests that CSA should default to a shared care arrangement where parents cannot agree on the care arrangements for their child/ren.

As the SPCA would be aware, the child support formula uses the incomes of both parents and the care arrangements for the child/ren to determine the child support amount payable. Therefore, CSA is required to have a record, which is as accurate as possible, of the care arrangements for the child/ren.

Where parents do not agree on the care arrangements or the percentage of care, CSA will make a decision. In these cases the CSA will ensure that both parents are aware of the details that are in dispute and will give both parents the opportunity to provide further evidence. According to legislation, CSA must take into consideration the facts of the case in making a determination on the care arrangements that are likely to occur.

If CSA were to default to a shared care arrangement pending resolution of the dispute, this may potentially have a significant impact on the financial support available to the child/ren for a considerable period of time. CSA also considers that automatically applying 182 night / 183 night arrangement where disputes arise would further complicate the process of having parents work towards an agreed outcome; presumably one parent would benefit from the application of arbitrary 50:50 care arrangement and this would act as a disincentive to reaching an agreed outcome.

Furthermore, the SPCAs suggestion would have potentially significant implications for the Family Tax Benefit (FTB) payable for the child/ren. FTB Part A provides extra assistance to single parents. The payment can be divided between the parents when both parents have over 35% care of the child/ren. If CSA was to default to a shared care arrangement when a dispute occurs, then potentially Centrelink payments would be incorrectly allocated between the parents. FTB payments are reviewed each year, which may cause significant overpayments of Government funds to the parents, which may need to be repaid.

To further support parents with a disputed care matter, the Australian Government is currently examining a range of mechanisms to provide early assistance and advice. CSA, the Family Relationship Advice Line and Family Relationship Centres will work more closely together to assist separated parents to develop sustainable, workable arrangements that are in the best interests of their children. Further information about these developments will be available shortly.

CSA is also currently developing a web-based tool, in consultation with other stakeholders, called My family is separating- what now? This tool aims to help parents better understand the options available to them after separation. In the case of a difficult separation, where disputes are more likely to occur, the tool will emphasize the importance of putting the child/ren first, as well as the benefits of mediation as an option for sorting out arrangements, rather than court processes for parenting orders. The tool is currently undergoing customer and stakeholder testing and is expected to be launched later this year.

Background information on CSA decision-making regarding care disputes

CSA makes care decisions in accordance with the Child Support (Assessment) Act 1989. There are specific provisions that apply to situations where there are disputes concerning the percentage of care that each parent (or non-parent carer) has.  

When customers cannot agree on the percentage of care and there is no court order, parenting plan, or written or oral agreement in place, CSA will determine a care percentage under s50. In particular, sub-section 50(1) requires the CSA to determine the percentage of care (if any) that a parent or non-parent carer is likely to have during the relevant care period. CSA can only settle on a 182/183 night care arrangement if it is satisfied that it is likely to occur. The facts of the matter must influence the outcome. If not, the decision will lack integrity and will be overturned on objection and/or by the Social Security Appeals Tribunal (SSAT) if a review is sought.

For more information on how CSA makes these decisions, please see chapter 2.2 of The Guide.
In making a decision about care, CSA will consider the information and evidence provided by both parents. The available evidence is likely to depend on the individual circumstances but may include:
  • documentary evidence in the form of a diary or calendar recording the care of the child;
  • copies of any court orders or parenting plans;
  • contact details for day care, school, etc;
  • enrolment details for a day care, school, etc;
  • detail regarding the location of the child's belongings;
  • evidence regarding visits to health care providers; and
  • statements from third parties.
If the evidence and information from both parents cannot be reconciled, and a point of agreement cannot be reached, CSA cannot be satisfied that the percentage of care has changed and will make a decision to not amend the assessment.

If either parent believes CSA has made an incorrect decision, due to an error in the facts of the case or in CSAs interpretation of the legislation, they can object. An objection must be made in writing within 28 days of the parent being notified. After this secondary investigation and decision making process, if either parent continues to be dissatisfied they can apply for an external review through the SSAT.

It is also important to note that if the care arrangement changes again or further evidence comes to light in support of either parents claims, a parent can apply for a new care decision to be made.


Executive Secretary - Shared Parenting Council of Australia
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