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Making a change of care unilaterally

Poster says 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.

Sunnyside said
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.
This is not true. The CSA will not immediately assess a change of care level. If you can show that you have a parenting plan or have had a contact regime that has been operating then they must asses that. They must consult the Payer. Should the errant payee continue to maintain withholding the child or children unilaterally you should have adequate time to get before the Family Relationship Centre and then on to the Federal Magistrates if so required.

CSA can only suspend collection of a liability for a period when the child is not in the payee's care if both the payer and the payee make a joint election. If the payee can't be contacted, or if the payee does not wish to make an election, the paying parent would need to make an application to court to have the order or court registered agreement varied. In particular I refer you to the relevant section of the Guide In the case where a parent has unilaterally taken the children and where there is no agreement the following is to apply
Change in care - no agreement, plan or order exists

Where the CSA is notified of a change of care and no agreement, parenting plan or court order exists, the CSA will discuss the care change with the other party to the assessment prior to making a decision regarding the care percentages.

In making a determination, CSA will take into account such period of time as is necessary to determine whether there has been a change in the care percentage and whether there is, has been or will be an identifiable pattern of care for the child (section 50(2)).

CSA will determine the care percentage that the carer is likely to have during the 12 months care period. In doing this, CSA may consider patterns of care that have been established in recent months if it is satisfied that that pattern is likely to continue.

CSA will amend the assessment only if the change in care percentages meets the requirements to amend an assessment because of a change in the care percentages. If the new care percentages do not satisfy these requirements then the assessment will not be amended.

Change in care - where one party no longer agrees with an oral agreement

If the care percentage for a child has been determined by an oral agreement and CSA becomes aware that one party no longer agrees with the care provided for by the oral agreement:
  • the parties can make another oral agreement;
    or
  • if the parties can not come to another oral agreement and
  • there was no written agreement, parenting plan or court order in force immediately before the oral agreement was made CSA will amend the care percentages by making a care decision of the actual care being provided (section 50);
    or
  • there was a written agreement, parenting plan or court order in force immediately before the oral agreement was made, CSA will amend the care percentage in accordance with that agreement, plan or order (section 51 - see example below);
    or
  • there was a written agreement, parenting plan or court order in force immediately before the oral agreement however the parties advise that that care is no longer being provided in accordance with that document, on application from one of the parents, CSA will consider making an interim care determination (section 52  see Chapter 2.2.6).
Example

M and F enter into a parenting plan that provides F with a care percentage of 80% and M with a care percentage of 20%. After six months, both parents advise CSA that they have agreed verbally to change to shared care arrangements where both will have a care percentage of 50%.

A year after the oral agreement is entered into, F advises CSA that the shared care arrangements are no longer taking place and that they now have 70% care. CSA contacts M who states that although the parents have not made a new agreement the care arrangements have changed. M does not agree with Fs description of the new arrangements.

As the parents no longer agree with the oral agreement for shared care, the assessment will be amended to revert to the care percentages determined in accordance with the parenting plan, 80 % for F and 20% for M.

CSA will amend the assessment only if the change in care percentages meets the requirements to amend an assessment because of a change in the care percentages. If the new care percentages do not satisfy these requirements then the assessment will not be amended.

Change in care - where care no longer complies with a written agreement, parenting plan or court order

Where a parent or a non-parent carer believes that the care of a child as specified in a written agreement, parenting plan or court order is no longer followed in the actual care arrangements for the child they may apply to the CSA for an interim care determination. See Chapter 2.2.6 for information about interim care determinations.
Sunnyside said
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.
You are right. It is not on so, please create a "Personal Topic" which is private and let us have an example that we can assist with in this regard.
Sunnyside said
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 CSA are pretty well enabling a lot of nasty dealings.
We have attempted to find a solution to this perennial issue that affects, fortunately, only a few wayward cases. I will publish the response we have had in a separate Topic.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
No help required in this case - this was a few years ago and he took court action and got them back. But he had to pay CS at the higher rate for the whole time it took to get them back. Objections and COA did him no good either. I can only assume the Guide has been updated since then - about time.  
Sunnyside said
….this was a few years ago and he took court action and got them back. But he had to pay CS at the higher rate for the whole time it took to get them back. Objections and COA did him no good either. I can only assume the Guide has been updated since then - about time.
There have been many significant changes to CSA legislation over the last three years. We have all of these detailed here in our CSA section under "The Guide". I am pleased to also say that there are many posts here on the site that are allowing us to work with CSA and FaHCSIA to further improve the guidelines and rules. If you have any suggestions in relation to the COA system please post in the appropriate forum sections as we are looking to vastly improve the Change of Assessment system. Nothing happens without members making solid contributions.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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