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Can a parent claim Child Support if they are in breach of a Family Court Order regarding custody?

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child support/breach parenting order

I have a current parenting order for my two teenage children - a shared care (50/50) agreement with their other parent who then moved away from the area and enrolled the children into a school close to their home address.  

As I wasnt happy with this (it happened a week before school started this year) consequently a few weeks later the children did not turn up into my care.  I haven't seen them now for 6 weeks and their parent states that they do not wish to see me.

The other parent has been told by the Federal Magistrates Court that they could not have full custody at the beginning of the year.  

I believe the motive is to gain CS payments from me.

Can the other parent make an application, being in breach of a current order, to gain CS payments from me at this time.  It would seem to me that the CSA would not support a breach of a court order before making such decisions about payments?  

I don't believe it is in my or the children's best interests to once again go back to court, I have decided to leave my door open for my children to come back themselves as they are only a couple of years away from being adults.
kimken said
 i believe the motive is to gain CS payments from me. Can the other parent make an application, being in breach of a current order, to gain CS payments from me at this time.  It would seem to me that the CSA would not support a breach of a court order before making such decisions about payments?
The new legislation, when it was introduced, tried to correct the very obvious and frequent abuse of children by the way of exploiting them for financial gain. Basically if court orders existed then these would apply. However,  I believe the CSA were behind a disgustingly surreptitious amendment to the legislation, purely to reduce the CSA's specialised care team's workload.

The CSA's distorted interpretation basically means that unless you take the matter to court then the other parent will get the increased amount of CS.

This is what the CSA Guide says :-

The CSA Guide - 2.2.8: Interim determinations after 1 July 2010 said
2.2.8: Interim determinations after 1 July 2010
Version 2.4, Last updated 8 March 2011 10:15am

Context

As a result of legislative changes made by the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010, from 1 July 2010 some rules relating to the determination of care percentages differ before and after this date.

From 1 July 2010, a persons percentage of care for a child will generally be determined according to the actual care that they have of the child (see Chapter 2.2.5).

However, in some limited circumstances, the care will be determined in line with a written agreement, parenting plan or court order for an interim period, if a parent is not having care in line with the agreement, plan or order, but wishes to do so and is taking reasonable action to have such care.

In addition, there are some circumstances where a parent will not be seeking the care as set out in the agreement, plan or order, but will be seeking a new agreement, plan order for a new, lower amount of care, due to special circumstances. In this situation, CSA will determine care, for an interim period, in line with the new agreement, plan or order sought.

Prior to 1 July 2010, care determinations are made in a different way where care is not occurring in line with an agreement, plan or order. See Chapter 2.2.6 for more information. The information in this chapter relates to care decisions from 1 July 2010 only.

Legislative references

    Sections 51, 52 and 54C Child Support (Assessment) Act 1989 (as at 1 July 2010) (the amended Act)
    Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010

When can an interim determination be made?

From 1 July 2010, an interim determination can be made where:

    one of the following sets out the care for the child:
        A written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child, or
        A parenting plan for the child; or
        Any of the following orders relating to the child:
            A family violence order within the meaning of Section 4 of the Family Law Act 1975,
            a parenting order within the meaning of section 64B of that Act,
            a state child order registered in accordance with section 70D of that Act,
            an overseas child order registered in accordance with section 70G of that Act.
    and
    care of the child is not happening in accordance with that agreement, plan or order, and the change from the agreed, planned or ordered care has occurred within 14 weeks prior to the request for the determination (or within a longer period, in special circumstances)(section 53 of the amended Act); and
    the parent or carer who has less care than set out in the agreement, plan or order is taking reasonable action to:
        re-instate care as per the agreement, plan or order (section 51 of the amended Act); or
        seek a new agreement, plan or order, and there are special circumstances (section 52 of the amended Act).

Reasonable action to have care in accordance with an agreement, plan, or order

What can be considered as reasonable action will depend on the circumstances of the case. Examples of reasonable action to have care in accordance with an agreement, plan or order may include:

    initiating court action for contravention of a court order,
    initiating mediation, through a Family Relationship Centre or other service, to re-establish the care arrangement,
    negotiating with the other parent with a view to re-establishing the care arrangement.

This list is not exhaustive and other forms of action may be reasonable, according to the circumstances of the parents and the child(ren).
Reasonable action to seek a new agreement, plan, or order

Where there are special circumstances, a parent or carer may seek a new agreement, plan or order for a lesser amount of care than they are to have under the current agreement, plan or order but for a greater amount of care than they are actually having.

Example

M and F have a court order which states that M and F are to equally share the care of A. CSA has made a determination that M and F each have a care percentage of 50%, as they have care in line with the order.

M requests CSA make a new care determination on the basis that F is no longer having 50% care of A. F confirms that they have not been able to have their ordered level of care and they are only in fact exercising 20% care. While conceding that this is partly due to A's ongoing health problems, F states they would like to have 35% care, but M is denying access to A on some occasions. F advises CSA that they have made arrangements for mediation at a Family Relationship Centre seeking to establish a new care arrangement of 35% for
A.


What can be considered as reasonable action will depend on the circumstances of the case. Examples of reasonable action to seek a new agreement, plan or order may include:

    initiating court action to obtain a new court order,
    initiating mediation, through a Family Relationship Centre or other service, to establish a new care parenting plan or written agreement,
    negotiating with the other parent with a view to establishing a new agreement, plan or order.

Special circumstances

What can be considered to constitute special circumstances will also depend on the facts of the case. Special circumstances indicates something out of the ordinary and may include situations where the parent could not continue to have the previous level of care:

    due to serious medical problems relating the child or themselves,
    because the other parent has moved a substantial distance away from their previous home without making arrangements with the other parent about the care arrangements for the child,
    because of the involvement of a child protection agency.

This list is not exhaustive as what may constitute special circumstances will, by definition, depend on the particular circumstances of the case. Situations that may occur in the ordinary course of events will not be considered to be special. For example, changing preferences of the parents or child(ren) in relation to care will not constitute special circumstances.

Interim period

A decision to base a care determination on the agreed, planned or ordered care will have effect for a limited period. Generally, this will be a period of 14 weeks from the day the care ceased to be in accordance with the agreement, plan or order.

In special circumstances, the interim period may be extended to up to 26 weeks. What will be considered special circumstances will depend on the facts of the case, but will include circumstances that are out of the ordinary and affect the resolution of the issues relating to care. For example, a parent may have travelled overseas with a child without the consent of the other parent, resulting in delays in mediation and/or court action. Normal delays associated with mediation or the court process will not generally be considered to constitute special circumstances unless there are other factors that make the case unusual.
Change in circumstances

If care changes again during the interim period, and the parent who was taking reasonable action ceases to do so, CSA can make a new determination based on the newly established actual care of the child.

Additionally, if the parent who was taking reasonable action ceases to do so, the interim period may cease from the point at which they ceased to take action.

If a new care arrangement is established during the interim period, CSA can make a new determination based on the new care arrangement for the child.

Otherwise, the interim determination will apply for the period as set out above. At the end of the interim period, the care percentage will be determined according to actual care (see Chapter 2.2.5) from the day after the end of the interim period.

WA ex-nuptial cases

The provisions described in this chapter apply to WA ex-nuptial children from a different date.

See Chapter 1.4.3 for details of the date from which various provisions had effect for WA exnuptial cases.
        

Note

The actual legislation says:
The Child Support Assessment Act 1989 said
52  Interim Registrar determinations where parent or non parent carer does not agree with percentages of care
   (1)   The Registrar may determine the percentage (if any) of care of a child that a parent or non parent carer of the child is likely to have during the relevant care period if:
   (a)   there is an agreement, plan or order that allows such a percentage to be determined under section 49; and
   (b)   a parent or non parent carer of the child does not agree that the care of the child that is actually taking place is in accordance with the percentage so determined; and
   ©   in the circumstances of the case, the percentage so determined would result in an unjust and inequitable determination of the level of financial support to be provided by a parent for the child; and
   (d)   a parent or non parent carer of the child has taken reasonable action:
   (i)   to seek to reach agreement; or
   (ii)   to seek a court order; or
   (iii)   to enforce a court order;
      about the care of the child; and
   (e)   a parent or 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.
   (2)   In making the determination, the Registrar must take into account such period as is required in order for the Registrar to be satisfied that there is, has been, or will be, a pattern of care for the child.
   (3)   The Registrar may revoke or vary a determination made under this section.
   (4)   Before the end of 6 months after a determination is made under this section, the Registrar:
   (a)   must review the determination; and
   (b)   may make another determination under this section.
(5)    However, the Registrar is not required to review a determination as mentioned in subsection (4) if the Registrar is satisfied that there are special circumstances that justify the Registrar in not doing so.

You can check what the CS will be by using the Calculators that are available from the Home page.

 
kimken said
…. As I wasnt happy with this (it happened a week before school started this year) consequently a few weeks later the children did not turn up into my care.  I haven't seen them now for 6 weeks and their parent states that they do not wish to see me.

The other parent has been told by the Federal Magistrates Court that they could not have full custody at the beginning of the year.  
So its now June… That is FOUR FULL months since school started if I am not mistaken and they have been at the new school all of this year. Is that correct?

There are a large number of posts here about the new rules from July 1 2010. Here is a link to some of the discussions we had. The Search engine found this in a  few moments.
kimken said
…. I believe the motive is to gain CS payments from me.

Can the other parent make an application, being in breach of a current order, to gain CS payments from me at this time.  It would seem to me that the CSA would not support a breach of a court order before making such decisions about payments?  
Yes indeed they can.
This measure will remove duplication of effort in the administration of the family assistance law and the child support legislation and will simplify the service delivery arrangements. It will also mean that families will have a consistent decision regarding care across both agencies that will assist in their dealings with government.

This alignment is achieved by deeming a prior care determination which is still in force by the Secretary for FTB purposes to have effect for the purposes of the child support legislation, and vice versa. Such a decision may create review rights under the child support legislation or under the family assistance law. However, to promote finality, once a parent has sought review of the decision under one or other of the schemes, no further review of the decision under the other scheme will be available.

In order to allow a single decision to have effect for the purposes of both child support and FTB, some changes in approach to the determination of percentage of care as between child support and FTB are necessary. In broad terms, a percentage of care will generally be based upon the actual care arrangements which are likely to continue into the future, determined on the basis of information provided to the Secretary or Registrar by the parents or carers, for a care period. Often, the care will be in accordance with an agreement, parenting plan or order, such that the terms of the agreement, plan or order can assist the decision-maker to determine a percentage of care.

However, where the written arrangement or order is not being complied with, there will continue to be potential for the child support assessment or rate of FTB to continue to reflect the terms of the written arrangement or order. This may occur for a period of up to 14 weeks if the person with reduced care disagrees with the new arrangement and is taking reasonable action to have the written arrangement or order complied with. In special circumstances, this period may be extended, but not beyond 26 weeks. In situations where care arrangements change, and parents advise either the Secretary or Registrar in a timely way, their changed percentage of care may have an effect from the date the care arrangement changed. However, if the parents or carers delay in providing this information to the relevant agency, the changed percentage of care may be limited as to the date from which it may be reflected in the assessment of child support or the determination of FTB.
kimken said
….
I don't believe it is in my or the children's best interests to once again go back to court, I have decided to leave my door open for my children to come back themselves as they are only a couple of years away from being adults.
If you do not take court action within 14 weeks the CSA, UNLESS there are special circumstances, will change the Child Support calculation. I do not know what the special circumstances are that they might consider and my view is that there will be few if any that are considered in reality. I find it quite incredible that you have 50 / 50 care and allow the other parent not only to relocate and move away from the area, but also to completely withhold contact. This matter should have been the subject of an urgent application in your nearest Federal Magistrates Court for recovery orders and or contravention proceedings. You delay at your peril and your delay may well cost you any opportunity to avoid the CSA making an adjustment. If you cannot bring court proceedings then accept that they will be staying where they are and you will be paying a lot more Child Support.

The children are older it seems so they may well at least contact you of their own volition but it seems that sort of arrangement has not commenced even after six weeks, so I would have some real concerns about what is going on. Have you had any telephone contact? Who are they registered or named as at the new school? Was the previous school advised of a change of school by you or the mother? Do you have any Shared Parental Responsibility orders because that may also be an area that could have some interest in any application.

Mike suggests use the calculators here to work out what you will pay.

Executive Secretary - Shared Parenting Council of Australia
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