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CSA increasing my payments because my ex denies me my access visits

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CSA have contacted to increase my payments because my ex says i dont have the kids!

i have a court order which states that i have my children every 2nd weekend and some school holidays. since feb my ex has not dropped my children off for me to collect and i am powerless. i have a court order which the police will not enforce and i have been advised that it will cost me a minimum of $5000 to take her back to court because she is in breach of the orders with no guarantee that she wont continue to deny me access to my children.

to make matters MUCH worse, i have been contacted by csa and they inform me that because i dont have access with my children i will have to pay substantially more child support. i explained that i do have a percentage of care and that i arrive each fortnight to collect my children and my ex fails to deliver them and refuses to have contact with me. csa asked for a copy of the court order and now want me to prove that i am taking legal action to make my ex deliver the children to me at my designated visitation weekends before they will consider denying my ex's request to have my payments increase! how do they get away with this? why do we have court orders if they can be blatantly ignored and not enforceable? any advice or help would be appreciated. im at a loss.
I think the first step would be to send her a solicitors letter advising her formally that she is in breach of the court order.
It depends on her response if you have to go back to court. Mediation may be an option.
If CSA know you are formally taking steps to have your children in line with the court order, they should stick to the original child support amount.
If you don't formalise your objection tp ypur wife's actions CSA will believe you are just accepting it
If she is required to do something in a court order and she does not, she is in contravention of that order.
File a contravention with the court that made the order and supply a copy of the orders and the contravention to the CSA, preferably hand delivered to your local office.
Once the CSA have these documents they are required to act as if the contact happened as the orders have laid out and will adjust child support as required. Learn how to file your own contraventions, and you will save yourself a buttload of money and time. It is simple once you are shown the first time.
And object to CSAs decsission regarding the level of care. Take to the SSAT and request for the application of the interim period of 14 weeks to be applied since you are taking reasonable action to reestablish care. SSAt overruled a similar CSA decsission, looking at our care percentage for previous years. I think 54G of the child support act may be relevant in your case.

Ask CSA to apply this and get your solicitor to write your ex a nasty letter. I bet that CS is the reason she withholds the kids, just like in our case.
Interim care will only work 14 weeks from when the care changed from her breaching the orders. This means that if your ex first contravened the orders in the 1st weekend in February (04/02/12) we are already 12 - 13 weeks from when the change occured. If you apply for an interim care determination now, it would only be effective from when you notified CSA that the orders were being breached until when the 14 weeks runs out, i.e. the next 2 or so weeks. If you notified CSA of the breach within 28 days of this occuring the interim care should be effective for the full 14 weeks from when the change occured.

The only reason that CSA has requested a copy of the orders and proof of legal action is because they are looking if an interim care determination under s53 of the Act suits the circumstances. In saying that though, you don't necessarily need 'legal action', you just need to be taking 'reasonable action', which can be as simple as supplying proof that you are trying to negotiate with the ex. The other option for reasonable action is trying to initiate mediation. A letter from a mediation provider showing that you've requested it should be enough too.
You should file a Recovery Order asking for the care regime to be restored. You can do this yourself if you cannot afford a legal practitioner.
Have you provided your existing orders to the CSA AND have you commenced action to recover the status quo?

IF you have not commenced action i.e Mediation booking or lodged contravention proceedings or done some other action that is intended to recover or re instate the time them CSA WILL NOT allow you the 14 weeks nor will they entertain an extension to 26 weeks. I have a number of cases currently where CSA have refused to allow the 14 weeks. I have one case where we have a parenting plan in place but the CSA would not extend the 14 weeks while we took action because the child was not named in the parenting plan. Notwithstanding the fact they only had ONE child.

The CSA front line staff are taking an absolutely draconian position around s 52 of the Child support assessment Act. This section has impacted parties who have had a level of care significantly changed by one parent withholding or changing contact care levels and the way in which the CSA makes a decision around the 14 and 26 week periods before a new care level is determined.

There appear to be two key components for CSA to give you any relief for 14 weeks. Firstly you must have a documented regime THAT NAMES THE CHILD that has been operating AND you must have commenced action. The legislation does not set out that the child must be named but I advise that the CSA front line staff are interpreting the legislation in a different way to that which was intended and are far more rigid and draconian in their approach to the taking of action. I was party to a vigorous discussion some weeks ago in respect to taking action through mediation where the officer was inclined to suggest that was not "enough action".

Whatever the intent of the legislation around change of care levels I can tell you that from experience the CSA do not want to negotiate 14 weeks and almost hardly ever will allow the additional period because the bar on special circumstances is so high that you will rarely IF EVER get over it. Special circumstances is not defined and is completely open to interpretation. We have objected to one case where the 14 weeks has been turned down and I will be following that up with CSA further.

Review also

Review Division 4Percentage of care 67

Subdivision APreliminary …67
48 Simplified outline …67
Subdivision BDetermination of percentage of care 67
49 Determination of percentage of careresponsible person has had etc. no pattern of care for a child …. 67
50 Determination of percentage of careresponsible person has had etc. a pattern of care for a child …. 68
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with … 69
52 Percentage of care if action taken to make a new care arrangement in relation to a child … 70
53 Sections 51 and 52 do not apply in certain circumstances ….. 71
54 When a person has reduced care of a child … 72
54A Working out actual care, and extent of care, of a child … 72
54B Days to which the percentage of care applies if sections 51 and 52 did not apply in relation to a responsible person … 72
54C Days to which the percentage of care applies if section 51 or 52 applied in relation to a responsible person … 73
54D Rounding of a percentage of care … 74
54E Registrar must have regard to guidelines about the making of determinations … 74

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


Attachment
Child Support (Assessemnt) Act 1989 with amendments

Executive Secretary - Shared Parenting Council of Australia
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