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Level of care change refused by CSA

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Hi,

We are currently in Family Court with interim orders that says my child should be with me for 3 nights per fortnight. This level of care is over the 14% threshhold and should affect child support. Unfortunately the interim orders state they are effective until the date we return to court when further care orders (likely increased care) will be granted.

CSA have made a decision not to factor in this current level of care that is occuring as they state it is for too short amount of time ( approx 2 months) and there is an end date on the orders. I find it preposterous that they decide to ignore the actual level of care currently occuring and officially see me as having no care for my child.In theory my child could be with me 50% of the time in the interim however CSA have stated in writing to me that they will not recognise any level of care under this circumstance.

Has anyone heard of this occuring before or any suggestions of how to takle this? I wonder what their decision would be if it involved paying greater child support rather than less.



I am deciding whether to object to this decision and if unsuccesful, take it to SSAT.
Lamson,
           level of care changes are one of the most frequent changes that occur and I believe that there is and I believe that whoever has told you this  and whoever has agreed with this has not been properly educated regarding the changes to the legislation that came into affect on 1st July 2010 (this was the now defunct 7.1% change ruling, which was removed largely due to actions taken by those behind the groups within the FLWG).

The CSA's guide, which closely reflects the education states:
The CSa Guide - 2.2.3: When the care percentage used in an assessment may be changed said
When can a new percentage of care be determined?

From 1 July 2010, a new percentage of care can be determined whenever the care of a child has changed (sections 54F, 54G and 54H of the amended Act). See Chapter 2.2.9 for information about how CSA determines the care percentage for care changes that occur before 1 July 2010 but are notified to CSA on or after that date.

Prior to 1 July 2010, a new percentage of care will only be determined if one of the following situations has occurred (references are to the unamended Act):

    * a change of less than 7.1% because of a new agreement, plan or order, including a variation of such an agreement, plan or order (section 48(1)(b)(i))(see note);
    * a change in care arrangements of at least 7.1% (i.e. 1 night per fortnight) that alters the persons cost percentage for the child(section 48(1)(b)(ii));
    * a change in care arrangements where a persons percentage of care for the child has fallen below 14% (section 48(1)(b)(iii));
    * a change in care arrangements where a persons percentage of care for the child has increased to 14% or above (section 48(1)(b)(iv));
    * a change in care arrangements where a persons percentage of care for the child has fallen below 35% (section 48(1)(b)(v)); or
    * a change in care arrangements where the percentage of care has increased to 35% or above (section 48(1)(b)(vi)).

In other circumstances, the percentage of care used in the assessment will remain unchanged regardless of the actual care being provided.

Note: a change of less than 7.1% because of an agreement, plan or order, including a variation of such an agreement, plan or order only applies to an agreement, plan or order made on or after 1 July 2008 where the notification of the new agreement, plan or order was made after 6 January 2009. This is because the legislation that provides for changes of less than 7.1% to be reflected in the assessment specified the date of 1 July 2008 for new agreements, plans or orders and that Act commenced on 6 January 2009. (Part 1, Schedule 3 to the Families, Housing, Community Services and Indigenous Affairs and Other Legislation Amendment (Further 2008 Budget and Other Measures) Act 2008) (the Further 2008 Budget Measures Act)
Date of effect of a care change

If CSA is notified or otherwise becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred (section 74A(e) of the unamended Act, subsection 54F(2) of the amended Act).

If CSA is not notified, or does not become aware, within 28 days, the assessment will generally be amended using the new care percentage from the date CSA was notified of the care change (section 74A(f) of the unamended Act, subsection 54F(2) of the amended Act).

Where a parents care has fallen below 14% despite the child being made available to them, and the other parent notifies CSA within a reasonable time, CSA will change the assessment from the date the first parents pattern of care ceased. See Chapter 2.2.7 for more information.

Example

M called CSA on 23 January 2010 to advise of a care change that occurred on 3 January 2010. CSA contacted the other parent F who confirmed that the care changed on that date. As CSA was notified within 28 days of the care change CSA changed the parents percentages of care and amended the assessment from 3 January.

I would suggest that you complain to the decision and that you object to the decision. I would suggest complaining not only to the CSA, but also to your local Federal MP, the MP responsible for the portfolio and also ombudsman who has shown interest in the bias against liable parents that the CSA has been shown to apply. The anecdotal evidence is very clear that they have ignored the Ombudsman's report and that if anything they are contravening the very object of the legislation under which they work more frequently.

I would suggest that you could also ask for the compensation officer to be involved in compensating you for the very obvious suffering that the CSA have caused by not adhering to the legislation due to their defective administration.

I've made it quite clear above exactly what the guide says, highlighting the word that the CSA operatives in your case appear to not have seen, to not understood or to have ignored. All three involve actions that are contrary to the conduct expected of Australian Public Servants to act with care and diligence. As such I would also complain about their misconduct. Perhaps you should supply the operatives who have incompetently applied the legislation (if they try the "most likely to occur" argument then the answer is that in most cases interim orders order care that is the same or less than the care given in the subsequent final orders along with a demand as to how less than the care is most likely to occur).

I have no doubt whatsoever if the role of the parent were that of being the recipient and thus that the change of care resulted in a greater amount transferred or collected that the CSA would immediately implement the change.

I would also suggest that you notify the Family Assistance Office of the level of care change first. If they record the change then simply ask for them to notify the CSA of the level of care change (legislation changes now mean that the FAO and CSA methods are aligned and that to save work one can feed the other, the advantage is that the FAO is not the maverick that the CSA has been reported as being (The Richmond report if I call correctly) and more importantly is not under pressure to increase what they collect and transfer so as to reduce FTB payments via the tax that 50% of CS is by all other than it's name).
Lamson, further to this, has the other parent disputed the new level of care (which my sources tell me is what they may be the case for such a decision)? If so then I would suggest that you have evidence that should be produced at the next hearing (request your screen notes and perhaps subpoena, if possible the whole case notes to see if the other parent has disputed the level of care) , of the other parent's desire to contravene court orders.

I have little doubt that a decision maker would not be that happy that a parent has shown willingness to contravene their orders for the sake of more CS. Perhaps the other parent may have been persuaded by the CSA to dispute the level simply so that they and the child or children in question can be used as a pawn in the CSA's desire to ignore the very object of the CS legislation in order to collect or transfer a greater amount than the proper amount of CS.
At first I was told by CSA that the other party had disputed the level of actual care; I therefore had to go to significant effort to get copies of sign in books from child care, letters from friends who witnessed me with my son etc only to be told later by CSA that there was a misunderstanding and this information was not required. I suggest this was another screw up by CSA.

We are back in court tomorrow and the other party will likely try and get the new orders to state an "end date" on interim care which is likely to increase even more, therefore based on what CSA have stated in the letter they sent me, they will not recognise this care either. I am faced with trying to get the magistrate to ensure the wording does not conflict with what CSA "demand." However I am perplexed that CSA are totally ingnorant with what is actually happening from a care level and only care about the written orders say from a duration point of view. This is not what is in line with what they normally do I believe; they care more about what actually occurs with care rather than orders. Am I correct?
Lamson,
           object to the CSA's decision. Based upon the fact that you have taken action and that the other parent is not disputing the level of care. Then take the matter to SSAT who will be more likely to follow the legislation rather than in-house processes that are based upon a mentality of collect what you can irrespective of the damage to the general public and especially the children and irrespective of adhering to the legislation.

I think that the following is the relevant legislation that they are distorting to use against you in that they do not consider it unjust and inequitable for you having over 14% care to have that care taken into consideration and thus that they should not make a determination (basically the criteria of 1(a), 1(b) are met, 1© I believe is met and to argue against this would actually undermine much of the legislation. So the issue must be how they are interpreting 1(d) and likely that you have not done one or more of i-iii. I believe that you have and perhaps you should be asking the CSA to specify exactly how taking the matter to court and obtaining orders and seeking further orders is not in compliance with (ii) or how they consider taking the matter to the FMC or FCoA is unreasonable. I'm sure that there are many in those courts who would like to know how the CSA considers their decisions as unreasonable court action.

Child Support assessment act Section 52 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.
Lamson - As Mike suggest you no longer have to use C$A to calculate care percentages. Family Assistance Office now do this and inform C$A. They are much more friendlier and easier to deal with than C$A. Remember do everything in writing.

Mike - Decisions on care percentages determined by the SSAT can be appealed to the Administrative Appeals Tribunal where the court appeal (which can only be on a point of law) is a limited process.

I therefore recommend that Lamson goes through the appeals process as the AAT is run more like a court and will base it decisions on sworn evidence and not the "he says she says" mumbo jumbo used by the SSAT.

If successful at any stage - SSAT or AAT Lamson will be able to claim costs incurred for the appeals from C$A through the Compensation for Detriment caused by Defective Administration scheme.

The whole process may take two years but will have detrimental effects on C$A's future in the way they treat payers.
If you have presented a copy of your interim orders then that is the care level and cannot be disputed by the other party or ignored by the CSA. I also assume it is 3 nights a fortnight and half the school holidays plus birthdays which is fairly standard. What happens if there is a delay for any reason? It would go on for some time. CSA should be making a change to the level of care.

Have you spoken to Centrelink and advised them to make a change of care level and provided supporting information? I am getting somewhat frustrated by advice that front line CSA officers are getting. This example is one of those.

Another is in a case recently where specifically we (and his respective solicitor) spent a very significant amount of time setting out in a new Parenting Plan all the details of what was to be paid for child support by the father (They both agreed to the amount). It was expected that on lodgement and finalisation of the new parenting plan that the NEW parenting plan would override the previous agreement in respect to CSA arrangements. But it seems, according to a front line officer,  that new arrangements entered into by both parties do not vacate the old agreement. It is all very frustrating, very slow and cumbersome and quite frankly lacking in any reasonableness, where a common sense approach to simple and basic matters does not seem to prevail. Now we need to go back and have the parenting plan made into orders by consent and set out in detail that the old CSA arrangements are vacated. The intent was clear in the new plan. What don't they get about a clear intention by both parties.  :dry:

Executive Secretary - Shared Parenting Council of Australia
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Secretary_SPCA
I believe the CSA are using their interpretation of the following to say that interim orders for 2 months is not long enough and thus overide the very intent of the child support act that parents provide the proper financial child support, exploiting the children, very likely making them suffer unnecessarily, in order to report a greater amount collected or transferred and thus bolster their standing to those they report to.
 
Child Support Assessment Act section 52 said
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

Although I didn't envisage orders from the hierarchically higher Family Law legislation being undermined in this way, this is basically an extension of the Child Support registrar acting in a manner to assist Family Law being undermined for financial gain. What I did envisage when the actual legislation changes came into effect was that the Child Support Registrar would condone and very likely persuade parents to deny children their humane rights to know and be cared for their parents. This takes this to a deeper level. The registrar is actively soiling their hands by actually themselves undermining and ignoring the rulings of the Family Law courts.
I know of a case where the care was changed by the court for one month (favour if payee) and C$A were all over it changing care percentages for the next 12 months. The issue was only resolved when the payer asked Family Assistance to calculate the care percentage and report through to C$A.
I would just like to say, as a receiver and not a payer that the comment that it is always the payer that loses out is not correct.  My consent orders are in dispute because my ex relocated.  he had them only 60 nights a year and the children are not going this Xmas because of the dispute over the consent orders.  I am awaiting the CSA decision but it seems that the father will be given 6 months to sort this out and in the meantime the care percentage will not change.  despite the fact that the children will not be with him more than 40 days max this year.  He pays for nothing as they live with me.  And he earns $230000 a year and I earn $45,000. the whole system is totally unfair.  We are not formulas and they seem unable to take individual cases into account.
karendavid said
I would just like to say, as a receiver and not a payer that the comment that it is always the payer that loses out is not correct.

KarenDavid, I don't believe that this comment has been made in this topic. Perhaps you'd care to point out where the comment was made or perhaps change what you have said to reflect that what you have said has been said hasn't in fact been said.

The accepted way of showing that someone has said something, which greatly increases the consideration and sense of being considered of other users of the forums, is to "quote" the quote. An example of the result of this is above and it quotes you as saying what you said.

The way to accomplish this is to select the text to be quoted and to then click on the Quote button and when the input box appears to type in the username of the person that you are quoting (if they aren't a user then the name of the person or entity that made the quote). I, often simply type in xxxxx and then use copy and paste to ensure that I get the user name/name correct.

Another way is to place[quote="?????"] before the quoted text (where ????? is the user name) and then place [/quote] after the quoted text. However, to use the button is more user friendly.

As for losing out, there is a great deal of evidence, much of it empirical, that the liable parent is the one who loses out the most. One of the more recent Ombudsman's reports of investigation into the CSA in regards to what many term deem and destroy, the change of assessment process, clearly indicates a systemic bias against the liable parent, which by the absence of any such finding of bias against the receiving parent, indicates quite clearly that if any such bias exists that it has not been found.

karendavid said
 I am awaiting the CSA decision but it seems that the father will be given 6 months to sort this out and in the meantime the care percentage will not change.  despite the fact that the children will not be with him more than 40 days max this year.  He pays for nothing as they live with me.  And he earns $230000 a year and I earn $45,000. the whole system is totally unfair.  We are not formulas and they seem unable to take individual cases into account.

From your other posts you are clearly denying access according to the court orders under the guise that the parent's location has changed. I also believe that you have either misunderstood what you have been told or that you are deliberately trying to mislead the users of this forum. If the former than I suggest that you contact the CSA and ask them to reiterate what they have told you. Section 52 of the child support assessment act covers the situation when orders exists and a parent disputes that the care according to the orders is taking place.

In such a scenario I believe the parent with the lesser care has 14 weeks, except in exceptional circumstances when it is 26 weeks, to take reasonable action to seek agreement, court orders or enforcement action for an interim care order determination to be put in place and that the 6 month period is the longest period before the CSA (registrar) must review the interim care order determination. As such, in your situation, the other parent would have taken reasonable actions in order for the Interim Care Order Determination to exist, which would indicate that some of what you are saying is not the case. You are the loser only by your own actions or inactions. I have little doubt that the CSA would have tried to persuade/convince you to take action that would increase the amount that they can transfer or collect.

You are also wrong to say that he is paying nothing. He is paying a great deal in the way of CS, otherwise why would you have disputed the level of care with the CSA? It would appear that he would be paying around (at least) $1600 per month in CS. If that's nothing then please donate a similar nothing to FLWG, it would be greatly appreciated.

You would also be getting quite a bit in FTB for the two children, part of which the other parent is funding in the taxes that the other parent pays (assuming that the $45,000 is the total income for the household). Furthermore, if what you say were true then I have no doubt, unless you were an unfit parent, that you would have reported the other parent for being unfit and neglectful and that the other parent would have no contact. However, I'd suggest that the other parent does provide shelter and does provide food and does provide what is necessary for the children when the children are with the other parent and that the other parent incurs the cost of these; primarily evidence by the fact that the other parent has contact.

Is it not the case that what you have said is not the whole truth and that the other parent does actually pay for things for the children?

I believe you have also mentioned that you both contribute toward the travel costs. Are you blind to the fact that such costs are for the children? I would reach the assumption, if you denied that the costs of travel are not for the children, then that travel must be for the father or yourself. If for you then it would obviously be to rid yourself of the children which I'd assume is not the case, but please correct me if I am wrong. Thus if not for the children or yourself then I'd assume that the travel costs were in your opinion for the benefit of the father. Why would you consent or agree to pay for the father of the children?

You say you're not a formula, you aren't but that's how the amount of CS you get from the other parent, for the children, is calculated according to the legislation of Australia. If you dislike this then get outside of the jurisdiction of the CS legislation. There are ways that this can be done. A good read through this site would suggest ways. However, you'd very likely have to reach agreement with the other parent, which appears to be the greatest issue. I suppose another alternative would be for you to publish an alternative method of determining the amount of CS that should be paid. I'd look forward to such a publication and would suggest that you publish it here on FLWG as I believe that there are no places where such a publication could be tested and scrutinised. Perhaps this could then become the legislated way.
"I have no doubt whatsoever if the role of the parent were that of being the recipient and thus that the change of care resulted in a greater amount transferred or collected that the CSA would immediately implement the change."

I have learnt my lesson and won't come back here.  All i have been is attacked.  I have said that the story is too long to tell here.

but a) I get $1,100 a month because the father was unfaithful during the marriage and got someone pregnant with twins and it is a multicapped case.  he has nothing to do with those children as the mother was just a one night stand.

b) he has them 60 odd nights a year, and when he has them I send EVERYTHING for them, all their clothes EVERYTHING.  he pays nothing for sports, school, social activities, pocket money, he even took them to a party and refused to take a present as it was me to pay for as he pays maintenance.  my youngest asked my dad how comes as he has lots of money, a boat and lots of properties.  '

I get no centrelink payments because i remarried.  my new husband pays way more than he has to in maintenance for his kids, and past the age of 18, he even paid when he lost his job for 9 months.

i know what a good father is and a dead beat one.

my ex is earning in excess of $230,000 a year and it is going up to $400,000 soon I believe.  but we get not one cent more in maintenance.  my son's don't lead the life they should with a father earnign that sort of money because he refuses to pay anything for them.  i have to pay it all because he pays maintenance.

and he only changed to share care when he had to start paying more when the eldest turned 13 - he hadn't bothered before then.

he has also been able to see them in Sydney anytime he wants, any weekend with 2 weeks notice.  he hardly ever took that up, only when it suited him and his girlfriend who has a daughter in boarding school here.  

I sure wish i could get out of the legislation and if there is a way of doing that i would appreciate knowing it.

also my ex applied to have maintenance reduced because he accused me of hiding money overseas and because he ahd an inflated income due to capital gains tax (all fo course taken into account in the property settlement, that he got more than 50% of).  i had to give all my personal details and what i had done with the money only to be told by CSA it would never change because of the vast difference in our incomes.

don't worry, i won't be posting here again.  all i have got is judgement, jumping to conclusions, and making ridiculous statements and assumptions.

Let me say i have a heap of girlfriends with dead beat fathers who do not pay for their children.  they lie about their income, hide their income, don't put in tax returns for years so their true income isn't known.  

there are dead beat dads and dead beat mums out there.  i know it isn't just the men.  but I know that it is not just the payers that get a raw deal.  but i am sure there are many here that don't want to hear that.  

anyway, i have learnt that trying to explain 3 years of nastiness, abuse, disregard for the children and other borderline personality problems to people who don't understand it is pointless.  You just don't get it.  i just have to make sure that when i go to court that i present it well enough that the judge gets it.
Have you ever considered that maybe you have the personality disorder or are the bully?

Clearly your ex cheated on you and as such you believe he should have no rights now.

Do you not understand by denying the children the right to a relationship with there father whether good or bad is not in the best interest of the children.

this is what everyone has been telling you, you just dont seem to want to accept any advice that is contrary to what you want to hear.

even mentioning that you may have to miss out on a days work to accomodate your children seeing there father When said father only has  the kids during holidays would almost immediately put you offside with a judge.

you also seem to be implying that western australia is a different country to australia by saying the kids would not be returned

when you say you do not trust your ex I Laugh Because I am betting 99.999999999% of people who have an ex would say they dont trust their ex.

I am certain there can be more to add but i'll stop now for fear of being labelled as attacking you

You can fool some of the people some of the time but you cant fool all of the people all of  the time unless they work for CSA and youre a Payee:)
So karendavid you derive "I would just like to say, as a receiver and not a payer that the comment that it is always the payer that loses out is not correct.", "I have no doubt whatsoever if the role of the parent were that of being the recipient and thus that the change of care resulted in a greater amount transferred or collected that the CSA would immediately implement the change".

You still obviously believe that distortion of a single event into all events. It is nothing but a distortion it is not factual. However, most certainly your situation is not one of being disadvantaged by the CSA, it's decisions and determinations or the legislation as you try to make it out. Your children should be having, based upon the figures that you have provided, you believe that *$2600 a month or *$1250 a month per child is unfair. I'd suggest that many a non-separated family would consider this a significant increase on what they have and a lot better than fair.

Note that the way that CS is calculated there is a cost of children based upon the income of both adults. The cost of the children is then split according to two factors. The percentage of the child support income each parent has and a percentage reduction of that cost based upon the level of care of the children. In the scenario that you describe (230000 v 45000) two CS children one 13+ the other under 13 and two multi-case children who are under 13 (although they might not be but I'd guess that they would be, anyway it changes nothing according to my calculations). The cost of the two children is $30898 and the CS liability of the other parent is $1220.75 a month (a little more than the $1100 you have quoted, this likely indicates a discrepancy in the $45,000 that you have quoted or the amount that you say you receive, if the other parent's income were to rise it would have no effect due to the income threshold having been surpassed this threshold is reached at approx $166750 when the other income is $45000).

The inherent financial responsibility is then upon yourself, the receiving parent, to make-up the shortfall between the liability and the full cost of the children i.e. $1354 per month.  So if your children are not having the full $2600 a month spent on them, then it is you who is at fault and you who is being unfair to the children.

The consideration that most related children (relevant dependant and multi-case children) should be considered when calculating CS is a measure who introduction has most adversely affected liable parents. It has greatly reduced the consideration given to other children for liable parents. Also I believe that it's more likely that recipients will have other children for numerous contributing factors but most certainly not discounting the shorter lifespan that can be associated with liable parents, there more adverse financial situation of liable parents, especially regarding the proven bias the CSA apply thus resulting in unfair, unjust and inequitable decisions.
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