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Can CSA disregard Family Court Orders and agree to 100% care with the mother against what is written in the orders?

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We (and I say we cause I have helped raise his kids for the last 10 years) currently have an issue with his children.  They have been (court ordered) coming over to our place for two nights a week, 1 week during a school holiday and 1 week over alternate Christmas and Easter.

They are currently 17 & 15 which I know is a factor but is there anything further we can do about the below situation?

A month or so ago my partner (the kids father) confronted them about their lack of respect and unwillingness to help around the house, etc (age appropriate chores).  This resulted in them leaving the house and advising their mother that I was "nasty" to them and they didn't want to come over anymore.  We since received a letter from CSA advising that she now has 100% care of the kids.  We have objected to the CSA because there was no agreement to change the court order and we think that this "issue" can be worked through with counselling.

I also am concerned about the welfare of his children living with his ex-wife 100% of the time due to an unhealthy, unstable household eg, amongst other things she allows his daughter to have her boyfriend sleep over and allows his son to play excessive computer games, she also is going through another divorce (her third) and is a serial adulterous, and (confirmed by her soon to be ex-husband) the household is more like a share house.  All things that we consider being detrimental to the healthy development of young adults.

Her response to the objection is:
1. the court orders have finished - this is not true
2. that she said the children told her they felt "scared" during the above incident - the kids unfortunately tell their mother their own version of the truth, even if it is completely opposite to the truth. His son told his mother that I was slowly poisoning him and that is why he was "sick" all the time - not the fact that he was sick due to never seeing sunlight and eating unhealthily.

Because she is a "single mother" again she is able to get support to go to court, where we are unable.  We cannot afford to go to court and have been advised that the age and views of the kids will be taken into account and of course they will not want to come over if they have to do chores here and at their mothers house they can come and go as they please.

We aren't saying that we don't want to pay child support but we don't think it is fair for the CSA to allow his ex-wife to breach the court orders and get us to pay more while she is breaching them.
 
Basically, in this one area, yes the CSA (now officially the CSP - Child Support Program) has been legislatively granted the ability to override the far more aware courts decisions. This I believe due to the CSP (the the CSA) surreptitiously adding a change under the guise of aligning care with Centrelink (FTB) care decisions (this back in 2010). However, this is very likely more due to enhance the CSA's ability to report a greater amount collected.

The only option available is to dispute the level of care and in the case of care not happening according to court orders to take reasonable action to correct that in which case the current (prior to the change) level of care will be maintained for up to 14 weeks.

Here's what the CS guide says:-
CS Guide - 2.2.4 - Disputed Care Arrangements said
Taking reasonable action to ensure compliance with care arrangement

The parent must take reasonable action to ensure compliance with the care arrangement in order to have the child support assessment continue to be based on the care arrangement for the interim period. Reasonable action could include:

    negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,
    making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,
    seeking or obtaining legal advice regarding the making of a court order,
    filing an application to a court to have an order made or enforced,
    attending a hearing at court to seek an order to be made or enforced, or
    notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

    a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative;
    documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought; or
    documentation of police or court action.

Example: M and F have a care arrangement in place for their child C. M is refusing to return C into F's care as per the care arrangement due to concerns for the child's safety. M has filed a police report and the allegations are currently being investigated. F's lawyer has recommended in a letter that F should not attempt to have the care arrangement enforced until the investigation is completed. F seeking advice from his lawyer would be seen as taking reasonable action to have the care arrangement complied with and an interim care determination can be made.

If the investigation is completed within the interim period and allegations against F are unfounded, and F subsequently does not seek to have the care arrangement complied with, this would be deemed as not taking reasonable action. The Registrar may review the interim period and may make a decision to end the interim period from an earlier date.

Example: M and F have a care arrangement for their child. F is refusing to return the child into M's care due to concerns for the child's safety. The allegations are currently being investigated and M is cooperating with police and state community services. M seeks advice from a lawyer regarding enforcing the care arrangement. The lawyer advises M of the legal cost to enforce the care arrangement. M is currently not working and cannot afford to pay the legal costs quoted. M contacts Child Support to inform them of this outcome. As M would continue action if the cost was not prohibitive, this would be seen as taking reasonable action, as it is not within her financial means to continue and she is cooperating with all aspects of the investigation.

Note: Where a parent has not taken reasonable action and their percentage of care has been determined according to the actual care they have of the child, and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F).


Here's a link to the above, you may wish to read all of 2.2 care
The kids are of an age where if they don't want to come, good luck enforcing Orders anyway.

My husband was in a similar situation. Hasn't seen his eldest in nearly three years. Pays through the nose and despite trying to fight it, 14 weeks wasn't even long enough to get through the mediation intake process at our local FRC.
Thanks Dev_MikeT, unfortunately this is not really the answer that we were hoping for.  CSA has decided to give her 28 days to respond to our objection to the increase in care arrangements but in the meantime they have left the financial side of it at the increased amount, something that we can't really afford due to decrease in work availability.  We can just hope that they will give us the 14 weeks after this day to come to an amicable solution, but I'm not hopeful at this stage. We feel the less time that they have with their mother the more well adjusted adults they will become.  And its all this grief about not wanting to do chores!!!!  One day I hope that they will realise how much of a dog their mother is….. but I'm afraid with these kids it's just going to be a vicious cycle with the daughter becoming pregnant and doing the same thing that her mother is doing and the son living off welfare.

The steps that we have taken to try and rectify this is:
1. spoken to a lawyer regarding submitting a rectification via the court
2. been to counselling and offered counselling as a family - something that the ex-wife has acknowledged to CSA that has been done.

We haven't really told CSA the circumstances surrounding the issue, just that she is breaching the court orders.  Would they really care about the circumstances when making a decision?  She has advised them of the kids side of the story and of course this is almost completely fabricated.

Do you think that this would be enough to warrant a 14 week reprieve? 

Last edit: by Jendave7772

Jendave7772 said
CSA has decided to give her 28 days to respond to our objection to the increase in care arrangements but in the meantime they have left the financial side of it at the increased amount, something that we can't really afford due to decrease in work availability.
My interpretation is they cannot change the AMOUNT IF you are taking action until after 14 weeks and 26 weeks in special circumstances(Good luck getting a definition on special circumstances as they wont tell you except it has to be REALLY special). That was the intention of the legislation in 2010 and is how it operates today.

IF you are NOT taking action they can change the amount.

See:
If a parent is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement (or a different care arrangement) complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. There must be a care arrangement in place and being followed at the time the care changed in order for an interim care determination to be considered. If an interim care determination is made, child support will continue to be assessed in accordance with the care arrangement for a period of up to 14 weeks, or 26 weeks in special circumstances.

There are a range of circumstances where a child support assessment may continue to be based on a care arrangement during an interim period, such as situations where contact has been prevented by one party, or where a child has not been returned after a contact visit, or where the child chooses to live with the other carer.

Jendave7772 said
We can just hope that they will give us the 14 weeks after this day to come to an amicable solution, but I'm not hopeful at this stage.
In many case the CSP do what they like under the guise of 'Fair and Equitable'. They recently lost a case in WA after three years of giving the client Payer a hell life for three years, he lost his children, lost his second wife and lost his house all because the Child Support people would not agree they had made an error in the assessment three years earlier and the resulting matters ran on from there..
Jendave7772 said
..And its all this grief about not wanting to do chores!!!!  One day I hope that they will realise how much of a dog their mother is…..
I am afraid that is not something that will happen in the short term. At this age of young adulthood trying to get kids to do chores, homework and many other activities is a chore in itself.
Jendave7772 said
.. but I'm afraid with these kids it's just going to be a vicious cycle with the daughter becoming pregnant and doing the same thing that her mother is doing and the son living off welfare.

Hopefully not as the social welfare program is becoming so large it is simply unsustainable.
Jendave7772 said
The steps that we have taken to try and rectify this is:
1. spoken to a lawyer regarding submitting a rectification via the court
2. been to counselling and offered counselling as a family - something that the ex-wife has acknowledged to CSA that has been done.

We haven't really told CSA the circumstances surrounding the issue, just that she is breaching the court orders.  Would they really care about the circumstances when making a decision?  She has advised them of the kids side of the story and of course this is almost completely fabricated.
Do you think that this would be enough to warrant a 14 week reprieve?
The issue is not about a story being told, or who has the best story, it is about the law in this area. CSP won't care about the views of him or her or them and us. They will say "Where are the children spending time" That is all they care about except taking money from parents who pay child support and give it to a parent who receives child support. They have no interest in the circumstances.

Where is the child spending time and how much time with each parent. It is as simple as that. More time with one parent means the other parent pays more based on the set formula. Its really simple. Time is effectively money.. more or less.

Executive Secretary - Shared Parenting Council of Australia
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