Disputed care before 1 July 2018 (15 May 2019 for WA Ex-nuptial cases) 277-18052500

If customers agree on the details of the notified care change, go to Integrated Care - Making and recording care determination.

If, at any stage during the conversation, one of the customers advises:

• that there is disagreement over care arrangements or they dispute the notified change in care details
• a care arrangement is in place, and
• in the last 14 weeks (or up to 26 weeks in special circumstances), see Step 4, there has been a departure from the terms of the care arrangement, and
• a party to the care arrangement does not agree or consent to this departure, and
• the customer with less care as allocated in the care arrangement is taking reasonable action, see Table 2, Step 3 to:
• regain the care, or
• obtain a new care agreement which provides a percentage of care greater than their actual care but less than the care percentage in the original care arrangement
• special circumstances apply that make it more appropriate to seek a new care arrangement rather than enforce the existing arrangement

Disputed care occurs when a customer disputes the notified care change and can provide evidence to support that:

• a care change has occurred
• the care has not changed
• the change in care details are incorrect
• a care arrangement is in place, and
• one customer has ceased complying with the terms, and
• one of the parties does not consent or agree to this departure

If customers are unable to agree on the current actual care percentage, transfer the disputed customer to the Integrated Care Team, see Customer referral guidelines for Child Support staff. An Integrated Care Service Officer will manage disputed customers and make the care determination at the relevant  authorisation level, see the Background page in Integrated Care.

Note: disputed care is also managed by New Customers, Specialised Services and Restricted Access Officers who manage multiple or complex child support issues that involve care except cases that involve decisions to apply actual care in special circumstances.

The Integrated Care Teams comprise of:

• Integrated Care Service Officers who manage all disputed care cases including those where special circumstances exist, and
• Actual Care in Special Circumstances (ACSC) Officers who manage escalated disputed care cases where a decision to apply actual care where special circumstances exists, see the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements and go to Step 8

Note: officers in other areas of Services Australia must refer eligible cases to ACSC officers for managing and making care determinations on actual care in special circumstances cases.

The term ‘special circumstances’ refers to circumstances that are out of the ordinary and not something that could be considered to be common place. Examine the circumstances which led to the change in care including whether the behaviour and/or actions of the parent who has less care was a cause for the change in care. These circumstances should be a significant cause for the change in care. They may include unusual or unreasonable actions and behaviour of the parent with reduced care, however they can also arise due to factors beyond the parent's direct control.

In determining whether a person’s behaviour or actions have been unusual or unreasonable, consider the impact of the person’s behaviour or actions on the child or the person with increased care, and if the child or the person with increased care was placed in a situation where there was substantial risk to their physical, emotional or physiological well-being.

See the Child Support (Assessment) Act 1989 when making the decision about interim care decisions and special circumstances under the following sections:

• s51, go to Step 5
• s52, go to Step 6
• s53, go to Step 7

This list is not exhaustive. Special circumstances will vary with each 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 in relation to care will not constitute special circumstances. See Resources page, Example 1 for more information

The actual care differs from the care arrangement and the person with reduced care is taking reasonable action to adhere to the existing care arrangement. S51 also applies to actual care in special circumstances, see the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements where a parent is withholding care due to a substantial risk to the wellbeing of the child. Examples include:

• withholding essential medical care from the child
• substantially failing to comply with legal schooling requirements
• neglecting the child’s basic needs

The actual care differs from the care arrangement and the person with reduced care is taking reasonable action to seek a new care arrangement which is more than actual care but less than the existing care arrangement, and there are special circumstances. In this context, special circumstances refer to situations where the parent could not continue to have the previous level of care. Examples include:

• serious medical problems relating to the child or parents
• one parent has moved a substantial distance away from their previous home without making care arrangements with the other parent for the child

The interim period can be extended from 14 weeks up to a maximum of 26 weeks where special circumstances apply. Special circumstances in this context include situations out of the ordinary where the resolution of care issues is delayed. For example, a parent may have travelled overseas with a child without the consent of the other parent.

For care periods commencing on or after 1 July 2012 (22 November 2012 for WA ex-nuptial cases), a decision can be made to apply actual care immediately where special circumstances make an interim determination inappropriate, see WA child support ex-nuptial cases. See the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements.

Note: different disputed care rules apply if the care period commenced before 1 July 2012 (22 November 2012 for WA ex-nuptial cases).

Eligible cases must be referred to an ACSC Officer for managing and making care determinations to apply actual care in special circumstances.

To be eligible for referral to an ACSC Officer, the case must meet each of the following criteria:

• the current care assessment is based on a care arrangement
• the customer who has less care than provided for in the care arrangement has demonstrated reasonable action to regain care in line with the care agreement
• in situations of ‘left without consent’, the person legally responsible for the child has satisfied the agency they have taken reasonable action to regain the child
• there is evidence that an interim determination would not be appropriate due to special circumstances

Actual care in special circumstances cannot be considered where a customer is taking reasonable action to seek a new care arrangement and special circumstances apply. In this circumstance, make a determination for an interim period of:

• less than 14 weeks if special circumstances did not exist at the time the initial care determination was made but occurred during the interim period
• up to 26 weeks if special circumstances apply

See the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements and seek technical support if required, see Technical support in Child Support.

Note: if it is identified that a customer may have experienced or be at risk of family and domestic violence, see Family and domestic violence.

To refer a case to an ACSC officer, see Table 4. Otherwise see Table 2, Step 1.

Review the customers’ current care records to establish whether the care is based on actual care or a care arrangement as this will determine what evidence needs to be obtained and the type of decision that needs to be considered.

The discussions with customers must establish the actual care each customer is providing for the child if the following applies:

• there is no care arrangement in place
• there is an existing care arrangement, and
• more than 14 weeks (26 weeks in special circumstances) have passed since the date of the care change event
• the customer with the lower level of care (as stipulated in the care arrangement) has ceased complying with the terms of the care arrangement, and
• no reasonable action is being taken to enforce or re-instate the care arrangement or establish a new care arrangement

See Resources page, Example 2 for further details.

Each customer must provide relevant information and evidence to support their claims. Contact each customer and explain the disputed care determination will be based on information and evidence that establishes care-related facts to support:

• the care that is most likely to be occurring (including care other than nights), see the Child Support Guide 2.2.1: Basics of care
• whether the established pattern of care has changed or not, see Resources page, Example 3 for more information
• the new pattern of care is likely to continue into the future (and is not a one-off minor change such as occasionally missing a weekend of care due to work or illness). See the Child Support Guide 2.2.1: Basics of care

During the discussions explain to both customers what a change in care is. Advise them the change in care decision is a Services Australia decision about the amount of care to be used in the customer’s child support assessment. The agency does not determine where the child should live or any custody arrangements. The agency reflects the percentage of care of the child that each parent actually has, or the percentage of care established by a written care arrangement.

The circumstances around care changes can be distressing, especially where the care is disputed or not occurring in line with a written care arrangement. Be considerate and sensitive to the customer’s experience when discussing and explaining care changes.

Note: if one of the customers cannot be contacted by phone to discuss the disputed care and request evidence, follow the steps outlined in Step 5 of the Integrated Care - Gathering additional information and evidence, Contact table and Step 6 of the Integrated Care - Gathering additional information and evidence, Contact table and return to this process

Inform each customer the information and evidence they provide will be:

• considered in making a care percentage determination and applied to their relevant assessment(s)
• discussed with the other customer
• made available to the other customer (including evidence a customer submits from third parties), except where:
• this information is sensitive. This information will be considered in the care determination however will not be disclosed (for example, third party evidence from a Social Worker or a Women’s Refuge). If copies of such evidence are not submitted, provide the affected party/parties with the opportunity to respond
• a customer or third party does not consent to their evidence or claim being disclosed to the other customer, it will not be considered in the decision

Inform each customer that:

• information from children is not accepted and such evidence will be disregarded and returned to the parent who sent it
• statements from third parties must maintain the privacy of the customers:
• the agency will not contact third parties without the consent of the customer who submitted the information. See ‘Supporting evidence’ in the Child Support Guide 2.2.1: Basics of care
• the agency may initiate searches for evidence that will be discussed

In the event a customer does not provide information or evidence to support their claims, the agency may base the care determination on information or evidence received from the other customer or third parties. See the Child Support Guide 2.2.1: Basics of care.

If there is no care arrangement in place, go to Step 5, otherwise go to Step 4.

If a care arrangement is in place, ask the customer with less care than set out in the care arrangement to provide information or evidence they have initiated or taken reasonable action to:

• reinstate care as outlined in the care arrangement
• make a new care arrangement that provides more care than their actual but less than the previous care arrangement

See the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements .

Examples of reasonable action include:

• initiating court action for contravention of a court order
• obtaining or seeking legal advice regarding the making 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, such as
• attending a hearing at Court to seek an order to be made or enforced
• notifying the police the child has been taken without consent

Note: customers receiving FTB need to submit evidence to the agency, see Notification and assessment of shared care arrangements for Family Tax Benefit (FTB) within 14 calendar days to demonstrate they are taking reasonable action. See Family Assistance Guide 2.1.1.70: Disputed Care Arrangements.

If the customer with less care than set out in the current care arrangement is taking reasonable action to seek a new care arrangement for:

• a lesser amount of care than in the current care arrangement
• a greater amount of care than they are actually having
• special circumstances apply

go to Table 3, Step 5. See the Child Support Guide 2.2.4: Interim care provisions & disputed care arrangements. Otherwise go to Step 5.

Note: where the customer was not aware of reasonable action requirements and available options, this action should be taken within a specified timeframe after being advised of this process.

Establish timeframes of up to 14 days with each customer to provide them with relevant factual information and evidence that may include:

• documentary evidence (diary or calendar entries) recording the actual care of the child
• contact details for day-care provider or the child’s school
• contact details for regular extra-curricular activities
• if customers live a considerable distance apart, enrolment details for day-care or school
• details regarding the usual location of the child's belongings
• evidence regarding visits to health care providers
• proof of airline booking or passport copies
• statements from third parties (the customer's permission must be obtained unless the customer has provided statements from this person). See the Child Support Guide 2.2.1: Basics of care

Inform customers that in the event:

• there is no evidence provided by one of the parties
• neither customer provides conclusive information or evidence, or
• both customers provide conflicting information that cannot be reconciled

The information received will need to be reviewed to determine whether the current care percentages recorded on the assessments are correct and make a care determination.

Summarise the discussion to include:

• care-related facts that have been agreed on by the customer
• suitable evidence customers need to provide
• the date by which the evidence must be received by the agency
• the customers have objection and review rights to the decision, regardless of whether the care percentage is changed

Where the decision is the care percentage should change, this will be determined and applied to the customers’ relevant assessments relating to child support and family assistance including family assistance adjustments, see Notification and assessment of shared care arrangements for Family Tax Benefit (FTB).

Note: for mutual customers, if the care change happened more than 28 days from the date of event, a different date of effect will apply to the customers’ relevant child support and family assistance assessments, see Table 2, Step 1 in Integrated Care - Making and recording care determination.

Offer the customer referrals to support services where appropriate, see Social worker and other service referrals for child support customers.

Document the conversation, (see Documenting Child Support information). Pend a disputed care record in Cuba, (see Care Cuba Process Help) or enter the disputed care details in CF (see Table 3, steps 4 to 6). To assess the effect on the customer’s FTB, see Notification and assessment of shared care arrangements for Family Tax Benefit (FTB).

Review the information and evidence received from each customer as the care decision will be based on whether being satisfied the current care has changed or not. See Resources page, Example 4 for further information.

Note: only discuss the claims of care made by the customers with third parties. Do not discuss any other case details.

The information and evidence provided must be sufficient and reliable to enable a care determination to be made as to whether the care percentage has changed or not. Do not accept the notified change in care unless satisfied there is sufficient supporting evidence to make the decision.

Once all of the information and evidence that has been obtained has been examined and considered, and satisfied on the balance of probabilities, the care percentage has changed, make a decision to change the current care percentages (even if this is based on limited evidence provided by one or both parties). Use the information and evidence available to make a care determination to set the care percentage:

• on the care that is actually occurring, go to Step 4
• on the care provided by the care arrangement for an interim period, go to Step 5

If no supporting evidence is received from one of the customers, make the decision on the best information available. If it is determined the care percentage has not changed (due to inconclusive or no evidence provided by one or both of the parties), do not change the current care percentages.

To set the care percentage based on the actual care each customer is providing for the child, open the care calculator to calculate the percentage of care based on the number of nights and apply the special rounding rules, see Integrated care - Gathering additional information and evidence.

Once the actual level of care has been determined, set the care percentage or the number of nights of care the customer is likely to have over the care period:

• for Cuba, add a disputed care record in Cuba, (see Care Cuba Process Help)
• for CF, enter the disputed care details (see Notification and assessment of shared care arrangements for Family Tax Benefit (FTB)) and assess the customer’s impact on FTB

Go to Integrated Care - Making and recording care determination.

A decision to apply the care arrangement to an assessment for an interim period of 14 weeks (up to 26 weeks if special circumstances apply) can be made when a parent is having less care than they are entitled to under a care arrangement, but is taking reasonable action to:

• reinstate care as outlined in the care arrangement
• make a new care arrangement that provides more care than their actual but less than the previous care arrangement

Set the care percentage (as outlined in the current care arrangement) to continue for an interim period of 14 weeks (up to 26 weeks in special circumstances) if:

• less than 14 weeks (up to 26 weeks in special circumstances) have passed since the date of the notified care change
• the care has not been occurring as per the care arrangement
• one of the parties does not consent or agree to the care not being followed
• the parent who has reduced care is taking reasonable action to have the care arrangement complied with. See Table 2. Step 4

See the Child Support Guide 2.2.4: Interim care provisions & disputed care. If further guidance is required, seek technical support, see Technical support in Child Support.

For child support assessments, the date of effect of the interim period care percentage will depend on when the change in care was notified. If the change in care was notified:

• within 28 days of the care change event (when the care arrangement ceased to be followed)
• the interim period care percentage will take effect from the notified date of event
• more than 28 days after the care change event
• the interim period care percentage will have effect from the date of notification

When Cuba is being keyed, add a disputed care record (see Care Cuba Process Help)

Note: in Cuba, process the resulting Care - Interim Determination intray

When CF is being keyed:

• the 'interim' decision must be coded for 14 weeks (26 weeks if special circumstances to extend payment exist) from the date the care arrangements changed. If special circumstances are being considered at the time of the 'interim' decision, the allowed time cannot be extended to 26 weeks at a later date
• update the Care Alignment Details page to 'Commenced'
• confirm care arrangements with other carer to code the FTB Shared Care (FSC) screen and update SSA Shared Care (SSC) screen with the:
• interim care decision, and
• actual care decision to follow interim care period

For care periods that commence on or after 1 July 2012, discretion can be applied and percentage of care can immediately be based on actual level of care if there are special circumstances.

The discretion to base care on actual care in special circumstances is only to be exercised in unusual cases, for example there is evidence of family and domestic violence or other unusual behaviour from the person with reduced care that led to the change in care.

The decision to apply discretion is only made by the Integrated Care team within Services Australia.

• update the Care Alignment Details page to Finalised
• make a primary carer determination
• determine whether there will be an FTB or ISP eligibility change at the end of the interim period that has to be manually updated (for example manual intervention to cancel PPS if they lose care of all PPS children at the end of the interim period). See Notification and assessment of shared care arrangements for Family Tax Benefit (FTB)

Add a Display on Access (DOA) DOC as follows:

• Create a Fast Note - select Auto Text, use Families > Enquiry > Disputed Care Interim Period
• Tick the Display on access box and confirm. The DOA reason will auto populate with ‘special contact consideration’ (SCC). Change the expiry date to the maximum interim period date determined
• Complete the Fast Note template with details of the disputed care decision including the maximum interim period

If the customer advises of a change in care during the interim period, the new percentage may not take effect until the interim period has ended.

Where the care changes during an interim period and a new care arrangement is not entered into, a customer may notify of the care change after the interim period has ended. This care change must only be applied from the day after the interim period ends unless the parent has also ceased to take reasonable action to enforce the existing arrangement. In this case the care percentages will be based on the new actual care from the date the parent ceased taking reasonable action.

The interim period will cease if a parent stops taking reasonable action, even if there has been another change in care. If the customers make a new care arrangement, and actual care is in line with that arrangement, make a new decision based on actual care.

If a terminating event occurs for the case or the child within the interim period, adjust the interim period to end on the date of the terminating event, see Terminating events (Stage 2). For FTB purposes, see Family Assistance Guide 2.1.1.70: Disputed Care Arrangements on how to treat payments in the event an interim period ends earlier.

If the case or assessment restarts for a child, the interim period does not apply and a new care determination must be made from the date of the restart. If care ceased to be in accordance with the care arrangement 14 weeks or more before notification of the change, an interim period will not apply. Actual care will be used to determine the percentage of care from the date of notification. Only in special circumstances can this 14 week limit on the notification period be extended up to a maximum of 26 weeks.

If the interim care period is extended to between 14 and 26 weeks and the agency determines the care percentage based on the care arrangement for an interim period, the interim period care percentage will be used in the child support assessment from the date of notification to the end of the interim period, or the date of event if within the previous 28 days. The care percentage used in the period before the start of the interim period will continue to apply until the interim care percentage takes effect.

Go to Integrated Care - Making and recording care determination.

Review evidence and information that support relevant findings of fact. Allegations of abuse, family and domestic violence or similar that are not supported by independent evidence are unlikely to result in a decision to apply actual care instead of an interim determination. A child welfare order is not a requirement for this decision to be made.

Evidence from an independent third party that may indicate special circumstances exist include (but is not limited to):

• a police report detailing violent behaviour to a child or the person with increased care
• an intervention order preventing contact with the child or the person with increased care
• statement from a medical (or other relevant) professional regarding assault or abuse of the child or the person with increased care

Do not accept evidence directly from children. Where a parent provides written evidence from the child, do not consider the information and advise the parent/customer we will not be considering this for evidence purposes.

Make the recommendation for referral on the basis of evidence that supports relevant findings of fact. Consider information that substantiates claims and demonstrates that care has increased or reduced for a particular customer, as well as independent third party evidence.

All staff must refer eligible cases to the Integrated Care Team, see Customer referral guidelines for Child Support staff. The Integrated Care Team will escalate to an ACSC Officer using the ACSC Referral and Decision template. The ACSC Officer will prepare a recommendation in consultation with a Service Support Officer (SSO) who will make the final decision to apply actual care in special circumstances.

Using the information and evidence available, discuss the case with a SSO before making any further contact with the customers. Consult with the SSO throughout the decision making process to ensure all relevant information is obtained.

Complete Part A of the ACSC Referral and Decision template and email it to the Integrated Care Team for review.

When the referral is received, check the case is eligible. Contact both parties to discuss the evidence received and be mindful that conversations with customers may be of a sensitive nature. Speak to your Team Leader for support in managing the call. Where appropriate, refer the customer to a support service, see Social worker and other service referrals for Child Support customers.

After discussions with both customers, review all evidence and complete Part B of the ACSC Referral and Decision template in consultation with a SSO. Recommend a care determination where the care percentage is set to reflect either:

• actual care due to special circumstances
• the current care arrangement for an interim period

Document the recommended decision and email the completed Referral and Decision Template to a SSO for approval

When the referral is received consider actual care in special circumstances, notify and liaise with a Program Support Manager for guidance and support on policy and decision making.

If required, contact the ACSC Officer to determine the most appropriate course of action including:

• reviewing the customers’ claims
• identifying evidence required to make a decision
• managing conversations with customers
• evaluating conflicting information
• implementing the recommended decision

As these decisions relate to potentially sensitive issues, make a decision as soon as possible and minimise the number of times customers/carers are contacted for further information or evidence.

Consider the facts of the case and complete Part C of the ACSC Referral and Decision template to either endorse the recommendation or make an alternative decision.

Once the decision has been finalised, advise the Program Support Manager and email the completed template to the referring ACSC officer for processing and customer contact.

Once the recommendation has been received, record the referral decision:

• in Cuba, add a disputed care record, see Care Cuba Process Help
• in CF, enter the disputed care details and assess the customer’s impact on FTB, see Notification and assessment of shared care arrangements for Family Tax Benefit (FTB)

Note: for mutual customers, record the decision on Cuba to ensure customers receive written notification of the decision and other staff have information relating to the decision and can manage conversations with customers accordingly.

Go to Integrated Care - Making and recording care determination.