13.3.9.4 Payments where there is Shared Care of a child/ren

13.3.9.4 Payments where there is Shared Care of a child/ren

For separated parents who share the care of their child, relevant benefits should be apportioned according to the tapered methodology adopted by the Department of Human Services for Family Tax Benefits payments, see Table below

Where a shared care arrangement is in place, a successful claim from one parent or guardian of the dependant creates eligibility for the payment of the allowance to both parties according to these percentages.

However, as a matter of process, DVA will generally seek a claim form from both parents/guardians in these situations. This ensures Education Allowance payments are being apportioned correctly. This also ensures that DVA is able to communicate with both parties on an ongoing basis and manage other benefit payments under the Schemes.

For the purposes of claim dates, the first Education Allowance claim in respect of a given child is the claim from which all benefits legally flow (including those payable to non-claimant FTB recipients who are eligible for a proportion of Education Allowance for a child).

Where possible, the percentage to be applied in the shared care determination should be:

• The same percentage of care applied by Services Australia, where FTB is claimed for the child; or
• The percentage of care in a written agreement such as a parenting order; or
• Another written agreement, signed by both parties that shows the percentage of care, appropriate to make a determination such as an agreed pattern of care agreement.    

Formal or legally binding agreements (for example, court documents or a written, signed agreement between the parties) will generally take precedence over informal agreements.

Disputed Care arrangements

Where the parents or carers do not agree on the percentages of care, the delegate will determine the care percentage to be applied based on the available evidence of the actual pattern of care. Where such evidence exists, delegates should look at the FTB percentages and any formal, legally binding agreement in the first instance. If delegates have other compelling evidence available showing that the legal agreement is no longer reflected in reality, they should discuss with Family Policy section before making any decision which is not aligned to either the FTB percentages or a legally binding agreement.  

If no evidence is available, delegates should work with parents to obtain sufficient evidence to make a determination as to the percentages of Education Allowance payable to each party. 

Shared care arrangements when one parent is not known to the Department

In shared care arrangements where one party is not known to the Department, their entitlement to a percentage of the Education Allowance, in line with the above table, remains.

Delegates should attempt to establish the identity and contact details of the parent or other carer who is not currently known to DVA, in order to pay their Education Allowance entitlement portion.

Even where reasonable efforts to establish the identity of the second parent or carer are unsuccessful, that person’s entitlement to a percentage of the Education Allowance remains. For this reason, delegates are unable to pay the remainder of the entitlement to the known parent in these situations.

Known parents/guardians can be reminded that it is in the best interests of the child to let DVA know the contact details of the other parent or carer who has an entitlement to a percentage of Education Allowance, but they cannot be compelled to do so.

Because the date of effect for the unknown parent’s entitlement to a percentage of the Education Allowance commences on the date the known parent made the initial claim, backdating and the payment of arrears may be considered in the event the unknown parent or carer becomes known to DVA

Shared care and Special Assistance/Additional Tuition

See 13.5.4 and 13.5.3.

FTB conversion

Where the parents of a child are separated, it may be that one parent wishes to receive a share of FTB (according to their FTB shared care percentage) from Services Australia, while the child’s other parent wishes to receive an amount of VCES payment that corresponds with their shared care percentage from DVA.

There is no bar in policy from either DVA or the Department of Social Services/Services Australia from this occurring.  The relevant family assistance law (s22A of the A New Tax System (Family Assistance) Act 1999) precludes an individual from receiving both payments at once. As the explanatory memorandum confirms, this is to prevent an individual receiving both payments at the same time, and is not intended to preclude one member of a shared care separated couple from choosing to make a different choice than their ex-partner.

Therefore, in cases where parents are separated, share care of a child, and one parent wishes to surrender VCES and continue receiving their percentage of FTB, but the other parent wishes to surrender FTB and continue receiving their percentage of VCES, no individual is receiving both payments at the same time, so the notion of “double-dipping” does not apply and the intent of the law is served.