Having been in the same situation a lot of parents find themselves in today, I can relate to the hurt, pain and anxiety they are experiencing due to a relationship breakdown.
We must always consider the best interest of the child; however, in doing so, we must not overlook the fact that parents also have rights as stipulated in Section 51 (xxii) of the Australian Constitution.
Two people brought these innocent children in to the world and it is their shared responsibility to care for those children, regardless of whether they are still in a relationship or separated.
Child support is a means of financially providing that support and should be a cost to parents and not the taxpayer.
Most parents gladly accept their responsibility yet some parents walk away altogether, and some use the children as pawns for financial gain as well as inflicting hurt and pain on the other parent.
We have a child support system that is outdated, unfair and unjust. This was recently highlighted by a constituent of mine who provided me with their story. This is illustrated in the box below.
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Background: My ex-wife and I have three children together and take care of them 50/50 (both time and financially). She has re-partnered and has a further child with her new partner. We both earn in excess of $100,000 each. Issue 1 wanted to highlight what I believe are some deficient rules in the child support law.
50/50 care: Child support is to support children so by definition 50/50 care is an agreement between parents that their children will be both financial and physically supported in an equal way – therefore why should any child support be paid?
Self-support: This only ever assumes that you are single which is not realistic. My ex now has another income (circa $100K) to assist in paying the mortgage, rates and other outgoings yet both of our self-support amounts are set at identical rates when her household clearly has a much higher disposable income.
Pay increases: I received a pay increase recently and will now be required to pay another $1500 a year in child support. The expenses of my children didn’t suddenly go up by $1500 that day. Punishing a person for hard work and achievement is not just or fair in my opinion.
Dependent child: This is arguably the most ridiculous rule within the child support system. My ex has had a child with another person and on the day that child was born my child support payment increased by almost $2000 (this is due to the dependent reducing her taxable income). I am now effectively paying for a child that is not mine and have $2000 less to spend on my own children when they are with me.
I don’t know if anything can be done here but I wanted to try bring some of these issues to light to help ensure the fairest application of the system possible.
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If we want all parents to face up to their responsibilities in showing financial care and a loving relationship with their child or children we must address the inefficiencies that exist under the current system.
I have tried to come up with a solution that will give parents hope for the future, whether they are the primary carer or not.
The child support formula in its current form can be a windfall for ex-partners or a total loss of financial support.
I have always advocated to make the formula fair and reasonable and parents will willingly contribute to supporting their children. I have no doubt the ones to gain will be the children.
I have worn all shoes when it comes to child support unlike a lot of politicians and bureaucrats that have no idea.
We know the system is broken now instead of the same old rhetoric let’s make a real change.
Firstly, I would take the opportunity to thank the Secretariat for its very hard efforts since the establishment of this inquiry and for the reports it has released.
Secondly, I thank the members of the Select Committee for their time, their consideration and input into this Select Committee and in this third interim report.
The area of Family Law has witnessed significant changes even within the time this Committee was established. The Family Law Court has merged with the Federal Circuit Court which, whilst opposed by various entities and interest groups at the time, has now settled into a homogenous court structure which has resulted in less complexity, standard documentation and procedures and less waiting times for litigants.
In this third report we are reviewing the child support services, child support per se as well as the mechanisms to streamline and advance those services for all concerned.
The Administrative Appeals Tribunal (AAT)
Why I referred to the merger of the Courts above is because I think it is now important to also take into consideration the role of the AAT and whether or not it is still desirable to maintain that tribunal as an appeal process from decisions of Services Australia. This was not an agenda item for consideration by the Committee but, as the family law arena has evolved during the course of the inquiry, it should be taken into consideration by this review.
Is it desirable to continue to have the AAT as the initial appeal body for parties to refer at first instance their dissatisfaction with a decision of Services Australia?
In view of minimizing diffused legal bodies in this area, I would propose that all appeals to the specialized Social Services and Child Support Division of the AAT now be referred to the Registrars of the Federal Circuit Court. This would immediately take out another layer of complexity for parents and at all times have one central body that administers family law. Disputing parties would not have to file additional applications as required by the AAT. All documentation would be available from the one source, be standardized and any subsequent appeal against a decision of the Registrar is within the same court structure. This would greatly assist all parties as well as minimizing time and cost.
Paperwork would simply flow up through the court system rather than a fresh application having to be made.
I suggest this as an important consideration for both the government as well as for this Select Committee in its ongoing review of the family law system in Australia and particularly in regard to child support considerations.
Child Support
I agree with the recommendations 4, 8, 9, 12, 13, 14 and 15 however I would like to comment on the balance. In doing so, that does not mean I necessarily disagree entirely with the other recommendations but perhaps with the explanations preceding that recommendation.
Recommendation 1
I appreciate that the child support services must cater for those persons who suffer from a disability or perhaps to ensure correspondence is in simple English without unnecessary complicated sentence structure as well as ensuring speedy access to the service.
It is a common complaint throughout government services as well as large private sector companies of lengthy wait times and worse still disconnections. It adds to frustration and despair as to whether one's concerns will ever be addressed. So yes, constant reviews to ensure services are at their optimum is extremely important.
In regard to providing those persons who have low standard of English proficiency or in fact cannot speak English then it is my contention that person is responsible for utilizing interpreter services at their cost. For example, if a person wishes to make his or her Will or have another person’s will explained to them as they cannot speak English, then it is at their costs to do so. Services Australia can certainly provide that expertise but those costly services should be recovered from the person seeking to utilize same. The government cannot be constantly providing free services ad infinitum for minority parties. People must take responsibility for their own special circumstances as they are required to do in other areas of their personal need. The public purse is not an unlimited fund.
Recommendation 2
Recommendations 1 and 18 suggested to be incorporated into this report I cannot accept as they are out of date and have largely been incorporated in one form or another within the system as considered appropriate. In part, both are now redundant but more importantly, the Australian Government is providing English classes to those migrants who cannot speak English in part or not fluently. It has to be recognized that Australia is an English speaking country and it is important for migrant integration that English is maintained as the language common to all.
It is to be commended that since 2015 there has been progress as a result of that report.
Recommendation 3
I appreciate there has been input to re-instate this engagement group. However, this adds another level of consideration in time and effort by the department. I would contend that this is the responsibility of the Minister in the execution of that office to give serious consideration to each and every submission in the area of the portfolio. It is then the responsibility of the Minister to provide updates in this area as well as responding to Senate Estimates.
Recommendation 5
Whilst I do not disagree with the recommendation, I believe that neither the government nor Services Australia should have any involvement with payments under private agreements between spouses or to private collections. What is the benefit to the community of publishing such information?
If a spouse were to make a formal complaint to Services Australia to assist in collection of agreed support that is entirely a separate consideration otherwise there should be no interference from a government level.
Recommendation 6
There should be no involvement by the government in the area of private agreements on child support. I will not support the government taking on the child support debt of approximately $1.6 billion and then having to recover that money. This is not in the taxpayers' best interests.
Recommendation 7
For reasons already stated in regard to the previous recommendations I cannot support this recommendation.
Recommendations 10 and 11
The definition of “abuse” and what amounts to “abuse” has been a subject of contention throughout this inquiry.
It clearly has been used as an “abuse” of process in family law hearings by parties to further their position before the court. Claims of abuse have gone from what may seem trivial to extremely serious. The level of “abuse” to one person may not be seen as “abuse” by another.
In regard to withholding of child support within the context of this report can clearly be held as “abuse” if withheld for no justifiable reason but out of sheer malice.
In other cases, a party might withhold child support due to the other party refusing to allow child access. It must be really considered in the context of why it has been withheld.
The serious issue has been that it is outside the purview of Services Australia to judge and it has been the case that long delays in the court process has stopped instances of child access and the withholding of child support to be considered expeditiously by a competent officer of the court.
The terms “domestic violence” and “abuse” need to be very carefully considered and a rational approach taken to minimize unwarranted claims as opposed to real claims and to that end having domestic violence considered within the family law structure is so important.
Conclusion
Recommendations 18 and 19 relate to the existing table established over 16 years ago. Correctly the Committee, in the above recommendations, has expressed its concern as to the validity of those tables today.
Reaching a revised position in regard to childcare assessment and contribution by either one or both parents is tremendously important for an ongoing relationship for the children of that union with their respective parents.
It is essential to recognize the changing structure of society within Australia and particularly in regard to the fact of equality in wages and job opportunity between the sexes.
No longer is it necessarily the father who is the sole bread winner and hence his sole obligation to support the family. The astronomical rise in house prices has made it almost the norm for both parents to work to meet household expenses.
Equally, the female also can realise her own ambitions of career and both factors have resulted in a rise in child care.
Therefore, it must be recognized that both parents have an ongoing responsibility to financially support their children post separation.
Gone is the old standard of the ‘nuclear family’ and increasingly the new term is the ‘blended family’. That is to say, marriage for life, whilst it might be the dream of all, is no longer the reality.
Therefore, these factors must be taken into account in revising the support percentages.
During the course of this inquiry, it has been the mantra to minimize the ‘conflict’ approach and seek mediation and a rational approach to separation with the aim of ensuring stability in the lives of the children of that union.
Ensuring children have the time to spend in amicable circumstances with both parents is the desired outcome for the benefit of all concerned as well as the Australian community at large.
To that end, there are recognized initial and immediate steps that will and have proven to assist these multidimensional family circumstances.
Firstly, taking out dispute over property assets and the percentage each previous partner might receive on separation has been a major consideration in limiting future aggression by one or both.
As many practitioners pointed out to the Committee, by settling property early after a separation, even in part, takes out the angst between the parties. To that end, it was advised based on empirical evidence from assessment of court decisions, it is a very rare case where one party might receive less than 35 per cent of the family assets on separation.
Digital programmes, including the government sponsored “Amica” programme developed by the National Legal Aid, and now being adopted and promoted throughout the family law courts system is an example of developed programmes that assist in property decision outcomes. Various legal firms offer their own programmes which again rely on analysis of past court decisions to predict outcomes if a matter was, instead, heard before a judge.
The result, if we use the 35 per cent as an indicative initial property settlement for each party then only 30 per cent of the property is in contention. A vastly different sum of monies and therefore more likely to result in less conflict.
So why would separating couples opt for this approach? The major rational practical reason is the difference in cost to the respective parties. A difference easily equated to at least $50 000 as an indicative figure. Money not wasted on legal fees and court costs but instead kept within the family wealth to be shared.
Secondly, the separating couples have the added incentive of receipt of independent advice by legal advisers who, on receipt of their digital applications, give each the same advice on the likely outcome without bias.
Taking out that property dispute then takes one major reason for acrimony out of the equation as there is no perceived advantage in instigating court action. It also takes out of the equation each party taking separate legal advice that, in itself, can cause conflict as each legal adviser seeks to gain advantage to his/her client which justifies their retention. This is not an overall intentional act by those lawyers but ingrained within their legal experience.
Why I have taken the time to go over this system is to highlight the fact that a like approach can and should be taken towards child support and assessment.
If child support is made more equitable and there is little financial gain to either parent for attempting to demand unreasonable support without taking into account their current household arrangements, the result may well be that desired outcome which we all are striving for and that is equal access for both parents to their children and vice versa.
There is no doubt that each parent who is, after all, responsible for bringing their children into this world, have a joint obligation to maintain their child/children to ensure their good health, welfare and education. The security and safety of children is an overarching issue that obviously must be considered where violence, drugs or alcoholism is an issue. Such behavioural issues will over-ride the norm.
The aim of all parties is to ensure both the parents and the children have equal time with each other. It gives stability and ensures the sense of belonging and love between the children and both parents so the children are not alienated from either parent. It must be remembered the Australian Constitution in Section 51 states:
“The parliament shall, subject to this constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:
In subsection (xxii)
‘Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;’”.
It is the constitutional power of this Parliament to enshrine the right of parents to see their children. We certainly do not want another example of a ‘stolen generation’ which in this case relates usually to one parent by judgments emanating from the Federal Circuit Court denying that right to any parent barring, of course, those overriding issues resulting from proven family violence or substance abuse.
Whilst it might sound repetitious but seeking financial gain would appear to be the root of all evil following family separations. The first major financial issue re property can be minimized as outlined and before any obligation is made on either partner to provide support it should be predicated on that property settlement being finalized. This should incentivize the separating partners to reach an early settlement, removing the angst and perhaps the need for revenge to cause pain against the other partner.
Therefore, I would propose the following principles must be taken into consideration for the assessment of income and child support:
(a)
Assessable income to be defined as nett salary after taxation on that tax table. It must be recognized that 85% of Australians are PAYG employees. It is unfair to that majority to have the current child support arrangements which unfairly discriminates on a pre tax assessment as compared to a self employed person who might have more opportunity to split their income to minimize their individual income. Hence assessments must be post tax income. To allow for a liveable retained earnings;
(b)
The liveable retained income on which an adult is deemed to need for personal financial support as stated by Services Australia is $27,378.00 p.a. or $526.50 per week. Therefore, Services Australia or any other government body should not be allowed to deduct child support payments nor garnishee wages or bank accounts that would result in that would result less than the above minimum. Evidence given was that Services Australia was garnisheeing wages and leaving only approximately $370.00 in their account;
(c)
Salary be based on a 38 hour week and should not take into account overtime or additional employment. People must be given the incentive to move on and form a new relationship and perhaps to support 2 families.
(d)
Child support to be based on the number of children of the separating couple at the time of separation.
(e)
The residential cost is the individual cost of each parent as both, with shared parenting, need to have their separate homes to provide accommodation for their children;
(f)
The individual income of each parent must be taken into account together with paid Family Tax Benefits A and B to that parent as assessable income. For example, currently a single parent with 1 dependent child receives a fortnightly family tax benefit payment of $320.00 which currently is not taken into account for child support;
(g)
A persons ability to earn an income should not be assessed as earnings or income unless it is in fact earned. Equally, the fact it is deemed a “payer” could earn a higher income in another position which he/her might not have accepted does not entitle Services Australia or a court to assess his/her earnings simply based on potential capacity to do so;
(h)
Workcover compensation payments resulting from injuries in the workplace or TPI payments should not be assessable income as the recipient relies on that income potentially for life and cannot be left destitute;
(i)
Superannuation payouts should not be included in assessable income for child support
(j)
Should a ‘payee’ act in contravention of court orders or in breach of mutual agreements for allowing the other parent visitation rights or shared parenting, then this must result in punitive action so that there is effective enforcement of court orders or agreements and I would suggest the following:
(i)
On the first breach the defaulting party is warned that a fine shall result from a second contravention unless there is justifiable reason for the contravention such as sickness of the child or the inability of the parent to bring the child to the meeting
(ii)
on a second contravention the defaulting parent a penalty may be determined by the Registrar hearing the matter taking into account costs and inconvenience and pain incurred on and by the aggrieved party plus the payment of their legal costs. Finally, a warning to be given to the party that a third contravention will give rise to a justifiable reason for a change of court parenting orders for custody of the child to be given to the aggrieved party; and
(iii)
on the third contravention, besides the monetary penalty as determined by the Registrar the aggrieved party has just cause to seek a variation of existing custody and/or parenting orders from the parent contravening the orders/agreement in favour of the aggrieved parent and the Registrar or Judge shall make the necessary variation of the orders.
(k)
The support payable is for the stated objectives of living, welfare and education. That is, for clarity purposes, includes food, clothing, health and education. It is to be based on the recognized cost of such support for the average family and child. That is, the cost of maintaining a child is THE factor and that cost is one that then dictates the actual contribution from both parents.
(l)
To ensure child support is in fact spent on its intended purpose of child maintenance and support it is recommended that such payments are deposited in a special child support account and the receiving parent must be held to account by Services Australia on review. The purpose of this proposal is to diffuse criticism that some child support payments are being wrongfully used for the payee’s personal use as opposed to the welfare of the children for whom it is intended. Services Australia has advised it could apply the same method as the cashless debit card.
(m)
In calculating assessable income or child support payments it must be a term that travel to and fro for the delivery of the child/children between the respective parents is a shared responsibility.
Under Table 2.2 of the majority report, the percentage of support relates to the percentage of care each parent has to the child.
Again, complexity must be minimized and incentive be given to parents to share without seeking unfair advantage. I would suggest, rather than having 7 different percentages for care that in turn predicates the support payable, this be limited to 5 components to coincide with table 2.3 as follows:
The complexity of this area is recognized and it is my intent to bring an equitable outcome for both parents taking into account the era in which we now live.
It is the right of each parent to have the joy of their children within their lives. Equally, it is the reciprocal right of the children to have that same joy of being with their respective parents.
If a mechanism can be reached that is fair, equitable and sensible to ensure the safety, wellbeing and a balanced upbringing of children resulting from a union of man and woman without the need for angst, despair and dispute, it is beneficial to all parties.
To ensure that outcome, where a partner withholds access to the other parent, then immediately child support must be lawfully withheld to the party in breach.
The reverse is also trite to say in that a partner who withholds support then that partner's access can be with-held until the support is restored.
This in turn, for enforcement, goes to the very beginning of my dissenting report. All disputes must be centred with the Federal Circuit Court and the speedy consideration by the registrars in the first instance.
Senator Pauline Hanson