Men's Rights Agency
- Child
Support
Coalition rejects Child Support Tribunal Posted 19/5/98
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Thursday, 14 May 1998 REPRESENTATIVES P3257 (Hansard)
CHILD SUPPORT LEGISLATION AMENDMENT BILL 1998
Second Reading
Debate resumed from 13 May, on motion by Mr Miles: That the bill be now read
a second time.
Mr MILES (BraddonParliamentary Secretary [Cabinet] to the Prime Minister)
(1.26 p.m.)in replyIn summing up, I would like to thank the
participants in this debate. For a long time all of us in this parliament
have recognised that this is a very complex area for the parliament to come
to grips with. It is something which involves a lot of emotion, and I think
all of us are concerned to try to move the legislation forward.
In reply, I would like to stress a few things. The measures contained in
this bill are good, sound changes. They will provide real benefits to parents
by introducing flexibility into the child support scheme and will improve
timeliness, accuracy and responsiveness in the administration. I commend
the government�s continuing commitment to reform the child support scheme
to under-score the fundamental principle that parents are primarily responsible
for the financial support of their children and that government will not
unnecessarily intrude into people�s lives.
The Australian Labor Party has not properly addressed the child support issues
and has ignored the recommendations of the inquiry by the Joint Select Committee
on Certain Family Law Issues into the operation and effectiveness of the
child support scheme. The measures in this bill were announced in a joint
media release on 30 September 1997 by the Minister for Social Security, Senator
Jocelyn Newman, and the Assistant Treasurer, Senator Rod Kemp. The bill improves
the scheme�s flexibility and provides greater equity for parents. It enables
parents to take greater responsibility for support of their children. At
the same time, the government will provide a safety net to ensure that children
of separated parents are adequately supported and that the general community
is not asked to carry an undue burden.
The changes in this bill are, firstly, changes to child support payable.
They increase paying parents� exempt income by 10 per cent; include an amount
for shared care of a child in the exempt income amount; reduce the amount
of the payee�s disregarded income amount and remove the automatic inclusion
of child care in the payee�s disregarded income; allow high child-care costs
to be a ground for a departure from the assessment; reduce the effect of
the payee�s disregarded income; introduce a minimum payment of $260 per year
and make child support payable for secondary students until the end of the
school year in which they turn 18; include rental property losses and foreign
exempt income to calculate child support; base child support assessments
on the most up-to-date income of parents; use an uplift factor only where
the parent has not lodged the most recent tax return; and no longer backdate
child support liability.
Changes in the bill also include changes for second families, and these include
the following points. They allow credit for child support paid in determining
entitlements to family payments for payers� subsequent families. Changes
to the administration are several, and I will quickly go through them. They
will introduce a formal process to enable parents to object to the CSA�s
decision; no longer include the names and birth dates of relevant dependent
children on the assessment notice; allow parents to agree to collect and
pay child support privately at any time; and require parents to pay and collect
child support privately where there is a good payment record.
There will be a better alignment of family court and child support legislation
relating to the care of children. The changes will allow parents to end a
child support assessment where their safety is at risk and provide support
and assistance to parents to collect child support where safety is no longer
of concern; improve notification and disbursement processes to reduce incidences
of overpayments; allow child support debts to be offset between parents;
allow the registrar to initiate the process to depart from the administrative
assessment and to streamline the departure process; allow estimates of income
to be rejected where they do not reflect the actual income; and allow liable
parents to apply for a child support assessment.
As the member for Richmond (Mr Anthony) foreshadowed in his speech in the
Main Committee, I will be moving an amendment to the bill and I am pleased
to advise the House that this amendment was announced in the budget on Tuesday
night. The amendment will allow payers to make non-agency payments without
requiring the payees� agreement.
I would also like to make some comments about the role of the House of
Representatives task force and their initiatives at this point. The task
force of government members was formed to consider and report to the government
on a number of matters related to child support. The government appreciates
the work that the task force has done in such a short period and supports
the following recommendations that the task force made. I will just quickly
go through those areas of recommendations for people�s information, firstly
in regard to persons evading child support by travelling overseas. The majority
of people with child support liability pay the amount when it is due and
pay the correct amount. However, there are some payers who have a child support
debt and go overseas before the debt is cleared. The government will amend
the child support legislation with effect from 1 January 1999 to give the
Child Support Registrar the power to stop a parent who has persistently failed
to meet his or her child support liability from leaving Australia through
a departure prohibition order process. The DPO will not be time limited and
will remain in force until revoked by the Child Support Registrar when the
debt has been paid or when satisfactory arrangements have been made. The
process will come into effect from 1 January 1999. This is consistent with
the taxation commissioner�s powers which include a right of repeal to the
Federal Court or Supreme Court. The remedy goes further than the joint JSC
recommendation 115.
The second area is consideration of diverse forms of income received and
taken into account for determining child support. Child support is calculated
using a parent�s taxable income. There are a number of ways in which parents
can reduce their taxable income and consequently pay less child support.
Many of these ways of reducing taxable income such as salary sacrifice are
legitimate under the taxation laws. The government has recognised that parents
are able to reduce their taxable income for taxation purposes but this is
not appropriate for child support purposes.
The bill before parliament will add back to taxable income rental property
losses and exempt employment income. Parents with second jobs and those that
work overtime now have this extra income included in the income base for
the calculation of child support. The government will establish an
inter-departmental committee to examine the diverse manner in which all forms
of income are received and taken into account for the purposes of child support
assessments and will take account of the scope of tax reforms. The IDC would
be chaired by DSS and comprise representatives from Attorney-General�s, the
Child Support Agency, Prime Minister and Cabinet, Finance and Administration,
and Treasury. Other departments could be coopted as necessary.
In regard to transparency and independence of process to depart from the
formula assessment I make the following comments: child support assessments
are based on a formula. Parents who believe that the assessment is not
appropriate can seek a departure from that assessment. Only about six per
cent of parents seek a departure. The current process is perceived as not
providing sufficient transparency or accountability. The registrar will review
the process and will focus the concerns with a view to providing substantial
improvements to current processes. The existing process to depart from formula
assessment will be examined to develop a range of options which will improve
its transparency and accountability to enable changes to be considered in
the 1999-2000 budget process. A review of the training qualifications and
remuneration of officers contracted to determine applications to depart from
formula assessment will report to the Assistant Treasurer by 30 June 1998.
The examination of the departure process will include legislation, procedures,
information needed by clients, physical location and accountability of officers,
notification of decisions and appeal mechanisms including an evaluation of
the proposed legislative amendment which introduces objection provisions
for departure decisions. Reviews are preferred to jumping prematurely to
a judicial or quasi-judicial process which will be costly to administer and
will run the risk of returning to a system which was largely out of reach
of most parents.
As to payer concerns about contact or access with children, currently the
only recourse for parents denied contact with children is to lodge repetitive
applications for enforcement with the court. These applications involve a
delay varying between a few weeks and over six months and a range of penalties
that are difficult to impose in the context of the best interests of the
children. These processes are a significant cost to government and frequently
to legal aid funding. The pilots will provide practical demonstration of
alternative community based support for parents experiencing difficulties
with contact. Pilots to help ensure compliance with Family Court child contact
orders will be established within community based agencies, contracted under
the family relationships services program. Pilots will be contracted at four
locations Parramatta, Brisbane, Townsville and Hobartand will
be three-pronged: firstly, information education sessions when the order
is made; secondly, immediate assistance for parents to resolve conflict over
contact; thirdly, a compulsory diversionary program for parents in breach
of a contact order.
The Attorney-General will also consider the establishment of a parliamentary
committee to examine all aspects of family law contact and compliance once
the Family Law Council has delivered its report in June 1998. Providing
assistance to parents to resolve issues without court intervention is in
line with recent changes in family law that encourage people to resolve family
disputes outside the judicial system. A compulsory diversionary program provided
by community based agencies for parents convicted of breaches would be a
credible alternative to the current scope of penalties which range from
recognisance to imprisonment.
I thank those people who have participated in this debate and, as I said,
I foreshadow that we will be moving amendments in the detail stages.
Question resolved in the affirmative. Bill read a second time.
Message from the Governor-General recommending appropriation announced.
Consideration in Detail Billby leavetaken as a whole
Mr PRICE (Chifley) (1.39 p.m.)I did
have circulated in the House an amendment in my name. I advise that I no
longer wish to pursue that amendment in that form, but this affords me the
opportunity to point out to the Parliamentary Secretary (Cabinet) to the
Prime Minister (Mr Miles) in particular and to all those government members
who have so effusively welcomed these amendments that in reality there will
be more money collected by the Treasurer (Mr Costello) as a result of these
changes. There will be more money going into consolidated revenue. I would
hope that those government members in the Main Committee who attacked me
and took exception to that view might read their own explanatory memorandum
and the financial implications of the bill, because in child support there
are always three people involved where money is concerned, although principally
it is supposed to be directed to the welfare of children, and that is of
course the two parents and the government.
For example, the increase of a mere 10 per cent in the self-support
componentand it is a pity that the parliamentary secretary could not
share with us the reason why it is 10 per cent and not 20 per cent; what
led the government to pick that particular figureis going to cost $10
million. That will cost $10 million, but do you know how much Peter Costello
is going to be better off by these measures? This is not my estimate or guess
or the estimate of the member for Wills (Mr Kelvin Thomson). It is in the
papers that the cost will be between $47 million and $26 million. When you
take all the measures that are in this bill allegedly for the benefit of
the children that are affected by child support and the financial impacts
on the parents, who is the biggest winner? Not the children, not the parents,
but Peter Costello and John Faheyand they parade into this House as
though this is some great bit of reform legislation.
The parliamentary secretary says it is a difficult area. Well of course it
is a difficult area but that does not mean there should be an absence of
courage in wanting to tackle the problem and do some decent things. I would
be grateful to the parliamentary secretary if he would respond to the financial
implications of the bill. Does he agree with the explanatory memorandum that
Peter Costello and John Fahey through this child support amendment bill will
in fact be between $26.2 million and $47.297 million better off. Is this
what the Coalition government considers to be real reform in the child support
area. He might share with the House through his generosity of spirit why
they have actually made some of the decisions.
I am not saying that what was recommended in the report is somehow set in
concrete, is the best that there is. Far from it. It was the minimum that
we recommended should be done to restore equity and fairnessthe minimum.
And that is well over 3½ years ago.
Why did he pick 10 per cent, not 20? Why has he picked some new figure of
average weekly earnings rather than the pension cut-off point. I would like
to get into debate with him but if you do not share your arguments with us
but more importantly the people of Australia, how is it possible to have
a debate. Or does the parliamentary secretary want to do what he normally
does and that is to gag measures through the House.
I want to advise the people of the House that the better and more correct
title of this bill is really a consolidated revenue measures bill rather
than a child support amendment bill. I am not pursuing the amendment but
I do want to say that is the real impact. The big winners are not the children,
are not the parents, but consolidated revenue presided over by the Treasurer
and the Minister for Finance. (Time expired)
Mr TONY SMITH (Dickson) (1.44 p.m.)by
leaveI move: Go to proposed
Tribunal Amendments
The purpose of my amendments is to abolish the review process and introduce
an external review process through the magistrates courts. It involves the
setting up of a child support tribunal, drawing on the successful experience
of the small claims tribunals and the small debts courts around the country.
These bodies operate all around the country and are part and parcel of the
magistrates court system and the courts of petty sessions in the various
states and territories.
An applicant could seek a departure order, varying child support upwards
or downwards. The procedure would be inexpensive and efficient. The tribunal
would be constituted by a magistrate who would hear and determine applications
for departure orders based on the principle of the needs of the child and
the capacity to pay of both parents. To establish needs and capacity to pay,
evidence would need to be called on oath. No lawyers would be allowed, unless
in exceptional circumstances such as literacy problems or proven incapacity.
No experts would be permitted to give evidence. There would be no appeal
on fact.
The magistrate would not be bound by the administrative assessment in exercising
a discretion to make a departure order. The magistrate could take into account,
by clause 98G of the proposed amendments, whether the applicant has been
permitted and able to exercise contact to a child. In other words, where
there has been deliberate withholding of contact, the magistrate may make
an order reducing the child support payment in those circumstances.
This unique provision is needed because of the powers of this tribunal and
the stringent powers of the Child Support Agency generally. The tribunal
would have power to orally examine a non-payer on oath and have power to
summons the person to appear before it to be orally examined. In these
proceedings, leave would be granted for lawyers to represent that person
on the application of the Child Support Agency.
The Child Support Agency could, if it finds a liable parent to have deliberately,
wilfully and without lawful excuse failed to pay a sum of child support,
be found guilty of contempt. It is not unique in this sense, since at common
law and under the criminal codes of the states and territories parents are
under a duty to provide the necessities of life to their children. A breach
of that duty is a criminal offence with serious punishments following. I
see no difference between that situation and a situation where a person
deliberately withholds child support and, accordingly, significant penalties
follow.
What is the background to this? During the second reading debate it was said
time and time again that, prior to the Child Support Act being introduced,
fewer than 30 per cent of parents were paying or receiving child support.
I do not know what the basis for that assertion is. I have been avidly trying
to discover the basis, but I have not been able to by myself or through my
researchers. One leaps from one paper to the next, always seeking, but never
finding, a reliable primary source.
However, I did just get passed to me a moment ago a document called Child
SupportSocial Justice Project 1986, which talks about a figure of 37
per cent of persons who were on the widow�s pension or supporting parent�s
pension. Is that where the figure comes from? I do not know. I am still waiting
to find out. It is important, because we should not keep repeating falsities
until we discover the source of these sorts of statements. The argument suits
the bureaucrats and the Child Support Agency, but it is not the full account.
I suspect that the more accurate figure is greater than 50 per cent in fact.
But let us face it: the agency is in the business of perpetuating itself.
That is not to say that the agency cannot perform a role, but it ought not
to perform the role of judge, jury and executioner; that is why we have courts.
They are the checks, balances and safeguards which make society tolerable.
Presently, the people subject to this system find it intolerable. No-one
has worked harder on this issue in the House since I have been here. I have
spoken about this more times than any other person, and I have devised what
is a very good scheme to make it fairer. What people on both sides of the
House do not seem to recogniseand, I regret to say, what people in
the executive of this parliament fail to recogniseis that this system
is unfair. (Time expired)
Mr BRADFORD (McPherson) (1.49 p.m.)What the
member for Dickson (Mr Tony Smith) has done today is a fairly brave move,
because he has actually put before the parliament a very good idea. That
probably is giving it the kiss of death; nevertheless, what he has said has
considerable merit. What I am confused about, though, and what he did not
make clear, is whether the government is supporting his amendments or whether
he, in fact, is doing this of his own initiative without the support of the
government. I suppose in time we will see whether in fact the government
supports him. His being a member of the government, and it being a good idea,
I would hope that it is supported by the government. As the member for Dickson
has said, he as much as, and perhaps more than, anyone in this place has,
as a lawyer, dealt with a lot of family law matters. He obviously understands
better than most members the problems that exist within the existing regime
of the Family Court and the Child Support Agency.
I think he put quite eloquently his case for the formation of this particular
tribunal and so I will not go into great detail other than to say that it
does have merit and ought to be supported or taken seriously as a suggestion,
but it remains to be seen whether in fact that occurs at some point in the
future.
The member for Chifley (Mr Price) spoke in this debate, and to his
creditand I think it is credit that is due widely in this placehe
chaired the Joint Select Committee on Certain Family Law Issues, which reported
in November 1994. That committee made 163 recommendations, most of which
I suggest and the member for Chifley might correct me have not
yet been seriously addressed by this parliament. Yet from my reading of that
report and from following its deliberationsit went for a very long
time and was a very good committee that made a lot of recommendations which
ought to have been acceptedthe legislation that we are now dealing
with in detail again is just a picking through some of those recommendations
and, indeed, putting more bandaids on what is quite patently a totally
ineffective system of dealing with the very difficult problems that are created
when marriages break up. The member for Chifley, of all people, I think,
can speak with some authority and some credibility on these particular issues.
I do not pretend that I have the solutions to the problems that the Child
Support Agency represents but, having an understanding of what is involved,
I do not believe the sorts of changes we are dealing with here today go anywhere
near solving the problems.
I know from my former life, which was not so long ago, that members of the
government parties are very concerned about it. They said publicly, and I
can say to people who are listening that they certainly were very vocal
privately, that the Child Support Agency was responsible for more complaints
in their electorate offices than any other individual matter with which they
were confronted as members. I think that is still the case. It is simply
the case because the government continues to fiddle. Instead of actually
fixing it up, doing something with it, and getting back to basics, it continues
to put bandaids on the existing problem. The member for Dickson has come
in here with a radical solution to the problem, radical because it is a major
departure from the paradigms within which people seem to think about this
problem. We are yet to see whether there is any support from the government,
or indeed from the Labor Party, for that particular suggestion.
I have at the moment got a couple with whom I am dealing who are just typical
of the many problems when a relationship has broken down. The number one
priority it seems to me that this legislation fails to address, and which
has been repeatedly overlooked, is the inability to take account of the former
spouse�s situation in a relationship. In other words, people are often aggrieved
when a spouse, whether it be a husband or a wife, leaves and then goes into
a situation where they are very well off.
(Time expired)
Mr ANTHONY (Richmond) (1.54 p.m.)I certainly
rise to speak on this subject
Mr MelhamDo you need child support from your dad?
Mr ANTHONYWell, I do not live with my mum. But certainly I am sure
you have a very nice mother, as I have a nice father. Nevertheless, this
issue has been discussed and obviously there is a lot further to go with
child support. In any situation where you have a marriage break-up or a couple
breaking up where children are involved, a lot of trauma and stress is brought
upon those parents and particularly upon the children. A task force has been
established in the last six weeks by the Prime Minister (Mr Howard) to look
at some specific areas where we could go further in the legislation that
is currently before the House, the Child Support Legislation Amendment Bill
1998, looking at improving that as well as looking at the Child Support Agency.
Whilst I do have a lot of sympathy with the proposal being put forward, I
believe that it is important that we look at some of the mechanisms within
the Child Support Agency before we walk down that path.
Obviously we need to be looking at the transparency and accountability of
the Child Support Agency. Many of the concerns of perhaps non-custodial parents
arise when they seek a departure order from the Child Support Agency. I might
add that only six per cent of parents actually seek a departure order and
50 per cent of those are actually approved, so that three per cent is where
a lot of the grief comes from. Following our discovery we have requested
that a review be held of the training qualifications and remunerations of
the review officers within the Child Support Agency. Certainly, from some
of the evidence that we had, there is a long way to go to ensure that those
people who are the actual review officers are not only properly qualified
but also properly remunerated. Their remuneration is actually based on the
success of the case, which tends to focus on quantity rather than quality.
There are a number of areas which have come to light for me and certainly
other members of the task force. Let us go back and have a look at perhaps
reforming the Child Support Agency as much as we can. If that is not successful,
then obviously other proposals may have to be looked at. Some pilot programs,
while not legislation, will automatically be established to look at access
or contact, which also causes an enormous amount of grief for both custodial
and particularly non-custodial parents, where they comply with the child
support formula. Indeed, they do the right thing. They then obviously come
to pick up their children, but they are denied access. Obviously the issue
at heart, and I think this is the issue that is being discussed here, is
how you actually enforce an order if it is continuing to be breached. What
we are suggesting is let us run some pilot programs now, which will be community
based, and perhaps also look at something within a family court or judicial
area, so we can compare apples with apples and see which type of system is
more effective.
Certainly before the Child Support Agency was established by the previous
government in 1988, the actual level of payments being made was substantially
lower. There was a high default rate, and there was a quasi judicial process
in place which was not effective. What we have now is a number of
recommendations. I might add that the parliamentary secretary has also today
talked about increasing non-agency payments up to a level of 25 per cent,
and we believe that this will be an opportunity, particularly for non-custodial
parents if they wish to pay for their child�s schooling fees, for them to
pay for essential medical or dental fees. It could be in the area of paying
for utilities, such as rates or mortgages or indeed for motor vehicles, which
can now be assessed within the child support formula. I might add as well
that one of the other issues is access to travel. Many custodial and
non-custodial parents are obviously in a situation where they have to either
fly or travel to their children, or their children have to come to them,
and you can apply for a departure order, as long as it is above five per
cent. You can utilise that travel cost.
The other area that is particularly important, and I think this is where
some of the geneses of these amendments are, involves assessing the various
types of income, whether it be salary sacrifice or second jobs or overtime.
Certainly there will be an interdepartmental committee now which will investigate
some of these issues. (Time expired)
Mr SPEAKEROrder! It being 2.00 p.m., the debate is interrupted in
accordance with standing order 101A. The debate may be resumed at a later
hour and the member will have leave to continue speaking when the debate
is resumed.
Continue to further debate and
votes. Part 2