Family Law – Child Support Policy

KIDS NEED BOTH PARENTS!

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A. The Issue

The current Family Law and Child Support problems are caused by Government interference.

This intervention is based on a perceived wage inequality between non-custodial parents and custodial parents.

The current Government policy is to address this perceived inequality through the unaccountable use of bureaucratic and judicial intervention.

As a result:

1. Non-custodial parents do not have proper contact with their children.

2. Custodial parents then do not receive an adequate amount of support.

3. The children from separated families do not have adequate contact with both parents.

4. The Government does not receive taxation revenue that it would normally receive.

The Government’s solution is to further increase the level of their intervention. This results in even less contact for the non-custodial parent, less support for the custodial parent, less contact for the children with both parents and finally less taxation revenue for the Government. As a result, with this increased Government intervention, our problems become even worse.

B. The Non-Custodial Parents Party (Equal Parenting)’s Solution.

The Non-Custodial Parents Party (Equal Parenting) solution is to:

1. Minimise government interference in decisions that affect separated families;

and to

2. Maximise the initiative of individual parents to make the decisions that affect their families.

The Non-Custodial Parents Party (Equal Parenting) has the solution. You have the opportunity of helping us achieve that solution. This is with your vote at the next Federal Election (has to be before November 2013).

C. NCPP(EP)’s Family Law and Child Support Policies.

(Note: Our policies with regard to health, law and order, education, environment, etc. can be found by clicking here).

Our Family and Child Support Policies are as follows:

1. Rebuttable presumption of equal-time, shared parenting*.

2. Abolition of the Child Support Agency (adequate legislation already exists in the Family Law Act 1975).

3. Replacement of the Family Court with a Family Tribunal.

4. Implementing fairer and more equitable property settlements and superannuation splitting.

5. Removal of the link between Child Support Payments and Family Tax Benefit Part “A” Payments.

6. Allowing parents to decide the splitting of Family Assistance Payments.

7. Removal of unnecessary Government waste and lost personal opportunities.

8. Providing greater transparency in the passing of legislation through Parliament.

Details of these eight (8) main policies are provided below.

The response by other political parties and by our elected representatives, to these issues is also provided below:

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1. Rebuttable presumption of equal-time, shared parenting*.

We support legislation that will provide for a rebuttable presumption of equal-time, shared parenting*.

After separation or divorce, children need both parents

Current legislation and judicial practice is to grant custody to one (1) parent –usually to the mother and in a few cases to the father. This occurs in ninety five (95) per cent of contested cases. This is wrong.

Children have the right to have contact with both of their parents on an equal basis. This is unless it is genuinely in the children’s best interests not to do so.

Equal-time, shared parenting (joint residency) should be considered as the first presumption when considering where children of separated families are to reside.

* The term Shared Parenting is often wrongly misapplied. We define the term Shared Parenting, more specifically, to mean the rebuttable presumption of equal-time, shared parenting. That is, equal-time, shared parenting can be rebutted only if there are proven mitigating circumstances that would not be genuinely in the children’s best interests.

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2. Abolition of the Child Support Agency (adequate legislation already exists in the Family Law Act 1975).

We support the repealing of the Child Support Legislation and the abolition of the Child Support Agency. The child support legislation to be repealed consists of the Child Support (Assessment) Act 1989 and the Child Support (Registration & Collection) Act 1988.

Adequate legislation currently exists under the Family Law Act 1975 to replace the repealed child support legislation. This very same legislation was used prior the implementation of the Child Support Scheme in 1989. However the Family Law Act 1975 generally cannot be used for children under 18 years old. This is despite the fact that it was used prior to 1989. This is because of Section 66E of the Family Law Act 1975.

This situation can be easily fixed by appealing this Section 66E. Divorced or separated parents will then have their own court orders. The Government will be reluctant to make this small amendment. This is because the Government will have less control over divorced or separated parents.

Also, the Government “wants their cake and to eat it too”. Until the “child” turns 18 years old, the child support legislation has to be used to determine child support. This is because of Section 66E.  However, once the child turns 18 years (and finishes secondary schooling in that year), the Family Law Act 1975 can be used to take an additional grab at obtaining child support for adult children.

Over 18 Adult Child Maintenance

For example, some Government and non-Government organisations are pushing for the full-scale implementation of over 18 adult child maintenance, e.g. Victoria Legal Aid (please click this link for details on over 18 adult child maintenance). We see this as wrong. This is particularly when the Government has not implemented a rebuttable presumption of equal-time shared parenting for children under 18 years.

It can be certainly said that there is “no give”  and “only take” by any Federal Government – neither run by the Liberal-National Coalition or Australian Labor Party.

The Current System is Fundamentally Flawed

The Child Support Agency does not work to the benefit of the children or to either parent of separated families.

The current system is based on a crude and simplistic approach. It provides for significantly increased child support payments when contact is held below 14 per cent (52 nights per year). This is an illogical approach. This is because the more contact would mean more child support – not the other way around (refer to the NCPP(EP)  submission to the Shared Parental Responsibility Project).

The system is also fundamentally flawed. This is because it is based on forcing parents to pay child support without taking individual circumstances into account. It is not based on assisting parents to come to a decision of their accord. Because of the bureaucratic system, custodial parents can be forced to pay child support to non-custodial parents on lower incomes. There is no incentive for either parent to be allowed to get ahead in their lives.

As a result, the liable parent often leaves the workforce or takes employment that is below the income taxation threshold. Currently forty three (43) per cent (326,960 no.) of liable parents are effectively unemployed (ref. Child Support Agency’s Child Support Scheme Facts and Figures 2008-09*).  The parent who is most often in need of child support is not receiving it.

We support not making any initial direct payment from one parent to the other parent without the consent of both parents.

We support each parent being equally responsible for the support of their children, according to their means. However, this should be as defined by the parents themselves and not by the Government.

We support the settlement of any disputes by mediation.

Note * The Child Support Agency has elected not to publish any issues of the Child Support Scheme Facts after the 2008-09 edition.

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3. Replacement of the Family Court with a Family Tribunal.

We support the replacement of the Family Court of Australia and the Federal Magistrates Court of Australia with a Family Tribunal. The implementation of a rebuttable presumption of equal-time, shared parenting would be a necessary requirement to the implementation of any type of Family Tribunal. This equality does not exist in the current court system. Separated parents have to be able to come to a Family Tribunal on an equal basis.

The Family Court and the Federal Magistrates Court are adversarial by the nature of the Australian Constitution.

Mediation is required instead of confrontation.

The basic function of a Family Tribunal would be to supplement the current Family Relationship Centres.

Respected members from the local community encompassing health, social and community interest groups would participate in a Family Tribunal.

Significant amendment to Section 121 “Restriction of publication of court proceedings” of the Family Law Act 1975 is a necessary requirement. This is to allow accountability for our proposed new Family Tribunal. The details of our proposed amendments to  Section 121 can be found by clicking here.

Sufficient funding can be made available for a Family Tribunal. This is through the downgrading of the current court system1, particularly with respect to the Family Court and the Federal Magistrates Court.

Avenues would then be left open through the court process should the Family Tribunal and mediation fail to resolve a family’s issues.

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4. Implementing fairer and more equitable property settlements and superannuation splitting.

We support property owned and superannuation entitlements, obtained prior to the relationship commencing, being allowed to remain in the possession of that individual. We believe that they should not become part of the post-relationship settlement.

We support other property and superannuation, acquired after the commencement of the relationship, being allocated on a 50:50 basis.

Child support is now capitalised by the courts into property settlements. This is in addition to the child support that is paid through the current formula-based system.

The usual property settlement is that the custodial parent obtains 50 per cent of the value of the property plus 10 per cent for each child. (It can be also anticipated that future superannuation splitting will be made on the same basis.)

We support not paying child support capitalisation of property and superannuation, unless agreed to by both parents.

Little account is now taken by the courts of property owned by one party before the relationship commenced.

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5. Removal of the link between Child Support Payments and Family Tax Benefit Part “A” Payments.

We support the removal of the link between Family Tax Benefit Part A payments and child support payments. We also support making the Family Tax Benefit Part A payments being free of the 50 cents in-the-dollar deduction because of child support payments.

Family Tax Benefit Part A (formerly called Family Allowance) is paid to each parent on the basis of the time the children spend with each parent. There is a mandatory requirement for the custodial parent to make a claim for child support from the non-custodial parent. Otherwise only the minimum rate of Family Tax Benefit Part A is paid to the custodial parent.

Fifty (50) cents in every dollar collected in child support is deducted from the Family Tax Benefit Part A payments paid to the custodial parent. This deduction from the payments made to the custodial parent is called Clawback. It has been designed by the Government to pay for the operating costs of the Child Support Agency.

The custodial parent is typically not made aware of these deductions until well after the first child support payments have been made. Typically, this is also after the conflict over the child support issue and other related issues have been generated.

The  fifty (50) cent Clawback** removed from Family Tax Benefit A payments to custodial parents in 2006-2007 was $531,000,000 (reference – FaHCSIA Performance Report for 2006-2007).

** Clawback is an official Government bureaucratic term used to describe how Family Tax Benefits are taken from the Custodial Parents. The sole reason for Clawback** is so that the Government can pay for the full cost of running of the Child Support Agency ($426.5 million in Child Support Agency’s Facts and Figures for 2008-2009).

This reduction in Family Tax Benefit payments comes straight out of the pockets of Custodial Parents. This reduction causes the Custodial Parent to then seek to obtain more child support. More child support is then sought by reducing the contact with the non-custodial parent.

At the same time, the Government looses taxation revenue with many people being forced to leave employment.

It is a “Catch 22″ situation.

This situation occurs because neither the custodial parent, the non-custodial parent, the children nor the Government benefits. The only ones to benefit are the 4,700 people that are employed by the Child Support Agency – to the detriment of all other Australians.

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6. Allowing parents to decide the splitting of Family Assistance Payments.

The Family Tax Benefit Part A and B Payments and the Parenting Payment are income dependent.

From 1 July 2008, the minimum requirement for the non-custodial parent to receive Family Tax Benefit payments was for that parent to have 35 per cent contact with their children (previously 10 per cent). Parenting payments have only been paid to the custodial parent. This situation immediately sets up conflict.

Less conflict results in more co-operation.

We support leaving it up to the parents themselves to decide the proportion of the Family Tax Benefit Part A and B Payments and the Parenting Payment that is paid to each parent – not by the Federal Government’s Family Assistance Office, as it is now.

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7. Removal of unnecessary Government waste and lost personal opportunities.

We support the removal of the economic waste caused by the Government’s Child Support Scheme. Adequate legislation currently exists under the Family Law Act 1975 to replace the repealed child support legislation.

The Child Support System costs far more than what is collected. The funding for the above proposals will come from the potential savings billion generated by the abolition of the current system.

The operating budget of the Child Support Agency is $426.5 million (ref. Child Support Agency’s Child Support Scheme Facts and Figures 2008-09.

There are forty three (43) per cent of liable child support payers who are effectively unemployed Child Support Scheme Facts and Figures 2008-09 . This equates to 326,960 people who would otherwise be paying tax. The average annual tax net paid of a normal Australian resident is $12,329.00 (ATO Taxation Statistics 2007-08, page 25). This loss of tax revenue is approximately 10 times the operating budget of the CSA, which is paid for by the custodial parents, as noted above.

The Child Support Agency is an example of unnecessary Government waste that needs to be abolished.

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8. Providing greater transparency in the passing of legislation through Parliament.

Current family law and child support legislation does not benefit either parent. This is because there is a lack of involvement by the people most affected by any legislation i.e. the non-custodial and custodial parents.

We support having representatives from parent groups being involved in the preparation of reports and then in any subsequent legislation that may follow.

Currently the Family Law and Child Support Branch is responsible for drafting the Government’s child support reports e.g. Report of the Ministerial Taskforce on Child Support and Reforming the Child Support Scheme Summary Report.

This Branch is then responsible for drafting the child support legislation that is then presented for adoption by Parliament. Very little, if any of the proposed legislation is ever challenged by our elected politicians.

At some later point in time, this Branch then reports on the outcome of its own legislative changes that they had previously proposed. The reports invariably always provide a favourable analysis, e.g. the Branchs reports and reviews of the 2006 child support changes are  Analysis of Child Support Reforms, Report on the population impact of the new child support formula and Updated Report (July 2009).

There is no real meaningful involvement of the people most affected by these changes.

The Family Payments and Child Support Branch is part of the Families Group of the Organisation of the Department of Families, Housing, Community Services and Indigenous Affairs. These bureaucrats are located at Tuggeranong Office Park, Athllon Drive, Greenway. ACT. 2900.

The Family Payments and Child Support Branch is part of a Government’s bureaucracy that believes that they know what is best for us. At the same time, the currently elected politicians (with one or two exceptions) fall over themselves to laud any new changes to the child support legislation.

These bureaucrats are determining what you want. This is without your consultation. This can only be stopped if you vote for our party, at the next Federal Election.

Then everyone would benefit – the non-custodial parents/payers; the custodial parents/payees; the children and also the Government.

Similarly family law issues such as custody are determined by the Family Law Branch of the Commonwealth Attorney-General’s Department. The Family Law Branch is located at 3-5 National Circuit, Barton. ACT. 2600.

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RESPONSE BY OTHER POLITICAL PARTIES AND BY OUR ELECTED REPRESENTATIVES.

Response by Other Political Parties.

The family policy of the Australian Labor Party (items 129 to 131) does not support our issues.

The family policies of both parties of the Liberal Party of Australia and The Nationals Coalition and the Australian Greens (the Greens also do not even have a Family policy) are effectively non-existent. Surprisingly, the Christian parties also only make minor references to our issues.

This shows a complete lack of concern for the important and significant issues of families that affect many Australians.

There is a strong need for you, the Federal voter to vote for our party. This is to show that family-based issues are important to the future of Australia.

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Response by our Elected Representatives

The response by our Elected Representatives is to try and ignore the issues.

1. The Ignoring of Equal-Time Shared Parenting Legislation.

In 2002, the then Senator Len Harris tabled the Family Law Amendment Joint Residency Bill 2002.

Our Politicians did not allow the Bill to be even debated in the Senate, let alone voted upon. Sadly, the Bill has since lapsed due to time constraints.

2. The Politician’s Failure to Stop Anti-Family Legislation from Being Passed By Parliament.

Some recent examples of this family-unfriendly legislation include:

a. Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010

The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 was passed by Parliament in June 2010 (Act 65, 2010). Among other items, the Bill stated that if a child support payer loses his or her job and makes an estimate of income, the estimate will be later reconciled with the payer’s actual taxable income. On the surface, this is understandable. However if the actual taxable is higher, the increased child payments will be back-dated. However if the actual taxable is lower, the payer will legislatively not have their assessed liability reduced for that period (new Section 64 of the Child Support (Assessment) Act 1989. Despite the Bill being 103 pages long, the elected politicians could not find one thing to criticise in the new changes!

b. Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010

The Bill for the Tax Laws Amendment (Confidentiality of taxpayer Information) Act 2010 was passed by both Houses of Parliament in November 2010 (Act 145, 2010). The Act allows unrestricted access to your tax information. This is by the Child Support Agency, Centrelink and the Department of Immigration and Citizenship (passports etc). There is no requirement for you to be consulted, let alone even agree to this action. For example, many people are stopped at the airport (approximately 5 to 6 per day at Sydney). These people are extorted to pay money to which they could otherwise normally object. There was no dissent by any of the politicians to this Confidentiality Bill from being passed by Parliament.

c. Child Support (Registration and Collection) Amendment Act 2011

In 2011, the Federal Parliament passed a Child Support Registration and Collection Bill that allowed the Child Support (Registration and Collection) Amendment Act 2011 to become law. The resulting Child Support Registration and Collection Act gives private commercial debt collectors unprecedented access to Government databases. These private debt collectors are not Commonwealth officers. They are then not governed by any legislative constraints by which a Commonwealth officer would be normally governed.

It is noted that not one of our elected representatives in the House of Representatives voiced their concerns with the Child Support Registration and Collection Bill that went to that part of the Parliament. The Bill was then subsequently passed unopposed in the House of Representatives on 24 May 2011. The Senate then recommended that the usual Senate inquiry be held. However the Senate Inquiry, in turn ,then recommended that an inquiry was not required to be carried out. This was before the inquiry had even commenced.

The Child Support Registration and Collection Act went back to the Senate to be formally voted on later in 2011. The first impression was that there was going to be no problems with the passing of the Bill. However the independent Senator Nick Xenophon objected. This was correctly on the grounds of the lack of accountability. However there was not support from either of the major parties. The best that the Senator could achieve was to have inserted in the new Act that the information could not be transferred overseas. The Bill was then passed (to become Act 88, 2010).

This is simply not good enough. This is particularly so when virtually unaccountable private debt collectors can use your details for whatever reason they want to within Australia – it does not even have to be child support or any family law related issue. The information just cannot be sent overseas.

d. Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

The Family Law Amendment (Family Violence and Other Measures) Act 2011 was formally passed by the Senate on 22 November 2011 and by the House of Representatives on 24 November 2011 (as Act no 189 of 2011). The Act came into effect on 7 June 2012 and it significantly amends the  Family Law Act 1975.

This new legislation can be readily used to stop children from seeing both parents after divorce or separation. This is through the indiscriminate use of restraining (NT, SA and WA), intervention (Vic), apprehended domestic violence (NSW), protection (ACT and Qld) or restraint (Tas) orders from the state jurisdictions.

Unfortunately the minor shared parenting changes made in 2006 have been reversed by these family violence changes that were made in 2011.

3. Your Question for Your Local Parliamentary Representative.

Question to your local parliamentary representatives – both state and federal: Where were you – our elected representatives – when these bills were going through Parliament? Many of our politicians have time to use Twitter.  For example, the undersigned’s local Member for Cunningham, Sharon Bird MP‘s most used word on Twitter is “attended“. Perhaps she was attending something  or other. At the time, it was certainly not looking at the consequences of voting for the FV Bill or any of the above anti-family bills.

4. Our Response  - Monthly Protest Meetings

We aim to have monthly NCPP(EP) protest meetings until the next Federal Election in 2013. Photos of our previous protests can be found at Submissions, Media Interviews,  Speeches and Photo Gallery.  Details of the next protest can be obtained by either emailing us at the following email address noncustod@yahoo.com.au or by ringing 0415 899 574. Everyone is welcome.

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