Family Law – Child Support Policy

KIDS NEED BOTH PARENTS!

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Our Solution.

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

The reasoning behind this government interference is their perceived inequality between the non-custodial parents and the custodial parents, occurring after divorce or separation.

The Government addresses this perceived inequality through the unaccountable use of bureaucratic and judicial intervention.

The Government is wrong.

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.

When they find that this does not work, the Government’s solution is to then further increase the level of their interference. This results in even less contact for the non-custodial parent; even less support for the custodial parent; even less contact for the children with both parents and finally even less taxation revenue for the Government.

The overall result is that everyone’s problems become even worse.

Our solution is to reverse this trend and to make the non-custodial parent and the custodial parent both equal

To achieve this solution we aim to:

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

and to simply

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

Our Family Law and Child Support Policy (for our other more general policies such as on health and education, etc., please click here)

Our Family and Child Support Policy can summarised by the following eight (8) items:

1. Implementation of a rebuttable presumption of equal-time, shared parenting*.

2. Abolition of the Child Support Programme (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. This link is currently being used by the Government to prevent children from having contact with the non-custodial parent.

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

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

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

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Policy 1. Implementation of a 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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 Policy 2. Abolition of the Child Support Programme (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 Programme. 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 child support for children under 18 years old. This is despite the fact that it was used prior to the implementation of the child support scheme in 1989.

This restriction only applies because of the inclusion of Section 66E in the Family Law Act 1975.  Section 66E states that a priority has to be given to the two (2) specific child support acts noted above.

This situation can be easily fixed by simply appealing Section 66E. Divorced or separated parents will then have their own court orders as it was prior to 1989. Of course, 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, as noted above, 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 court orders and   Section 66E in the Family Law Act 1975 can be used to take an additional grab at obtaining child support for young adults. This is called by the bureaucrats  Adult Child Maintenance.

Adult Child Maintenance

Many Government and non-Government organisations are pushing for this approach to be taken, e.g. Victoria Legal Aid (please click this link for details). The Child Support Programme similarly writes to the custodial parent with the same suggestion This is when the child is approaching his or her 18th birthday. We see this as wrong.

The Current System is Fundamentally Flawed

The Child Support Programme 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 Programme’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.

As an alternative, we support the settlement of any disputes by mediation.

Note * The Child Support Programme has not published any issues of the booklet “Child Support Scheme Facts” since this 2008-09 edition.

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Policy 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.

A 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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Policy 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.

This change would no doubt beneficially reduce the number of divorces and separations from occurring.

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

This link is currently being used by the Government to prevent children from having contact with the non-custodial parent.

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 Programme.

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 – Department of Social Secuity’s 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 Programme ($426.5 million in Child Support Programme’s Facts and Figures for 2008-2009 - the latest available information).

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 Programme. This is to the detriment of all other Australians.

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

Escalation of any further conflict after a divorce or a separation should be avoided.

The current system involving Family Tax Benefit Part A and B  Payments and the Parenting Payment are a cause of such a potential conflict. This was not always the situation.

From 1 July 2008, the minimum requirement for the non-custodial parent to receive Family Tax Benefit payments was changed so that a parent had to have 35 per cent contact with their children (previously 10 per cent). Parenting payments have always only been paid to the custodial parent.

This situation immediately sets up conflict. It should be obvious that less conflict results in more co-operation.

Therefore 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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Policy 7. Removal of unnecessary Government waste and lost individual 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.

There are some forty three (43) per cent of liable child support payers who are effectively unemployed Child Support Scheme Facts and Figures 2008-09 – the latest available figures (the Child Support Programme has not disclosed the figures since that date).

This equates to 326,960 unemployed people who would be also paying tax. The average annual tax net paid of a normal Australian resident is $13,525.00 (ATO Annual Report 2013-2014 – Performance and Activities).

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 Programme is $426.5 million (ref. Child Support Programme’s Child Support Scheme Facts and Figures 2008-09 - latest available figures.

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 Programme is an example of gross unnecessary Government waste that simply needs to be abolished.

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Policy 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.

The Policy Strategy Branch in the Department of Social Services was 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 same branch was responsible for the review of the outcomes in the Analysis of Child Support Reforms, Report on the population impact of the new child support formula and Updated Report (July 2009).

Obviously, they concluded that their own policy strategy was succesful.

Similarly family law issues such as custody are determined by the Family Law Branch of the Commonwealth Attorney-General’s Department.

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Additional links:-

A PDF copy of this policy can be downloaded by clicking here.

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The Non-Custodial Parents Party (Equal Parenting) has the solution. At the same time, you have an opportunity of helping us achieve that solution. This is by joining our party and/or voting for our party at the next Federal Election (has to be before 12 January 2017).

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