Essential Changes That We Require To Existing Laws

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The Non-Custodial Parents Party (Equal Parenting) supports the following important and necessary legislative reforms:-

1. Legislation is required for a Rebuttable Presumption of Equal-Time, Shared Parenting.

2. Providing Parents with Individual Rights. 

3. Restoration of Individual Privacy.

4. Remove the Unnecessary Link Between Family Tax Benefit Payments and Child Support.

5. Reduce Court Secrecy and Increase Accountability of the Family Courts.

6. Increase the Accountability of the Child Support Programme Senior Case Officers.

7. Remove the Lack of Transparency in the Current Reporting and Legislative Practices.

8. Prevention of the Wrongful Use of Tax File Numbers.

Details are provided below:-

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1. Legislation is required for a Rebuttable Presumption of Equal-Time, Shared Parenting.

We support legislation to provide for the rebuttable presumption of equal-time, shared parenting. That is, 50:50 joint custody is to be the first option when considering where the children of separated families are to reside.

Children need both parents when parents divorce/separate.

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

Our Politicians did not even allow the Bill to be even debated in the Senate, let alone voted upon. Sadly, the Bill then lapsed due to time constraints (our understanding is that the politicians were not even going to allow the Bill to be debated in any case).

We would support the Family Law Amendment Joint Residency Bill 2002 if the bill was re-tabled.

The House of Representatives Standing Committee on Family and Community Affairs then conducted a series of hearings on custody in 2003. The Committee released its report into child custody on 29 December 2003. The report was titled “Every Picture Tells a Story.

The key reason for the Inquiry was whether or not to recommend a rebuttable presumption of equal-time, shared parenting. However the Standing Committee only recomended that courts consider equal time, shared parenting.

As a result of the recommendation, some minor amendments were made to the Family Law Act 1975 in 2006. This included the requirement for the courts to consider equal time, shared parenting. However very often we have found that even this “consideration” requirement was often only given lip service or ignored by the Family Court and the Federal Circuit Court.

The legislative changes that were made were too weak. We need to have equal-time shared parenting as the starting point.

Therefore we need child-friendly legislation such as the then Senator Harris Family Law Amendment Joint Residency Bill 2002 to be re-tabled and adopted.

The current family violence legislation is unfortunately based on unfounded allegations (no one condones proven family violence).was formally passed by the Senate on 22 November 2011 and by the House of Representatives on 24 November 2011 

The Family Law Amendment (Family Violence and Other Measures) Act 2011 (Act no. 189 of 2011) came into effect on 7 June 2012. The Act significantly undermines attempts at children being able to see both parents after separation.

In fact, this legislation has pushed the 2006 “consideration” of equal-time shared parenting changes out to now being “a secondary consideration” – after alleged family violence.

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2. Providing Parents with Individual Rights.

We support the replacement of the word “paramount” with the word “primary”. This is with regard to the “best interests” principle in Part VII of the Family Law Act 1975.

The lack of parental rights and the rights of other relatives is a key problem in family law. Until this is recognized and corrected, we will continue to have our family law problems. This is regardless of any other legislative changes that are made.

Part VII of the Family Law Act 1975 states in various locations (Section 60CASection 65AA, etc) that:

a court must regard the best interests of the child as a paramount consideration”.

Australia is one of the 160 countries that signed the United Nation’s Convention on the Rights of the Child in 1989. Article 3 of the UN Convention states that the best interests of the child shall be a primary consideration.

Prior to 1995 the Family Law Act had said that the “welfare of the child shall be a paramount consideration”. During legislative changes made in 1995, our legislators only adopted the words “best interests” from Article 3 of the United Nations Convention. However the word “primary” was unfortunately not similarly adopted.

The difference in the words “paramount” and “primary” is important. At present the best interests of the children are paramount – that is, they are determinative.

With the inclusion of the word “primary”, parents and other relatives would have had rights in family law proceedings involving children. Under the current legislation, only the children have rights; parents and other relatives have no rights whatsoever.

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3. Restoration of Individual Privacy.

We support the repealing of Section 16C of the Child Support (Registration and Collection) Act 1988 and Section 150D of the Child Support (Assessment) Act 1989.

Privacy should be a vital concern for everyone in our community.

The Tax File Number (TFN) system has been allowed to become a child support identification system. This is a similar identification system to that proposed in the failed Australia Card Bill 1986.

Section 16C of the Child Support (Registration and Collection) Act 1988 and Section 150D of the Child Support (Assessment) Act 1989 allows the Child Support Agency (CSA) to access our TFN without our permission. Our basic right of privacy has been removed by the CSA.

The TFN should not be used on CSA matters/correspondence and not for telephone enquiries to the CSA. When the Australia Card Bill 1986 ultimately failed to pass Parliament for the third time in 1988, the then Labor Government introduced the TFN system.

On 1 September 1988, the Treasurer Paul Keating presented the Taxation Laws Amendment Bill (Tax File Numbers) 1988 to Parliament.

During the second reading speech, Paul Keating said in Parliament that:

There will be no requirement on people to produce a card or any other evidence of their tax file number. No other government or non-government agency will have access to the Tax Office file number registration system, nor will it be able to use an individual’s tax file number for any registration system of its own.

This has not occurred with regard to the Child Support Agency (and some other Government agencies).

In your first contact with the CSA, you are asked to provide your TFN. The following legislation states should you refuse, then the CSA is allowed to obtain your TFN directly from the Australian Taxation Office. 99.9 per cent of all CSA employees have this authority (only four (4) level 1 employees out of an approximate total 4,000 CSA employees do not have this authority!)

The procedure is set out in Chapter 6.3 “proof, secrecy and proof of identity” of the CSA’s publication called “The Guide”.

Chapter 6.3 states that:

The CSA is authorised to:

  • Request but not compel, a person to provide their TFN (Section 16(B) of the Child Support (Registration and Collection) Act 1988 and Section 150(B) of the Child Support (Assessment) Act 1989).

  • Require the ATO to provide information the ATO possesses about people, including TFN’s (Section 16C(1) of the Child Support (Registration and Collection) Act 1988 and Section 150D(1) of the Child Support (Assessment) Act 1989).
  • Use that information to: identify a person; decide whether a [person can apply for a child support assessment; make or amend a child support assessment; and decide whether a terminating event has happened (Section 150D(2) of the Child Support (Assessment) Act 1989).
  • Use that information to identify a person; and register and collect child support payments (Section 16C(2) of the Child Support (Registration and Collection) Act 1988.

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4. Remove the Unnecessary Link Between Family Tax Benefit Payments and Child Support.

We support the removal of the Reasonable Action Test. This is by repealing both Section 151A of the Child Support (Assessment) Act 1989 and Clause 10 of Schedule 1 of A New Tax System (Family Assistance) Act 1999.

In order to continue to receive more than the minimum Family Tax Benefits, the custodial parent1/payee is required to undertake what is called the Reasonable Action Test. This “test” requires the custodial parent to tick the box to register with the Child Support Agency.

The Reasonable Action Test promotes conflict between the payee and the payer. If the CSA decides that “reasonable action” has not been taken, then only the minimum Family Tax Benefit Part A allowance is paid to the payee. This is to the custodial parent.

Therefore child support is linked to the payment of Family Benefit Part A. Parents are effectively forced into the Child Support Scheme3.

However there is little financial benefit to either the Government or the payee with this linkage. The Government’s “savings” are soaked up in the running of the Child Support Agency. At the same, the payee can lose up to 50 per cent of the Family Tax Benefit Part A payment through “Clawback

The Department of Families, Housing, Community Services and Indigenous Affairs (FACHSIA) in their “Annual Report 2000-01” provided the following definition of “Clawback”: –

“Clawback” is a measure of the savings in Family Tax Benefit that can be attributed to the operation of the Child Support Scheme. In other words, it measures the payments that Centrelink would have been required to make to resident parents if they had not been in receipt of child support payments from the non-resident parent. The Clawback arising from reductions in Family Tax Benefit outlays was $380.4 million in 2001.

The Government has changed the “Reasonable Action Test” over a number of years. The requirement to take reasonable action was previously set out in section 1069-K3 of the Social Security Act 1991. The changes that have taken place to section 1069-K3 are provided below:

  • From 20 September 1990 to 31 December 1992, the requirement to take reasonable action applied to recipients of a number of payments.
  • Between 1 January 1993 and 19 March 1998, the reasonable action test applied only to recipients of Sole Parent Pension and Family Allowance.
  • From 20 March 1998, the requirement to take reasonable action applies only to those who are seeking payment of Family Allowance at more than the minimum rate, including component and supplementary payments the rate of which would be affected by maintenance income.

In 1999, the provisions for the Reasonable Action Test were transferred to a new act called A New Tax System (Family Assistance) Act 1999. As a result, section 1063-K3 was deleted from the Social Security Act 1991.

Section 151A of the Child Support (Assessment) Act 1989 now states that the payment of Family Allowance is determined by applying Clause 10 of Schedule 1 of A New Tax System (Family Assistance) Act 1999.

Despite all of these changes, there is still the forced requirement for separated parents to belong to the Child Support Scheme.

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Notes

Ninety three (93) per cent of all custodial parents are registered in the Child Support Scheme (Census statistics and ABS 3310.0).

The Family Tax Benefit Part A payments was formerly called Family Allowance payments and sometime prior to that Child Endowment payments.

Do Constitutional issues arise? – Is the Child Support Scheme a form of Civil Conscription and therefore unconstitutional under Section 51 (xxiiiA) of the Australian Constitution? Is child support review decisions an acquisition of property on unjust terms and therefore also unconstitutional of Section 51 (xxxi) of the Australian Constitution? These questions have not been asked our courts, as yet.

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5. Reduce Court Secrecy and Increase Accountability of the Family Court.

We support amendments to Section 121 similar to that which exists in the equivalent UK legislation.

Publication of family law proceedings in the press will increase the accountability of our courts and tribunals.

Section 121 restricts publication of any proceedings conducted under the Family Law Act 1975. This section states that it is an offence to publish any proceedings under the Family Law Act 1975. Anyone who is convicted of the offence can be imprisoned for a period not exceeding one year

Prior to the introduction of the Family Law Act and Section 121 in 1975, family law proceedings in Australia always made for good press coverage. There were some controversies with some publications.

It is appreciated that some restrictions are required. However, there is no justification for a complete press “blackout”. Publication of court cases can occur without providing undue duress to the participants.

Section 69 of the UK Magistrates Court Act 1980 states that family law proceedings are open to the press, but are closed to the general public.

Whilst allowing for publication by the press, Section 71 of the UK Magistrates Court Act 1980 sets out certain restrictions.

Section 71 states that:-

It shall not be lawful to print or publish, or cause to be printed or published, in relation to any judicial proceedings for divorce or family-related matter any particulars other than the following:

(i)         The names, addresses and occupations of the parties and witnesses.

(ii)       The grounds of the application and a concise statement of the charges, defences and counter-charges in support of which evidence is given.

(iii)    Submissions on any point of law arising in the course of the proceedings and the decision of the court thereon

(iv)     The decision of the court and any observations made by the court in giving it.

Section 71 is then subject to some further restrictions provided in Section 97 of the UK Children Act 1989.

In summary, Section 97 states that:-

No person shall publish any material which is intended, or likely, to identify:

–   any child as being involved in such proceedings, or

–   an address or school as being tat of a child involved in such proceedings.

We support the wording of the above UK legislation.

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6. Increase the Accountability of the Child Support Programme Senior Case Officers.

We support the removal of paragraph (s) from Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977.

A decision to increase an administrative assessment is often based simply on the Senior Case Officer’s perception of what the liable parent (and sometimes the carer) should be earning

The decision made by CSA Senior Case Officers is specifically excluded from judicial review under paragraph (s) of Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977  – (the “ADJR ” Act).

The ADJR Act is appropriate legislation to review the performance of Commonwealth officers such as CSA Senior Case Officers. However Paragraph (s) of this Act shuts this avenue out.

Since 1 January 2007, the Social Security Appeals Tribunal (SSAT) can review these types of decisions. However a further issue has arisen. The participants at the Tribunal are sworn to secrecy. At the same time, the decisions of the SSAT are not published.

As a result, the secrecy provisions of the SSAT shield the performance of the original decision-maker, i.e. the CSA Senior Case Officer. The Senior Case Officer is a Commonwealth officer. As such, he or she should be accountable for their actions.

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7. Remove the Lack of Transparency the Current Reporting and Legislative Practices.

We support a thorough and independent overview of the Family Law and Child Support reports and Bills, which go to Parliament.

We are concerned with the lack of transparency in the preparation and passing of the legislation through Parliament.

The Family Payments and Child Support Branch is responsible for providing the Government reports on child support. They are then responsible for drafting much of the proposed legislation that is presented to Parliament. They are then responsible for the later reporting on the outcome of the changes that they have initiated.

The Family Payments and Child Support Branch is part of the  Families Group of the Department of Families, Housing, Community Services and Indigenous Affairs (FAHCSIA)

This is a serious concern at the lack of transparency in this overall process.

(note The Child Support Agency is not part of FAHCSIA but rather an agency within the Department of Human Services).

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8. Wrongful Use of Tax File Numbers (against Non-Custodial Parents).

The Child Support Agency, through their previous link to the Australian Tax Office, has direct access to your tax file numbers and tax details. Other organisations in the same department, such as Centrelink, Medicare and the Commonweath Rehabilitation Services, are restricted from having the same access.

In 2001, amendments in Schedule 5 to the Child Support Legislation Amendment Act 2001 (Act No. 75) repealed section 8WD of the Taxation Administration Act 1953. This  consequently removed the Tax Commissioner from holding the Office of Child Support Registrar.

Schedule 2 inserted sub-paragraph (ga) into s 202 of the Income Tax Administration Act 1936. This then inserted TFN enabling provisions into child support legislation. This was identical to those in social security legislation. It placed the Child Support Registrar in the same position as all other lawful TFN recipients. This is  where they can only obtain a TFN by requesting it from the person that the TFN was issued to.

However the Child Support Agency has “misunderstood” these changes. They have retained access to the ATO database as if section 8WD remained in effect and that the Tax Commissioner still held the Office of Child Support Registrar (which is incorrect).

We would hold the Child Support Agency to account for their actions.

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Additional links:-

A PDF copy of the above NCPP(EP) Essential Changes to the Existing Laws Policy can be found by clicking here.

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