Informal carers

Background

10.88 Generally, parents and legal guardians are eligible for child support if they provide at least 35 % of care (‘shared care’) for a child. For legal guardians who are not parents, the CSA will rely on a court order providing that a child is to live with a non-parent carer^[105] to determine whether the carer is eligible for child support. This rule applies to family law orders, and state and territory child protection orders where the carer is a relative of the child.^[106]

10.89 However, different rules apply to the child support eligibility of carers who are neither the child’s parents nor their legal guardians. This Discussion Paper refers to non-parent carers and non-legal guardian carers as ‘informal carers’. This terminology is used within the family assistance framework,^[107] although this term has slightly different meanings across different contexts.

10.90 Informal carers are usually relatives, and most commonly grandparents.^[108] Indigenous children may live in informal kinship care arrangements,^[109] and most studies ‘indicate that the majority of informal kinship carers are grandparents’.^[110] Other informal kinship carers may be aunts, uncles, older siblings and unrelated friends.^[111]

10.91 The Australian Bureau of Statistics notes that, in 2009–2010, there were 16,000 Australian families in which grandparents were raising children 17 years and younger.^[112] However, the number of non-parent carers in the child support scheme is relatively small: in December 2010 there were approximately 3,900 non-parent carers out of around 1,330,500 payers and payees in the scheme at that time.^[113]

10.92 There are a number of reasons why children may be in their grandparents’ care, including: family violence;^[114] drug or alcohol misuse;^[115] child abuse or neglect;^[116] incarceration or death of a parent;^[117] and problems arising from mental or physical illness or intellectual disability.^[118] In some instances, several of these factors may be interrelated. Consequently, some children in informal care are particularly vulnerable, and may ‘exhibit a range of traumatised behaviour problems’,^[119] or have health problems.^[120]

10.93 Where parents cannot care for their children, there are benefits to relatives such as grandparents caring for children. These benefits have been described as

reducing separation trauma, providing greater stability, preserving significant attachments, reinforcing cultural identity, and preserving the family unit.^[121]

10.94 However, caring for children has a significant impact on grandparents—including financially. Emma Baldock notes that this

puts stress on families who may already be on a low income. When grandparents take over the care of children they will have additional expenses—clothing, bedding, home modifications and perhaps even extensions.^[122]

10.95 Grandparents may spend their retirement savings and superannuation on raising their grandchildren, and may find their ‘employment and retirement plans thrown into chaos’.^[123] They may be forced to give up work to look after the children, or conversely, may need to keep working beyond their planned retirement date due to a lack of financial assistance from the government and the parents.^[124] Limited financial resources and high legal costs may impede them from obtaining court orders regarding children’s care arrangements.^[125]

10.96 Chapter 12 notes that grandparents may not apply for government benefits such as Family Tax Benefit for various reasons, including fears this will prompt the parents to reclaim their children, and fears of conflict and family violence. Grandparents may also be unaware of their entitlements.^[126] Further, grandparents may be wary of drawing attention or oversight to their care arrangements, and possibly triggering state and territory child protection agency involvement. Such concerns may stem from uncertainty regarding the outcome of state involvement—for example, they may worry that the children will be removed from their care.

10.97 If grandparents are deterred from claiming government benefits due to such considerations, they are likely also to be deterred from applying for child support against parents.

Informal carers’ child support eligibility

10.98 Where an informal carer cares for a child without the consent of the parent or legal guardian, that person is not an eligible carer for child support purposes, unless it is unreasonable for a parent or legal guardian to care for the child. Section 7B(3) of the Child Support (Assessment) Act provides that it is unreasonable for a parent or legal guardian to care for a child if the Registrar is satisfied that there is:

(a) ‘extreme family breakdown’; or

(b) ‘a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned’.

10.99 The Child Support Guide provides that the CSA will be satisfied that informal carers are eligible for child support when they establish that they have at least shared care of the child, unless the parent or legal guardian advises the CSA that they do not consent to the care arrangement.^[127] When a parent or legal guardian advises of non-consent, the CSA will investigate to determine whether the informal carer is an eligible carer. The Child Support Guide states that the legislation implies that ‘if the parent does not agree to the care arrangements they must be prepared to provide care for the child’.^[128]

10.100 The Child Support Guide provides further details about when the CSA will be satisfied that there has been extreme family breakdown or serious risk to the child’s wellbeing. In relation to extreme family breakdown, the Child Support Guide provides fairly broad criteria:

• the child has never lived with the parent; or

• there has been a substantial period since the parent has provided care for the child; or

• other circumstances indicate extreme family breakdown.^[129]

10.101 In relation to serious risk to a child’s wellbeing from violence or sexual abuse, the CSA will consider ‘the individual circumstances of each case, including any evidence provided’.^[130] It lists examples of evidence that may assist to substantiate a claim: police statements and reports; protection orders and applications for protection orders; and medical reports.^[131]

10.102 The Child Support Guide does not list neglect as an example of violence that may cause serious risk to a child, nor is it listed as a factor in determining ‘extreme family breakdown’. ^[132]

10.103 Prior to 2001, parent and legal guardian consent was not required for a child support assessment in favour of an informal carer. The limitation on non-parent carers’ child support eligibility was introduced by the Child Support Legislation Amendment Act 2001 (Cth). The Explanatory Memorandum expressed the following rationale for the change:

The child support scheme should not be seen to condone or assist the breakdown of families. Accordingly, this measure will generally provide that carers who are not parents or legal guardians of a child cannot be eligible carers, and therefore cannot get child support, if a parent or legal guardian has not consented to the arrangement. However, if it is unreasonable for the child to live at home because of extreme family breakdown or because of a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse at home, the carer can be an eligible carer.^[133]

Similarities in social security law and policy

10.104 The criteria for informal carer child support eligibility resemble the criteria to determine if a young person is ‘independent’ from his or her parents in social security legislation.^[134] As discussed above, child support legislation provides that an informal carer is eligible for child support when it is unreasonable for a parent or legal guardian to care for the child. Similarly, social security legislation provides that a young person may be considered independent when it is unreasonable for him or her to live at home.^[135] However, social security legislation and policy provides broader criteria for assessing unreasonable circumstances than does child support legislation and policy.

10.105 As discussed in Chapter 6, whether a person is independent affects social security payments, in particular Youth Allowance, Disability Support Pension and Pensioner Education Supplement. The Social Security Act 1991 (Cth)provides that it may be unreasonable for a person to live at home because:

• ‘of extreme family breakdown or other similar exceptional circumstances’;

• ‘it would be unreasonable to expect the person to do so as there would be a serious risk to his or her physical or mental well-being due to violence, sexual abuse or other similar [exceptional or unreasonable] circumstances’; ^[136] or

• because a parent or parents are unable to provide a suitable home due to ‘a lack of stable accommodation’.^[137]

10.106 In addition to a further legislative ground in the social security legislation, the inclusion of exceptional (or unreasonable) circumstances similar to both extreme family breakdown, and violence and sexual abuse, provide for more flexible criteria than that provided by s 7B of the Child Support (Assessment) Act. It is clear from the Guide to Social Security Law that the inclusion of the ‘similar exceptional [or unreasonable] circumstances’ clauses allows for consideration of a range of factors that may not be relevant to determinations regarding the child support eligibility of informal carers.

10.107 For example, the Guide to Social Security Law provides that examples of exceptional circumstances similar to extreme family breakdown include ‘severe neglect’, ‘criminal activity or substance abuse by the parents’, ‘extreme and abnormal demands’ on the young person, and refusal to permit the young person to work or study.^[138] It also provides that indicators of serious risk to a young person’s physical or mental wellbeing includes psychological abuse, in addition to physical and sexual abuse; and that a young person need not be the victim, but may live in a household where other members have been or are being abused.^[139]

10.108 The Guide to Social Security Law provides procedural details about how extreme family breakdown and serious risk are assessed. Assessments must include:

• ‘personal contact with the claimant, preferably a face-to-face interview’, and

• ‘parental contact’, where the parent is not alleged to be violent or abusive, and

• verification from a third party.^[140]

10.109 The Guide to Social Security Law also addresses social worker referrals in cases of child abuse or risk of abuse, and provides that contact should not be initiated with the person alleged to be abusive as this may put the young person at risk.^[141]

Requirement to apply against both parents

10.110 Section 25A of the Child Support (Assessment) Act provides that, in order to obtain child support, informal carers must apply for child support against both parents, unless there are ‘special circumstances’, or other circumstances, for example, one parent is dead or not living in Australia or a reciprocating jurisdiction.^[142] The Child Support Guide provides that ‘special circumstances’ may include ‘fear of violence’, and ‘harmful and disruptive effect’, amongst others.^[143] The requirement on informal carers to apply against both parents was introduced in 2006.^[144]

10.111 It is unclear from the legislation, or the Child Support Guide,how the CSA deals with a child support application from an informal carer when only one parent consents to the care arrangement, or neither parent consents, and it is unreasonable for a child to live with only one parent.^[145]

Submissions and consultations

10.112 In the Child Support Issues Paper, the ALRC asked whether any changes are needed to improve access to child support payments for carers who are not parents and legal guardian, who care for children at risk of family violence.^[146] The ALRC also asked whether, in cases of family violence, the requirement that a child’s wellbeing be at ‘serious risk’ constitutes a barrier to child support for these carers, where parents or legal guardians do not consent to them providing care.^[147]

10.113 Stakeholders submitted that the limitation on informal carers’ child support eligibility is not justified, and that the legislative threshold of serious risk is a barrier to child support. Concerns were also raised about the general requirement on informal carers to apply for child support against both parents.

Limitation may not be justified and is unclear

10.114 The Ombudsman questioned the legislative limitation on informal carers’ entitlement to child support, suggesting that it may not be justified. The Ombudsman referred to the Explanatory Memorandum as indicating that the limitation is

a measure enacted to give a parent a veto right over a child being cared for by a non-parent carer in some circumstances, rather than one intended to ensure that the safety of a child would be paramount, or to ensure that a parent would continue to contribute to a child’s support irrespective of where the child resides. While it could be argued that this would reduce the incentive for a child to leave home against his or her parent’s (reasonable) wishes, it nevertheless means that a parent will not be required to contribute to the child’s support while the child lives elsewhere. This appears to be an exception to the principal object of the Child Support (Assessment) Act, which is to ensure that children receive a proper level of child support and the duty to provide this rests with their parents.^[148]

10.115 The Ombudsman also stated that it is confusing to have two sets of rules for determining child support eligibility—the rules regarding informal carers do not apply in the family assistance framework, so informal carers who are not entitled to child support may receive FTB for a child. The Ombudsman questioned whether this is an ‘unintended policy outcome’.^[149]

Child support accessibility for non-parent carers

10.116 Several stakeholders commented that the legislative threshold of serious risk to wellbeing is a barrier to child support for informal carers.^[150] For example, National Legal Aid stated that the requirements of ‘serious’ risk and ‘extreme’ family breakdown may present ‘too high a barrier’ to child support for informal carers, leaving them ‘the very challenging option of either withdrawing their support for the child or suffering financial hardship’.^[151]

10.117 The Sole Parents’ Union stated that this is an ‘extremely contentious’ area and reported parents’ feedback that, in some situations, informal carers care for a child ‘without their permission, in circumstances where the child is not at risk of violence or abuse’. Nonetheless it stated that ‘as child support is for care of children’, informal carers should have easier access to child support.^[152]

10.118 National Legal Aid suggested that Centrelink social workers should assess each case on its circumstances, rather than on the basis of ‘serious risk’ or ‘extreme family breakdown’.^[153] It also suggested that the CSA should refer non-parent carers for legal advice, ‘to ensure that they and the children in their care are adequately protected from family violence (eg by way of personal protection order) and are receiving financial support which is adequate as far as possible’. ^[154]

10.119 The Law Council presented an alternative view. It argued against a change to the legislation, and submitted that where the parent or guardian does not provide consent, non-parent carers should be required to apply for court orders.^[155]

Similarities in social security legislation and policy

10.120 The Ombudsman drew attention to the ‘strong similarities’ between the non-parent carer limitation and the comparatively wider criteria under social security laws and policy for assessing when it is unreasonable for a young person to live with one or both their parents. The Ombudsman stated that

if the ALRC considers the non-parent carer limitation is justified, we consider there would be considerable value in aligning the circumstances when it would be considered unreasonable for a child to live with a parent for both youth allowance and child support. In particular, we note that neglect has been recognised as one of the most serious threats to a child’s long term well-being.^[156]

Requirement to apply against both parents

10.121 The Ombudsman stated that prior to the introduction of the requirement to apply for child support against both parents, an informal carer ‘could choose to apply only against the parent who consented to the care arrangement; or a parent who did not consent, but with whom it was nevertheless unreasonable for a child to live’. The Ombudsman further stated that since the introduction of this requirement, it is unclear in cases where neither parent consents, or it is unreasonable for a child to live with only one parent,

whether the CSA would make an assessment against both parents; refuse the application against both parents; or make an assessment against only the parent with whom it is unreasonable for the child to live. The CSA has undertaken to discuss this problem with FaHCSIA.^[157]

ALRC’s views

Repealing the informal carers eligibility limitation

10.122 The limitation on child support eligibility for informal carers appears inconsistent with the principal object of the Child Support (Assessment) Act, which provides that children should receive a proper level of financial support from their parents.^[158] The limitation is also arguably inconsistent with other objects, including that carers should have levels of financial support for children ‘readily determined without the need for court proceedings’.^[159]

10.123 The limitation on child support eligibility for informal carers may be generally undesirable, given that evidence suggests that informal care is usually provided for by relatives—grandparents in particular—and that, when parental care breaks down, children significantly benefit by being raised by relatives. The ALRC is concerned that this limitation may disadvantage children who have experienced child abuse, neglect and family violence in their parents’ home.

10.124 The limitation affects informal carers who care for these children. Informal carers may already face financial disadvantage, caused or compounded by unplanned-for child-raising—particularly where children have special needs as a result of trauma. Child support ineligibility may further disadvantage these carers. Obtaining family law orders to address ineligibility may be difficult, given the financial burden informal carers may face.

10.125 The ALRC is interested in hearing from stakeholders if the limitation on the child support eligibility of informal carers should be removed.

Alternatives to repealing the informal carers eligibility limitation

Changes to s 7(3)(b) of the Child Support (Assessment) Act

10.126 If the limitation remains, the legislative criteria in s 7B of the Child Support (Assessment) Act require amendment. The threshold provided by the s 7B criteria—in the absence of parent or legal guardian consent to the care or ‘extreme family breakdown’—is inappropriately high. Further, unlike comparable social security legislation, s 7B does not include phrases that enable consideration of exceptional or unreasonable circumstances similar to those listed. The social security legislation allows for a more flexible policy approach, catching a broad range of circumstances, as demonstrated by the Guide to Social Security Law.

10.127 In the ALRC’s view, the term ‘violence’ should be replaced by ‘family violence’ in s 7B(3)(b). Proposal 3–2, which sets out a definition of family violence for child support legislation, complements this approach. ‘Family violence’captures a wider range of conduct than ‘violence’, insofar as that conduct is violent, threatening, controlling, coercive or engenders fear. Examples of conduct contained in the family violence definition that may not be caught by ‘violence’ include psychological or emotional abuse, deprivation of liberty, and exposing a child to family violence.

10.128 Child abuse and neglect are not expressly included in s 7(3)(b). The provision currently takes into account physical abuse of a child—caught by ‘violence’—and sexual abuse. This section is too limited, and should be amended to include child abuse and neglect.

10.129 For an informal carer to be eligible for child support on the basis of violence or sexual abuse in the parents’ or legal guardians’ home, the CSA must also be satisfied that this puts a child’s wellbeing at risk of seriousharm. This requires judgment as to whether there is risk of harm, and whether such a risk is serious. The ALRC considers that the requirement for such judgment is inappropriate and implies that child abuse, family violence and neglect may not harm children’s physical or mental wellbeing in some cases.

10.130 In the ALRC’s view, the very fact, or risk, of child abuse, family violence and neglect, should trigger child support eligibility for the child’s new carers, without the need to prove that such conduct had a certain effect on the child.

Assessing unreasonable circumstances

10.131 The ALRC considers that the Child Support Guide should provide more guidance for assessing when it is unreasonable for a child to live with his or her parents. The Guide to Social Security Law provides substantially more information than the Child Support Guide. Describing applicable procedures in the Child Support Guide would increase clarity, transparency and accountability, and improve the safety of victims of family violence and their informal carers.

10.132 Given the nature and effects of decisions about whether it is unreasonable for a child to live at home, and the importance of conducting assessments safely and appropriately, the ALRC considers that a Centrelink social worker should conduct the assessment and make a recommendation, and a senior CSA officer should make a decision having regard to the recommendation. The ALRC also considers that the Child Support Guide should provide guidelines for conducting assessments similar to those contained in the Guide to Social Security Law.

Screening for family violence

10.133 An application for child support by an informal carer may be the first time that such a change comes to an agency’s attention, and may therefore be the event that triggers screening. Family violence screening at this point, as provided for in Proposal 4–2, would facilitate referrals to appropriate support services.^[160]

Requirement to apply against both parents

10.134 The ALRC is interested in comment about whether—if the limitation on informal carers’ child support is maintained—the Child Support Guide should provide further guidance on how s 7B(2)–(3)and s 25A(b)(i) of the Child Support (Assessment) Act should interact in practice. That is, should the Child Support Guide provide how the CSA should respond to an application for child support from informal carers when:

• only one parent consents to the care arrangements; or

• neither parent consents to the care arrangements and it is unreasonable for a child to live with only one parent.

10.135 This information may provide informal carers clarity and certainty in cases of family violence, assisting them to give proper consideration as to whether they should claim ‘special circumstances’.