Child support

Current definitions

3.31 Family violence is not defined in either the Child Support (Assessment) Act 1989 (Cth), or the Child Support (Registration and Collection) Act 1988 (Cth). The Child Support Guide contains a broad definition of family violence:

Family violence covers a broad range of controlling behaviours. They are commonly of a physical, sexual, and/or psychological nature, and typically involve fear, harm, intimidation and emotional deprivation. It occurs within a variety of close interpersonal relationships, such as between spouses, partners, parents and children, siblings, and in other relationships where significant others are not part of the physical household but are part of the family and/or are fulfilling the function of family.^[25]

3.32 The Child Support Guide also provides definitions for the following non-exhaustive list of behaviours that may be involved in family violence:

• physical abuse;
• sexual abuse;
• emotional abuse;
• verbal abuse;
• social abuse;
• economic abuse; and
• spiritual abuse.^[26]

3.33 As noted in Family Violence—A National Legal Response, provisions that affect the lives and safety of particularly vulnerable groups of society may be more appropriately placed in primary legislation.^[27] Therefore, it may be desirable for the definition of family violence to be provided in the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act, rather than solely in the Child Support Guide. Placing the definition of family violence in child support legislation may give the definition increased stability, visibility and authority.

3.34 It may also be desirable to include the common definition in other relevant Commonwealth laws that are within the reference—including family assistance legislation and social security legislation, discussed below. As noted above, consistent legislative definitions of family violence may foster a shared understanding across jurisdictions, courts and tribunals, and across agencies such as the Child Support Agency and Centrelink. Further, consistent definitions provide victims with clarity and the certainty that family violence will be recognised and treated similarly across Commonwealth laws.

Using the common definition

3.35 In Family Violence and Commonwealth Laws—Child Support and Family Assistance, ALRC Issues Paper 38, 2011, the ALRC asked whether the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) should be amended to insert a definition of family violence consistent with that recommended by the Australian Law Reform Commission and NSW Law Reform Commission in Family Violence—A National Legal Response.^[28]

Submissions and consultations

3.36 Stakeholders who responded to this question were overwhelmingly in favour of a consistent definition across the laws under consideration.^[29] National Legal Aid, for example, commented that:

The proposed definition reflects the broad range of behaviours that family violence encompasses. Definition/s of family violence should be consistent across jurisdictions. This will help to ensure as far as possible that people receive consistent responses and outcomes in relation to their interactions with the systems involved in family violence issues. Consistency in legislative definitions would also facilitate consistency in education/training methods in relation to family violence.^[30]

3.37 Including the proposed definition in the relevant legislation would ‘elevate and emphasise the importance of family violence considerations and resultant risk factors in child support matters’.^[31] The clear articulation of the definition in legislation would ‘provide clarity and transparency’ and create the ‘foundation from which policy, practices, processes and culture are formed and implemented’.^[32] A joint submission by Domestic Violence Victoria and others argued that:

building common understandings about the nature and dynamics of family violence across all organisations dealing with child support and family assistance issues is an essential first step. The development of consistent definitions, policies, screening tools, risk management guidelines and practice directions will enhance the safety of women and children experiencing family violence.^[33]

3.38 A consistent definition in the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act and the Child Support Guide would assist those experiencing family violence when engaging with different government agencies, particularly if is available, as advocated by the National Council of Single Mothers and their Children, ‘on all modes of communication including the Child Support Agency website and that it is then consistently used for all government agencies’.^[34] The Acting Commonwealth Ombudsman also submitted that:

Having a single consistently applied definition would potentially minimise the need for a person to retell their story and obtain different types of evidence for agencies they will commonly need to approach when experiencing or fleeing family violence, such as Centrelink and the CSA. Hopefully, it would lead to alignment of polices across relevant agencies, and reduce the likelihood of an anomalous situation where the same set of factual circumstances leads to recognition of violence by one agency, but not another.^[35]

3.39 The role of the definition with respect to drawing attention to the impact of family violence on children was also highlighted.^[36] Generating a more consistent and thorough understanding of the impact of family violence and fears for safety would improve the response of staff making decisions affecting victims. For example, the Council of Single Mothers and their Children (CSMC) said that women contacting the Council regularly describe a ‘lack of understanding of the impact on children of being exposed to family violence’:

All too often however CSMC has heard from women that the officers whose role is to assess exemptions etc from particular requirements are unaware of these provisions, or lacking a sympathetic response to disclosures of family violence. This compounds the situation where women decide not to pursue child support entitlements due to fear that this will further jeopardise their safety and that of their children.

It is imperative that information and definitions of family violence are clearly articulated in legislation and guides that decision makers refer to.^[37]

3.40 One stakeholder, however, was strongly against the inclusion of the definition in the child support context. The Non-Custodial Parents Party (Equal Parenting) did not support what it said was an ‘unreasonable broadening of the definition of family violence’, arguing that ‘unfounded allegations of family violence’ should not be ‘an acceptance criterion to establish a relationship between child support and family violence’.^[38]

3.41 While the ALRC asked about amending the Child Support (Assessment) Act and the Child Support (Registration and Collection) Actby the insertion of a definition consistent with that recommended in Family Violence—A National Legal Response, some stakeholders suggested a different location for the definition or changes to the proposed definition. The Law Council of Australia agreed that there should be a single definition, but submitted that it should be located in the Family Law Act 1975 (Cth), with ‘all other Commonwealth Acts pointing to that definition as necessary’:

This would mean that if a change to the definition is ever required, there is only one Act which needs to be amended. Similarly, having one definition ensures that different definitions of the same concept are not inadvertently created if one Act is changed and the other is overlooked.^[39]

3.42 With respect to the definition itself, National Legal Aid, for example, submitted that a small amendment should be added, namely:

the inclusion of a further subparagraph (j) threats to carry out the behaviours referred to in (a) – (h) above or to commit suicide or self harm. The wording of the proposed section does not include threats to an animal, but rather requires that the animal have been injured or killed for the definition of family violence to be met. In our family violence casework and advice experience ‘threats to harm’ to pets are common and have been effectively used to exercise control over victims.^[40]

3.43 The Commonwealth Ombudsman also commented with respect to the definition of family in the child support context:

any definition of family violence in the child support, family assistance and social security legislation would need to be broad enough to include violence involving persons connected by a variety of current and former ‘family’ relationships. To this end, we consider that the definition should acknowledge that ‘family violence’ may involve violence affecting parents and children, and other members of their former and current family units that are living separately and, indeed, may have never lived together. It may be necessary to separately define the term ‘family’, within the policy setting and context of the specific legislation.^[41]

ALRC’s views

3.44 The ALRC confirms its views expressed in Family Violence—A National Legal Response,that systemic benefits would flow from the adoption of a common interpretative framework, across different legislative schemes, promoting seamlessness and effectiveness in proceedings involving family violence for both victims and decision makers.

3.45 Consistency of definitions across the areas under consideration in this Inquiry promotes the seamlessness identified as a key framing principle. Such consistency can then underpin training and awareness in service delivery areas; and facilitate better coordination of responses to family violence, through appropriate information sharing and the improvement of pathways between agencies.

3.46 In the context of child support, the ALRC considers that the proposed common definition should be included in both the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth). Similarly, the Child Support Guide should also include the common definition. This is considered in Chapter 9.

3.47 While the ALRC considers that the suggestion by the Law Council for the definition to be included in the Family Law Act and that this be used as the reference point for other legislation has practical appeal in terms of ensuring that only one piece of legislation requires amendment, there is an educative function in having the definition in the relevant primary legislation for each area that may then inform policy documents, such as the guides, that are the principal tool for officers who have the task of implementing or working with the legislation, and associated training especially in service delivery areas.

3.48 In the context of the interactions under consideration in Family Violence—A National Legal Response, where over 26 legislative regimes were considered across civil and criminal law areas, this argument was perhaps stronger than in the Commonwealth arena. The ALRC also considers that achieving consistency is the principal aim, and that this can be achieved either by the approach of specific amendment to the relevant primary legislation or by amendment to one, with cross-references in the other. The Family Law Act is the central piece of legislation in the ‘family law system’ and child support may be considered to be part of that system. In this particular context, therefore—although not necessarily with respect to the other areas under consideration in this Inquiry—it is clearly one possible direction for reform. There are practical issues that remain, however, where cross-referencing itself becomes out of date, and explanations in policy material are no longer relevant.^[42] There is also the distinct educative role and value of placing the definition in the relevant primary legislation. This is the approach the ALRC favours in the proposals being advanced in this Discussion Paper.

3.49 In relation to the form of the definition, the ALRC considers it unnecessary to include a further category to the definition of family violence regarding threats to carry out the conduct listed as illustrations of family violence. Such threats are provided for in the category of emotional abuse contained in the proposed definition.

3.50 The ALRC also considers it unnecessary for the terms ‘family’ or ‘family relationships’ to be defined in the child support legislation. Defining relationships in which family violence can occur is an important component of state and territory family violence legislation. The defined relationships provide for, and restrict, eligibility for family violence protection orders. Only persons in certain categories of relationships may obtain such orders.

3.51 By contrast, and as discussed in Chapter 9, family violence in the child support framework does not, in and of itself, prompt an outcome which determines rights between parties. There is therefore not the same imperative to define the context in which family violence may occur. Indeed, defining family or family relationships may unnecessarily limit the application of a case-management response to family violence that promotes customer safety.