Child support and family violence

Conceptual framework

9.45 In the child support context, family violence may have an impact in a number of ways. A parent who has experienced family violence may fear continued interaction with the other parent and avoid all occasions of contact or opportunity for continuing control. This may influence their participation in the child support scheme—prompting decisions to, for example, not seek child support, end child support, change collection methods, or accept insufficient child support. Further, CSA-initiated actions may endanger victims by inflaming conflicts and opening possibilities for pressure and coercion.

9.46 As noted in Chapter 2, this Inquiry’s overarching objective is to increase safety by improving legal frameworks. This goal complements the CSA’s existing aim of ‘avoid[ing] actions which could contribute to family violence’, as set out in the Child Support Guide.^[39] The ALRC’s proposed reforms aim to increase the CSA’s ability to fulfil its current policy goal.

9.47 The primary way in which the current system accounts for family violence is by exempting individuals from the reasonable maintenance action requirement (that is, allowing them to receive the full amount of FTB Part A, even though they have not applied for child support). This ensures that a victim of family violence does not have to interact with the person who has used violence regarding child support issues, which can be critical in ensuring the victim’s safety. The ALRC’s proposed reforms should make exemptions more accessible, by ensuring that CSA customers are aware of them, and increasing the likelihood that the CSA or Centrelink will identify persons eligible for them.

9.48 Alongside measures to improve the accessibility of exemptions, the ALRC seeks to enhance the overall accessibility of the child support scheme for victims of family violence. Even though victims may be safer when they obtain an exemption, they may still receive less overall income than if they received child support payments. Generally, family violence contributes to ongoing poverty for victims, and the lack of child support may compound this financial disadvantage.^[40] As noted in relation to social security in Chapter 5, safety refers not only to physical safety from harm, but also to financial security and independence.

9.49 Consequently, the ALRC considers that, along with improved access to exemptions, there must also be efforts to increase the ability of family violence victims to obtain child support if they choose to do so. The ALRC’s proposals aim, therefore, to ensure appropriate agency involvement to improve the safety of victims who participate in the child support scheme. This approach also serves the underpinning policy of the child support scheme, by facilitating the principal object that children receive proper financial support from both parents.

9.50 An important aspect of this goal is appropriate case-management of child support cases involving family violence. Many proposals regarding case-management are set out in Chapter 4, including a key proposal to give customers full and accurate information about how family violence affects the administration of child support cases. This should enable customers to make informed decisions about whether it is safe to apply for child support, and increase awareness of resources that can improve their safety should they do so, such as, for example, CSA collection of child support. Other key proposals in improving case-management are those regarding screening, staff training and interagency information-sharing.

9.51 Equally important are this chapter’s proposed reforms about consulting victims prior to CSA-initiated actions. Victims of family violence are likely best able to understand whether certain actions will place them at risk. The ALRC considers that the CSA should seek input from those experiencing family violence or who have safety concerns arising from family violence—and consider their concerns—prior to initiating such actions.

9.52 The overall effect of these proposed reforms should also minimise opportunities for coercion and other forms of family violence in the child support context—including as a result of minimising CSA-initiated actions which may ignite conflict and trigger coercion.

9.53 These proposals also contribute to self-agency—a theme of this Inquiry—by empowering and enabling victims of family violence to make informed choices about participation in the child support scheme, and to contribute to decisions that affect their safety. The proposals also promote a seamless and effective approach by the CSA, Centrelink and the FAO, in particular, through responsive case-management and interagency information-sharing.

Case-management approach

9.54 The child support scheme primarily adopts a case-management approach to family violence, rather than an outcome-based approach, as in the family law system. In other words, family violence in the child support context generally affects the administration of cases, rather than decisions about parties’ rights and entitlements.

9.55 A case-management approach to family violence should not affect the rights of the party who is alleged to have used family violence, as the context is not a forensic one. Where family violence is disclosed, cases should be managed to address potential safety risks—a response that should not affect the rights and entitlements of the person alleged to have used family violence.

9.56 The case-management response to family violence in the child support scheme has notable consequences. In the routine administration of child support cases, CSA staff should not be required to make judgements about whether family violence disclosures are true. The non-judgemental approach to family violence reflects existing policy, as described in the Common Module—Family Violence, which provides that staff dealing with customers experiencing family violence should:

•  Adopt a non judgemental approach and actively listen to the customer.
• Respect the customer’s perception of their situation, without asking probing questions on their specific involvement in family violence.
• Prioritise the customer’s child support issues and offer appropriate referral services to assist them with matters that cannot be resolved by the [CSA].^[41]

 

9.57 Where the rights of the person alleged to have used family violence are not affected by family violence disclosures in the child support context, verification requirements should not be onerous. A case-management response that minimises risk should be accessible to victims and should not require high levels of proof, such as findings or orders in state and territory family violence jurisdictions.

9.58 The ALRC considers that this approach provides administrative answers to family violence. Such an approach should minimise opportunities for coercion, or other forms of family violence, in the child support context—including by minimising CSA-initiated actions which may ignite conflict and trigger coercion.

Targeting proposals: legislation, policy and procedure

9.59 The ALRC considers that there is a need for transparency, consistency and accountability in the way the CSA administers cases involving family violence. Consequently, where changes to CSA procedures are considered, proposed reforms are aimed at the Child Support Guide rather than the CSA’s electronic Procedural Instructions, because they are not publicly available. Similarly, proposed reforms to family assistance procedure are aimed at the Family Assistance Guide, rather than the Centrelink e-Reference.

9.60 The ALRC considers that including procedural information in the guidesmay promote awareness regarding the ways family violence is relevant to the management of child support cases, and the purpose for family violence screening and CSA identification of customers who may be at risk.