Legal and policy framework

Objectives of the child support scheme

9.25 Associate Professor Bruce Smyth has described the policy ‘backbone’ of the child support scheme:

The Scheme was designed to ensure that: (a) children of separated or divorced parents receive adequate financial support; (b) both parents contribute to the cost of supporting their children according to their respective capacities to do so; and (c) government expenditure is restricted to the minimum necessary to attain these objectives. The design of the Scheme also seeks to avoid work disincentives for parents, and to be ‘simple, flexible, efficient’ and non-intrusive in its operation.^[16]

9.26 Some of these design aims are reflected in the child support legislation. The object provisions in the two Acts differ. The Child Support (Assessment) Act identifies its principal object as ensuring ‘that children receive a proper level of financial support from their parents’.^[17] The Act also lists particular objects non-exhaustively, including that:

• the amount of child support provided by parents is determined
• ‘according to their capacity’, and
• ‘in accordance with the costs of children’;
• carers are able to have the amount of child support ‘readily determined without the need to resort to court proceedings’; and
• children ‘share in changes in the standard of living of both their parents, whether or not they are living with both or either of them’.^[18]

9.27 The Child Support (Registration and Collection) Act identifies two ‘principal objects’, which are that:

• ‘children receive from their parents the financial support that the parents are liable to provide’, and
• periodic amounts of child support are paid on ‘a regular and timely basis’.^[19]

9.28 Both Acts state that Australia should be positioned to give effect to its international obligations.^[20] The objects of the Acts do not refer to family violence. However, the Child Support Guide states that the

CSA operates in a sensitive environment and must avoid, as far as possible, actions which could contribute to family violence.^[21]

9.29 Mr David Richmond, in the report Delivering Quality Outcomes: Report of the Review of Decision Making and Quality Assurance Processes of the Child Support Program (the Richmond Review), noted that the philosophy of the CSA has changed, in particular over the period 2006–2009:

The Program has shifted from one focused primarily on collection and transfer of child support for the benefit of children, to a more holistic approach aimed at not only ensuring the financial support for children in separated families but to supporting separated parents to receive emotional, financial and legal assistance to enable them to meet the emotional and financial needs of their children.^[22]

Child support interactions

Family assistance

9.30 Child support cannot be discussed in isolation from family assistance. As the Ministerial Taskforce on Child Support (Ministerial Taskforce) remarked, the

operation of the Child Support Scheme cannot be fully understood without understanding its interaction with the income support system and payments to help families with the costs of children.^[23]

9.31 The key components of this relationship between child support legislation and family assistance legislation are necessary background for this chapter.^[24]

9.32 Persons eligible for child support who receive more than the base rate of the family assistance payment, FTB Part A, are generally required to apply for a child support assessment and to collect—or opt for CSA to collect—the full assessed amount of child support. This is known as the ‘reasonable maintenance action’ requirement. Exemptions are available, including in cases of family violence. Family violence exemptions are discussed in more detail in Chapter 11.

9.33 Another connection between child support and family assistance is the Maintenance Income test, which reflects that an individual’s FTB Part A calculation takes into account estimated child support income. Under this test, a person’s FTB Part A is reduced by fifty cents for every dollar of child support, above an exempted amount, until the base rate of FTB Part A is reached.^[25]

9.34 The Ministerial Taskforce noted that the reasonable maintenance action requirement and the maintenance income test

are central to the objective of limiting Commonwealth expenditure to the minimum necessary for ensuring that children’s needs are met, and shifting the primary responsibility of supporting children back to separated parents.^[26]

9.35 Centrelink administers family assistance payments on behalf of the Family Assistance Office (FAO). In this role, it ensures that persons eligible for more than the base rate of FTB Part A ‘take reasonable action to obtain child support’, and it adjusts the FTB payments of people receiving child support payments.^[27]

Family law

9.36 As noted above, the family law system, rather than the child support system, is set up to address family violence issues in regulating disputes about parenting arrangements. Child support legislation governs the child support consequences of arrangements made in the family law context.

9.37 Family violence is a significant factor in determining post-separation parenting arrangements under the Family Law Act. Parenting orders are based on the ‘best interests of the child’ above all other considerations.^[28] In determining a child’s best interests, the court must consider two ‘primary’ and 13 ‘additional’ considerations.^[29] The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[30]

9.38 Family violence is also addressed in the additional considerations: the court must consider any family violence involving the child or a member of his or her family, as well as relevant family violence protection orders.^[31] Further, when making a parenting order, a court must ensure that it does not expose a person to an unacceptable risk of family violence and is consistent with any protection order made under state and territory family violence legislation.^[32]

9.39 The consideration of family violence and parenting proceedings has been subject to active contemporary review: it has been considered in two 2009 reports and, to a more limited extent, in ALRC Report 114, Family Violence—A National Legal Response.^[33] At the time of writing this Discussion Paper, the Senate Legal and Constitutional Affairs Committee was considering the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011.

Policy and procedural resources

9.40 The CSA’s policy resource is The Guide: CSA’s Online Guide to the Administration of the New Child Support Scheme—referred to in this Discussion Paper as the Child Support Guide. CSA staff are expected to follow the Child Support Guide;^[34] and it is accessible to the public online. Policies and guides are not legally binding, but they are a relevant consideration for decision makers and may be taken into account in reviews of CSA decisions.^[35]

9.41 Procedural Instructions are step-by-step guides for CSA staff. They are internal, electronically controlled, and subject to ongoing updates.^[36] The following Procedural Instructions and CSA electronic resources have been provided to the ALRC: Update Customer and Assessment Information; Opting out and/or discharge arrears; Ending assessments; Change of Assessment; SSAT [Social Security Appeals Tribunal]; Security Incident Management; Capacity to Pay; and Common Module—Family Violence.^[37]

Other reviews

9.42 This Inquiry is one of a number of contemporary initiatives regarding child support and family violence. The CSA Family Project has been working on a family violence response since 2008, including:

• a consistent approach to family violence that is aligned with other agencies in the Human Services Portfolio
• consistent application of process and support for customers across all areas of Service Delivery
• improved support for customers through clear options and informed choice consistent with the Customer Service Principles
• improved education for staff including training to better understand family violence
• integration of processes to support customers into Procedural Instructions, the Guide and the development of a common module
• system support to identify customers where there are orders in relation to family violence, and
• improved referrals to services that can provide support – building on existing processes and enhanced web support for customers.^[38]

9.43 A report on family violence and the CSA was delivered by MyriaD Consulting in 2010: Final Evaluation Report in the CSA Family Violence Project. This report is not publicly available.

9.44 Other reports on the child support scheme mentioned in the Discussion Paper are the 2010 Richmond Review on CSA decision-making and quality-assurance processes, and the Ministerial Taskforce’s 2005 report, In the Best Interests of Children—Reforming the Child Support Scheme, which prompted fundamental reforms to the child support scheme.