Child support

The child support scheme

11.2 The child support scheme was established in 1988 to enforce children’s rights to be supported by both their parents.^[1] Before this, parents could obtain child support only through agreements or court orders. The legislative basis of the scheme is the Child Support (Registration and Collection) Act 1988 (Cth)and the Child Support (Assessment) Act 1989 (Cth).

11.3 The Department of Human Services (DHS) administers child support legislation through its Child Support Program, which was fully integrated into DHS on 31 October 2011.^[2] In its interface with customers and the public, DHS uses the terminology ‘the Child Support Agency’ (CSA) to refer to the Child Support Program, and for accessibility, the ALRC also adopts this terminology.^[3] The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) develops, implements and monitors child support policy.^[4]

11.4 Both parents of a child may apply for child support and, in certain circumstances, non-parent carers may also be eligible for child support.^[5] The CSA uses a legislative formula to assess how much child support a parent should pay. The assessment takes into account both parents’ income, the care arrangements, and the number of dependent children, including children from other relationships.^[6] Payees may choose to collect child support privately, or for the CSA to collect and transfer child support payments on their behalf.^[7]

Legislative interactions

11.5 The child support scheme interacts with the family law and family assistance systems. By way of summary, in relation to the interaction with family law, parenting arrangements are the basis of a person’s child support eligibility or liability, and also affect the amount of the child support assessment. In this way, child support law governs the child support consequences of decisions made in the family law context. It is the family law system—not the child support system—which is set up to address family violence issues in the resolution of disputes between parents about parenting arrangements.^[8]

11.6 The child support scheme also interacts with the primary family assistance payment, Family Tax Benefit (FTB) Part A,^[9] at two major points. The first is the ‘reasonable maintenance action’ requirement in family assistance legislation, which obliges eligible parents to apply for, and collect—or elect for the CSA to collect—child support. The second is an alignment in the legislative schemes regarding the ‘percentage of care’—a component of both child support and family assistance calculations. The reasonable maintenance action test and the percentage of care are described below.

Alternatives to child support assessments

11.7 Child support agreements registered with the CSA are an alternative to child support assessments by the CSA. As with an assessment, payees may choose to collect child support privately or though the CSA. Another alternative to a child support assessment, where payees receive not more than the base rate of FTB Part A, is ‘self-administration’ of child support.^[10] This refers to a private arrangement between parents that does not involve the CSA.

11.8 In Family Violence and Commonwealth Laws,Discussion Paper 76 (2011) (Discussion Paper), the ALRC examined child support agreements and self-administration of child support in some detail.^[11] In summary, the ALRC is of the view that legislative safeguards applicable to child support agreements appear adequate to protect family violence victims against financial exploitation.^[12] However, self-administration of child support is likely to be unsuitable in many cases where family violence is present. Family violence victims may collect less child support than they are entitled to, or no child support at all, due to fear, pressure or coercion. Private arrangements may also provide a platform for continuing control or abuse.^[13]