Informal carers

Child support eligibility

12.85 Child support legislation limits the child support eligibility of carers who are not parents or legal guardians (‘informal carers’).^[94] This limitation may be undesirable, and also potentially inconsistent with the objects set out in the child support legislation.^[95] The ALRC recommends that the Australian Government should consider repealing the limitation that applies to informal carers’ child support eligibility.

12.86 Generally, parents and legal guardians are eligible for child support if they provide at least 35 % of care (‘shared care’) for a child. For a legal guardian who is not a parent, the CSA will rely on a court order providing that a child is to live with a non-parent carer to determine whether the carer is eligible for child support.^[96] This rule applies to family law orders, and state and territory child protection orders where the carer is a relative of the child.^[97]

12.87 Pursuant to s 7B(2) of the Child Support (Assessment) Act, 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) states 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’.

12.88 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.^[98] 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’.^[99]

12.89 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 the following 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.^[100]

12.90 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’.^[101] 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.^[102]

12.91 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’.^[103]

The nature of informal care

12.92 Informal carers are usually relatives, and most commonly grandparents.^[104] Indigenous children may live in informal kinship care arrangements,^[105] and most studies ‘indicate that the majority of informal kinship carers are grandparents’.^[106] Other informal kinship carers may be aunts, uncles, older siblings and unrelated friends.^[107]

12.93 The Australian Bureau of Statistics (ABS) notes that, in 2009–2010, there were 16,000 Australian families in which grandparents were raising children 17 years and younger.^[108] 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.^[109]

12.94 There are a number of reasons why children may be in their grandparents’ care, including: family violence; drug or alcohol misuse; child abuse or neglect; incarceration or death of a parent; and problems arising from mental or physical illness or intellectual disability.^[110] 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’, or have health problems.^[111]

12.95 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’.^[112]

12.96 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.^[113]

12.97 Grandparents may spend their retirement savings and superannuation on raising their grandchildren, and may find their ‘employment and retirement plans thrown into chaos’.^[114] 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.^[115] Limited financial resources and high legal costs may impede them from obtaining court orders regarding children’s care arrangements.^[116]

The limitation may be unjustified and undesirable

12.98 The limitation on child support eligibility may disadvantage informal carers, and also 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.^[117] It is also arguably inconsistent with other objects of the Act, including that carers should have levels of financial support for children ‘readily determined without the need for court proceedings’.^[118] A recommendation to repeal the limitation is beyond the scope of this Inquiry. However, the ALRC recommends that the Australian Government consider such a repeal.

12.99 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.^[119]

12.100 The Commonwealth Ombudsman, referring to the Explanatory Memorandum, has suggested that the legislative limitation on informal carers’ entitlement is an exception to the principal object of the Child Support (Assessment) Act, as it 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.^[120]

12.101 In the Discussion Paper, the ALRC proposed that the limitation on the child support eligibility for non-parent carers should be repealed. In its response, DHS expressed concern that repealing the limitation

could potentially allow individuals who are not providing any real care to apply for a child support assessment, for example, when children are older their friends could attempt to apply as their carers.^[121]

12.102 DHS also expressed the view that the limitation is consistent with the objects of the legislation—and of the scheme as settled by DHS and FaHCSIA. It noted that one of these objects is to ‘emphasise parental responsibility (not limited to financial) where there is no risk to the child’.^[122] This object is not listed amongst the objects of the child support legislation.

12.103 As noted above, a recommendation to repeal the limitation is beyond the scope of this Inquiry. While such legislative change may affect informal carers of children who have experienced family violence, it would also affect a broader population of informal carers. Indeed, it is likely to be most relevant to those providing informal care for reasons unrelated to family violence, as family violence cases may already be captured by the ‘serious risk’ exception in s 7B(3) of the Child Support (Assessment) Act. Whether s 7B(3) adequately captures cases where children experience family violence in their parents’ home is another issue, and is considered below.

12.104 Although the ALRC does not make a recommendation to repeal the limitation, there may be merit in doing so. The limitation 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 benefit significantly by being raised by relatives. Further, the limitation may further disadvantage informal carers already facing financial disadvantage caused or compounded by unplanned-for child-raising. There is also an apparent discrepancy between the limitation and the principal object of the Child Support (Assessment) Act. For these reasons, the ALRC recommends this issue should be further considered by the Australian Government.^[123]

Broader criteria for eligibility

12.105 If the limitation is to be maintained in the legislation, the criteria in s 7B(3)(b) of the Child Support (Assessment) Act require amendment.^[124] 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. Several stakeholders have commented that this is a barrier to child support for informal carers.^[125] For example, NLA 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’.^[126]

12.106 In the ALRC’s view, the term ‘violence’ should be accompanied by ‘family violence’ in s 7B(3)(b). ‘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. This approach is complemented by Recommendations 3–1 and 3–2, which set out a definition of family violence for child support legislation.

12.107 The section is also too limited in relation to child abuse and neglect of a child, which are not expressly included in s 7(3)(b). The provision takes into account physical abuse of a child—caught by ‘violence’—and sexual abuse. The ALRC considers this section should be amended to expressly include child abuse and neglect.

12.108 The ALRC also considers that the ‘serious risk’ element of s 7B(3) is inappropriate. 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 serious risk of harm. This requires judgment as to whether there is risk of harm, and whether such a risk is serious. The requirement for such judgment implies that child abuse, family violence and neglect may not harm children’s physical or mental wellbeing in some cases. 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.

12.109 The ALRC therefore recommends that s 7B(3)(b) should be amended to:

• expressly take into account circumstances where there has been, or there is a risk of, family violence, child abuse and neglect; and
• remove the requirement for the Registrar to be satisfied of ‘a serious risk to the child’s physical or mental wellbeing’.

12.110 NLA submitted that the CSA should provide legal referrals for carers in these circumstances.^[127] The ALRC agrees that such referrals are appropriate. The recommendations in Chapter 4 should facilitate the identification of family violence, when informal carers apply for child support, and the provision of appropriate referrals when family violence is disclosed.