Intervention points: actions taken by the CSA

CSA-initiated change of assessment

12.59 As discussed in Chapter 11, a ‘change of assessment’ (referred to in the Child Support (Assessment) Act as ‘departure determination’) may be initiated on the application of a party to the case, or by the CSA. A CSA-initiated change of assessment has the potential to compromise safety when it is initiated against a person who has used family violence.

12.60 The CSA may initiate a change of assessment due to ‘special circumstances’,^[63] where the assessment results in ‘an unjust and inequitable’ determination of child support due to ‘the income, earning capacity, property and financial resources of either parent’.^[64] The CSA must be satisfied that it is ‘just and equitable’ and ‘otherwise proper’ to make the change of assessment determination.^[65] The CSA refers to this process as ‘Capacity to Pay’ (CTP).

12.61 The Child Support (Assessment) Act provides that the CSA must notify the parties in writing that it is considering making the change of assessment determination, and serve on the parties a summary of the relevant information.^[66] It must also inform the parties that they may reply to the summary and, if they do reply, serve a copy on the other party.^[67] The parties may jointly elect that the CSA discontinue proceedings, but only where the payee does not receive an income-tested benefit, pension, or allowance.^[68]

12.62 Neither the legislation nor the Child Support Guide requires the CSA to consult with either party prior to providing written notification of CSA-initiated departure determination proceedings. The Procedural Instruction, Capacity to Pay, provides that the customer should be contacted by telephone in the initial stages of CSA-initiated assessment, and this contact should be followed up in writing as soon as possible.^[69] It also provides that:

During initial case scrutiny or discussions with the customer [the financial investigator] may become aware of a potential family violence issue. It is important that we consider the possible implications a CTP investigation may have on customers.^[70]

12.63 DHS stated:

Change of Assessment teams regularly consult with customers prior to instigating any significant action against the other party. This contact is also used to inform the customer of any potential impact on their benefits, income etc. Where there is already an indication of family violence, these customers are contacted to discuss any possible exacerbation of the violence based on the likely outcome. This does not preclude an adverse finding against the violent party. The aim will be to provide extra time for the party at risk to take steps to minimize their risk by consulting with police or counselors.^[71]

12.64 Such pre-action consultation appears appropriate, and the ALRC considers that the Child Support Guide should provide information about this approach, to improve awareness about, and transparency around, this practice. In particular, the Child Support Guide should provide that the CSA should consult customers who have disclosed family violence and consider their safety concerns prior to initiating change of assessment determinations. The ALRC also considers that the CSA should take steps to identify family violence-related safety concerns prior to initiating departure, so that cases where such action may compromise safety may be readily identified. The recommendations in Chapter 4 regarding identification of safety concerns and safety concern flags should also facilitate this consultative approach.

Court enforcement

12.65 Enforcement action initiated by the CSA against child support payers is a relevant consideration in the family violence context for three key reasons. First, a number of stakeholders have linked CSA debt enforcement and risks to safety in family violence cases.^[72] For example, the Commonwealth Ombudsman commented that legal action, such as seizing and selling assets, may ‘inflame the situation and place the payee in danger’.^[73] The ADFVC, which has conducted recent research on the impact of family violence on women’s financial security and safety, noted that:

some women in our study felt that any attempt to compel their ex-partner to pay child support would expose them to further abuse or give rise to increased claims for shared care parenting arrangements, accentuating their risk of harm.^[74]

12.66 A second and related issue is that CSA enforcement measures may, in family violence cases, create a barrier to the accessibility of the child support scheme. The Commonwealth Ombudsman commented that:

if the payee believes the CSA’s collection activity goes ‘too far’, he or she may be forced to consider leaving the child support system, either by moving to private collect, or even by ending the child support case altogether.^[75]

12.67 Finally, enforcement measures may prompt payers who use family violence to pressure or coerce payees to end CSA collection. As discussed above, payees may end enforcement of arrears by ending CSA collection of child support.

12.68 Child support payments in cases registered for CSA collection are ‘debts due to the Commonwealth’ and recoverable by the CSA.^[76] The CSA may take action to pursue arrears in a number of courts, including state and territory magistrates courts, the Family Court or the Federal Magistrates Court.^[77] The CSA is required, under s 47 of the Financial Management and Accountability Act 1997 (Cth), to pursue recovery of all registered child support debts, unless the debt is ‘not legally recoverable’, or it is uneconomical to pursue its recovery.^[78]

12.69 Although the CSA takes these actions in its own right,^[79] s 113(2) of the Child Support (Registration and Collection) Act 1988 (Cth) provides that the CSA may take such steps it considers appropriate to keep a payee informed of CSA action to recover child support debts. Despite this provision, the Commonwealth Ombudsman reports that complaints it receives ‘from payees about CSA collection tend to reveal a pattern of the CSA providing very little information to the payee about the steps taken to collect child support, for fear of breaching the payer’s privacy’.^[80] The Commonwealth Ombudsman submitted that the CSA should utilise s 113(2) to:

let payees know about particular collection activities, such as a [Departure Prohibition Order] or legal action, or the reasons for not pursuing such actions. While this information would be of particular concern to a victim of family violence, it also enables a payee to carefully consider whether it is in their interests to pursue collection from the payer through taking their own legal action. This would be of benefit to the general payee population.^[81]

12.70 A recommendation to this effect would be beyond the Terms of Reference. The ALRC does, however, make the family violence-specific recommendation that the CSA should inform and consult with payees who have disclosed family violence of anticipated enforcement action. This enables the CSA to give effect to its policy aim to ‘avoid, as far as possible, actions which could contribute to family violence’.^[82] For example, the CSA may defer enforcement action until the payee has taken protective steps to ensure his or her safety.

12.71 The ALRC also considers that referrals to a Centrelink social worker, or another expert service provider, should be made when a payee who has disclosed family violence elects to end CSA collection of child support arrears, as discussed above, or requests that the CSA terminate, or not begin, enforcement action. This may assist in ensuring that necessary supports and referrals are provided to the payee.

12.72 To complement these measures, the ALRC considers that the CSA should contact the payee to identify safety concerns before initiating court enforcement actions against the payer. Identifying safety concerns at this point, and on entry to the child support scheme, increases the likelihood that payees who may be put at risk by these actions are identified by the CSA.

12.73 Taken together, these measures should give payees at risk of family violence the opportunity to raise safety concerns, and to take necessary steps to protect their safety before enforcement action is initiated. These measures should also discourage victims from opting out of the child support scheme when they consider that CSA collection activity goes ‘too far’.^[83]

12.74 The CSA may be unable to delay, terminate, or decide not to initiate recovery of debts in response to safety concerns due to the application of the Financial Management and Accountability Act. Nonetheless, the DHS submission reflects a level of flexibility in the administration of this provision:

Although there is a legal requirement to pursue collection, where family violence is an issue alternative action can be considered. In cases where family violence is identified, the Child Support program will contact the affected parent to advise them of the intended action and advise them of the options available, for example, electing to end collection or seeking an exemption from Centrelink.^[84]

12.75 Inserting an additional ground in s 47 of the Financial Management and Accountability Act, to the effect that debts may not be pursued where doing so may cause risks to safety, may better enable the CSA to meet its policy aim of avoiding actions which could contribute to family violence. While amendment of the Financial Management and Accountability Act is not within the ambit of this Inquiry, the ALRC suggests that the Australian Government give consideration to such an amendment.^[85]

Departure prohibition orders

12.76 The CSA may also make a departure prohibition order (DPO) against a child support debtor, preventing him or her from leaving Australia.^[86] Such orders may be issued when a person owes child support, has not made arrangements for it to be paid, and has ‘persistently and without reasonable grounds’ failed to make payments.^[87] A person may apply for a ‘Departure Authorisation Certificate’ to authorise him or her to leave the country.^[88]

12.77 Like CSA-initiated court action to recover child support debt, DPOs have the potential to increase risks for victims of family violence. In family violence cases, DPOs have the potential to inflame conflict and compromise safety. The Commonwealth Ombudsman has commented that it has received

at least one complaint about the CSA’s refusal to inform a payee whether it has issued a DPO. We consider that it is important for payees to be aware if a DPO has been issued so that, in cases of family violence, they can take measures to protect themselves.^[89]

12.78 Further, while there is no apparent mechanism for a payee to elect that a DPO be revoked, payers who have used violence may coerce or threaten a victim to request the CSA to revoke the DPO.

12.79 The ALRC therefore considers that the approach recommended above in relation to court recovery of debt is appropriate for cases in which DPOs may be, or have been, made against a payer. That is, the ALRC recommends that the CSA should:

• identify family violence-related safety concerns prior to initiating DPOs;
• consult with payees who have disclosed family violence, and consider concerns regarding the risk of family violence, prior to initiating DPOs;
• refer payees who have disclosed family violence to Centrelink social workers or other services providers when they request that the CSA terminate, or not commence, DPOs.

CSA-initiated private collection

12.80 Child support legislation provides that, in certain circumstances, the CSA may require payees to collect privately. This CSA-initiated action differs from others described in this chapter, as the Child Support Guide indicates that this provision will not be applied in cases involving family violence. This eliminates the need for pre-action consultation in cases where customers have disclosed family violence. The ALRC considers, however, that that the existing policy safeguards to prevent the application of this provision in family violence cases may be improved.

12.81 Section 38B of the Child Support (Registration and Collection) Act provides that the CSA may require parents to collect privately where the payer has a ‘satisfactory payment record’ which is ‘likely to continue’. The CSA must also be satisfied that a decision to end collection by the CSA is ‘appropriate in relation to the liability’.^[90] The Child Support Guide provides that it is inappropriate to require private collection where there has been a ‘history of family violence’, and where a person has ‘previously been exempted from having to take reasonable maintenance action’.^[91] It is unclear how victims of family violence are identified where they have not previously obtained an exemption.

12.82 The Commonwealth Ombudsman stated that this provision has been ‘used sparingly’ by the CSA since its 1999 introduction, and that:

If the provision is currently being used, or if the CSA intends to use it in the future, we recommend that it only be considered after detailed discussion with the payee to identify any possible concerns about family violence and the practicality of a private collect arrangement.^[92]

12.83 Although the CSA-initiated private collection provision may be used rarely, while the legislative provision is in place, the ALRC considers that further measures are required to ensure that the CSA identifies payees who have experienced violence or have safety concerns. Recommendations regarding the identification of safety concerns at the initial stage of a child support case (and at other intervention points) and ‘safety concern flags’ partially address this issue as the CSA may check this status before initiating private collection.

12.84 The ALRC also considers that payees should be granted the opportunity to raise ‘a history of family violence’ and any family violence-related safety concerns with the CSA, before it initiates private collection. The ALRC therefore recommends that the CSA should take steps to identify family violence-related safety concerns prior to requiring a payee to collect child support privately pursuant to s 38B(1) of the Child Support (Registration and Collection) Act.^[93]