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NON-CUSTODIAL PARENTS PARTY (EQUAL
PARENTING)
IMPORTANT AND
NECESSARY LEGISLATIVE REFORM
The Non-Custodial Parents Party (Equal Parenting) supports the
following important and necessary legislative reforms:-
A. Legislation is required for a Rebuttable Presumption of Equal-Time, Shared Parenting.
B. Providing Parents with Individual Rights
C. Restoration of Individual Privacy
D. Remove the Unnecessary Link Between
Family Tax Benefit Payments and Child Support
E. Reduce Court Secrecy and Increase Accountability of the
Courts
F. Increase the Accountability of the CSA Senior Case
Officers
G Remove the Lack of Transparency of the
Parliamentary Legislative Practices.
__________________________
A. Legislation
is required for a Rebuttable Presumption of Equal-Time, Shared Parenting.
We support legislation to
provide for the rebuttable presumption of equal-time,
shared parenting. That is, 50:50 joint custody is to
be the first option when considering where children of separated families are
to reside.
Children need both parents
when parents divorce/separate.
Current legislation and
judicial practice is to grant custody to one parent.
This occurs in ninety-five
(95) per cent of contested court cases (non-contested cases tend to follow the
lead given by the courts).
Ideally children from
separated families should be able to move freely between both parents’
households as the NEEDS arise. However this situation does not normally exist.
This is because there is a lack of equality in our current legislation and
judicial practice.
A rebuttable presumption of
equal-time shared parenting (i.e. 50:50 joint custody
legislation as a starting point) is required to establish the initial
equality that does not now exist.
The House of Representatives
Standing Committee on Family and Community Affairs released a report into child
custody on 29 December 2003. The report was titled “Every
Picture Tells a Story”.
The key issue that was
before the Committee was whether or not to recommend a rebuttable presumption of
equal-time, shared parenting. The Committee unfortunately chose not to make
this recommendation.
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B. Providing
Parents with Individual Rights
We support the replacement
of the word “paramount” with the word “primary”. This is with regard to the “best
interests” principle in Part VII of the Family Law Act 1975.
The lack of parental rights
and the rights of other relatives is a key problem in family law. Until this is
recognized and corrected, we will continue to have our family law problems.
This is regardless of any other legislative changes that are made.
Part VII of the Family Law Act 1975 states in various
locations (Section
60CA, Section
65AA, etc) that:
“a
court must regard the best interests of the child as a paramount consideration”.
Prior to 1995 the Family
Law Act had said that the “welfare of
the child shall be a paramount consideration”. In 1995
The difference in the words
“paramount” and “primary” is important. At present the best
interests of the children are paramount - that is, they are determinative.
With the inclusion of the
word “primary”, parents and other
relatives would have had rights in family law proceedings involving children.
Under the current legislation, only the children have rights; parents and other
relatives have no rights whatsoever.
____________________________________________
C. Restoration
of Individual Privacy
We support the repealing of Section
16C of the Child Support (Registration and Collection) Act 1988 and Section
150D of the Child Support (Assessment) Act 1989.
Privacy should be a vital
concern for everyone in our community.
The Tax File Number (TFN)
system has been allowed to become a child support identification system. This
is a similar identification system to that proposed in the failed
Section
16C of the Child Support (Registration and Collection) Act 1988 and Section
150D of the Child Support (Assessment) Act 1989 allows the Child
Support Agency (CSA) to access our TFN without our permission. Our basic
right of privacy has been removed by the CSA.
The TFN should not be
used on CSA matters/correspondence and not for telephone enquiries to the CSA. When
the
On 1 September 1988, the
Treasurer Paul Keating presented the Taxation Laws Amendment Bill (Tax File
Numbers) 1988 to Parliament.
During the second reading
speech, Paul Keating said in Parliament that:
There will be no
requirement on people to produce a card or any other evidence of their tax file
number. No other government or non-government agency will have access to the
Tax Office file number registration system, nor will it be able to use an
individual’s tax file number for any registration system of its own.
This has not occurred with regard
to the Child Support Agency (and many other Government departments).
In your first contact with
the CSA, you are asked to provide your TFN. The following legislation
states should you refuse, then the CSA is allowed to
obtain your TFN directly from the Australian Taxation Office. 99.9 per
cent of all CSA employees have this authority (only four (4) level 1 employees
out of an approximate total 4,000 CSA employees do not have this authority!)
The procedure is set out in
Chapter 6.3 “proof, secrecy and proof of identity” of the CSA’s
publication called “The Guide”.
Chapter 6.3 states that:
The CSA is authorised to:
·
Request but not compel, a person to provide their TFN
(Section
16(B) of the Child Support (Registration and Collection) Act 1988
and Section
150(B) of the Child Support (Assessment) Act 1989.
·
Require the ATO to provide information the ATO possesses about people,
including TFN’s (Section
16C(1) of the Child Support (Registration and
Collection) Act 1988 and Section
150D(1) of the Child Support (Assessment) Act 1989.)
·
Use that information to: identify a person; decide whether a [person
can apply for a child support assessment; make or amend a child support
assessment; and decide whether a terminating event has happened (Section
150D(2) of the Child Support (Assessment) Act
1989.)
·
Use that information to identify a person; and register and collect
child support payments (Section
16C(2) of the Child Support (Registration and
Collection) Act 1988.
It should be noted that this
problem of lack of privacy will be exacerbated with the proposed introduction
of the Access Card.
______________________________________________________
D. Remove the
Unnecessary Link Between Family Tax Benefit Payments
and Child Support
We support the removal of
the Reasonable Action Test.
This is by repealing both Section
151A of the Child Support (Assessment) Act 1989 and Clause
10 of Schedule 1 of A New Tax System (Family Assistance) Act 1999.
In order to continue to
receive more than the minimum Family Tax Benefits, the custodial parent1/payee
is required to undertake what is called the Reasonable Action Test. This
“test” requires the custodial parent to tick the box to register with the Child
Support Agency.
The Reasonable Action
Test promotes conflict between the payee and the payer. If the CSA decides
that “reasonable action” has not been
taken, then only the minimum Family Tax Benefit Part A2 allowance
is paid to the payee. This is normally the mother.
Therefore child support is
linked to the payment of Family Benefit Part A. Parents are effectively
forced into the Child Support Scheme3.
However there is little
financial benefit to either the Government or the payee with this linkage. The
Government’s “savings” are soaked up in the running of the Child Support
Agency. At the same, the payee can lose up to 50 per cent of the Family Tax
Benefit Part A payment through “Clawback”
The Department of Family and
Community Services in the “Annual Report 2000-01” provided the following
definition of “Clawback”: -
Clawback is a measure of the
savings in Family Tax Benefit that can be attributed to the operation of the
Child Support Scheme. In other words, it measures the payments that Centrelink
would have been required to make to resident parents if they had not been in
receipt of child support payments from the non-resident parent. The Clawback
arising from reductions in Family Tax Benefit outlays was $380.4 million in
2001.
The Government has changed
the “Reasonable Action Test” over a number of years. The requirement to
take reasonable action was previously set out in section 1069-K3 of the Social
Security Act 1991. The changes that have taken place to section 1069-K3 are
provided below:
i.
From 20 September 1990 to 31 December 1992, the requirement to take
reasonable action applied to recipients of a number of payments.
ii.
Between 1 January 1993 and 19 March 1998, the reasonable action test
applied only to recipients of Sole Parent Pension and Family Allowance.
iii.
From 20 March 1998, the requirement to take reasonable action applies
only to those who are seeking payment of Family Allowance at more than the
minimum rate, including component and supplementary payments the rate of which
would be affected by maintenance income.
In 1999, the provisions for
the Reasonable Action Test were transferred to a new act called A New
Tax System (Family Assistance) Act 1999. As a result, section 1063-K3 was
deleted from the Social Security Act 1991.
Section
151A of the Child Support (Assessment) Act 1989 now states that the
payment of Family Allowance is determined by applying Clause
10 of Schedule 1 of A New Tax System (Family Assistance) Act 1999.
_________________________________________________
Notes
1 Ninety three (93) per cent
of all custodial parents are registered in the Child Support Scheme (Census
statistics and ABS 3310.0).
2 The Family Tax Benefit
Part A payments was formerly called Family Allowance payments and
prior to Child Endowment payments.)
3 A possible Constitution
issue arises - the question is, is the Child Support Scheme a form of Civil
Conscription and therefore unconstitutional under Section
51 (xxiiiA) of the Australian Constitution?
It should also be pointed
out that unfortunately the High Court of Australia has not significantly
changed the Law since the Mabo decision in 1988 (“Mabo v
As a result, we believe that
the solution to the Civil
Conscription problem has to be determined politically. This is by voting [1] for
the Non-Custodial Parents Party (Equal Parenting). This is rather than
attempting to find the solution judicially through, say, a High Court
challenge.
__________________________________________________
E. Reduce Court
Secrecy and Increase Accountability of the Courts
We support amendments to Section
121 similar to that which exists in the
Publication of family law
proceedings in the press will increase the accountability of our courts and
tribunals.
Section
121 restricts publication of any proceedings conducted under the Family
Law Act 1975. This section states that it is an offence to publish any
proceedings under the Family Law Act 1975. Anyone who is convicted of
the offence can be imprisoned for a period not exceeding one year
Prior to the introduction of
the Family Law Act and Section
121 in 1975, family law proceedings in
It is appreciated that some
restrictions are required. However, there is no justification for a complete
press “blackout”.. Publication of court cases can
occur without providing undue duress to the participants.
Section
69 of the
Whilst allowing for
publication by the press, Section
71 of the UK Magistrates
Court Act 1980 sets out certain restrictions.
Section
71 states that:-
It shall not be lawful to
print or publish, or cause to be printed or published, in relation to any
judicial proceedings for divorce or family-related matter any particulars other
than the following:
(i) The names, addresses and
occupations of the parties and witnesses.
(ii) The grounds of the
application and a concise statement of the charges, defences and counter-charges
in support of which evidence is given.
(iii) Submissions on any point of
law arising in the course of the proceedings and the decision of the court
thereon
(iv)
The decision of the court and
any observations made by the court in giving it.
Section
71 is then subject to some further restrictions provided in Section
97 of the
In summary, Section
97 states that:-
No
person shall publish any material which is intended,
or likely, to identify:
- any child as being involved in such
proceedings, or
- an address or school as being
tat of a child involved in such proceedings.
________________________________________________
F. Increase the
Accountability of the CSA Senior Case Officers
We support the removal of
paragraph (s) from Schedule
1 of the Administrative Decisions (Judicial Review) Act 1977.
A decision to increase an
administrative assessment is often based simply on the Senior Case Officer’s
perception of what the liable parent (and sometimes the carer) should be
earning
The decision made by CSA
Senior Case Officers is specifically excluded from judicial review under
paragraph (s) of Schedule
1 of the Administrative Decisions (Judicial Review) Act 1977 - (the
“ADJR” Act).
The ADJR Act is
appropriate legislation to review the performance of Commonwealth officers such
as CSA Senior Case Officers. However Paragraph (s) of this Act shuts this
avenue out.
Since 1 January 2007, the
Social Security Appeals Tribunal (SSAT) can review these types of decisions.
However a further issue has arisen. The participants at the Tribunal are sworn
to secrecy. At the same time, the decisions of the SSAT are not published.
As a result, the secrecy
provisions of the SSAT shield the performance of the original decision-maker,
i.e. the CSA Senior Case Officer. The Senior Case Officer is a Commonwealth
officer. As such, he or she should be accountable for their actions.
______________________________________________________
G Remove the Lack of Transparency of the Parliamentary
Legislative Practices.
We support a thorough and independent
overview of the Family Law and Child Support reports and Bills, that go to Parliament.
We are concerned with the
lack of transparency in the preparation and passing of the legislation through
Parliament.
The current Minister for the
Department of Families, Community Services and Indigenous Affairs is the
Hon Mal Brough MP. The Minister presented the latest piece of child support
legislation, the Families, Community Services and Indigenous Affairs
Legislation Amendment (Child Support Reform and Other Measures) Bill 2007 to
Parliament on 29 March 2007.
The Minister stated in the
opening remarks to his second reading speech on that day that the Bill “consolidates
the government’s major 2006 legislation4”.
However full
transparency in the preparation and passing of the legislation through
Parliament is missing.
The Child
Support Policy Branch5 is mainly
responsible for drafting many of the Government reports such as the Parkinson
Report. They are then responsible for drafting much of the proposed
legislation that is presented to Parliament.
The Child
Support Policy Branch5 is part of the Families Group
of the Department of Families, Community Services and Indigenous Affairs
(FACSIA).
CSA officers6,
located within the separate Department of Human Services, will use the
proposed legislation when passed by Parliament.
However, some of these
officers would also no doubt have already reviewed the contents of the draft
reports and Bills and passed their comments back to the Child
Support Policy Branch. This is before the reports and Bills
would have gone to Parliament.
This is entirely appropriate.
However there is only a thin line of separation between both groups. This is a
concern at the lack of transparency in the overall process.
Therefore there is a need to
provide a thorough and independent overview of the reports and the Bills as
framed by the Child Support Policy Branch. At present, this is being carried
out by Parliament, through Senate hearings.
From our observations, this
has not been properly carried out.
Senate Hearings into two (2)
separate pieces of detailed and complex child support legislation in 2006 and
2007 did not recommend one (1) single change7.
This is somewhat disturbing
to the casual observer. However it should be even more disturbing to those
people that are directly affected by these changes.
__________________________________________________
Notes
4.
The previous “legislation” referred to by the Hon Mal Brough
included Child
Support Legislation Amendment (Reform of the Child Support Scheme - Initial
Measures) Act 2006 and the Child
Support Legislation Amendment (Reform of the Child Support Scheme - New Formula
and Other Measures) Act 2006.
5.
The Child
Support Policy Branch occupies Level 8, Juliana House, Woden. ACT. The
Branch is located in the same building as the other branches of the Families
Group of FACSIA e.g. The Office of Status of Women, Child Care, etc. are
located on various other floors of Juliana House.
The Child
Support Policy Branch was recognized in the credits of the Parkinson
Report. A representative from the Child Support Policy Branch also attended
the Senate
Hearing into the Child Support Legislation Amendment (Reform of the Child
Support Scheme - New Formula and Other Measures) Bill held on 10 October
2006 and the Senate Hearing into the Families, Community Services & Indigenous Affairs Legislation
Amendment (Child Support Reform & Other Measures) Bill held on 9 May 2007.
6.
The Head Office of the CSA is located in the nearby ACT suburb of
Belconnen, ACT.
7.
With respect to the above Child
Support Legislation Amendment (Reform of the Child Support Scheme - New
Formula and Other Measures) Bill,
some minor legislative changes that were later put directly to the
Senate by an ALP Senator, who was also Deputy Chairperson of the Senate
Community Affairs Committee. However, these changes only related to the “need”
to provide even more financial information to the CSA. As such, these changes
unfortunately only added to the punitive nature of the already over-corrective
legislation.
__________________________________________________
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