NON-CUSTODIAL PARENTS PARTY (EQUAL PARENTING)

FAMILY LAW AND CHILD SUPPORT POLICY 

A. The Issue.

The current Family Law and Child Support problems are caused by Government interference.

This interference is based on the wrong perception that non-custodial and custodial parents have an unequal “capacity to earn”. This may have been the situation in the past. However it is not the situation now.

As a result, no one benefits from this Government interference:

· The non-custodial parents do not have proper contact with their children.

· The custodial parents do not receive an adequate amount of support. At the same time, they pay for an intrusive child support scheme (solely funded by deductions from their family tax benefit payments – see below)

· The children do not have proper contact with both parents.

· The Government does not receive the taxation revenue that they would normally receive.

B. The Non-Custodial Parents Party (Equal Parenting)’s Solution

The Non-Custodial Parents Party (Equal Parenting) solution is to:

a) Minimise government interference in decisions that affect the lives of parents and children of separated families; and

b) Maximise the initiative of individual parents to make and be accountable for the decisions that affect the future of their families.

As a result, everyone would benefit – the non-custodial parents/payers, the custodial parents/payees, the children and the Government.

C. NCPP(EP)’s Family Law and Child Support Policies

(Note: Our general policy directions in other areas such as health, law and order, education, etc. can be found by clicking here).

Our Family and Child Support Policies are as follows:

1. Rebuttable Presumption of Equal-Time, Shared Parenting.

2. Abolition of the Child Support Agency and the Replacement with the Child Maintenance Provisions that exist in the Family Law Act 1975 (currently not used).

3. Dismantling of the Family Court and Replacement with a Family Tribunal – for all Contact, Property and Child Maintenance Issues. If then unresolved the matter is then moved to a Local or Municipal Court.

4. Fairer and More Equitable Property Settlements and Superannuation Splitting - What Goes into the Marriage or the Relationship Comes out of the Marriage or the Relationship.

5. Removal of the Link between Child Support Payments and Family Tax Benefit Part A Payments (50 per cent is currently “clawed back*” from the Custodial Parent to fund the Child Support Agency).

6. The Proportion of Payments of Family Assistance Payments to be decided by the Parents themselves and not by the Government.

7. Removal of Unnecessary Government Waste and Lost Personal Opportunities that Exist under the Current System.

8. Greater Transparency in the Passing of Legislation through Parliament by our Parliamentarians (i.e. your Elected Representatives).

* Clawback is a Government term to describe how Family Tax Benefits are taken from the Custodial Parents. The sole reason for this is so that the Government does not have to pay for the cost of running of the Child Support Agency ($426.5 million in 2008-09).

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1. Rebuttable Presumption of Equal-Time, Shared Parenting.

a) We support legislation that will provide for a rebuttable presumption of equal-time, shared parenting*.

b) After separation or divorce, children need both parents

c) Current legislation and judicial practice is to grant custody to one (1) parent –usually to the mother and in a few cases to the father. This occurs in ninety five (95) per cent of contested cases. This is wrong.

d) Children have the right to have contact with both of their parents on an equal basis. This is unless it is genuinely in the children’s best interests not to do so.

e) Equal-time, shared parenting (joint residency) should be considered as the first presumption when considering where children of separated families are to reside.

* The term Shared Parenting by itself has sometimes been misused. We define the term Shared Parenting, more specifically, to mean the rebuttable presumption of equal-time, shared parenting. That is, equal-time, shared parenting can be rebutted only if there are proven mitigating circumstances that would not be genuinely in the children’s best interests.

2. Repealing of the Child Support Legislation and Abolition of the Child Support Agency.

a) We support the repealing of the Child Support Legislation and abolition of the Child Support Agency. The child support legislation to be repealed consists of the Child Support (Assessment) Act 1989 and the Child Support (Registration & Collection) Act 1988

b) Adequate legislation currently exists under the Family Law Act 1975 to replace the repealed child support legislation. Section 66 (and in particular Section 66J) of the Family Law Act 1975 specifically covers child maintenance provisions in lieu of the above child support legislation.

c) The Child Support Agency does not work to the benefit of the children or to either parent of separated families.

d) The current system is based on a crude and simplistic approach. It provides for significantly increased child support payments when contact is held below 14 per cent (52 nights per year). This is an illogical approach. This is because child support is paid more freely when contact is increased (see NCPP(EP) recent submission for the Shared Parental Responsibility Project) .

e) The system is fundamentally flawed because it is based on forcing parents to pay child support without taking individual circumstances into account. It is not based on assisting parents to come to a decision of their accord.

f) As a result, the liable parent often leaves the workforce or takes employment that is below the income taxation threshold. Currently forty three (43) per cent (326,960 no.) of liable parents are effectively unemployed (Child Support Agency’s Child Support Scheme Facts and Figures 2008-09). The parent who is most often in need of child support is not receiving it.

g) We support not making any initial direct payment from one parent to the other parent without the consent of both parents.

h) We support each parent being equally responsible for the support of their children, according to their means. However, this should be as defined by the parents themselves and not by the Government.

i) We support the settlement of any disputes by mediation.

3. Replacement of the Family Court System with a Family Tribunal.

a) We support the replacement of the Family Court of Australia and the Federal Magistrates Court of Australia with a Family Tribunal.

The implementation of a rebuttable presumption of equal-time, shared parenting would be a necessary requirement to the implementation of any type of Family Tribunal. This equality does not exist in the current court system. Separated parents have to be able to come to a Family Tribunal on an equal basis.

b) The Family Court and the Federal Magistrates Court are adversarial by the nature of the Australian Constitution.

c) Mediation is required instead of confrontation.

d) The basic function of a Family Tribunal would be to supplement the current Family Relationship Centres.

e) Respected members from the local community encompassing health, social and community interest groups would participate in a Family Tribunal.

f) Amendment to the Section 121 secrecy provisions is another necessary requirement. This is to allow accountability for the Family Tribunal decisions. The details of the proposed amendments to Section 121 can be found by clicking here.

g) Sufficient funding can be made available for a Family Tribunal. This is through the downgrading of the current court system¹, particularly with respect to the Family Court.

h) Avenues would then be left open through the court process should the Family Tribunal and mediation fail to resolve a family’s issues.

4. Fairer and More Equitable Property and Superannuation Settlements

a) We support property owned and superannuation entitlements, obtained prior to the relationship commencing, being allowed to remain in the possession of that individual. We believe that they should not become part of the post-relationship settlement.

b) We support other property and superannuation, acquired after the commencement of the relationship, being allocated on a 50:50 basis.

c) Child support is now capitalised by the courts into property settlements. This is in addition to the child support that is paid through the current formula-based system

d) The usual property settlement is that the custodial parent obtains 50 per cent of the value of the property plus 10 per cent for each child. (It can be also anticipated that future superannuation splitting will be made on the same basis.)

e) We support not paying child support capitalisation of property and superannuation, unless agreed to by both parents.

f) Little account is now taken by the courts of property owned by one party before the relationship commenced.

5. Removal of the Link between Child Support Payments and Family Tax Benefit Part A Payments.

a) We support the removal of the link between Family Tax Benefit Part A payments and child support payments. We also support making the Family Tax Benefit Part A payments being free of the 50 cents in-the-dollar deduction because of child support payments.

b) Family Tax Benefit Part A (formerly called Family Allowance) is paid to each parent on the basis of the time the children spend with each parent. There is a mandatory requirement for the custodial parent to make a claim for child support from the non-custodial parent. Otherwise only the minimum rate of Family Tax Benefit Part A is paid to the custodial parent.

c) Fifty (50) cents in every dollar collected in child support is deducted from the Family Tax Benefit Part A payments paid to the custodial parent. This deduction from the payments made to the custodial parent is called Clawback. It has been designed by the Government to pay for the operating costs of the Child Support Agency.

d) The custodial parent is typically not made aware of these deductions until well after the first child support payments have been made. Typically, this is also after the conflict over the child support issue and other related issues have been generated.

e) The Clawback removed from Family Tax Benefit A payments to custodial parents in 2008-2009 was $426,500,000 (ref. Child Support Agency’s Child Support Scheme Facts and Figures 2008-09)

6. The Proportion of Payments of Family Assistance Payments to be decided by the Parents themselves and not by the Government.

a) The Family Tax Benefit Part A and B Payments and the Parenting Payments are income dependent.

b) From 1 July 2008, the minimum requirement for the non-custodial parent to receive Family Tax Benefit payments was for that parent to have 35 per cent contact with their children (previously 10 per cent). Parenting payments have only been paid to the custodial parent. This situation immediately sets up conflict.

c) We support leaving it up to the parents themselves to decide the proportion of the Family Tax Benefit Part A and B Payments and the Parenting Payment that is paid to each parent - not the Government, as it is now.

7. Removal of Unnecessary Government Waste and Lost Personnel Opportunities

a) We support the removal of the economic waste caused by the Government’s Child Support Scheme. Adequate legislation currently exists under the Family Law Act 1975 to replace the repealed child support legislation.

b) The Child Support System costs far more than what is collected. The funding for the above proposals will come from the potential savings billion generated by the abolition of the current system.

c) The operating budget of the Child Support Agency is $426.5 million (ref. Child Support Agency’s Child Support Scheme Facts and Figures 2008-09).

d) There are forty three (43) per cent of liable child support payers who are effectively unemployed (Child Support Scheme Facts and Figures 2008-09). This equates to 326,960 people who would otherwise be paying tax. The average annual tax net paid of a normal Australian resident is $12,329.00 (ATO Taxation Statistics 2007-08, page 25). This loss of tax revenue is approximately 10 times the operating budget of the CSA, which is paid for by the custodial parents, in any case.

e) The Child Support Agency is an example of unnecessary Government waste that needs to be removed.

8. Greater Transparency in the Passing of Legislation by Parliament

a) Family law and child support legislation does not benefit either parent. This is because there is a lack of involvement by the people most affected by any legislation.

b) We support having representatives from parent groups being involved in the preparation of reports and any subsequent legislation that follows.

c) Currently the Family and Child Support Policy Branch is responsible for drafting the Government’s child support reports e.g. Report of the Ministerial Taskforce on Child Support and  Reforming the Child Support Scheme Summary Report.

d) This Branch is then responsible for drafting the child support legislation that is then presented for adoption by Parliament. Very little, if any of the proposed legislation is ever challenged by our elected politicians.

e) At some later point in time, this Branch then reports on the outcome of its own legislative changes that they had previously proposed. The reports invariably always provide a favourable analysis, e.g. Analysis of Child Support Reforms, Report on the population impact of the new child support formula and Updated Report (July 2009).

f) There is no real meaningful involvement of the people most affected by these changes.

g) The Family and Child Support Policy Branch is part of the Families Group of the Department of Families, Housing, Community Services and Indigenous Affairs (FAHCSIA) . These bureaucrats are located at levels 7 and 8, respectively in Juliana House, Bowes Street, Woden ACT 2601.

h) The Family and Child Support Policy Branch is part of a Government’s bureaucracy that believes that they know what is best for us. At the same time, the currently elected politicians (with one or two exceptions) fall over themselves to laud any new changes to the child support legislation.

As a typical example legislative change that has been deliberately drafted to disadvantage non-custodial parents:

The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 was passed by Parliament in June 2010 (to be effective on 1 July 2010). Among other items, the Bill stated that if a child support payer loses his or her job and makes an estimate of income, the estimate will be later reconciled with the payer’s actual taxable income. If the actual taxable is higher, the increased child payments will be back-dated. However if the actual taxable is lower, the payer will not have their assessed liability reduced for that period (new Section 64 of the Child Support (Assessment) Act 1989). Despite the Bill being 103 pages long, the elected politicians could not find one thing to criticise in the new changes!

i) These bureaucrats are determining what you want. This is without your consultation. This can only be stopped if you vote for our party.

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