|
|
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 unnecessary
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.
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. Repealing of the Child Support Legislation and Abolition of the
Child Support Agency.
3. Replacement of the Family Court System with a Family Tribunal.
4. Fairer and More Equitable Property and Superannuation
Settlements
5. Removal of the Link between Child Support Payments and Family
Tax Benefit Part A Payments.
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
8. Greater Transparency
in the Passing of Legislation by Parliament
______________________________________________________
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. This occurs in ninety five (95) per cent of contested cases.
d) Children have the right to
have contact with both of their parents on an equal basis, 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 a first option when
considering where children of separated families are to reside.
f)
We define the general term Shared Parenting as the rebuttable presumption of equal-time, shared parenting.
That is, equal-time, shared parenting can be rebutted if there are proven
mitigating circumstances that it 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) The Child Support Agency
does not work to the benefit of the children or to either parent of separated families.
The liable parent currently pays child support on the basis of 18%, 27%, 32%,
34% and 36% of gross income (depending upon the number of children).
c) The current system is based
on this crude and simplistic formula. 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.
d) As a result, the liable
parent often leaves the workforce or takes employment that is below the income
taxation threshold. Currently 43.2 per cent (311,953 no.) of liable parents are
effectively unemployed. (Child Support Agency’s Child Support Scheme Facts
and Figures 2005-2006). The parent who is most often in need of child
support is not receiving it.
e) 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.
f)
We support not making any initial direct payment from one parent to the
other parent without the consent of both parents.
g) Each parent will be equally
responsible for the support of their children, according to their means.
However, this should be as defined by the parents and not by the Government.
h) Where there are disputes
between the parents, we support the settlement of these disputes by mediation,
in the first instance.
i)
We note that there will be changes to the formula, as from 1
July 2008. This was as a result of the Parkinson
Report. However, section 7.1 of that Report unfortunately clearly states
that “the Taskforce does not propose any changes to the fundamentals of the
Scheme”. In fact, despite the rhetoric, there will no changes to the
Scheme.
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.
b) The Family Court and the
Federal Magistrates Court are adversarial by the nature of the Australian
Constitution. These courts have to act judicially.
c) Mediation is required
instead of confrontation. Tribunals can mediate between the various parties
involved. The basic function of a Family Tribunal would be to supplement the
current Family Relationship Centres.
d) Respected members from the
local community encompassing health, social and community interest groups would
participate in a Family Tribunal.
e) The implementation of a rebuttable presumption of equal-time, shared
parenting would be a necessary prerequisite
to the implementation of any type of Family Tribunal. Separated parents have to
be able to come to a Family Tribunal on an equal basis.
f)
Similarly, the amendment of Section
121 secrecy provisions would be another necessary prerequisite. 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.
____________________________________________________
Note
1: The Family
Court Annual Report 2005-2006 states that the budget for the Family Court
of Australia is $142.8 million (2005/2006). Similarly the Federal Magistrates Annual
Report 2005-2006 states that the budget for the Federal Magistrates Court
is $49.4 million (2005/2006).
However, there were 44
judges and 4 judicial registrars in the Family Court. Therefore, the total
number of judicial officers is 48. This was as at 1 October 2007. At the same
time, there were 52 magistrates in the Federal Magistrates Court. While there
are similar numbers of judicial officers in both courts, almost three (3) times
the funding is required to run the Family Court.
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) The minimum rate of Family
Tax Benefit Part A is $1,890.70 per annum per child (20 September 2007).
The maximum potential payment that would otherwise be obtained is $4,460.30
(under 13 years) and $5,595.45 (13 to 15 years). As a result, 95 per cent of
custodial parents make a claim for child support with the Child Support Agency.
d) 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.
e) 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.
f)
The Clawback removed from Family Tax
Benefit A payments to custodial parents in 2005-2006
was $539.0 million (ref. Child Support Agency’s Child Support Scheme
Facts and Figures 2005-2006.)
6.
The Proportion of Payments of Family Assistance Payments to be decided by
the Parents themselves and not by the Government.
a) 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.
b) In addition to the Family
Tax Benefit Part A payment referred to above, a Parenting Payment
and a Family Tax Part B Payment can be paid by the Government.
c) The Parenting Payment
can be up to $537.70 per fortnight (20 September 2007). This equates to
$13,980.20 per annum. However it can only paid to the parent that has the
children for the majority of the time. (Note: alternatively the parent can be
paid a lesser $464.90 per fortnight as Newstart
Allowance)
d) The maximum rate of payment
of the Family Tax Benefit Part B Payment is $4,460.30 per annum per
child (under 13 years) and $5,595.45 per annum per child (13-15 years), as at
20 September 2007. The payment is split between both parents and depends upon
how much time the children spend with each separated parent.
e) We note that, as from, 1
July 2008, most Family Tax Benefits will be taken off the non-custodial
parent (except the non-custodial parent with above 35 per cent contact). This
has been specifically done to withdraw a source of potential income from the
non-custodial parent in many cases; these funds will revert back to the
Government.
7.
Removal of Unnecessary Government Waste
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 normal operating budget
of the Child Support Agency is $290.1million (ref. Child Support Agency’s Child Support Scheme
Facts and Figures 2005-2006.).
d) The Government’s 2006-2007
Budget provided details of the following additional funding for the
CSA (i.e. over and above the normal
operating budget):
2005-2006 - $9.3 million
2006-2007 - $112.8
million
2007-2008 - $237.6
million
2008-2009 - $290.3
million
2009-2010 - $227.0
million
Total = $877.0
million (over 5 years)
(Ref. Government’s Budget
for 2006-2007. Budget Paper 2. Families,
Community Services and Indigenous).
As a result, the following costs currently
apply:
|
Total Child Support collection by the Child
Support Agency - 2005/2006 |
=
$5.769 billion |
|
Sub-total |
=
$5.769 billion |
Less
|
Loss of tax revenue by
unemployed or low income earning liable parents (311,953 no @ $13,781 per person
for 2005/2006) (Sources: Child Support Scheme
Facts and Figures 2005-2006 and ABS
Year Book 2007) |
=
$4.299 billion |
|
Government welfare payments to liable
parents $1.740billion x 1.40 = (Source: PIR Research Paper 2000-2001) pro-rata increase: |
=
$2.440 billion |
|
Cost of running the Child Support Scheme (Source: Child Support Scheme
Facts and Figures 2005-2006 + 2006-2007 Budget (see above)) |
= $0.290 billion + $0.290 billion (e.g. 2008-2009) |
|
Sub-total |
=
$7.319 billion |
|
The overall deficit to
amount collected |
= ($1.550
billion) |
8. Greater Transparency in the Passing of
Legislation by Parliament
a) We support representatives from
parent groups being involved in the preparation of reports and the proposed
legislation that follows.
b) Current family law and child
support legislation does not benefit either parent. One of the reasons is that
there is a lack of transparency in the preparation and passing of the
legislation through Parliament
c) For example, the Child
Support Policy Branch is
mainly responsible for drafting many of the Government’s child support reports
such as the Parkinson
Report. The Branch is then responsible for drafting much of the proposed
child support legislation that is then presented to Parliament.
d) The Child Support Policy
Branch is part of the Families Group of the Department of
Families, Community Services and Indigenous Affairs (FACSIA). As such, it
is part of the Government’s bureaucracy.
Back to NCPP Homepage
 |