COMMITTEES: Standing Committee on Family and Community Affairs: Report
Mr CADMAN (Mitchell) (10.24 a.m.) —In Australia the number of marriages taking place per year has for the last 10 years been 110,000 to 115,000. The number of divorces which have also taken place over that 10-year period has gradually increased from about 42,000 to 49,000 in 2000. The number of divorces involving children is almost the total number: they nearly all involve children to some extent.
This inquiry into child custody arrangements of the Standing Committee on Family and Community Affairs exposed some intense hurt and pain from dreadful personal relationships that had soured and, in some instances, gone to violence, noncommunication and a sort of warfare between separated partners in which the children became involved and were one of the weapons used by parents against each other. Of the 597,000 families who had a child with a natural parent living elsewhere, 41 per cent received no child support, 42 per cent received cash child support and a further 16.3 per cent received only in-kind child support.
Whilst the statistics are interesting, it is really the interpersonal relationships that were the focus of the committee's attention. We have had representations, certainly on our side of the House, for a number of years now from fathers who do not have the custody or the care of their children about the unfairness of the system. Investigations have indicated that there are certainly strong elements to say that those fathers have good reason for their complaints. But, on the other hand, there are instances where fathers, or the non-custodial parent, have failed to live up to their obligations and made life excruciatingly difficult for the custodial parent.
The committee came to this issue and decided that there were two distinct areas that needed attention: existing cases where there are court orders and arrangements in place, and cases that are yet to come before the court or yet to be decided where change offers the greatest scope and prospect to get a new environment and ethos operating. So the two areas had to be dealt with. It would be no surprise to the House to hear me say that the prospective cases, where we could bring significant change, offered the greatest opportunities for us to try to ameliorate the problems.
Australia has a system where the court intervenes in family break-ups more specifically and with more detail than any other nation on earth. As far as I can make out, in Britain, the United States and Europe there is generally a more conciliatory attitude adopted by the family law acts. Around the world, parents are told by the courts and by the structure of family law in their country, `It is your problem, so you need to try to resolve it.' In Australia, however, the court is likely to intervene at a very early stage and people have access to the court at a very early stage. In some instances, the court seems to delight in taking early intervention. That is something that this committee believes should be changed. [start page 24365]
Despite the best efforts of the parliament in 1995 to bring changes that reflect a more congenial approach, a better sharing by parents of responsibility for the future of their children, there is little evidence that that has had any impact on the courts or the outcomes whatsoever. But this committee is more serious about bringing change.
The Family Court of Australia has had an opportunity to try to implement those previous decisions of the parliament, and the parliament now has considered the issue and thinks that the court ought to be more strongly addressed in its responsibilities. Firstly, for existing cases we need to look at what the benefits are one way or the other. The complaints of the dads have been about their access to children. `Non-custodial parents' would be a better term because it does not matter whether they are male or female. There are no gender factors in this process whatsoever. I will use the term `dads' but it includes any non-custodial parent. Dads want better access to their children, access that is understandable and access that is provided as the courts lay down. The onerous payment of child support where there is more than one family involved is something that needs addressing. If a partner remarries that establishes two families for which they have financial responsibility: a former marriage and court based commitment, and a current marriage. Mums have complaints which are justified: non-compliance by fathers in payment and also hiding income and failing to live up to the responsibilities of a parent.
How do we resolve these? What the committee decided for existing cases was basically this: where there are breaches, they should be added up and there should be a cumulative approach to breaches. For instance, if a mother, for spurious reasons, fails to grant access—where there is a contrived process to keep fathers away from children for no good reason—then we believe that the meter should be turned on and, after the third breach within a pattern of deliberate defiance of court orders, consideration should be given to changing the parenting order, so that the father increases his access and increases opportunity, so there is a penalty for non-compliance. Currently there are no penalties; it is all subjective law. The families come before the courts and the judge makes a decision on what he considers may be the best interest of the children. On property settlement and matters like that it is a very easy process because the court is dealing with factual information, but this is subjective law and the sooner we get away from it for the future the better. But for those in the current system there needs to be some discipline applied, and the court should retain the ultimate sanction of imprisonment. We believe that, harsh though that may seem, there are some people who deliberately flout the law and cause great hardship and trauma within their family.
In the current system we believe that there should be a cap on the income paid by parents because there is a limit to how much money should be invested in a child. If there is a lifestyle maintenance factor in the payment of child benefits, that should be considered as part of the maintenance for the total family and not related to the care of children. So there should be a cap on the amount that is payable for the maintenance of children and we believe there should be an estimation made on the cost of raising children at various income levels so that benefits paid to custodial parents should be related to the actual cost of raising children.
The committee also believes that the deliberate link between the amount of child support and the time children spend with each parent under sections 47 and 49 should be removed. There is no doubt that the 109 nights syndrome is prevalent and greater access generally will not be given if mothers feel they are going to damage their income by granting more than 109 nights' access the way the scales work. We believe that that factor ought to be removed completely and it should be replaced with a new parenting payment to non-resident parents with above 10 per cent care.
It is not only the cases which come before the courts that are affected by this 109 night regime, but also cases that do not. There is an 80/20 per cent rebuttable assumption already in the system. It is assumed by practically every male and every female in the nation, encouraged by their solicitors, that the male will have the children every second weekend and half of the school holidays. That is the 80/20 per cent rule that is currently in place. It is a regime that works throughout the system and, despite denials by the Family Court and other people, it is in place and that is the way in which the system is working. We have rejected that approach. Part of the rejection of that approach is to deal with the 109-night factor for residency and the linking of that to benefits and child payments.
We also recommend amending the determination of the payer's child support income. We recommend that it be determined by halving the formula for income earned by way of a second job—provided the first job is 38 hours or more—or overtime. Where there is a second family involved, people work extraordinarily hard and have huge commitments that they try to live up to. Some families break under this process and the male usually becomes unemployed. I believe that some people become unemployed deliberately, to avoid their responsibilities. When the payer becomes unemployed, the minimum payment of $5 a week comes into effect and that is the way the matter is resolved. We have tried, in this system, to toughen the rules applying to child support payments. So there is a requirement here that all sorts of measures to collect funds under the child support scheme should be applied by the child support agency. We do not believe that enough effort is made. We also believe that the minimum payment limit of $5 a week should be doubled. We believe that all decisions of the child support agency should be open to external review. That is what is proposed for existing cases, a substantial change. [start page 24366]
For new cases there is a new regime, a process of assuming that parents have equal say in the future of their children. It is not a rebuttable process but simply an assumption that the law will make sure that each parent has an equal say, and there will be no reasons for them to not have an equal say. From that will flow the concept of equal time spent with parents unless that proves impractical. The parenting plan for the future of the children—involving their education, religious training, type of lifestyle, sports and the friends they will associate with—needs to be developed from day one. Under these proposals, no payments are contemplated for six weeks until a parenting plan is in place. Social security benefits can be paid but there will be no payments or child support until the parents show a willingness to go to mediation and try to resolve their differences. Once that process starts, within the six-week period, payments can start to flow. So there is an incentive there for parents to try to resolve this issue, both for the dad and the mum, or the caring parent and the non-custodial parent, to be able to get together to establish a proper plan. Once that plan is in place it is capable of variation because as children grow up changes need to be made, but it should be done by way of mediation, conciliation if necessary or, ultimately, arbitration through a tribunal without any support from the legal community. The only support of a legal type that the tribunal can bring is advice to the tribunal itself, where it will seek clarification on points of law. Only on a denial of natural justice should any cases go forward to the Family Court.
This process is enlightened and helpful. My heart goes out to those people currently trapped with court orders in the existing system. If both partners want to adopt the new system they may under our proposal—but the warfare that currently exists can be assisted by a number of techniques including supervised meetings between parents and other processes such as those adopted by UNIFAM. I commend this report. It has taken hard work and a lot of commitment and it is a good report.
Author: Hon Alan Cadman MP
Source: House Hansard - 11th February 2004
Release Date: 18 Feb 2004