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Standing Committee on Social Policy and Legal Affairs - 27/06/2014 - Child support program

LEWIS, Mr Paul, Member, Family Issues Committee, Law Society of New South Wales

STAKA, Ms Susana, Member, Family Issues Committee, Law Society of New South Wales

[10:56]

CHAIR: These meetings are formal proceedings of the parliament. Everything should be factual and honest. It can be considered a serious matter to attempt to mislead the committee, as you are aware. Would one or both of you like to make an opening statement before we go to questions?

Mr Lewis : Would it be useful if we each quickly summarise our background in family law for you?

CHAIR: That is fine. Please do so.

Mr Lewis : In my case, I was admitted to practice 24 years ago. I have undertaken family law work from the very beginning. I was admitted nine months after the commencement of the child support system so, in a sense, I have grown up with it and the various exchanges that have occurred along the way. Both Ms Staka and myself are accredited specialists in family law. I am also accredited in dispute resolution with the Law Society and have been practising mediator 20 years.

Ms Staka : I am a solicitor in private practice. My area of practice is family law. I have been practising in that jurisdiction for the last 25 years. My area of practice initially commenced in the Parramatta area of greater Western Sydney. In more recent times, my practice has moved to the Sydney CBD. As I indicated earlier, I am a member of the family issues committee also.

Mr Lewis : I would like to focus on the terms of reference for alignment of the child support and family assistance frameworks and go to something which is in the Law Society's submission on the bottom of page 4, which is the family issues committee submission that there is scope for increased collaboration which draws upon the family dispute resolution capacity of family relationship centres.

Expansion of the current use of programs of the family relationship centres could occur through greater coordinated legally assisted family dispute resolution in a wider range of cases than at the present time, which as I understand it, include cases where at least one of the parties has to be legally aided. There is also capacity for greater referrals by the department of these harder child support cases or even party initiated FDR cases. Further, at the top of page 5 of our submission, we talk about interdisciplinary collaborative practice.

As has been observed in a number of the submissions, including, I think, very elegantly in the submission by the Australian Institute of Family Studies, most child support disputes are, in my view, allied to a more fundamental conflict that is present, whether it be about the allocation of parenting time—the time of children with their parents—or issues surrounding the separation, extended family issues or, indeed, problems of family violence or risk of child abuse. So it is important to the extent that the family law system can work in a coordinated way that we endeavour to try to nip child support conflicts in the bud as far as possible.

It is very gratifying to see this inquiry on foot in the committee doing this work. As I understand it, there was talk of seeing more child support cases referred to the FRCs, as is noted in one of the other submissions—I think it might be the AIFS one or it could have been Professor Parkinson's one—but it does not seem to have occurred. I say that from the vantage point of also being a board director of Interrelate family centres, which operates 10 of the FRCs in New South Wales—mainly in country New South Wales.

Ms Staka : Each of us having a family law background can draw on our observations and experiences with the introduction of the FRCs in relation to parenting disputes and how in many cases the results have been good. There are of course exceptions to the ability to use FRCs. There will be cases where the circumstances may not be suitable, particularly in cases, for example, of chronic family violence and the like, and special expertise may be drawn on if it was considered to be an approach. But, in the context of parenting disputes, it is a mandatory requirement in the family law jurisdiction before parties can come to court—allowing for exceptional circumstances—and it is something that each of us has had some experience with and grown up with since its introduction.

CHAIR: I want to ask about the practicalities of the family relationship centres. Mr Lewis, since you have raised that issue, what do you think can be practically achieved by greater usage of these family relationship centres, particularly in the conflict area? What sorts of results and outcomes are we looking for with FRCs?

Mr Lewis : There is nothing simple about this.

CHAIR: I appreciate that.

Mr Lewis : There is almost an infinite array of the manifestations of conflict in these sorts of situations. People get entrenched in their conflict—and I say this as much as a practising mediator as an experienced family lawyer. People, when they are in entrenched conflict, tend to demonise the other party and they cannot find a way out—they become stuck in the conflict. That includes high-conflict cases. High-conflict cases are not to be confused with the domestic violence and family violence cases. It is extremely important, and we wholeheartedly adopt the submission of the Women's Legal Service in that regard. The level of professionalism and awareness of that distinction is very well known throughout FDR sector and across the family relationship centres. So they are able to work out safety plans after doing a proper risk assessment.

I am advocating that there is scope for people to return for family mediation or family dispute resolution to revisit the reasons as to why they are in conflict, with the assistance of skills practitioners to try to help them change that. There have been some very good family relationship programs and initiatives developed. Kids In Focus, Interrelate and Building Connections all had some very positive results. I there needs to perhaps be a greater linking of those prior successful initiatives with some new innovative practice around these child support cases.

Ms CLAYDON: I think the idea of increasing an interdisciplinary and collaborative approach makes very good sense. I was just wondering whether you could flesh that out with respect to situations where it is working well now and why you would move to broaden that scope and make that more accessible to a wider range of people involved in conflict but are not current taking part in programs that are being run through Interrelate or other such family relationship centres.

Mr Lewis : I think one of the tensions that we deal with here is the tension between mandating people to do things and then the element of voluntariness and autonomy, if you like. We mandate FDR, with exceptions, under the Family Law Act in parenting cases, and the court has the power to refer people to specific services or programs. There is potentially another few minutes worth of discussion there on the extent to which the courts are doing that and the extent to which we know they are doing it—in other words, the empirics around that. I am not advocating radical change here; I am thinking more of the very difficult child support cases where there is noncompliance, where there might be arrears, and whether there might be scope for mandating some referral or family dispute resolution at an earlier point to try to deal with the issues.

Ms CLAYDON: Is it your view that there is adequate funding and resources going into the family relationship centres—that network of them—to ensure the skills and expertise required to work with those more entrenched and high-conflict families?

Mr Lewis : I am familiar with the funding issue in recent times. I am not speaking on behalf of the Interrelate board—I am only speaking in a personal capacity, of course—but I think it is pleasing that the current government has, in broad terms, maintained the levels of funding that were present under the previous administration, recognising, of course, that it was the Howard government that implemented the rollout of the FRCs in 2006. If there is to be an enhancement of family dispute resolution in these cases, I think there is a strong argument that some further funding may be required to further round out the training and skills set of the FDR practitioners because there will be some tricky issues around dealing with the potential for conditional link bargaining or worse—the leveraging parents, not necessarily in good faith, wanting to leverage time as against child support and the other way around.

Ms CLAYDON: Would you see that economic cost of putting more investment into increasing the capacity of the centres adequately offset by the social and economic costs of not dealing with that level of conflict?

Mr Lewis : There is no question that it would be worthwhile.

Ms CLAYDON: Thank you.

Ms BUTLER: One of the submissions that we have received, from the equal parenting Non-Custodial Parents Party, raises some concerns about the provision of the Child Support (Registration and Collection) Act, specifically about the fact that the SSAT, when reviewing a decision under the relevant part of that act, 'is not bound by legal technicalities, legal forms or rules of evidence', 'is to act as speedily as a proper consideration of the review allows' and 'may inform itself on any matter relevant to a review in any manner it considers appropriate'. Were that provision not to be applicable to SSAT hearings, what effect would that have on access to justice, the complexity of the proceedings and the costs involved?

Mr Lewis : At the extreme, I think we would return to the bad old days of not having the child support division within the department and we would be returning to the courts in the old way that we used to do things, where it was up to people to obtain child maintenance orders and to enforce them, and it would be retrograde. With respect to the authors of that submission and that organisation, I think the thrust of that submission about rules of evidence fundamentally misunderstands why we have tribunals and the proliferation of tribunals in Australian society. We have the judicial review mechanisms there. That does not mean that they are perfect, but it is a question of balancing competing priorities and tensions.

Ms BUTLER: Would it not make those reviews far more expensive if they were considered by a court that was bound by the rules of evidence?

Mr Lewis : You would potentially, I think, be facing a hearing de novo situation, which, in my personal view, is not the answer because any dissatisfied applicant or respondent would be saying, 'It's worth our while getting on the merry-go-round again.'

Ms Staka : And, leaving aside the complexities of the presentation of each case if it were to be bound by rules of evidence, with the cost I think we would find ourselves in a situation where many people involved in that process would look to retain perhaps legal representation or at least some guidance and find the process extremely difficult and potentially quite costly to them individually.

Ms BUTLER: Do you think that that would then disproportionately favour parties with greater access to financial resources?

Ms Staka : Potentially that could be one of the outcomes, yes.

Ms BUTLER: Similarly, the same organisation has advocated for the 'removal of the family violence provisions added to the Family Law Act 1975 in 2012'. Would you care to express a view about that proposition?

Ms Staka : I do not think I would personally like to express a view about that and I am not sure that our submission goes to that. Perhaps it is something we should take on notice.

Mr Lewis : That might be a good question to take on notice because it is such an important question. My personal view would be, no, they should remain. We are happy to take that on notice so that the committee could respond officially.

CHAIR: It is probably outside our terms of reference, actually.

Ms CLAYDON: We have received some evidence which calls for the government to guarantee child support payments and for child support liabilities to in fact be owned by the government. Do you have a view on this?

Mr Lewis : Again, the family issues committee has not formally considered this; this is my personal view only. I think I noted that that is the New Zealand approach. I thought that aspect of it was interesting. I was concerned about whether that might act as a further disincentive for payers to comply. That was my immediate gut reaction, if you like. The other feature of their system that I noted, based on a fairly cursory reading, was that their approach seemed to be one where, if people are in court at the beginning, the court can set the level of child support. That is quite different, of course, to how we are doing it. I think it is worthy of consideration to study that some more.

Ms CLAYDON: Would you take on notice whether or not the Law Society has a view?

Mr Lewis : Yes.

Ms CLAYDON: Thank you.

Ms BUTLER: Something that has come up in a few different submissions has been the difficulty in getting to the bottom of what someone's financial position truly is. Obviously, that is a concern for the Commonwealth in debt recovery, but there is also a concern about the amount of information that people have to put before the Commonwealth when it comes to change of assessment applications, with people even turning to amateur sleuthing to try to find out what their ex-partner is really worth financially. Is there a better way? Should there be a register of equitable interests? Should you be able to undertake a search and find out what someone's assets are in the jurisdiction? How do we deal with this to remove that inefficient, opaque process? I know it is a difficult question, by the way.

Mr Lewis : There is some information available in the public domain, of course. In the case of real estate, you can do a purchasers index search. In the case of companies, you can do a directors name search. So it is not as if there is nothing in the public domain already. Can I say that family law solicitors and barristers face this same problem, so it is not a function of whether you are operating in a tribunal system alone; it is faced all the time. But I am not sure that the solution lies in having some central register of pecuniary or financial interests. It is just something that is there. I am not sure whether that is helpful.

Ms BUTLER: I appreciate the difficulties. I am from Queensland. If you have a debt recovery matter, you get an order first, you go to the Magistrates Court, you get an oral examination happening, you grill someone about their financial affairs and you are then able to obtain orders for garnishing wages and those sorts of things. But it seems like a really inefficient process to have to go person by person and dig through their affairs. I do not know if there is a more efficient way of handling this and that is why I have asked the question.

Mr Lewis : That is classic debt recovery stuff. It links to another point in our submission which is about the enforcement capability of the division in the department. I am not sure that there is enough light thrown on that, if you like. We did not wish to be dogmatic in suggesting that there are systemic problems; it was more in the nature of saying that this is another area worthy of examination. A subset of this, of course, is the departure prohibition orders, which we did not address in our submission but would be willing to take any questions on notice, because, having read Professor Parkinson's submission, it seems to me there is a group of clientele that have not been considered which are the payers who are owed money. What about their situation if departure prohibition orders are not being made? One needs to be mindful of the focus, not being biased.

Ms BUTLER: In that case, would you take on notice some questions I have? Firstly, would you support the proposition that there should be a blanket prohibition on obtaining DPOs in respect of people who are not ordinarily domiciled in the jurisdiction? Secondly, should there be some means of contesting DPOs in the event that there is a genuine dispute about the existence or amount of the debt? Thirdly, what is the appropriate legal arrangement in a situation where substantial amounts of money are owed by persons who are outside of the jurisdiction? Are the existing international agreements sufficient to recover moneys against payers who are outside of the jurisdiction ordinarily? Three very small questions for you!

CHAIR: We can get you a written copy of those because they will all be in the Hansard. Are you in a position to be able to provide a response regarding that?

Mr Lewis : My personal view on the first is no. You could have expats who are saying, 'I'm no longer domiciled in Australia' and, straightaway, they are off scot free, potentially, in terms of utilising that mechanism. I think it would be best if all three questions are taken on notice so that the committee—

CHAIR: Could I throw in a fourth question? It goes to natural justice. How do you, as the Law Society, see natural justice fitting into the current system? Could it be amended to ensure there is natural justice afforded in that system of DPOs in particular?

Ms BUTLER: I have another question. What would your view be in respect of the proposition that there could be advance notice to respondents to DPOs?

CHAIR: As I said, the secretariat could write to the Law Society with those exact questions. We will do that. We only have a few minutes left and I have a couple of other questions that have been recommended by the secretariat in relation to your submission to tease it out a bit. I saw a few comments in your written submission regarding sufficient training, support and resourcing for staff of the Department of Human Services that are in the child support role. Do you think that the paralegals within DHS are sufficiently trained and supported, and other people who are engaged in the legal side of DHS?

Mr Lewis : These were intended more as pointers to things that could be examined. We did not seek to be—

CHAIR: Critical?

Mr Lewis : Yes.

CHAIR: I appreciate that. On page 3 of your submission—in the meeting papers it is page 14—you say: 'It is contended that the changing nature of the family may require a review of the formula components.' Could you elaborate on what you mean by that?

Ms Staka : What is meant by that is that the nuclear family has changed to the extent that children are now living in multiple homes with multiple carers. The act, as it stands, makes reference to possible variations and scenarios of the caring responsibilities. It is not exhaustive. As time evolves, there may be further changes. That was really just to highlight the changing nature of our society.

CHAIR: That explains it. Thank you. There have been some claims that there is an element of consistency in some of the decision making by DHS. In particular, I point to, as I said to the earlier witness, the change of assessments and in particular the income deeming part of that. There seems to be some inconsistency. Along with that, we have heard from the National Audit Office that there have been repeated instances where there was no feedback loop within DHS. The initial assessment is made and it then goes to review. It is the case that the same mistakes are made and constant corrections of those mistakes are done. Do you have a view on these two things: the issue of inconsistency in decision making and whether the feedback loop and the objection process can be improved?

Mr Lewis : At the risk of sounding somewhat trite, we see inconsistency in judicial decision making.

CHAIR: I appreciate that.

Mr Lewis : In terms of the second issue—again, this is only my personal view—I would see the presence or absence of feedback loops as a corporate governance, organisational management issue and for my part I would always say that feedback loops are good things to have.

Ms Staka : To add to that, from where we sit, we do not have access to a lot of the decisions that are being made on the basis of the decisions by officers from time to time. The statistics are self-explanatory to an extent, but the basis upon which those statistics are derived are unknown.

CHAIR: You recommend that DHS take more active role in litigating for the collection of child support arrears and that it should take on more difficult and intractable cases. Could you explain what sort of cases you mean and not what basis, other than the likelihood of success, should the department engage in that litigation?

Mr Lewis : Before I deal with that question, I would like to raise another issue that relates to the question of arrears. It concerns the change that was made. I cannot tell you exactly when it was. Once upon a time, the default or predominant means of payment of child support was by what is called automatic withholding. The legislation used to say that, if a payer objected to automatically holding, they needed to make out a case, so to speak, to the agency, as it was then known, as to why automatic withholding should not apply. The legislation was amended to say that it could be direct payment and, as I recall, there were some criteria around giving a payee the right to say, 'No, it's got to go back to automatic withholding' if people were not timely with their payments or not paying the full amount.

CHAIR: If I could clarify that answer. You mean you would be going through the child support system or doing a private collection. Is that what you are talking about?

Mr Lewis : I am talking about payments being effectively garnished from wages. Thank you for that clarification. We look at where we are now and we have got the language of 'child support collect' or 'private collect'. I was interested to read the Australian Institute of Family Studies research and the reference on page 43 of their submission, No. 50. In part A, under 'Summary and conclusions' there is a suggestion. It might be something to clarify with AIFS. There was a suggestion that over time private collect payments were not faring so well.

I thought I would bring this to the attention of the committee just to give you that historical perspective so that some consideration might be given to this issue of whether the pendulum has moved too far in the other direction from where it first started out.

Ms BUTLER: Arising from that, it has been submitted to us that the government should pay the amount of money to the payee and then recover from the payer so that the risk of bad debt is borne by government rather than individual payees. If we move back to automatic withholding being the default, do you think that would ameliorate the need to consider a change where government starts bearing all of that risk?

Mr Lewis : It might do.

CHAIR: Thank you very much for your testimony here today. It has been very enlightening and thanks for taking that vast multitude of questions on notice for us. We will write to you about that.

Mr Lewis : Thank you.

CHAIR: We are going to have a very quick break now. When we resume we will go into the community statement session. I believe that six people have indicated they want to speak to the committee. We do have room for a few more. If anyone else wants to speak as an individual, please see the staff from the secretariat.

Proceedings suspended from 11:33 to 11:40



CHAIR: I want to open the inquiry now to our community statement session. Those invited to speak today have expressed an interest as part of our online questionnaire in speaking before the committee. I remind people that they should provide constructive ideas for improving the child support program. Please do not disclose personal experiences or details, because if we have someone identified we are going to have to strike it from the Hansard record. We have other methods to collect that information. If you need to provide details that involved personal experiences so it is not in the public arena and you can do that by writing to us. Again, talk to our secretariat staff. Be aware that the session is being recorded and you could be quoted in the inquiry report for what you say here. It is going to go on the record and, if there are media present, they could be recording or filming proceedings for broadcast.

Every person who wants to present is going to have three minutes to make a statement. You will hear a bill at the 2½-minute mark. I would ask you to keep your statement to that three minutes. I am going to ask that the only questions a committee member will ask of you is clarification about something, if you really need to. Be aware of that.

I just want to outline as before we begin the fact that we had over 1,400 people express an interest in appearing before the committee. That is enormous. We literally could not do it. So the way that people have been selected has been a random process to try to get a good cross-section and get as many people to talk to us as possible. But, literally, we would not have time to do the report if we were to hear from 1,400 people. It just would not happen.

Could I ask Chris, Margarita and Gary to all come up to the front, as there are three seats and you can do it one after the other. Then we will have Katherine, Jamie and Theodora come up after them. Chris, if you could kick it off and at 2½ minutes we will ring the bell.

Chris : Sure. Thank you very much. I am appearing here today as a payer towards the CSA and I am speaking in my experience after having had a great deal of frustration and angst in dealing with CSA. I am going to concentrate on the positive aspects of those areas in which I would like to see improvement. One of the main points I think is that I would like to see a individual caseworker for each party, particularly in complex cases, such as has been the case with me.

One of the frustrations has been when contacting the CSA you tend to speak to a different person on each occasion who is maybe not familiar with the case. An individual caseworker would have a more holistic approach to cases which is going to benefit both parties and the children concerned.

In respect of the legislation, personally speaking I am not a lawyer, I am just a squaddie, basically. I find trying to examine and study the legislation is very complex and I really struggle to get an idea with what is happening with the legislation. Consequently, I find great difficulty in actually working out what my rights are and what should be taking place. I am dependent on other people interpreting that for me, but I cannot really afford lawyer. So I would like to see something that is much more approachable for the layperson is not legally trained or necessary that well educated.

Another aspects of the legislation that I think needs to be taken into consideration is that, no matter how complex and have far-reaching and in-depth in the legislation is, it cannot take into consideration individual cases. It is impossible to anticipate all the nuances and the individualisation of each case. I think there needs to be some degree of flexibility built into any future legislation that allows some flexibility to deal with the particular case.

In terms of the calculations and the formulas that are used to calculate how much I should be paying, I have never been in arrears with the CSA, yet the degree of financial payments I am expected to pay actually compromises my own basic needs. I am often left at the end of the month not even being able to pay my own rent. Certainly paying for visitation with the children in terms of flights from interstate is quite difficult. I actually find myself not being to visit my children as often as I would like to. That is pretty much all I would like to say.

CHAIR: Thank you very much for that, Chris. Margarita.

Margarita : Good morning and thank you for the opportunity to provide some input into the inquiry. Today I am providing some suggestions for improvements to local child support; international agreements; as well as outlining a more simplified approach to the retrieval of child support, especially for a parent who resides overseas.

In regard to child support locally: change or improve the child-support profile and its purpose; investigate complaints, individual groups and organisations; consideration to be given to creating a more supportive environment to assist the facilitation of child support commitments and obligations; assist parents through the transitional period and assist them to understand the importance of keeping up and on top of their financial obligations; consideration to be given to exemption periods without the pursuit of accrual interest or harassments; paying-parent estates to be accessible for life—no end date; interest to be applied up until the children turn 18 and not thereafter; lawful access to the estate with no court order requirements; and provide clear and consistent information regarding child support. This is particularly important for the child/children to feel safe, secure and loved by the parents, especially during the transitional period and beyond. Consideration be given to setting up a trust fund transferring moneys directly and accessible by educational institutions for the purposes of purchasing school items and school wears.

With regard to international agreements, I just heard there are things in place, so simplify information relating to child support. Also recommend translated material to assist with the understanding of the upkeep and also with estate accessibility similar to the one above. For parents residing overseas, maybe clearer guidelines to their obligations. Better support and assistance for parents, especially with a follow-up for child support. Better measures to assist with sticking to the obligations and meeting obligations without harassment, threats or force. Remarket child support to be seen as a step forward for maintaining a healthy relationship between parents, children, extended family with the elimination of 'pay or else'. Thank you.

CHA IR: Thank you, Margarita. Chris and Margarita, if you could go back to your chair and I will ask Katherine and Jamie to come to the table, and when Gary is finished, if Michael could come up as well. Thank you. Gary.

Gary : Chair, honourable members, I am here in capacity today as being both a payer and as well as a payee. I have a child who is special needs and I have experienced serious failure in the system at all levels within the CSA, the SSAT and in the Federal Circuit Court. It is my view that there is a need for an independent authority independent of the Department of Human Services which needs to make decisions. Presently I believe the Department of Human Services as gatekeeper to the child-support system, which also administers the family tax benefit payments, is seriously conflicted. I am of the view, as other people are, that what happens is that there are decisions which are written basically on a predetermined level of child support and the decisions are fabricated by officers to support those assessments. That is why there is a sense of community injustice.

The CSA needs to be reformed in its entirety. It needs to comprise an independent board, where the chief executive is accountable to that board, and there are members of community groups and persons qualified with suitable experience in legal and accounting matters, to provide support to the agency. The guide that is issued by the agency is a document which is too generic. There is no certainty as to how the CSA will apply the law. We should look at the precedent in the Taxation Office and start looking at interpretive decisions being issued by the agency.

There should be enforcement action against persons who make false and misleading statements to the CSA and waste the CSA's resources. There is a perception in the community that you can lie and misrepresent to the CSA with total immunity.

There is a need to improve the quality-control processes surrounding the application of the legislation and the decision-making processes. At present there is an absence of accountability and consistency in the decisions of the agency. That is why we get decisions that are poor. We have decisions based on looking at the amount that is needed to be paid; the decisions are written accordingly. This has resulted in decisions without evidence or with a selected interpretation of the material before it.

I have been astounded at the lack of accounting expertise of some of the persons within the agency, the Social Security Appeals Tribunal and the legal system—with all due respect to our lawyers. The basic checks and controls are absent. For example, the CSA issues assessments that predate the date of the decision, and then you have to tell the agency that there is no legal basis for those assessments; they subsequently issue amended assessments.

There is a need to enhance the definitions within the legislation, such as a change of working pattern, so that it is more definitive, because the court system is basically taking a liberal approach to what constitutes a change. That has a quite serious impact on people. The court is also ignoring the impact of the situation where, as a result of a change in working pattern, there is an increase in income. I have been told it is irrelevant that there is a change in working pattern. So it flows that you can hit somebody up for an earnings capacity assessment.

CHAIR: Have you provided a written submission to us?

Gary : Yes, I have.

CHAIR: We will look it up. It will have all that stuff in it.

Ga ry : There is some further stuff in here, as well, which I would like to tender.

CHAIR: If you want to tender that, we will accept that as correspondence, for the moment, and perhaps as a further submission.

Kathryn : It only takes one parent to create conflict. The parent creating the conflict can ignore the court orders and make it increasingly difficult for the other parent to see the children. There is no deterrent for this behaviour, as the Family Court does not enforce its orders. The parent causing the conflict can move further away to outer suburbs, making regular contact with the other parent virtually impossible. As this antagonistic parent becomes more successful in alienating the children from the other parent the child support program rewards the parent creating the conflict by forcing the other parent to pay more and more child support.

For three children with two different fathers, the parent causing the conflict can now receive $67,000 tax free in child support. Why would this parent bother working? This represents take-home pay way above what the average person earns. The controlling parent can unilaterally enrol the children in private schools. With only the payer working and the funds spread over two households, the finances cannot cope with private school fees. But because in the distant past, when the children were newly born, the paying parent signed a deposit form for a private school, the child support program forces the paying parent to pay the private school fee.

The alienating parent, having successfully estranged the children from the other parent can now relocate, without even notifying the other parent, hundreds of kilometres away from that parent. The estranged parent looks to relocate to be closer to the children but the child support program deems that the earnings must stay at the same level. The estranged parent is driven to despair in a fight to try to see the children and, finally, while defeated and depressed, the employment is terminated.

The payee, although the recipient of 70 per cent of the assets during the property settlement, has spent it on an extravagant lifestyle and now declares poverty. With no income available, the child support program looks to the assets of the payer. The substantial court costs have eroded all but the superannuation, the only asset left to the payer during the property settlement.

CHAIR: Kathryn, if you have some suggestions, you should get to those quickly or you might run out of time. You can table them as well. I just want to get your suggestions. You have 30 seconds extra.

Kathryn : Child support must be based on the court orders. Child support must change to treat both parents equally. If one parent is required to work after divorce then both parents should be required to work after divorce. The payee should pay some tax on the child support payments. Reason 3 for the change of assessment process should be abolished. Assets assigned during the property settlement must be quarantined from child support calculations.

CHAIR: Submit that to us as well. You have another 30 seconds if you want to say something else.

Kathryn : I have gone to the end.

Ms BUTLER: How would you administer that tax? Would the employer—

Kathryn : I do not know that I have the expertise to make that suggestion.

Ms BUTLER: I asked that question given the suggestion that you made.

CHAIR: We will move on to Jamie.

Jamie : Good morning. My comments today talk to the blunt approach taken by the Child Support Agency in the determination of child support payments. In my view, the current system encourages the custodial parent to do two things; the first is to restrict access to the children and the second is to lie about their own income in order to maximise the payment that they therefore receive. In my view, it is less about child support and more about lying support. To me, the Child Support Agency and even the ATO seem really uninterested in getting to the truth about income levels of the custodial parent. They are happy to accept the parent's word for their level of income. Even when hard evidence is placed before them about the true income of the custodial parent, they are not prepared to act or do anything about it because they are satisfied and happy that at least someone, in this case me, is paying the bill.

On the subject of access, it does not seem fair or sensible to me that there is an assumption that the mother would automatically be the custodial parent and that fathers, therefore, have to fight for the rights to see their children. To me, it would seem to make sense that you would start with a fifty-fifty arrangement and, if that is not satisfactory to either party, therefore to pursue it separately in court. Again, this impacts on the quantum that is payable by the non-custodial parent. In my view, there needs to be a more vigorous approach taken to discovery of the custodial parent's real, genuine income to ensure that the non-custodial parent's payments are not the greatest single source of income that the custodial parent receives.

CHAIR: Thank you very much. We will move on to Michael.

Michael : Good morning. I have prepared a submission document for this committee. Until a few minutes ago, I was not aware of the fact that I was not actually allowed to put examples, but rest assured that I am not mentioning any names. If you are prepared to actually listen to my submission—

CHAIR: We will give you an extra 30 seconds for my intervention here. If you are seeking a clarification, do not name the person or give any sort of identifier as to who that is. If you do, we will have to strike it. Just be careful. It is fine to give the example; just please make sure that they cannot be identified.

Michael : Thank you kindly for providing me with an opportunity to contribute to the inquiry into the Child Support Program. For personal reasons, I am more than happy for my present submission to be made public as well as posted in the public domain. I hereby request for my identity to be kept private. In order to make sure no parts of my submission can identify any parties, I will refrain from mentioning any specific dates and/or specific parties involved. In saying so, please do rest assured that the information I am about to provide is true and factual in all ways. My submissions will cover the following areas, which personally affected me the most: the manner in which the Child Support Agency acted in a unilateral manner in deciding levels of care for my child, the manner in which the CSA discriminated against the father for origins and the manner in which the Child Support Agency accepted a document infringing on Australian federal laws.

By way of background, I migrated to Australia in late 1991 and I have been an Australian citizen since 1994. I started a relationship in late 2001 with an Australian born woman who had two teenage children from a previous relationship. From this relationship, we had a boy in late 2002 and for varied reasons our relationship fell apart. We eventually separated in early 2005. Shortly after the relationship breakdown I was contacted by someone from the Child Support Agency who informed me that at the time she had unilaterally accepted my ex-partner's assertion about the level of care, about the time she cared for our son. When I objected, I was informed that the decision was made primarily in the absence of Family Court orders, in mutual agreement between my ex-partner and me. Between April 2005 and May 2006, at which time the Family Court order was eventually put in place, I was brought to the brink of bankruptcy because on top of having to meet mortgage payments on two properties by myself, I had to pay up to $1,100 per month to my ex-partner because the CSA had made false assumptions about levels of access and care for our child.

After speaking with other single fathers who also had to pay child support, I was informed of the inappropriate manner in which the CSA had acted but was told that I could no longer appeal the decisions as over three months had passed and there was a statute of limitations in place. Accordingly, I sincerely feel that the CSA discriminated against me as a paying father of foreign origin. Subsequent to receiving that and to Family Court orders being put in place, the CSA had been diligent in maintaining the levels of care stipulated in Family Court orders but have demonstrated bias in other ways which have also adversely affected me in a financial manner. Such examples abounded over the years but two main ones stand out and are very representative of the problems within the CSA. In the first example, my ex-partner and I were involved a few years ago in Family Court proceedings in which we both had to disclose our respective financial situation and earning capacity. My ex-partner used her information provided in sworn affidavits as part of court proceedings to request a change of assessment with the CSA. After receiving documents from the CSA, I responded by objecting to information having been supplied by my ex-partner and requested that the CSA reject her request on the basis that they would be aiding and abetting my ex-partner in breaching section 121 of the Family Law Act 1975. Moreover, I specified that information supplied about my yearly income would not be representative of the income I was expecting—

CHAIR: We are going to have to pull it up there.

Michael : Yes, that is fine, I am happy to provide that.

CHAIR: If you have that written, we will accept it as correspondence. We will look at it, definitely. We may even treat it as a formal submission if we look through it and can be sure that there are no privacy breaches.

Michael : That is fine, I have a number of recommendations as well but nothing is totally dark. There have been a few shining lights, but I have listed a few recommendations which I believe will be helpful to this inquiry.

CHAIR: If you can just see the staff there, please, we will ensure that goes in. Thank you very much. Sorry about the time limitations.

Phillip : I come from the space of being a customer of the Child Support Agency for the last 17 years. I have been both a payer and a payee, so I have seen both sides of customer service. I need to get two points across. First of all is the underlying culture in customer service of the CSA. We see within the CSA that decisions are made with respect to people's income, people circumstances and the rest of it. When we talk about life changes and going through changes, the object of the Child Support Act, section 4(2)(d) says that children share in changes in standards of living of both parents whether or not they are living with both or either of them. This really comes to the deeming aspect and capacity to earn. It also follows on in the culture where, if a parent, especially a payee, reduces their wage, it is really seen as being a direct decision that that parent has made to reduce their financial responsibilities when in actual fact it is really just changes of life. We all have the ups and downs of life. Sometimes we are dealt a joker; sometimes weird jobs and ACE. That is the way it goes.

Further to that, I want to talk around my concerns about when teenagers leave the house of both mum and dad. All of a sudden the teenager becomes homeless or living in another aspect and mum and dad no longer have any responsibility to pay for that child until they are 18. The child gets their income from Centrelink, through homelessness services and through Youth Allowance et cetera. If children are in that state and we have this acknowledgement that we should be looking after our children, at least to the age of 18, I think there is something really wrong with the system when a child decides to leave both mum's place and dad's place and go out and live in a hostel or on someone's couch, and then all of a sudden both mum and dad sit back and say, 'We do not have to pay anything for this child any more.' I think it is just crazy.

The other thing concerns the delivery of it. Quite often I get letters dated 10 days ago that give me 14 days to respond. It makes it really difficult. You get different information from different case workers. They tell you something and then all of a sudden they send you out a letter to confirm it, and the letter says something totally different to what you have confirmed over the phone.

CHAIR: If you have further comments could you give that to us as a written submission, and we will take that on board. Thank you. That was very good.

Peter : Thank you Chair and members of the committee. I did not come with a prepared statement. However, I have been paying child support continuously for 30 years, so I come with a wealth of experience. I went onto the books of the Child Support Agency when they opened for business, and I have been there continuously. Prior to that it was the magistrate's court system.

I have seen the ups and downs of the Child Support Agency. I have seen some really good things happen and I have seen some tremendous mistakes happen. I think the name 'child support' should be removed from its function, because I think it fails to deliver on that categorically. I can give specifics, without mentioning names. There are two glaring areas of concern that I have, and I think anyone would have. The first is that the legislation is not applied fairly to both parties. A case in point is where a man and a woman separated and the custodial parent became the mother. She had a postgraduate university qualification and her earning capacity was deemed to be zero. The father was given an earning capacity of $522,000 a year, yet he was unemployed. He had exactly the same qualification from exactly the same university. He was then rendered basically homeless and was forced into insolvency by the agency when they emptied his bank accounts to be able to provide money to the custodial parent. That was done in 2008. That individual has been pursued by debt collectors continually for that time. The mother, who has a masters qualification in law in addition to her postgraduate qualifications, has quite openly stated, 'I will get a low-paid job and be topped up by tax-free child support.' That system is allowed to happen. The question has been asked of the agency, 'Why do my children deserve to eat only when they are with their mother?' But the question cannot be answered.

The other major concern, I believe, is the total absence of independent oversight of the decisions and actions of the Child Support Agency. A case in point is where someone can have their bank accounts emptied without any recourse. Secondly, statistically, prior to 2008 the SSAT would overturn a lot of the Child Support Agency's decisions. In 2008-09, when they set up their own dedicated division to look after child support issues, and recruited the people for that from the Child Support Agency, the pendulum swung entirely the other way to the point where two things happened. In a meeting with the current Speaker of the House a Child Support Agency senior official said, 'When parents separate we choose one to support and one to persecute.' Secondly, when I was in court myself recently, a solicitor for the CSA said that that SSAT is merely a rubber stamp for the Child Support Agency's decisions. Those sorts of things are hearsay in this case but are recorded in the former case.

CHAIR: Did you put a submission in?

Peter: I did.

CHAIR: We will look at that. Thank you for your comments. I apologise for the limited length of time we have. We have another community statements session afterwards and we have to apply time limits. I apologise to Kathryn for pulling you up, but I really wanted to get your suggestions on the record, because I knew there would have been some coming after the issues. Thank you for sharing with your experiences and ideas on how we can improve the system. That is what this inquiry is all about. We will consider all of the suggestions you have made.

Proceedings suspended from 12:10 to 13: 04