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Thursday, 26 March 1987
Page: 1394

Senator REID(3.12) —We are debating the Family Law Amendment Bill 1985 which was last discussed in the Senate on 20 February 1986. It is a private member's Bill introduced by Senator Durack through which he seeks to amend some aspects of the Family Law Act. The Family Law Act that we are discussing came into force, as everybody will know, at the beginning of 1976, having been passed in 1975. Many substantial changes were made to the way dissolution of marriage would thereafter proceed. I will not deal with the substantial changes to the grounds and such matters, because this Bill which is now before us relates specifically to the question of maintenance and the support of children.

It is particularly appropriate that we should come back to look at this Bill today because the Government has this week made a statement in the chamber arising from its paper on child support. The paper was available to the community for only quite a short time. I think about seven weeks was allowed for response to that paper. But, in fact, a number of submissions were received by the Government because there were so many people in the community well aware of the problems which have arisen as a result of an increasing incidence of both parents not supporting the children of their marriage.

The Family Law Act dealt with the question of maintenance of spouses. There were changes. But today I want to address specifically the question of maintenance of children. Section 73 of that Act indicated that both parents, according to their financial ability, should support children up to the age of 18 years and, in some cases, beyond. The court, in assessing the payment of maintenance, was to take into account a number of matters which were set out in sections 75 and 76 of the Act. In particular, under sub-section 75 2 (d), the financial obligations and needs of each of the parties was to be considered. Under sub-section 2 (e) the liability of a party to support another person was to be taken into account. Under sub-section 2 (m) the financial circumstances of a spouse cohabiting with another was to be considered; and, of course, in particular, sub-section 2 (f) indicated that any entitlement to a pension or other allowance was also to be taken into account. I think it is a fact that over the years these sections have been interpreted in a way which was quite different from what was perhaps intended at the time that the Act was passed. That applies particularly to sub-section 2 (f). It is this sub-section that this Bill seeks to amend.

I do not think anyone would query that a child has a right to be supported by both parents. But at the same time as the Family Law Act was introduced there was another change-the introduction of the supporting parent benefit. I do not think that anybody who supported the introduction of that benefit could possibly have envisaged what happened subsequently and the way that it would affect the interpretation of that sub-section of the Family Law Act that I mentioned, sub-section 75 2 (f). The sub- section provides that the Court will take into account:

the eligibility of either party for a pension, allowance or benefit under any law of Australia or of a State or Territory or under any superannuation fund or scheme, or the rate of any pension, allowance or benefit being paid to either party.

Most of us, I think, would understand what in fact was meant by that section. But, as I said, the introduction of the supporting parent benefit has put it into a totally different category. That benefit was immediately included in the consideration of this section. I do not think there can be any doubt that the section has been abused. Anybody who has been involved with the operation of the Family Court and maintenance would know that there are many orders for maintenance which have been based upon working out what the custodial parent could receive while still getting the full pension. The parent would then obtain the minimum amount to prevent any interference with the receipt of the full pension. It used to be that a wife with two children could receive a total of $32 a week and get the full pension and all the benefits that went with it. So more often than not we would find that an order would be made for each of two children in the sum of $16 each per week. The wife then went away with the full pension, the husband paid the $32 per week-or in the reverse situation the wife might have paid that to a husband who had custody of the children-and this was done irrespective of the ability of the other spouse to contribute towards the support of the children of the marriage. It was mostly done by agreements that were filed in the court. There may have been cases where courts have made orders similar to that, but mostly it occurred by agreements made under section 86 of the Act. Frequently, in addition, there was a side agreement whereby other moneys were paid by the non-custodial spouse; agreements whereby he paid the medical and dental accounts, school fees-in some instances private school fees-holidays for children and clothing for children. In addition, he may have contributed to the payment of the mortgage on the house in which they lived. But this practice maximised the use of the supporting parent benefit by seeing that the actual agreement, which was open to scrutiny, gave the minimum amount under that agreement, allowing the full amount of the pension and the benefits which flowed from it.

One of the problems, of course, has been that the provisions for enforcement of maintenance orders since the introduction of this Act of 1975 have been virtually non-existent. It really meant that maintenance was an option; one paid if one wanted to and did not pay if one did not want to. Many women found that they were much better off on the full pension and benefits which at least gave them some certainty in their budgeting. The amount was not lavish and it did not provide well-we know there are many children of single parents living in poverty-but at least it meant that a woman had a certain amount of money and she was able to attempt to budget within that amount. I can understand that as being a fairly significant factor in a person's not wanting to bother to pursue maintenance, because maintenance would come so irregularly that nobody could run a budget or a household. If one got $100 one month, nothing the next and $300 the one after, one could not run one's life and one's children's lives. To settle for a situation whereby one could ignore the maintenance that ought to be paid for the benefit of the children and stick to the full pension and benefits was a better way in which to live. The lack of enforcement proceedings in the 1975 Act meant that that has occurred to a substantial degree.

I think it is that fact that has led to a lot of the problems that exist today. Those who wanted to try to enforce maintenance orders have had enormous difficulties. There are no sanctions in the 1975 Act. It was possible for a person against whom an order had been made to allow the arrears of maintenance to run up to quite substantial amounts. If a woman wanted to enforce the order, she had to initiate action. She had to go to the court and provide the address at which the former spouse was living or the place where he was working. Frequently she did not know it, because people do move around. If she could not give this information, there was no provision for giving her any support or assistance, and she certainly would not have had the money to employ somebody to find out the information. If by chance she had all the right information, a process was issued and served and a man was to come before the courts to answer why he had not paid his maintenance, he could use the quite simple device, on the eve of the proceedings, of paying some of that money-perhaps not even a substantial amount. There did not seem to be any provision for a collector of maintenance to reject a part payment. As it turned out, that was another serious flaw.

I am not saying that all of these things could have been or should have been perceived at the time. But the operation of the Act meant that on the eve of proceedings, if a payment was made, that virtually wiped out the proceedings. The next day, the woman was left with some money and then she had to start all over again. If the maintenance was being paid intermittently, she would have been constantly in a hassle as to whether she had been overpaid by the Department of Social Security. She had to disclose the money she had received, and rightly so, but she would have been constantly having these hassles as to whether she owed Social Security some money or whether it owed her an amount.

It is my view that no person should be able to obtain social security for a child of whom he or she has custody unless there is in existence a maintenance order concerning payment towards the support of the children from the other parent. We have to stop this private arrangement which means there is access into the social security barrel, irrespective of the circumstances. We need to be sure that those who want to make private arrangements and stick to them are not interfered with under the proposals which are to be brought in. I have read the statement of the Minister for Social Security (Mr Howe) quite carefully. I am not confident that it will not apply across the board. If that were the case, I think it would be expensive and a pity.

I think that parents ought to be encouraged to make proper arrangements between themselves for the support of children. If, as I said, a custodial parent seeks support from other taxpayers-which is what it amounts to; they probably have children of their own and are supporting them-by way of the social security system, it must be quite clear that proper steps have been taken to get a proper amount of money towards the support of children from the non-custodial parent. The section 86 agreements to which I have referred must not be allowed to be used as a means of avoiding this procedure. If an agreement such as that is in existence and social security is applied for, the Department of Social Security, or somebody, must have the capacity to look behind that agreement at the actual financial situation of both parties.

The other area in which maintenance has been disposed of, in a sense, or the obligation to pay, is under the section 87 agreements, whereby sometimes maintenance has been sacrificed within a property settlement. Again, that is something that parties may wish to do. They may have good reasons for doing so. But if, in addition, there is an application for social security payments, I think the nature of the section 87 agreement must be somewhat different so that it cannot be used as a device to get into the social security system and avoid the proper obligations.

An amendment was moved previously by the late Senator Missen-I do not have it before me-to the effect that there should be an inquiry into these matters. It is my view that this has been overtaken by the actions that the Government has taken in putting out the child support paper for discussion, and by the Government's response. My assessment of the reaction of the community to what has occurred leads me to conclude that there is no longer any necessity to investigate the matters in a way in which a committee would investigate them, because the issues are clearly before us. It is the remedies that need to be worked out. As I say, it would be my view that that is no longer a matter which ought to be supported by the Senate. I hope that the Government will support Senator Durack's Bill. A couple of amendments will be moved to it. The Government had the opportunity to support the proposals contained in it in 1983 when the Family Law Act was amended and similar amendments were put forward. That is in the past. Let us not worry about it; let us look at what we now have before us-a means of putting into effect as soon as possible some of the matters which the Government now says it supports.

The figures as to the number of parents and children involved have been discussed this week in the response to the Government's statement. I do not think it is necessary for me to go through them in any detail today. A substantial number of children are affected by the situation we are discussing, and they have an entitlement to support from both of their parents. I think all of us need to use every effort to see that that is restored and that those who ought to be receiving maintenance do receive it. But let us not proceed in a way that interferes with the arrangements of those who have made satisfactory settlements between themselves, which is the ideal situation.

I note that the Government proposes to proceed in two stages. I suggest that that is better than waiting too long, until the formula is settled. The formula will be quite difficult to settle. A number of factors have to be taken into account and it will not be easy to get a formula which is fair. As is said in regard to education, we want equality of opportunity, not equality of outcome. In this case we do not just want equality of outcome from the formula. The formula needs to have built within it such flexibility as will take into account the matters that are relevant to each family. Some are better able to support children than others. Many of the complexities have been dealt with in the paper that was presented to the Government by the Family Law Section of the Law Council of Australia. I have no doubt, of course, that the Government will look at those matters in working out what the formula will be.

The other aspect, of course, is the collection by an agency `of all maintenance orders'. I have dealt with that. I hope it does not really mean all maintenance orders. If there is a dispute, of course, the court, or whoever operates the formula, will look at it and deal with it. In cases where there is a registered agreement for maintenance, no social security component, and a payment has been missed, the agency should step in. Let parents work out these arrangements for themselves in the first instance, but let not the burden of enforcement rest with the person who is entitled to receive the money.

When it comes to enforcement by the agency, I suggest to the Government that, rather than set up a cumbersome and large bureaucracy to work with the agency, it should give consideration to the use of private mercantile agents who have the expertise to enforce orders, serve documents and take the necessary steps. That is an aside to what we are specifically discussing at present. This country is covered from end to end by such mercantile agents. Apart from the Australian Capital Territory or States in which they are not registered, it may well be that the cost to the taxpayer of enforcement could be less if such agents were employed. I wish to refer to one other matter in the Government's statement which occurred on page 7. It reads:

There was also a view that, in some circumstances, the legislative formula should take into account the income of the custodial parent.

I found that sentence strange and cannot believe that it means what it says. I cannot think of any circumstances where the formula would not take into account the income of the custodial parent. It may be that the custodial parent has no income or little, but in any event, whatever it is, that should be taken into account when assessing what each party will be contributing. Maybe I have misunderstood what was intended but both parents must be contributing towards the support of their children.

I commend the Bill brought in by Senator Durack and support the amendments contained in it. I hope that all honourable senators will do so because the question of the rights of children to be supported by both parents is very important. We should take this early opportunity to get on with establishing some of the amendments to the Family Law Act, which will make a difference and go a substantial way towards achieving the aims the Government says it wants to achieve.