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Thursday, 26 March 1987
Page: 1398


Senator COATES(3.31) —The Senate is debating as an item of General Business a private member's Bill, namely, the Family Law Amendment Bill, which was introduced in 1985 by Senator Durack, the Opposition's spokesperson on matters relating to the Attorney-General.


Senator Archer —Spokesman.


Senator COATES —He would probably prefer to be called shadow Minister or something higher-sounding than that, but I acknowledge the Opposition's wish not to do anything about language as a further example of its conservative attitudes. We are dealing with this private member's Bill which was introduced in 1985. It was debated on a couple of occasions in February 1986. Now, suddenly, the Opposition has brought on the matter again, more than a year later, obviously as a result of the statement made by the Minister for Social Security (Mr Howe) earlier this week about the Government's child support plans.

It is rather strange that the Opposition, which now tries to suggest that this Bill should have some priority, has done nothing about the matter in the intervening period. The point is that the Government is dealing with this matter. It has a clear plan and there is no need to deal with Senator Durack's private members Bill. In fact, it is now largely irrelevant, given the Minister's statement on maintenance or, as we would now prefer to call it, child support earlier this week. That statement was debated earlier this week. It seems that the Opposition wants this second bite at the cherry to put a few other things on the record, but in some ways I welcome it because it gives me an opportunity to talk further about the Government's well-researched, thoroughly dealt with plans in this area. We all acknowledge that this is a very difficult area. There are great sensitivities that affect all those involved, particularly because the matter involves children, personal relationships, perhaps painful incidents that have affected people at key points in their lives. Perhaps it is not surprising that these things lead to a great deal of feeling on all sides and great problems.

I was pleased that Senator Peter Baume, in his response in this chamber to the Minister's statement, which was tabled by Senator Tate on the Minister's behalf, was quite supportive of the Government proposals. Mr Blunt, the Opposition member who is responsible for social security matters, was much less supportive. That is regrettable. Perhaps it is one of the further things that led to the resignation today of Senator Peter Baume from his responsibilities if he feels that the Opposition in its official position does not represent the sort of direction he would like to see it taking.

The Bill introduced by Senator Durack is an attempt, as is part of the Government's plan, to shift the burden of child support away from the state and more on to the shoulders of non-custodial parents. One of the main points is that when a court makes a maintenance order it should not take into account the eligibility of a custodial parent for a supporting parent benefit but should make the maintenance order accord with the non-custodial parent's financial resources. The basic intention of the original Family Law Act was to take into account the ability of each parent to pay. One also has to acknowledge that the custodial parent is making a great contribution because of the very custody of the children. It is reasonable to take the view that the financial contribution should be more on the shoulders of the non-custodial parent.

As a side issue, I regret that there is more often than not a great distinction between custodial and non-custodial parents. I would very much like to see a position develop where joint custody happened much more frequently and the financial details were sorted out accordingly. I think not enough people are even aware that joint custody is a simple and legal possibility. It happens, and it should happen more. Perhaps if people realised that it was possible and there did not have to be an all or nothing decision about where children or a particular child went there would be less aggressiveness about the whole matter.

The Opposition is trying to make some running on this issue, though it is going about it in a clumsy way. Senator Durack is pretending that he took some important initiative on this matter, which suggests that the Government is just following it. I think that was the tenor of the remarks in the debate earlier this week when the Minister's statement was tabled. I can understand Senator Durack wanting to feel that he has some influence on the Government, but the Opposition's Bill was irrelevant to the Government's considerations in the past couple of years which have been dealt with in a very thorough way. Just before Christmas last year a discussion paper on this matter was published in order to try to get more public involvement in and a high level of public response to the sorts of things that the Government was planning. Especially in an area as sensitive as this, it is very important to get public responses so that those involved are consulted and feel as though they have been consulted. The Government's processes have continued. People have complained about the lack of time given for a public response to that discussion paper. At the same time there has been criticism that we are not moving fast enough on this matter. There is certainly an argument that it should proceed much more quickly. The very reasonable position taken by the Government is that this matter must be dealt with in two parts. I will come back to the Government's plans in a moment.

I wish to deal with the Bill a little further. The amendment to which Senator Reid referred and which the late Senator Missen moved early in 1986 was that the Bill should be referred to the Standing Committee on Constitutional and Legal Affairs. Obviously there is now no need for that amendment to be pursued because the matter is so obviously in hand. I was pleased to hear Senator Reid also make that point. Therefore I guess that I do not need to deal with this matter at any greater length. It would be a different matter if the Government had done nothing about this, but it has. I presume that Senator Reid was stating the Opposition's position and was giving its attitude to the amendment. She acknowledges that that is so. Of course, we can be confused about the Opposition's position on this matter. I refer to the debate on page 301 of Hansard on 13 February 1986. Senator Tate, speaking for the Government at the time, said:

. . . I would be interested to hear whether it-

that is, the Bill we are now debating-

has the status of a Bill endorsed in its entirety by the joint party room of the coalition parties.

Senator Walters then interjected:

Of course it is. It is our policy.

Then Senator Missen interjected:

No, it is not.

Then Senator Durack interjected:

That does not matter.

Even though that occurred a year ago, once again it is an example of the problems which the Opposition has, and which have led to the turmoil that it is in at present. The main fault with Senator Durack's Bill is that it relies on court based compliance and enforcement measures-that is, unashamedly from Senator Durack's point of view, imprisoning defaulters.


Senator Durack —Haven't you seen the amendments? Don't you read amendments when they are circulated?


Senator COATES —I have not seen any amendments.


Senator Durack —It is proposed to delete that provision.


Senator COATES —So there has been a further change of mind by the Opposition. That is encouraging. It will not imprison people after all. Since I am speaking in the second reading debate on this Bill without having seen the proposed changes, I can only deal with it as I see it.


Senator Durack —They have been circulating all day.


Senator COATES —I am sorry, but somehow or other I have not managed to see those proposed amendments. The fact is that that sort of draconian proposal was in the Opposition's Bill and it has been there since that Bill was introduced more than a year ago. This is a very late change of mind. That sort of imprisonment proposal, whether it is in the Bill or not, needs to be put down once and for all. The whole question of marriage breakdown is traumatic and emotional enough anyhow, but to involve the Family Court in the heavy-handed operation of throwing people into prison will certainly not solve the problem or improve people's attitude. It will certainly not make defaulters fulfil their maintenance obligations. One of the main reasons that Senator Missen and others at the time were against the Bill and wanted to refer it to the Senate Committee was the inclusion of that provision. The Government firmly believes that no one should be imprisoned just because he is poor.

The Government's proposal is to use administrative procedures for the collection and distribution of child maintenance and that proposal is far superior to that of the Opposition. I point out that a gallup poll showed that about two-thirds of Australians approved of the concept of the Government collecting child maintenance and paying it directly to the custodial parent. We are all aware of the problems, the fact that something must be done about this matter, and that is why the Government has announced its plans, having had its child support discussion paper placed in the public arena and having got some very valuable feedback from both the public and concerned organisations. As the Minister for Social Security (Mr Howe) said in his statement earlier this week:

When fully developed it will be one of the most effective systems of child support in the world . . .

Let me remind the Senate what it involves and why we support this plan. It involves administrative assessment of the amount which should be paid by a non-custodial parent to a custodial parent for the maintenance of children. It also provides for judicial discretion in disputed cases. We all acknowledge that there is a wide variety of circumstances in which people find themselves and, while the Government has plans to develop a formula to cover most situations, it also acknowledges that there must be discretion to cover those less than usual or less than normal situations. The third aspect of the Government's plan is automatic income withholding, using a child support agency set up in the Australian Taxation Office which would then pass funds to the Department of Social Security for passing on to the custodial parent. The main point that must be emphasised is that we must ensure that we are benefiting the children involved, the children who are not cared for by both parents. There is great community concern about this, both about the aspect of caring for the children-people fulfilling their responsibilities-and about ensuring that taxpayers' funds are not used excessively or unnecessarily if the custodial parent has the ability to pay for the support of his or her children who are living elsewhere.

There has been objection-and I think I have heard objections from the Opposition-to the automatic nature of the Government's plan. It has been suggested that automatic withholding should be introduced only if there has been some form of default. However, it cannot be denied that more than 70 per cent of parents no longer living with their children simply do not pay regular maintenance. With that sort of percentage involved, it seems rather silly to say that we should wait for default in all cases before insisting on automatic withholding. Automatic withholding can be carried out with an arrangement similar to the pay as you earn taxation system or an equivalent arrangement can apply to the self-employed. The Government wants to ensure that those who have a responsibility to pay do so. In this way we will be able to reduce the degree of effect that this problem is having on the social security system.

I think we have to acknowledge that changes in Australian society have led to a large increase in the number of sole parent families. There is a community demand that the Government acknowledge the need to do something about that problem. I must say that I think it is an exaggeration to point to the figures of sole parent families in 1974 and 1985 and say that there has been an increase of 73 per cent. Honourable senators may recall that 1974 was either the first year or the second year-certainly no more than the first whole year-of the operation of what was then the new supporting mother's benefit, which has since become available to either partner and is called the supporting parent benefit. One would not expect that all of those involved or all of those who were likely to be eligible would be picked up in the first year. I think one has to acknowledge that using 1974 as a base and comparing it with 1985 exaggerates the relative position quite substantially. But this does not detract from the actual numbers involved, which are quite large.

There is no point people, either in the community or in the Opposition, decrying this fact and saying that it is a terrible situation and that the solution is that people ought to stay together no matter how bad a relationship is. I hope that we are well past that sort of attitude. The whole concept of the Family Law Act should continue to be supported. The point is that the proportion of sole parents on benefit has increased. Currently there are more than 250,000 lone parents on benefits caring for something like 450,000 children. We have to realise that for most of these households the pension or benefit is the only source of income. This means that most of these people live in poverty. The priority of the Government's program, as distinct from the Opposition's Bill, is to reduce the number of children in poverty. Social security savings will also be made as a result of this measure. However, it is a matter of making sure that the children concerned are cared for properly and that those who have the ability to pay should face up to their responsibilities to their children.

The first stage of the Government's proposal will involve legislation which will be introduced this year to establish the Child Support Agency to collect child maintenance from those who are obliged to pay it; to amend the Family Law Act to assert the priority of child maintenance by making sure that court orders put the financial position of children ahead of everything else, except the essential commitments of the parents involved; and to remove reference to social security eligibility to make it clear that child support should not be treated as a top-up to social security pensions and benefits. The social security system has had to bear the burden of too many non-compliant non-custodial parents for too long.

Stage 2 of the Government's plan will involve introducing legislation next year for a formula to calculate maintenance as part of the Child Support Agency's administrative process under the Commissioner of Taxation. So, this year we will introduce legislation to establish the Child Support Agency. The Agency will come into operation as soon as the necessary administrative arrangements can be implemented. It will be able to collect all maintenance orders issued to couples who separate after the date of its establishment. So, it is not going to attempt to deal with all the problems of the past. Unfortunately, that in many ways would be too massive a job. It will also be able to collect orders made in respect of children born after the date it is established when parents have not cohabited. Pensioners who already have an order will be able to go to the Agency to have that order collected. It will be up to them whether they wish to do so but they will have that ability. The Agency will also be able to collect orders made for all custodial parents who are social security pensioners on the day they get the court order.

The Government is determined to give the scheme as wide an operation as possible. We are going to investigate the feasibility of also including any periodic child maintenance obligation that could be enforced under the Family Law Act. This includes obligations in agreements registered or approved under the Family Law Act, overseas maintenance orders and orders under the law of one State being enforced in another State. I think it needs to be acknowledged that there has been some quite amazing co-operation by State governments in this matter. The maintenance of step-children will be able to be dealt with under the same laws as the maintenance of their step-brothers and step-sisters. There has been agreement by most of the States so far to refer constitutional powers on this question to the Commonwealth. There will be consultation with the States on the future of the present arrangements in respect of the collection of child support by State bodies where that happens.

Consultative arrangements will be implemented to ensure that the Government is fully advised on the introduction of a legislative formula to ensure that this measure is dealt with thoroughly. I guess we would have liked to have this measure implemented sooner rather than later. The Australian Council of Social Service for one is disappointed that we are going to stage the introduction of this formula and not introduce it straight off. But I guess our attitude is that we do not want to make mistakes by being too hurried. We want to ensure that there is full community consultation in respect of the various options involved. Of course, there are such questions as whether or not to take into account the income of the custodial parent or whether to take into account the new family of a non-custodial parent who has repartnered. We then have the further complication of such a repartnered non-custodial parent whose new partner also has children of which he or she has custody. So it is not as simple as that. The Government is dealing with this matter very thoroughly and sensitively.


Senator Durack —After four years.


Senator COATES —There is no need for us to deal with Senator Durack's Bill at this stage. The matter is being properly dealt with. I oppose his Bill and I very thoroughly support the Government's proposals.


The ACTING DEPUTY PRESIDENT (Senator Townley) —Order! The honourable senator's time has expired.