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Child Support System of Australia

Young, L. (2012) Child Support System of Australia. Kyungpook National University Law Journal (39). pp. 31-70.

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Free to read: https://doi.org/10.17248/knulaw..39.201206.31
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Abstract

This paper provides an overview of the development, operation and success of Australia’s child support scheme, set in the context of Australian law and Australian family law in particular. After setting out the Australian constitutional framework in so far as it relates to the power to legislate on family law, the paper traces how Australia moved from a system of State based family laws modelled on English statutes, to a federal system in 1959. However, at this time fault based divorce was still a feature of family law and there were jurisdictional difficulties. To a large extent these issues were overcome with the introduction of the Family Law Act 1975 (Cth) which marked Australia’s move to a truly no-fault family law system that was applicable to most families. The paper sets out the Constitutional challenge soft his system and how the state and legislatures acted to make the system as widely applicable as possible. In addition, it is noted that with this scheme came a system of specialised federal courts presided over by judicial officers with specific family law experience. The paper then sets out those few matters not with in the jurisdiction of the Family Courts. The paper then explores the way the Family Courts are set up to act as a ‘helping’ court for families and the role of specialised personnel with in the court. The paper goes on to explain how divorce law works in Australian law today and the basis for the no-fault singular ground of divorce. It moves on to discuss important parts of the Family Law Act 1975 that deal with parenting disputes. This law is very complex and so only an overview is provided. This includes discussion of the nature of parental responsibility in Australian law, the introduction of compulsory pre-filing mediation, the role of agreements in resolving parenting disputes and the nature of the provisions governing the exercise of discretion when making a parenting order. It would be extremely difficult to read the Family Law Act 1975, Pt VII, and understand how this latter discretion must be exercised; that is, the legislative guidelines governing the exercise of discretion. Indeed, many users of the system and some professional working within it are confused by the provisions. The paper thus explains how these provisions operate in broad terms. The paper goes on to explain briefly the maintenance provisions for both women and children and how those have been impacted by the introduction of the child support scheme. This section concludes by looking in more detail at how the family law system in Australia embraces alternative dispute resolution - known as ‘family’ dispute resolution. Australia’s significant commitment to ensuring judicial resolution is a last resort is outlined. At this point, the paper turns to consider why the child support scheme was introduced in the late 1980s. The magnitude of the task of introducing a scheme of administratively based child support is explored and why this involved a two-stage process. The scope of the scheme is then outlined (in terms of whether parents must participate in it). The paper goes on to set out a broad overview of how the scheme works both at an administrative level and in terms of the rationale underlying the substantive provisions dealing with the calculation of child support. This section of the paper explores how the Scheme operates in practice and highlights its particular strengths, including its relative flexibility. Collection of child support payments and arrears is explained as is the question of how parents might give effect to agreement over child support matters. The role of the federal Child Support Agency in the Scheme is also discussed. The paper then turns to look at Australia’s child support formula in detail. Whereas once the formula could be explained in a few sentences, and calculated on a hand-held calculator, since 2008 Australia has adopted a much more sophisticated formula. The stops in calculation of child support and the rationale underlying the process are explained in detail in the paper. This highlights that, while relatively complex, very little information is required directly from parents to generate an assessment; this is one of the key strengths of an administrative based formula. In the next section, the paper outlines the very important process by which parents can seek to depart from the administrative assessment of child support. As the paper highlights, it was never intended that this provide a wide scope for parents to escape the standard formula - rather it requires parents to show a special case which must fit within 10 narrowly prescribed grounds for departure. The paper outlines the more important reasons and notes the highly discretionary task given to government decision makers. The options for challenging such decisions are also outlined. This section of the paper concludes with a discussion of why this process is so significant to this Scheme and its strengths. In its conclusion, the paper provides some statistics by which the Scheme’s success might be measured. It then goes on to list what are argued to be the particular features of the Scheme which have contributed to its success. In summary, these are: the relationship of the Child Support Agency and the Australian Taxation Office; the broad investigative and enforcement powers of the Child Support Agency; the simplicity of the child support formula; and the high quality departure process. Finally, the paper concludes with some suggestions as to areas which could be fairly criticised: the connection between rates of child support and levels of care; recovery of arrears; resources directed to improve the profile of the Child Support Agency; the question of whether reductions in child support and welfare to work changes in Australia might lead to increased poverty in single parent households.

Publication Type: Journal Article
Murdoch Affiliation: School of Law
Publisher: Kyungpook National University
UNSD Goals: Goal 9: Industry, Innovation and Infrastructure
URI: http://researchrepository.murdoch.edu.au/id/eprint/42158
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