The battle for balance

In his May 2005 report In the Best Interests of Children Professor Patrick Parkinson recommended long overdue reform of Australia’s child support scheme. It is clear that the scheme, dating back to 1988, however well intentioned, has lost its relevance to families. It can no longer meet its objectives.

During the past couple of years I have conducted some of Australia’s most comprehensive case study research on this issue. I have now published this research as The Battle for Balance.

An alarming number of parents, mostly fathers, are not only being denied a significant place in their child’s life by the Family Court, but they are then being driven to desperation, and in some cases suicide, by one-sided and discriminatory legislation and the relentless bureaucracy of the Child Support Agency.

Professor Parkinson and his taskforce advocated a scheme under which the costs of children are first worked-out based upon the parents’ combined income, with those costs then distributed equally between the mother and the father in accordance with their respective shares of that combined income and levels of contact with their children. The resident parent is expected to pay his or her share of the cost while caring for the child. On the other hand, the non-resident parent pays his or her share in the form of child support. Whilst in the past the resident parent has received a much more generous entitlement to self-support expenses, the new scheme would allow both parents an equal amount for themselves.

The major changes to the child support formula will start on 1 July 2008, with the Government having made some changes in July this year and further changes in July 2007.

Perhaps the most important element of the recommendations is a change to the way in which the "capacity to earn" principle is applied.

Capacity to earn is the most contentious element of the current scheme and the one most damaging to parents, and indirectly to their children.

At present the Child Support Agency has the power to assess a person’s capacity to earn based on their pre-separation employment status. So, if a man is earning $65,000 as a structural engineer at the time of his separation, the Child Support Agency deems that man is still able to earn $65,000 in the months and years that follow.

The agency ignores factors including a person’s physical or mental state, their personal aspirations to begin a new career and tellingly their desire to work reduced hours in order to spend more time with their children.

Capacity to earn is enforced rigorously by the Child Support Agency. Often it leads to the payer amassing debts to their child and to the Commonwealth in late payment penalties. In some cases, the debt remains even long after the child has grown up and left home. In these cases, the debt becomes due to the other parent, rather than the child. It is these sorts of situations which can lead to severe depression, anxiety and in extreme cases suicide.

These sorts of emotions not only affect the parent but also their child or children.

The Parkinson Report recommends that the Child Support Agency be limited in its ability to increase an assessment based on capacity to earn. The agency must consider, in making its decision, the person’s state of health and their own caring responsibilities. Where the agency declines to make a determination in a capacity to earn case due to the complexity of the issues raised, the agency will be required to refer the matter to a court.

This change, in addition to the new formula, can only ensure a fairer system for all.

However I believe the reforms should go further.

If capacity to earn is to remain an enforceable issue, the rule should be applied equally to both parents. If both parents are capable of work, they should both be assessed on that capacity. The issue of how child support money is spent needs also to be addressed. There is a severe lack of accountability on the part of resident parents, which further inflames tensions.

Legislative reform will only go so far. The administration by the Agency also needs vigorous reform

Many of the thousands of cases reported to me include complaints about the knowledge and attitude of call centre staff and a perceived abuse of power by decision makers.

In a system where more than 90% of payers are men, who in most cases are unsupported and in unfamiliar territory, it is unthinkable that the Child Support Agency staff is 72% female.

Worse is the fact that the people on the front line are the lowest paid and the least experienced staff. They are not trained to deal with conflict. The majority of staff are single therefore not easily able to empathise with parents’ problems and lives.

The Child Support Agency, like many Government agencies, is a customer relations nightmare that needs to be addressed.

In addition to reforming the law, we need to reform the way in which it is administered. We need to eliminate the bias which so clearly exists. We need to recognise that child support is not about money. It is about people.

Most importantly it is about ensuring both parents meet their responsibility of supporting their children in a fair and equitable environment.