The original Child Support Legislation 1988-89 intended payments to be calculated based on Court-approved parenting agreements. In 2010 a poorly-considered change was made to legislation that allows an alienating parent to withhold access to children and thereby increase the child support payable by the estranged parent to the alienator. This theme of emotional punishment and financial penalty seems to factor heavily in many complaints from payers of Child Support.
Exactly how this happened is detailed below. It makes for disappointing reading, but it is important you are informed how these laws were made. Sadly, the law can actually encourage and condone poor behaviour, including contravention of Court Orders. While you may have some recourse via Court to try to address illegal behaviour by the other party, the Child Support program refuses to become involved in the Court issues.
The Child Support Act contained specific requirements for court orders to be followed by the Child Support Agency when determining the percentage of care that a parent has for child support purposes. The Act was intentionally constructed to prevent parents from profiting via the contravention of court orders relating to custody of children: a parent withholding access to the children from the court-ordered parent was not permitted to profit from this. An Explanatory Memorandum to the Child Support Legislation Amendment Bill (No. 2) 2000 expressed this intention succinctly, stating that the protective provisions were intended “to prevent a person from obtaining a higher level of child support, on the basis of the contravention of the order or plan, than would have been payable if he or she were exercising the level of care provided for by the order or plan.”
In 2010 amendments were made to Part 5, Division 4 of the Child Support (Assessment) Act 19891 by the passage into law on 28 June 2010 of the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010. The amended legislation requires the Child Support Agency, when determining percentage of care, to ignore documented care arrangements or parenting orders made under the Family Law Act 1975. The amendments introduced, in apparent ignorance of the historical policy intent and practice of the child support scheme, an administrative deficiency at odds with the scheme and creates unreasonable, harsh and widespread impacts upon families, children, the Family Court and the effective administration of social policy.
A 2005 report of the Ministerial Taskforce on Child Support: “In the Best Interests of Children – Reforming the Child Support Scheme” made the following recommendation:
“The Taskforce proposes that the child support and FTB systems be aligned, so that, rather than having two different systems for taking into account regular contact and shared care, there is one consistent approach. As a result of this reform, the scope for conflict over money, either in relation to child support or FTB, will be minimised; resident parents will have the guaranteed on-time payment of all of the FTB, and nonresident parents will have their child support obligations reduced significantly on account of the costs incurred in regular contact.”
The above report provided no recommendation for the removal of court orders as the primary determinant of percentage of care. In fact, the Taskforce did not contemplate this option at all. The Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 wholly deployed the above recommendation of the Taskforce but without consideration of the legislative history that sought to ensure parents were not able to profit via the contravention of parenting orders. Instead of reducing conflict between parents, the amendments increased conflict by incentivising the contravention of parenting orders.
– Child Support (Assessment) Act 1989 https://www.legislation.gov.au/Details/C2016C00954
– Child Support Legislation Amendment Bill (No. 2) 2000 Explanatory Memorandum, page 4.
– Ministerial Taskforce on Child Support, In the Best Interests of Children – Reforming the Child Support Scheme, p160.