Wikeley presents a compelling and timely argument for conceptualising children's rights as the basis for the child support obligation The historical and discursive sections of this book are interesting, informative, thorough and thought-provoking Why do we expect parents to pick up the bill for their children's upbringing? Wikeley is to be congratulated for doing what very few others have done, which is to pose and attempt to answer this question rather than take it as read that of course, they must because they are parents It not only provides sufficient legal detail on the current system to train a potential specialist child maintenance practitioner, but also the social policy analysis of the place of child maintenance systems across jurisdictions and over time which enable the reader to make sense of the apparent idiosyncrasies of the United Kingdom situation…We should congratulate [Wikeley] on his understanding of the difficulties facing all jurisdictions dealing with this issue, rather than offering simplistic solutions.
Conversely, where they do obtain exemptions, decreased levels of income may compound the financial disadvantage already widely experienced by victims of family violence. The ALRC is interested in comment as to whether victims of family violence face barriers in obtaining exemptions, what form these barriers take, and how they might be overcome. Implementing screening for family violence by the CSA—discussed below—is a reform which may go some way to addressing this issue.
Another measure may be to advise all child support customers about family violence exemptions, perhaps in conjunction with family violence screening. The ALRC is also interested in whether reforms are required to address the financial disadvantage of victims of family violence who receive an exemption from the requirement to take reasonable maintenance action. The operation of the exemption policy as reflected in the Family Assistance Guide and the Child Support Guide has some problematic consequences. Most notably, persons who have used family violence do not have to pay child support when the victim obtains an exemption.
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Persons who use family violence are therefore not required to take financial responsibility for their children in these circumstances. The ALRC is interested in reforms that address this consequence of the exemption policy, recognising that the safety of victims must be the priority. An alternative model is provided by some US states, where child support debts accrue while exemptions are in place.
Once the exemption expires, the person who has used violence is liable to pay the debt in full. However, the ALRC raises some concerns about this policy. Exemptions protect victims by addressing the risk of violence which may otherwise be triggered by a child support application or liability. Requiring a person who has used violence to pay a child support debt at a later stage—when the exemption is lifted—may still compromise the safety of victims. A further issue is that victims who have obtained an exemption may in some circumstances be required to pay child support to the parent who has used violence.
No barrier prevents a person who has used family violence from applying for child support in cases where the victim has obtained a family violence exemption. This may occur following a change to care arrangements—for example, where these arrangement change so that the person who has used violence provides more care. The ALRC is considering whether legislation should provide that where a person has been granted an exemption due to family violence, that person is also exempt from paying child support to the person who has used family violence.
Exemptions from the requirement to take reasonable maintenance action are not provided for in legislation. Rather, exemption policy is contained in the Family Assistance Guide and, to a lesser extent, the Child Support Guide. The ALRC is considering whether exemptions should be provided for in child support legislation, family assistance legislation, or both.
Exemptions may be considered a significant matter of policy. Including exemptions in legislation would recognise their significant role in protecting victims by permitting them to opt out from the assessment and collection of child support, without a reduction of their FTB Part A payments. Another advantage of setting out family violence exemptions in legislation is that such provisions would be more authoritative and transparent, and may provide victims of family violence with increased procedural certainty. The ALRC welcomes comment on whether exemption procedures should be contained in legislation, rather than in policy.
Question 4 In relation to the legislative requirement that a person take reasonable maintenance action, in order to receive more than the base rate of Family Tax Benefit Part A, what changes, if any, are needed to family assistance and child support legislation and policy to:. Question 5 Should Child Support Agency staff be required to provide information about family violence exemptions when dealing with applications for child support assessment? Question 6 What reforms, if any, are needed to ensure that persons who use family violence are not relieved from financial responsibility when victims obtain exemptions from the requirement to take reasonable maintenance action?
Question 7 Should a person who has been granted an exemption from the requirement to take reasonable maintenance action due to family violence, also be exempt from paying child support to the person who has used family violence? Question 8 Exemption policy in relation to the requirement to take reasonable maintenance action is currently provided for in the Family Assistance Guide and the Child Support Guide.
Should legislation provide that a person who receives more than the base rate of Family Tax Benefit Part A may be exempted from the requirement to take reasonable maintenance action on grounds of family violence? Question 9 Do any other issues arise for victims of family violence in obtaining exemptions from the requirement to take reasonable maintenance action? Family violence is relevant to the administration of child support, for example, in relation to collection of payments and protection of personal information.
It is important that the CSA is aware of cases in which family violence is an issue, so that these cases may be appropriately dealt with. Victims may be reluctant to disclose information about family violence to agencies such as the CSA. A victim of family violence may hide the abuse due to feelings of shame, low self esteem or a sense that he or she, as the victim, is responsible for the violence.
A victim may feel that he or she will not be believed. A victim may hope that the violence will stop, or might believe that violence is a normal part of relationships.
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Because of the family violence, a victim may feel powerless and unable to trust others, or fear further violence if caught disclosing it. Further, victims may not disclose family violence as they may not be aware that this information is relevant to their child support case.
The CSA does not appear to screen routinely for family violence, for example when customers apply for child support. The Application for Child Support Assessment form and the electronic form do not include questions about family violence or seek related information, for example about protection orders. The ALRC is interested in whether the CSA should screen for family violence when processing applications or at other stages in the administration of child support cases.
Centrelink may be the first contact point for persons eligible for child support.
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Centrelink may refer persons eligible for child support to the CSA to apply for a child support assessment. Alternatively, Centrelink may grant the person an exemption from the requirement to apply for child support on family violence or other grounds. In these cases, it will not be necessary for the person to contact the CSA. In order to resolve matters concerning safety of victims promptly and efficiently, eligible persons who wish to obtain family violence exemptions should be granted exemptions as soon as possible, rather than being referred between agencies.
It is therefore important that Centrelink staff identify persons experiencing family violence before referring them to the CSA. However, Centrelink does not screen for family violence and relies on victims to self-disclose. In ALRC Report , the Commissions recommended the establishment of a national register which should include certain information about protection orders, family law orders and Family Law Act injunctions. One option for reform is to provide Centrelink social workers with access to the national register, which would ensure they have access to relevant information about court proceedings and orders.
However, extending access to the register to Centrelink social workers may raise privacy concerns. In some cases, victims may disclose family violence to one government agency, but not another. They may assume that once one agency is informed about family violence, there is no need to inform the other. Not all victims of family violence elect to obtain an exemption from the requirement to take reasonable maintenance action—indeed, many will choose to apply for child support for the financial reasons discussed above.
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The ALRC understands that where victims disclose family violence to Centrelink, but decline to obtain an exemption, Centrelink will not inform the CSA of the disclosure. This means that CSA may be unaware that persons referred to it by Centrelink have experienced, or fear, family violence.
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As noted above, family violence is relevant to the administration of child support. To ensure that these cases are dealt with appropriately by both agencies, it may be desirable for Centrelink and CSA to share information about family violence. Question 10 Should application forms for a child support assessment, or other Child Support Agency forms—including electronic forms—seek information about family violence? If so, how? Question 11 Should Child Support Agency staff be required to inquire about family violence when a person makes a telephone application for a child support assessment?
In what other circumstances, if any, should Child Support Agency staff be required to inquire about family violence when dealing with customers? Question 12 Should Centrelink staff be required to inquire about family violence when referring a person to the Child Support Agency? Question 13 Are Centrelink social workers, Indigenous Service Officers and Child Support Agency staff able to access information about persons who have identified themselves as victims of family violence as to whether they have obtained a protection order or similar?
Question 14 In what circumstances, if any, should information about family violence be shared between the Child Support Agency and other government agencies, such as Centrelink? The way in which the percentage of care is determined by the CSA may affect victims of family violence. As discussed above, the percentage of care is used in the child support formula. This is the proportion of time a parent or carer provides care for a child. Determinations of percentages of care under family assistance legislation apply for child support purposes, and determinations under child support legislation apply for family assistance purposes.
From 1 July , the CSA will usually determine the percentage of care based on the actual care that is occurring. The CSA may request information from the parties in order to determine patterns of care. The Child Support Guide recognises that actual care may be reflected in care arrangements agreed upon by the parties. Parties may disagree about the actual care that is occurring, and may provide conflicting information about how much care each is providing. If the parties cannot resolve the issue, the CSA will request additional information and evidence from the parties.
The CSA may consider its records of customer contact, as well as Centrelink information. The CSA may also consider third party statements, if the third party is willing to be identified as the source of information, and the statement is provided to the other parent. The Family Assistance Guide is more illustrative than the Child Support Guide in relation to types of evidence which may be taken into account in determining percentage of care. Examples of evidence which may be taken into account by the FAO are outlined below.
Based on this information, the CSA will determine a percentage of care. If the differences in the information cannot be reconciled, CSA will determine the care percentage on the balance of probabilities. If the CSA cannot reach a conclusion on the balance of probabilities, then the CSA will assume that the state of affairs at the time the assessment occurred will continue, and the care percentage will not change.
The Child Support Assessment Act provides for interim determinations about percentage of care in specified circumstances. In these cases, the percentage of care is not based on actual care.
Interim determinations generally have effect for a period of 14 weeks, and may be extended to up to 26 weeks in special circumstances. In these circumstances the CSA may make an interim determination, in which the care percentage is based on the care the person should have had under the care arrangement. Florida Child Support laws are pretty clear: If there are minor children there is child support. The courts and the child support statutes are very clear on this issue — the parents of children must pay child support.
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