28 May 2012
Andrew’s speech in support of his Motion calling for a comprehensive review of the family law and child support system.
Mr WILKIE (Denison) (12:50): I rise to call on the parliament to agree to the need for a comprehensive review of family law and of the child support system. In the 21 months or so that I have been a member of parliament, a steady stream of angry and exhausted people have come through my door to tell me they think the system is broken. Interestingly, the ratio of men and women has been pretty even, as has the fact that all have been just as likely to break down in tears as they share their stories. Most tales involve first fighting for their children in the courts only to emerge from that process to then have to fight their ex-partners for child support. Common is the experience of an adversarial court case where children are wrenched between their parents, which is distressing for all involved.
Clearly, the zero-sum game of family law is damaging for the individuals and the community. Some constituents tell me they are at breaking point and feeling suicidal. Some say they are worn out having lost all their energy, and sometimes all of their money, in lengthy proceedings. One particular man even told me he went so far as to consider murdering the Family Court judge who decided his case and that the police had taken action against him for threatening behaviour. That nobody wins in these situations is clearly an understatement.
I meet many constituents who are struggling with the costs of living and who tell me their fears and frustrations are made worse when their child support payment turns up late or sometimes not at all. Many people rightly describe this as financial and psychological abuse often exacerbating the effect of a custody dispute. The seriousness of these types of abuse has historically been underplayed, I suggest, and this was one of the reasons I supported the government’s commendable broadening of the definition of abuse last year in relation to family violence.
I heard the upsetting story from one mother who told me the father of her child uses complicated income-minimising strategies to reduce his child support liability and that she believes he will never be forced to pay the adequate amount because the Child Support Agency does not have the resources to investigate him properly. Another mother conveyed her frustration because the amount of support she receives for her daughter has been reduced under the child support formula. Because the father has other children all living in separate households, a factor totally beyond her control, her daughter gets less support. She argues that the father has a high income and could easily afford to pay the full amount, besides the fact he should have a moral obligation to look after his child. But due to a technical regulation she and her daughter have to get by with over $4,000 a year less.
Viewed from the other perspective, there are constituents who argue their child support obligations are unfair because they do not see enough of their children after a custody ruling or there are circumstances the court did not consider in allocating the obligation. For instance, I have spoken to a father on a low income who sees his children only a couple of nights a week and, as a consequence, misses out on the family tax benefit. He thinks this is deeply unfair, especially as he only just falls under the threshold, but it was a factor that was not considered when determining how much he would owe. He also told me that his costs as a parent were higher than most people would expect because his boys’ mother insists the children have two of everything—one at each household. He broke down when he told me he did not know how he was going to pay for the second set of soccer boots his boys would need on the weekend that they were in his care. It is, of course, quite common that, even when custody heavily favours one of the parents, each will need to buy a complete set of clothes, toys or sports equipment.
In another case two mothers shared their experiences of struggling to represent themselves in the courts because they cannot afford legal representation. So they are spending every moment they can studying family law, knowing that, with every hearing and argument, their family is at stake. They are doing this on top of their employment, university study, household responsibilities and, of course, looking after their children, for whom they are fighting on a daily basis.
In another case a woman’s children have grown from toddlers to young adults in the time she spent fighting her ex-partner in the courts, and it has not ended yet. It is truly sad that some parents miss out on enjoying their children’s childhood years—the very thing they are trying to protect—due to the time and effort required to represent themselves in court.
One thing almost all these constituents have in common is the belief that the formula used to calculate child support fails to take their particular circumstances into account. This raises the question of whether or not the method being used can be improved somehow.
I do not always agree with what I hear from people about family law and child support. However, I always sympathise with the people sitting across from me and do not doubt the genuineness of their hurt, anger and frustration. Moreover, the thing that must be remembered above all else is that, in each case, there are children involved—the innocent victims of domestic disputes. I can only imagine the toll it takes on them and how they must suffer seeing their family torn apart. In some of the worst cases the children are used as weapons against the other parent or to leverage an advantage in court. Regrettably, when the welfare of a child is set aside and they become just another pawn used to get a result, some families can forget the real reason they are battling in the courts in the first place—out of love for their children. The fact that some parents can be so blinded by the process is proof positive that the process may need adjustment.
It is hard to imagine any system being able to find an acceptable solution with two people who are determined to tear each other to pieces over differing views on their children’s welfare. Nevertheless, we do owe it to mothers, fathers and, most of all, their children to be constantly reviewing the law and the system. We must be constantly asking whether one change or many can be made to make the outcomes more equitable. The opinion of legal experts and the ongoing work of organisations such as the Australian Institute of Australian Studies must be incorporated into an evolving system and the voices of families must be heard. One of my constituents contacted me with the following words:
I have suffered a long history of late, partial or non-payment of child support for my child. I have had minimal child support from a parent who holds substantial qualifications, including postgraduate degrees, but who refuses to work in a full-time capacity. I have had to go into debt to meet the medical costs of our child’s chronic conditions and this has not been afforded any consideration by the current system.
That is why I am introducing this motion that calls on the government to undertake a comprehensive review of family law and the child support system and which recommends that the terms of reference of that review be formulated to ensure that the safety and wellbeing of children are paramount.