The problem of parental contact and cash
As someone who has been personally involved in both the child support system and the family law legal system, albeit briefly, it seems to me that there are some odd features of the way that we try to solve the problems of family separating in Australia. This has been reinforced over the years by my professional contact with scores of families and individuals going through the same process.
In general, if there are going to be serious problems, there most often seems to be two issues preoccupying families when there is parental separation. The first is money, the second is contact with children and parents. We have a solution for each of these issues in Australia, the solution for the money situation being the Child Support Agency, with the Family Law Court (including the process of mediation) being the solution in place for the second.
I am not intending to make any gross or sweeping criticism of either of these mechanisms; there are many who have commented on these processes here and elsewhere. My opinion is that both of these have been generally improved in recent years, although no doubt there are further changes to come, and some are unhappy with the changes made to date. My criticism is really about the fact that these processes are largely independent, and work on vastly different time scales to each other.
On one hand there is the child support system, which operates on a reasonably informal basis. One party – usually the one to be supported, and usually the female ex-partner of a relationship – makes a claim for child support. The Child Support Agency (CSA) contacts the other party, confirms details of income and related issues, and a payment rate is calculated according to formulae set out in federal legislation. The formulae allow for exceptions such as exclusion of second jobs or overtime for financial recovery of the payer, direct payments between carers, and so on.
On the other hand, there is theFamily Law Courtsystem, which operates in the way that most legal issues do: very slowly. Issues in the courts are, by definition, adversarial, and prone to all manner of delays as well as delaying tactics by the participants. The use of mediation in order to avoid issues going to court has been a very good development, however this too is prone to be drawn out, with sometimes long waiting periods and vulnerable to being used as a delaying tactic by one party or the other.
There are some obvious problems resulting from the lack of symmetry in the two decision-making processes. Supporting parents can be deprived of contact with their children for extended periods of time, whilst waiting for resolution of their family law cases. Custodial parents on the other hand are more or less free to change the circumstances of access – for example, move from the local area or arbitrarily change arrangements – without having to consider that they may have obligations to the other parent, at the same time continuing to receive support payments. It is true that non-custodial parents can apply for orders restricting this, however on consulting their solicitor they will be told that this costs at least several thousand dollars, and likely will not be upheld on being heard in the court. The cost of a fullFamily Law Courtcase is usually estimated in the range of $35,000 or above, for each party. This may not include the cost of independent psychological assessments which may be quoted as costing upwards of $5,000.
This is not a situation that was intended by either the courts or the authorities who established the CSA. The great differences in the speed of determination of these matters however cause great greif to some people caught up in them, and some clear inequities. Supporting parents may find themselves paying support for children that they rarely see, or for whom access visits are erratic and unpredictable, according to the whim of the custodial parent. Besides the cost of launching family law action, there is a considerable time lag – 18 month to two years being a figure often given by solicitors to their clients.
It would be much better if both the issues could be ruled on in the same time frame, with matters of access decided at the time that the issue of child support payments were calculated. The issue of access is no doubt impossible to calculate mathematically, as is done for support payments, however there is no reason to suppose that some fairly obvious guidelines cannot be used as a basis for decision-making. The decisions would be made by a tribunal or panel, and be legally binding. Of course, either party – or interested third parties – would be able to appeal the decision through the courts, but in the interim there would be surety about how access and support are both to proceed.
The decisions could include support payments, access and custody arrangements, and permissible variations to living arrangements such as whether the custodial parent could move out of the area or how variations to access arrangement could be made. Importantly, parties failing to meet the conditions of the ruling without sufficient cause could be sanctioned by losing either access rights or financial support, and caused to correct their actions. This way either party would have their responsibilities to the child reinforced in a timely, legally binding way, without removing the right to the use of the courts. Indeed, as far as I am aware there is currently no right of appeal regarding child support payments at all, something felt to be unfair in many quarters. This arrangement would change that situation.
No doubt there are many who think this idea flawed. At first glance it might seem that there will be less business for lawyers, however I think that, sadly enough for the children involved, this would not be true. Many may think that this system would be an unreasonable impingement of personal freedoms, or while others may think that it is not strict or formulaic enough. Mainly my interest is to see people released from the purgatory of the courts whilst gaining some reassurance over their custody or contact with their children.