CHILD SUPPORT LEGISLATION AMENDMENT BILL 1998 This document has DRAFT status
Mr TONY SMITH (Dickson) (10.49 a.m.)–The words of the honourable member for Throsby (Mr Hollis) are very wise words. I believe that in many respects party politics have to be taken out of this. Goodwill, I believe, does exist on both sides of the House. I believe that there needs to be a thorough discussion in the House and a free vote in relation to(Mr Hollis) are very wise words.
The issue of child support has received considerable airing in this parliament since I have been here. In fact, I think that it is probably the most talked about issue next to tax. The fact is that the child support system has been under considerable criticism for all of that time. Much of the criticism is, in my view, quite justified because of the division that the activities of the Child Support Agency cause, and the surrounding circumstances involving family law. These things lead to division. These things tear people apart. These things tear people’s lives apart.
I will make some brief preliminary comments on what has been said already. The member for Chifley (Mr Price) made some comments about the need for a fresh approach. I thoroughly respect the member for Chifley.
He was involved in the previous government’s committee on the matter and said some wise words. I am concerned about his comments in relation to the bill–I have not been able to check these comments out–which suggest that the effect of the bill is that there is going to be somewhere between $47 million and $26 million more going into consolidated revenue. I do not know whether that is correct, but I would be concerned if it were.
The member for Calare (Mr Andren) made some comments in relation to the tribunal question. I am going to go into that shortly, but let me just turn now to briefly enunciate on a couple of matters that I think have to be addressed by way of preamble. When a marriage has broken down, one thing is absolutely certain: nothing can ever be the same again. The lifestyle that the couple once had together as a couple has henceforth ceased. It does not lie in the mouth of any party to that relationship to say that the lifestyle has to be maintained. It cannot be. It can never be. There is a philosophy, in my view, that has insinuated its way into the child support act, such that it is a lifestyle thing.
What people are saying in this debate, and what people are saying about child support, is that it is unfair. If it is not child support, it is unfair. It is about child support and not lifestyle. But there is no doubt at all that this particular act is about lifestyle. Unfortunately, these amendments do not address the key element, and that is whether we are able to make child support really child support.
I believe that the golden principle of maintenance of children is that it is the responsibility of parents capable of supporting the needs of the child, or the children. That principle of maintenance, as I say, has been abrogated.
That is not to say that the Child Support Agency has not effected some good work in relation to gathering in its net people who did not adhere to orders. But prior to 1989, orders for maintenance were made by the Family Court and the Magistrate’s Court and the system worked reasonably well. The problem was in the collection.
With the advent of the sole parent pension introduced in the 1970s, unscrupulous use was made of the Australian taxpayer to fund children’s maintenance, and parents avoided their obligations to their children.
This situation had to be addressed–there is no doubt about that. But, really, instead of rejigging the enforcement structure that already existed in the Magistrate’s Court and the Family Court, we have gone to this overarching and overreaching monolith called the Child Support Agency.
There is no area of the public service that is growing at a faster rate than the area of the Child Support Agency. It has produced more heartache, more conflict, severed more families, driven more people to suicide, provoked more people to despair, alienated more children from their parents, and provoked more anguish amongst grandparents, than any other area of public service.
There are some little-known statistics. I am not one who blindly accepts statistics, but in the course of thinking about this particular matter, I said to one of my staff who had been married for more than 20 years to the one person–and neither of them had been married before–`I believe that you are in a significant minority amongst Australian people. Let us look into it and find out what the statistics are.’
I found out that there are fewer than 10 per cent of Australian families regarded as traditional. That means that the child support system touches a great mass of people across the country, but this is not realised by the government. It is not sufficiently realised by us all that it touches this great mass of people–grandparents, great-grandparents in some cases. All these people are caught up in this terrible net and the terrible anguish. The statement that we have to look after Australian families does not wash too well with the people who are caught up in this system, which is the vast, overwhelming majority of people. We have to realise that for a start.
In devising policies, we have to realise that and to appreciate that that is the case. The bill before the House, while providing some relief, does not go to the heart of the problem. As I said, that is unfairness.
Of the many hundreds, if not thousands, of people I have spoken to about this issue since becoming the member for Dickson, let me tell you about one of the most moving cases I had just recently. A deputy principal of a high school came to see me. He had 20 years experience as a counsellor, a relatively lengthy marriage and three teenage children.
You could not find a more loving and caring father. Now he is living in a small flat. Apart from the incredible depression of having lost his position as a father and mentor to his children–and nothing is ever the same once you lose that bond–he has to contend with the ravages of the agency. Out of approximately $58,000 a year, he is left with about $250 a week on which to live and to provide entertainment and some sort of lifestyle for the three teenage children.
He told me his story and a portion of the conversation was almost indescribable. When I asked him, `What are you going to do?’ he stopped and he could not talk. He physically could not talk–he tried to but he could not move. He was trying to speak, and before my very own eyes he aged 10 years. It was incredible. There were tears in my eyes when I saw it, and afterwards I needed half an hour before the next appointment to get over what this man had gone through.
I said, `I want the Prime Minister and the Minister for Social Security to be here to see you, because they do not understand what is happening.’ This is what is happening and we are seeing it. We are saying this but we are not getting listened to, I am afraid.
Mr Hollis–It’s in all our offices.
Mr TONY SMITH–Across Australia we are all getting it. I think some offices–and the office of the member for Throsby probably gets more than some–do not get it as much as others, but we all get some of it.
Finally, the man said to me, `All I can do is give up being a principal and go back to supply teaching,’ because he could not stand it any more.
What a loss that is.
Let me tell you about one other case. This fellow had worked for the Victorian transport commission for seven years before he was married. He had a seven-year marriage, and there were three children. At the end of that marriage, his wife left and went to Queensland. He tried to see his children. He had had a property settlement, and he had lost his house and his car–it was a house he had before he was married, by the way. He had all of these things taken away, and he finally had to say to his employer, `I will have to take a redundancy. I cannot afford going backwards and forwards from Victoria to Queensland to see my children.’
He came to Queensland, where he has a $2,000 bomb car and is living in a very modest rented home in Keperra in my electorate. The Child Support Agency said, `Hey, you got a redundancy and it was X amount of dollars. We are going to hit you for 30 per cent of all of the redundancy’–the redundancy from before he was even married.
I said to a senior member of the Child Support Agency, `This is absolute theft. This money belonged to him from before he was married.’ Unfortunately, that is an anomaly in the system.
How can we possibly stand here in this House and say, `We have made a few adjustments to it,’ when that situation is not addressed. In that particular case, his wife is living in a lovely home, she has a $30,000 car and, he added, `For good measure, she’s had her boobs done.’ That is the sort of situation, funny as it sounds, that is absolutely tragic. It is lifestyle and we need to do something about it.
I intend to move some amendments to this bill and I want to outline some of these things. But, first of all, I want to talk briefly about why we need amendments. We need amendments to make it fairer and we need to end the farcical review process.
I will quote a wonderful passage from a decision of the House of Lords in Scott and Scott in 1913. Lord Shaw said: It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. `In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is not publicity, there is no justice.’
`Publicity is the very soul of justice. . . . It keeps the judge himself while trying under trial.’ `The security of securities is publicity.’ But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten. `Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without lot or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first–
that is, having the courts open and having processes affecting people’s rights open– is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom where this condition is not found both in its judicial institutions and in their constant exercise.’
Mr Price–Has the Family Court heard of this?
Mr TONY SMITH–They have not heard of Scott and Scott and they need to be reminded of it. The review officers need to have this principle. That is why we do not need reviews. These people are being kept locked up out of the glare of publicity, where some of them, I am told by many constituents, have had terrible things said to them by the review officers.
For example, when one fellow said, `I will have to give up and just go on the dole–I can’t stand this,’ the response by the review officer was, `You would do something like that.’ This is in the privacy of a little room with a glass partition between the two. You would not be game to say that out in the open, yet those people affect the rights of the people who come before them.
Yes, they can go on appeal–yeah, like fun! Pigs might fly. Their rights are affected there and that is the end of it. No-one can afford to go to the Family Court and appeal.
Mr Price–But it is internal review. It is not external review.
Mr TONY SMITH–Yes, but by the amendments I hope to establish a small claims child support tribunal, which will be established at the magistrates courts all over the country. The tribunal will be cheap and inexpensive. No lawyers will be allowed, save in exceptional circumstances–for example, if a person is illiterate or under a disability or has some language problems–but there is a discretion there. The member for Calare (Mr Andren) said something to the effect that we could not have a situation work properly in fox and hounds stuff.
But it is amazing what happens when people get together confronting an issue. Frankly, I believe that a lot of that emotion is dissolved in the argument that takes place. The argument and frustration is because you cannot sit down and get it made justiciable. That is the problem. The right to be heard, and the right to be heard in an open forum, is a key to all of this.
The tribunal will exercise a discretion. The criteria to depart from such orders will be on the simple basis of the needs of the child and the capacity to pay of both parents.
I expect that in most cases this will reflect a much more accurate assessment of child support, rather than the random high-level assessment as at present.
No-one at any time that I have ever spoken to about this issue has said, `I do not want to pay any child support.’ No-one has ever said, `I do not want to pay it. I do not think I should pay it.’ They all accept it but they want fairness and equity and they do not want to pay for their ex-partner’s lifestyle. They want to get on, as the member for Throsby said, with their own life. They do not want to be paying for the boyfriend or the girlfriend of the ex-partner; they want to get on with their own life and that is what this is all about. We have got to let these people get on with their lives and get away from this lifestyle thing.
The tribunal will be able to dispense with administrative assessment altogether in certain circumstances. And this is an important point. Where it is shown that the applicant has deliberately denied access, the tribunal will have discretion to dispense altogether with administrative assessment. That will, in my belief, get people to adhere to orders of the Family Court properly, instead of the current system where people disobey orders of the court and the poor old person who is the subject of it spends $5,000 to drag them before the Family Court only to have a judge say, `Well, what do you want me to do? Will I put them in gaol or will I fine them? I probably will not do anything.’ A judge actually said that in a case that I am aware of. That is another thing: the Family Court does not have the respect of the community, as the member for Kalgoorlie (Mr Campbell) said, because it will not enforce its own orders. This is a subtle way of using the tribunal to do that.
Evidence will be given on oath but the tribunal will have teeth. This applies to the people that the member for Throsby was talking about who through business arrangements are avoiding paying child support. Under my idea, these people will be summoned to appear. Where it is shown by the Child Support Agency that these people are deliberately withholding payment and deliberately avoiding their obligations, they will be summoned to appear, orally examined on oath and they will have to bring forward documents about any company or trust structure. They will be subpoenaed and, if they do not appear, they will be arrested. It will be as simple as that: get them there and make them pay. This is the thing that we have got to do. This will give it teeth. There are people who are avoiding their obligations now. In some circumstances, deliberately willful failure to pay without lawful excuse will be a contempt of the tribunal with consequences to follow.
That may be criticised, but let me say this: we have in our criminal laws now a duty provision. Certainly in Queensland, and I believe at common law, you have a duty as a parent to maintain necessities for the children. It is in the Queensland criminal code and a breach of that duty is a criminal offence. I am not devising anything new whatsoever. I am putting something in here that gives teeth to a duty which is at common law and at statute law.
There are many documented cases of this system going wrong, but let me conclude with an example that was given to me by a chap who lived not quite in my electorate. He wrote to me last year and I telephoned him. He is a prison officer. Six years ago he was in an unfortunate break-up of his marriage. His present wife cannot work; she has children. The father of her child disappeared and pays no child support. Prior to the marriage, she was in receipt of a pension and various benefits. Since the marriage, the pension and benefits have disappeared, his stepdaughter needs urgent orthodontic attention and treatment for scoliosis and he cannot afford private health cover, et cetera. Any costs come out of his pocket. He is a prison officer. He is good at his job; he says he takes pride in his work and is incorruptible.
I cannot mention his name or even the prison because of the problems that could arise security-wise. Despite his financial plight, he cannot make his position public because of the security factor. He has got a very stressful job; he works in a prison where there are very hardened criminals. He says he is working 60 to 72 hours a week. He is exhausted, running on empty, having to pay child support for his previous relationship, having to pay for the present child and trying to make ends meet. He is now getting a bill for outstanding arrears. Because he is working harder–working more overtime–he is paying more. He has got a penalty of $3,000 and is working 90 to 95 hours a week.
On it goes, on it goes–he is at the end of his tether and he has got a heart condition to boot. We need to do something with this to fix it up.
Australian House of Representatives Hansard for 2nd April 1998