Once upon a time, Frank played professional sport and was married with two young sons. In 1987, his marriage broke down. He lost his children, his house, his furniture, all of which he left with his former wife because he thought it was the best thing to do. “I walked out with my bags,” he recalls.
Orders for maintenance were made by the Family court at separation and these were collected through the Child Support Agency. Partially disabled by two accidents and unable to work since, Frank’s only source of income is a parenting payment for his stepdaughter.
This month Frank (not his real name) lost his Family Court case to be excused from maintenance and back debt. “I couldn’t understand why”, he says. “It is not as if she never got anything out of me. She got everything. They have no compassion.”
Frank if found guilty of “wilfully” refusing to pay is one of thousands of parents who could face up to 12 months in jail if legislation before the Federal Parliament is passed. The precise definition of “wilful” will be left up to the discretion of a Family Court judge or judicial
officer.
The Government’s push to jail parents who defy court orders includes provisions to jail those who refuse to comply with parenting orders (giving the parent without custody access to the child) on a “three strikes and you’re in” basis. The maintenance provisions will mostly affect men while the penalties for parenting orders will mostly affect women.
The new legislation, by increasing punitive powers, is an attempt to overcome the biggest problem with Family Court orders – they are virtually unenforceable.
But both men’s and women’s lobby groups and some family law observers argue the proposals will be dangerously counterproductive, to the point of increasing the already high suicide rate among separated parents.
Critics say the proposed laws are a draconian way of avoiding the real problem, which they say lies in the nature of family law in Australia and the institutions that administer it. They say the CSA, in making “quasi-judicial” decisions that are virtually impossible to appeal, often has the effect of putting parents into debt unfairly.
Many of those who could be jailed would be placed in this predicament not because they did not want to pay but because they have been made unable to pay through maladministration.
The debate over jailing parents, could have some interesting parliamentary twists. The Australian Democrats do not support imprisonment as a primary enforcement option. The Labour Party supports the jailing of those who fail to pay maintenance but not those who refuse to comply with parenting orders.
The Family Court already has provisions for jailing and imposition of fines, and the CSA can seize assets, impose penalties, sweep bank accounts and initiate prosecutions with a six-month jail penalty. The new legislation adds to the arsenal by providing a more direct avenue to jail parents who disobey court orders, and stiffer penalties.
A re-evaluation of child support is happening around the world. Like many men, Frank facing mounting debts, has found himself in a surreal world post-separation. The CSA is not bound by rules of evidence. If he is charged, tried and jailed, secrecy clauses mean his case cannot be reported. A Family Court ruling cannot be appealed on an error of fact.
Attorney-General Daryl Williams, in introducing the Family Law Amendment Bill 1999, has reopened a broader debate. The dysfunctions
of family law highlighted by the jailing initiatives
have reignited call for a non-adversarial tribunal
system to replace the Family Court and focused attention on the CSA, six years on from an
exhaustive joint select committee report that
made history for the number of submissions to
its drafting.
The report said there were many complaints about the CSA, including “inconsistent
advice, administrative errors and refusal to verify data … the inaction or lack of service
is inexcusable … The end result is an often
appalling client service delivery.”
Many of the report’s 163 recommendations – including an external review of the CSA “as a
matter of priority”, close study of its social
impacts, its impacts on subsequent families, disincentives to working and a re-assessment
of the child support formula have not been
carried out.
Commentator on public sector ethics at
Central Queensland University Robert Kelso
says jailing could exacerbate the high suicide
rates among parents separated from their
children. He says the CSA is a self-contained bureaucracy whose clients have “no way out
to the normal legal system”. He says the 1994 inquiry into the CSA, read in conjunction with
the Hansard of the time, clearly identifies systemic corruption by public servants
whose objective was to minimise the cost
to the Commonwealth of supporting single parents by welfare, by maximising revenue from their non-custodial spouses.
“Neither the Labour government not its Liberal successor have been interested in examining the behaviour of these public servants,” he says.
Kelso says there is ample evidence the CSA
is acting against the public interest,
creating false debt by exaggerating
incomes of fathers and ignoring social
security and taxation fraud when it
favours the custodial parent, usually the mother. He says it is thereby failing in its
duty to the Crimes Act and, in it complicity
in fraud, is breaching the Public Service
Act.
“It is in this context we are talking about
sending parents to jail,” he says. “The
Government is exacerbating an already
poisoned environment by introducing jailing penalties.. Government agencies and welfare industries have studiously avoided the wide
ranging research into the failure of the scheme. What is needed is a royal commission with
the widest possible powers. In this climate,
in the hands of the CSA and the Family
Court, the last thing we need to be doing is introducing jailing penalties.”
The jailing furore casts a shadow over the Attorney-General’s well-intentioned attempts
to reform family law. The Federal Government
has already encouraged separating couples to
avoid, where possible, the Family Court in favour of mediation and counselling, and discouraged litigation
by cutting Legal Aid.
The Attorney-General’s overall idea was simple:
create a stream- lined federal magistracy service, with a hefty start-up budget of $30 million, to
begin operations midyear, to partially sideline
the Family Court; then make orders enforceable
so children would not be denied either money
or a relationship with their non- custodial parent,
the two biggest beefs on either side of the
custodial divide.
Designed to appease everyone, the proposed
new laws have appeased no one.
Williams has said the new enforcement regime
is “to better protect the interests of children”.
“The threat of imprisonment will be reserved
for the most serious cases …. it is entirely
appropriate that the court should have available
to it, alongside the range of sanctions that
already exists, the sanction of imprisonment,”
he says.
The Attorney-General has refused to answer
questions on the legality or constitutionality
of the legislation. He also declined to say how
children will be ensured a continued relationship
with their jailed parent and why he is handing
more power to the judges of the Family Court.
Williams also declines to say whether jailed
parents would be placed on suicide watch.
If, as research from leading suicide expert
Pierre Baume and others suggests, 70 per
cent of suicides of adult males aged 20 to 60
are related to relationship breakdown, based on the latest Australian Bureau of Statistics figures
at least 20 men a week are killing themselves
after separation. this is five times the rate of
youth and female suicides.
Griffith University research psychologist
Susie Sweeper, and expert on separation, says
there are high levels of stress associated with
the Family court and CSA.
“The accumulation of stress from not seeing the
children, low finances, litigation and low levels of social support can lead to psychopathology such as suicide,” she says. “Some [parents] are very angry … That is certainly expressed.
“By putting these people in jail you would increase their stress levels further. This would not assist children.”
With paying parents unable to specify
how their payments are spent, CSA
research suggests half of all payers do
not believe their money is benefiting
their children.
CSA policy director Sheila Bird says
Australians have much to be proud
of, with 90 per cent of all liabilities
paid since the agency’s inception.
She claims this is the world’s best.
She disputes doubts raised by men’s
groups over the honesty of the
agency’s review officers and disputes
claims made by many paying parents
that the formulas used by the CSA
are inflexible and fail to take into
account individual circumstance.
Bird says that where a parent
refuses to pay, it is appropriate for
the CSA to take court action.
“If parliament gives the court the
authority to jail a person for an
offence, then the court determines
whether that is “appropriate,” she says.
Bird says she does not know the
suicide rate among paying parents.
The chairman of the 1994 joint
select committee on the child
support scheme, Roger Price
says no one should think the
CSA was set up to benefit children.
He says its sole rationale is to save
taxpayer money by clawing back
social security payments, as each
dollar paid by a parent reduces the
amount of social security paid to
the recipient. “It is not about the
best interests of children and never
has been,” he says.
He is angry the effort that went into
the 1994 inquiry has been wasted,
with the Government “cherry
picking” the punitive measures
suggested in the report to further
enforce money collection.
Price, one of the most high profile
advocates of a non-adversarial
tribunal to replace the Family
Court, says there has to be a
better method than jailing people.
“We have to find a less battering
and bruising and financially crippling
system,” he says. “The Family Court
and Child Support are a nightmare
legal maze. Jailing is most definitely
the wrong way to go.
“What frightened me while doing
the report was the level of frustration
I found. People had spent all their
money on legal cases, borrowed
from credit cards, borrowed from
parents, and were seething with
anger. I was frightened to see that
level of frustration and anger. This
continues to this day, absolutely.
“Back in 1994, when I said
peoplewere committing suicide
in major part because of family
law matters, people were disbelieving.
No one disbelieves it anymore.”
The greatest paradox of the jailing debate is that both men’s and women’s groups are united in their opposition; although the Attorney-General might not see any humour in this historic rapprochement.
Sole Parents Union president Kathleen Swinbourne says: “Children do not benefit from seeing either of their parents dragged off by the police and put in jail.”
Sarah Maddison from the Women’s Electoral Lobby says the general response across women’s groups has been one of horror at the suggestions that parents could be jailed for failing to comply with Family Court orders of any description.
“Child Support is not working for either parent at the end of the day,” she says. “Both sides feel ripped off.”
the men’s groups, who will be most affected by the jailing provisions, have been vociferous in their opposition. Barry Williams of Lone Fathers says: “I do not trust the Family Court to make fair decisions.”
Malcolm Mathias of Fathers for Family Equity describes the proposals to jail parents as “extreme, unwarranted, ill-conceived and draconian”.
“Many non-custodial men are forced to live in cheap accommodation, are compelled to leave paid employment, forced into bankruptcy, lose contact with their children, lose any prospect of a comfortable retirement and a growing number ultimately commit suicide.”
Sue Price of the Men’s Right’s Agency says the jailing furore highlights the need to look at the financial and social cost of the style of custodial orders made by the Family Court since its formation a quarter of a century ago.
“It is a harsh regime when people are having more than one third of their income garnisheed, yet have no say on where the money goes and are not sharing in the joys of raising their children,” she says.