The Child Support Scheme has been the subject of intense debate since its introduction in 1988. This is entirely understandable, given the emotive nature of family separation and the number of adults and children affected by the scheme. This intensity has been renewed with the recent release of the Report of the Ministerial Taskforce on Child Support.
Given the radical reforms proposed in the report, it is hardly surprising that little attention has been paid to less controversial recommendations, such as the recommendation for review of CSA decisions by a tribunal. At least, it should be less controversial, both because it has been a recommendation of almost every preceding review, and because this would be one of the few areas of government decision making left that does not provide for a process of external review.
There are strong arguments to support the correction of this anomaly. Complex legislation, Family Court case law, and a plethora of guidelines mean that CSA administrative officers make many difficult decisions based on the individual circumstances of each case. Each decision has an impact on at least two parties (the parents), who are often in dispute. Should the taskforce’s other recommendations be accepted by the Government, decision making is likely to become even more complex and there will be more components of each decision that may be disputed by parents.
For many clients of the CSA, decisions of the agency are final. Parents will often accept decisions they do not agree with, rather than risking further conflict by engaging in formal court processes. The specific reasons for the reluctance of parents to return to the courts to deal with child support matters generally include one or more of the following:
- A belief that the CSA has made a wrong decision that should be corrected without the need to apply for a court hearing against the other parent;
- the related desire for a remedy that is less likely to antagonise the other parent (further);
- previous unhappy experiences with the family court system;
- the perceived cost of proceedings;
- the time involved;
- the formality of court proceedings and lack of understanding of the processes;
- a reluctance by parents to represent themselves, especially in cases where the other parent is likely to have legal representation;
- fear of retribution (for example, family violence, withholding contact) from the other parent if taken to court; and,
- other systemic barriers faced by parents, such as low income and or poor literacy and English language skills.
A review mechanism is necessary to resolve a disputed CSA decision which does not require CSA clients to take direct action against each other. The introduction of a tribunal to review CSA decisions would have a number of benefits, including a reduction in conflict between parents. It would achieve this by operating in a less adversarial way than a court and introducing a less formal and less costly process. An administrative tribunal may also be able to deal with some routine child support matters that currently must be determined by a court.
The taskforce recommendation was for either a new tribunal to be established, or an existing tribunal to be conferred the jurisdiction. The resources needed to set up a new tribunal to deal with child support matters would be high and would likely result in government resistance. On the other hand, incorporation into an existing tribunal is more likely to contain costs and would more readily fit into a climate disposed to rationalising the existing tribunal system.
A single appeal right to the Administrative Appeals Tribunal, however, may not be attractive, as it is more formal and more costly than lower tier tribunals, particularly for high volume agencies (and it is to be expected that a body that reviews CSA decisions will fall into this category). Among the lower tier tribunals, the Social Security Appeals Tribunal has an appropriate structure, is geared to assisting disadvantaged people, and could easily acquire the required expertise to consider child support matters. The SSAT already considers related matters and has mechanisms in place to consider cases where two parents have opposing positions, such as disputed levels of care between parents claiming a share of the Family Tax Benefit.
In short, external review mechanisms have been set up in every other area of government administration, with very good reason, and this area of decision making has fallen behind. Not only are the principles of external merits review through a tribunal system equally as relevant to CSA decisions as other government decisions, but the informality, speed and nature of investigation and decision making by tribunals seem ideally suited to the CSA environment.
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