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Story by Scott
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 the Family Law Court system, 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 full Family Law Court case 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.
Window Dresser's Arms, Pig & Whistle 
I need to to thank you for this fantastic read!! I absolutely enjoyed every bit of it.
I have you bookmarked to check out new stuff you
post…
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Often the most dangerous and most fraught situations are suffered by those in relation-ships. It is much more more likely to be a wreck than anything seaworthy, and clinging desperately to the wreckage is what so many end up doing.
If white-goods had the same rates of failure they would be banned and owners given years of counselling. Can you imagine a fifty percent failure rate of an electric lettuce spinner or waffle iron?
The Family Court fails all those that haven’t been able to split amicably and despite the innumerable cases of marital whiplash, many struggle on with Interim Orders, Interim Interim Orders, semi-final and final Final Orders and seem to believe that finally all will come good again only to hurl themselves into another relation-ship and so whole lives become a repeat of the previous with a profusion of confusing Orders. All those Orders then end up forgotten in a drawer which grandchildren then find after the division of the estate when pop and nan have finally carked it, all dusty and yellow.
I was so lucky to have sailed on in a good and solid boat belonging to the good fifty percent. It has been around the world many times and not seen a single Order. It is a good and sturdy relation-ship.
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Congratulations, Gerard, you seem to have hitch your boat to fairly solid, reliable vessel, capable of negotiating storms and rough seas with a strong, but stylish hull.
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‘hitched’
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Sturdy hull? You must have a death wish, Big M.
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No sea too rough no mountain too tough.
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Can be light-weight, elegant and stylish, yet still be strong and sturdy!
Must be pretty sturdy to endure the storms and pestilence of life with you!!
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Of course, without commenting on the detail of your suggestions, Scott, an alternative would be to make the Family Court function properly i.e. more timely, less expensive, without the purgatory emulation. After all, the mere fact of the existence of the Family Court, a specialist court for family law matters, is an acknowledgement that family law is a special case.
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I understand what you mean… but I don’t think that’s a possibility.
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Yes, I noticed. I don’t think it would be in the lawyer’s/judge’s interest to make the Family Court function properly, because then people would question why the other Courts don’t.
Of course the first step to proper functioning would be to have lawyers on a salary to the government and for the government to charge them out at, say, $100 per hour. Bang goes the motivation for lawyers to cheat their clients by dragging things out.
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To be more specific, I guess I don’t think that this is possible as it is really just the nature of how the courts work. I do think that the attitude of some lawyers is questionable, and I had experience with one who refused to report professional misconduct of another lawyer because ‘you don’t do that sort of thing.’ Aside from this though, I think that the courts are simply not designed to deal with this kind of problem – they are better used as last recourse to redress poor tribunal rulings than to grind out all the original rulings in the first place.
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Scott, I have quite a few friends who have been through a divorce, and a smaller number who’ve done it twice. I accuse the latter group of having been desensitised to pain completely from their first go around.
One of them pointed me to a lawyer who actually helped me more than he helped himself to our cash. Which is more than I can say for the troupe of clowns my ex was saddled with. On the other hand, I know a few people who, when the game was up were able to sort out a divorce and a settlement with little if any acrimony – mostly because they were OK about a 50:50 split and because they were sensibly more fond of their mutual benefit than punching it out in court in slow motion while tearing up $100 notes. Revenge don’t come cheap.
The kid custody issue is a sad, sad business. Nobody, especially the kids win that one. It’s lucky if they are older when the shit hits the fan – and in fact I guess many dead marriages hang on till the bitter end just to let the kids grow out of childhood.
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on the lawyer thing…. one said to me at the first meeting that I should consider taking out a new credit card with a $50k limit to pay his bills. I thought he was joking at the time, but in fact later events showed him to be serious.
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Once I had a dentist who recommended that I get all my old amalgam fillings out in one hit. He quoted me $11k. In shock, I decided to get a second opinion – especially when I noticed the new Porsche parked out the back of the surgery.
My new guy said – “I’ll need to replace two – for $700″. The rest can stay until they really need to go…..and it’s not good to replace a lot at once because the bite needs to adjust to every new filling – lots of adjustment means lots of aches etc” ……and 10 years later, all of them are still there.
Sounds like the family law fraternity has its share of bodgies too.
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it’s all out there – that thing about not getting a refund if the estimate is too high is a real trap… and I think it ecourages a lot of people to underestimate their incomes, which is also not good..
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This is a well thought, concise comment on the situation for many families. I seem to remember the concept of ‘no fault’ divorce being an idea of the Whitlam Government. The current situation seem to be that someone pays!
I have been on the receiving end of the CSA’s estimate for child support. If their estimate is too high, and the supporting parent has payed too much for the financial year, there is no recourse, no refund, in fact, no one cares. Likewise, access to non-custodial children is set by the court. they don’t particularly care that the ex decides to move to another town. The CSA will reduce your payments if you can prove that you’ve driven in excess of 5000ks in the previous year in order to see your kids.
Access can be withheld by the custodial parent, but, as Emmjay points out, it may take years, and many dollars to enforce this. The reverse has been true for me, with kids dumped at the front door, on a non-access weekend, because ‘we’re going to the country for the day’. Pity I’ve just worked night shift. Now I’m starting to whine, but, you get the idea!
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