Foreword

The Honourable Justice Grant Riethmuller,
Federal Circuit and Family Court of Australia (Division 1)

In Australia, for over 100 years leading up to the introduction of the child support scheme, the law relating to child maintenance required carers of children to seek court orders.  This was an expensive process for the purpose of obtaining what was generally a very small weekly maintenance order.   Even when an order was made, in many cases the person ordered to pay child maintenance failed to fulfil their obligation, and enforcement of the obligation (which relied upon standard court enforcement processes) was usually more costly than what could be recovered.  Worse still, there was a so-called 12-month rule, that often resulted in the carer being unable to recover more than 12 months’ of arrears, based upon the theory that child maintenance was for day-to-day support of a child and thus should not be recoverable if the period when the support was to be provided had long passed.  All of this changed in the late 1980s with the introduction of the child support scheme. 

In 1988, the Child Support (Registration and Collection) Act was passed, establishing a commonwealth government agency for the purpose of collecting child support payable pursuant to maintenance orders.  This was a significant step forward for carers of children (overwhelmingly, mothers on low incomes).  No longer were they responsible for enforcement of court orders – they could now rely upon the State to take steps to enforce the obligations established by maintenance orders.  Enforcement of orders by the State brought the obvious benefit of having a capable and well-resourced agency pursuing enforcement of the debts.  Not only did the scheme provide for an ‘enforcer’ but it also armed the Child Support Agency with administrative enforcement powers, such as obtaining money directly from wages, and even preventing those who had child maintenance debts from travelling overseas.  The ubiquitous 12 month rule came to an end – now child support debts even survive the bankruptcy of the payer.  Today, there is, as there should be, a sense of inevitability about the payment of child support.  This was, however, just the beginning of the changes to come.  

In 1989 the Child Support (Assessment) Act was passed, which would allow carers to apply for child support through the Child Support Agency.  This new process created an entirely administrative child support assessment scheme, so that carers could seek ‘child support’ by simply applying to the Child Support Agency on an administrative form that most were provided with when seeking social security payments.  Upon application, the Agency accesses the parents’ tax records and generates a child support assessment using a mathematical formula.  The days of applying for court orders largely came to an end.  The administrative assessment of child support could then be registered for collection by the Child Support Agency.

The effects of the child support scheme were immediate.  Many parents (most often fathers) now faced an almost certain obligation to provide financial support for their children, which could be enforced by a government agency.  Those of us practicing in the years following the introduction of the child support scheme witnessed (anecdotally at least) the change in attitudes from those asked to provide financial support.  In the late 1980s, the question from payers was most commonly: “Why should I have to pay?”  Yet, twenty years later, the obligation itself was accepted and the argument raised was whether the assessed amount was fair.

The concept of the child support scheme is magnificent in its simplicity: assess child support administratively from tax records and have it collected by a government agency (using methods similar to collecting tax).  However, like most things, the real-world implementation of the conceptually simple scheme led to considerable complexity in the details.  The operation of the child support scheme involves significant technicalities.  The nature of the scheme is such that the legislation is unavoidably difficult even for experienced family law practitioners.

This wonderfully practical book provides a particularly accessible explanation of the child support scheme from the perspective of a practitioner assisting clients to navigate the technical complexities.   The author has provided clear, readable descriptions of the complex processes and an array of precedents and practical suggestions.  The topics are arranged around issues that commonly confront payers and payees of child support, rather than a dry description of the operation of the scheme.  Importantly, key cases and sections are referenced to provide appropriate authority for propositions.   

This work is a family lawyer’s handbook written by a practitioner for practitioners, allied professionals and the astute child support client.  Practitioners will find it an indispensable handbook when providing clients with practical advice on how to address child support issues.  The precedents alone are a valuable resource for the busy practitioner.

I congratulate the author on the accessible way in which she has set out her significant experience.  This book will provide a valuable reference for those seeking practical assistance in navigating the Australian child support scheme.

Chambers
30 August 2023

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