The inquiry into the Child Support Scheme headed by Professor Parkinson has some intriguing recommendations in its report, and I will be devoting a series of blog posts to them, starting with the most intriguing. And the most intriguing recommendation, one with potentially far-reaching and good consequences,I have read is Recommendation 23:
The Government should consider the introduction of an external mechanism for reviewing all administrative decisions of the Child Support Agency, either by establishing a new Tribunal or by conferring jurisdiction on an existing Tribunal.
The Child Support Agency is out of control. It is ineffective at collecting arrears, incapable of consistently and accurately calculating payments under the existing formula, and keen to usurp the intent of the legislation whenever it gets the chance. No doubt there are some conscientious officers, but there is a pack mentality where the department as a whole often does its job without real regard for the legislation under which it operates.
Other agencies could operate in this way, but most tend not to. One reason is that many agencies and their decisions can be reviewed by the Administrative Appeals Tribunal. If you have a dispute with the Australian Tax Department, then you have the AAT as a fall-back before you get to court, and the department will be forced to defend its position.
If you have a dispute with the Child Support Agency, there is no equivalent of the AAT. Instead you will find yourself in court with the other party being the other parent rather than the agency which has created the problem in the first place. I have seen correspondence where CSA officers have said that it doesn’t matter if their decision is wrong, because you can always go to the courts. They can afford to take this careless and cavalier attitude because there is absolutely no cost to the CSA when they are wrong – that cost is borne entirely by not just the wronged party, but the innocent one as well, and the tax payer, who pays for the judges and court officers who are co-opted to correct the agencies negligence.
At least a properly constituted agency of review would force the CSA to bear some of the cost of its questionable calls. It could be a step in the right direction. Another step would be to strip the CSA of most of its role and handle it to others better equipped to do the job. I’ll explore that idea in another post.
It is not entirely true that CSA decisions cannot be challenged in a situation where the CSA is the other party. It is still possible to pursue the CSA in the Federal Court, or Federal Magistrates Court, for some matters. Of course, one really wants to be careful taking on any Government department that way because if you lose you can be up for their costs, and the Government has bottomless pocket for financing legal action.
To my mind, the greatest concern lies in the area of departure determinations. Such determinations cannot be challenged in the Federal Court or Federal Magistrates Court (under its federal law jurisdiction). It used to be possible, but the law now expressly excludes it.
If CSA officers believe that the Family Court can review their decisions, then they are wrong. The true situation is that the court looks at whether the applicant has a valid ground for varying the *new* assessment set by the CSA officer.
If the CSA made a new assessment based on facts that are wrong, this will not in itself be sufficient to allow a court to set aside the new assessment. The court itself has remarked on the possible unfairness of this, but nothing has ever been done about it.
In other areas of remedial law, the appeal process involves a full merits review of the original issue. The child support scheme seems exceptional in not allowing this.
Sylvia.
Comment by Sylvia Else — June 16, 2005 @ 11:02 am
It has been my observation, and it was my experience, that the child support agency didn’t really care about ‘the rules’. Rather individual officers wanted to take up the fight for the parent with the kids (i.e. custodial parent/parent with residency) against the parent without the kids.
Comment by Jennifer — June 16, 2005 @ 11:09 am
Sylvia,
The AAT does have a role in review of some decisions of the CSA, so I was incorrect there. These are outlined in Section 98W and following of the Child Support Act, 1989. However, Part 7, Division 4 sets out the circumstances in which decisions of the Child Support Registrar can be appealed to the courts. This part is what governs the substance of administrative determinations,so unless my copy of the act is old and it has been amended, the officer I was quoting is quite correct, or am I missing something?
Comment by Graham Young — June 16, 2005 @ 11:44 am
Graham,
The subtlety is that that division is not allowing an appeal against the officer’s decision to make a departure determination, but an application to the court to make a order that the *new* assessment be departed from. The new assessment will only be varied if one of the grounds for a departure is made out.
See Perryman v Perryman, Family Law Court. Look up ML8193 in the Faimly Court cases on Austlii – http://www.austlii.edu.au, and read the judge’s comments from paragraph 28, in which he says “It would appear that the process and findings of the Review Officers will not of itself be subject to any scrutiny by the Court.” In particular, read paragraph 30.
As far as I am aware, this is still true.
BTW, the reason I haven’t provided a link to the case is that there are restrictive rules on publishing family court judgements, and I’m not sure I would be allowed to post a link.
Sylvia.
Comment by Sylvia Else — June 16, 2005 @ 12:29 pm
The appeal is heard “de novo”, which means that it is treated as a new hearing so the registrar’s decision is not analysed, but it is still an appeal (Section 110). However, you’d be surprised that there are barristers who don’t get the distinction. Anyway, I think we basically agree, and there isn’t a problem with giving links to cases. It’s revealing identities that is the issue.
Comment by Graham Young — June 16, 2005 @ 1:28 pm