House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Amanda Rishworth MP)

OUTLINE

The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 (the Bill) amends the Child Support (Assessment) Act 1989 (Child Support Act) and the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) to restore the intended operation of 'interim period' provisions for determining a person's percentage of care for a child.

The Bill proposes technical amendments to support the administration of the Child Support and Family Assistance Schemes as intended under the legislation.

One of the key aspects in the formula used to calculate child support payments and family assistance entitlements is the percentage of care each parent or caregiver has for a child during a particular period. Ordinarily, this is based on each party's actual care of the child over a particular period of time. However, in certain circumstances, a care determination can be made on the basis of the care percentages reflected in a care arrangement (such as a Court order or written agreement between the parties) even if actual care no longer complies with those percentages. This determination will apply for a limited period, known as an 'interim period', after which the care percentage determination will be based on the amount of actual care the person is likely to have if the steps they are taking to comply with the care arrangement are not successful.

Interim period determinations have been a longstanding feature of the operation of the Child Support Scheme. Since 1998, there have been arrangements in place to ensure child support assessments respond to the contravention of a court order or parenting plan. This has enabled child support assessments to be based on the intended amount of care a parent has under their order or plan (their lawful care) as opposed to their actual care arrangements.

Over time, these arrangements have evolved to ensure they reflect up to date standards in the Child Support Scheme and promote compliance with care arrangements.

The 'interim period' provisions were last amended by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Protecting Children Act), and were intended to reduce the financial benefit that a person may otherwise gain through the child support and/or family assistance system by withholding care in contravention of the care arrangement. This would in turn encourage parties to comply with the care arrangement, as any financial incentive to breach the care arrangement would be minimised.

In Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), the Federal Court clarified that paragraph 53(1)(c) of the Child Support Act (as inserted by the Protecting Children Act) prevented the Child Support Registrar (Registrar) from making an interim period determination wherever a previous care determination was revoked under section 54F or 54H of the Child Support Act. In practice, this severely limits the circumstances in which an interim period determination can be made, as an interim period determination (or any other care determination) would, in most cases, require revocation of an earlier determination. The implications for the equivalent provisions in the Family Assistance Act are likely to be similar.

The Bill will restore interim period arrangements to address the unintended consequences of the Protecting Children Act. It will provide that interim period determinations are available as they are intended to, consistent with the longstanding policy in the Child Support and Family Assistance Schemes to encourage carers of a child to comply with a written care arrangement where one is in place.

The Bill will also protect the validity of certain interim period determinations that were made between the commencement of the Protecting Children Act amendments and the commencement of the amendments to be made by this Bill. This is intended to address the risk to past interim period determinations arising from CMU23. This aspect of the Bill minimises the impact on parents and caregivers of children who may otherwise be disadvantaged by having past decisions disrupted.

Financial impact statement

This Bill has no financial implications.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

NOTES ON CLAUSES

Abbreviations and acronyms used in this explanatory memorandum

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Care arrangement has the same meaning as in subsection 3(1) of the Family Assistance Act

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Child Support Act means the Child Support (Assessment) Act 1989

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Family Assistance Act means the A New Tax System (Family Assistance) Act 1999

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Interim period determination means a decision to determine two percentages of care in accordance with section 51 of the Child Support Act or 35C of the Family Assistance Act (whichever is applicable)

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Protecting Children Act means the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018

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Registrar means the Child Support Registrar

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Secretary means the Secretary of the Department of Social Services

Section 1 sets out how the new Act is to be cited – that is, as the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024.

Section 2 provides that the whole of the Act will commence the day after the Act receives Royal Assent.

Section 3 provides that legislation that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1 – Amendments

Summary

This Schedule contains amendments to the Child Support Act and Family Assistance Act to ensure interim period determinations can be made in a broad range of circumstances, including where an earlier care determination has been revoked.

This Schedule also contains provisions to protect the validity of certain interim period determinations that were made prior to the amendments commencing.

Background

Child Support Act

The principal object of the Child Support Act is to ensure that children receive a proper level of financial support from their parents.

The Child Support Act provides mechanisms for parents to make arrangements for the provision of this financial support, either through an administrative assessment conducted by the Registrar under Part 5 of that Act, or by giving effect to a private arrangement entered into by the parents or court orders under Parts 6 and 7 respectively. It is the first of these, an administrative assessment, which is the focus of these amendments

Part 5 of the Child Support Act prescribes the process by which, on application, the Registrar conducts an administrative assessment to determine the amount of child support payable by each parent or non-parent carer (a 'responsible person') in respect of a child.

Central to this process is that the Registrar must determine a responsible person's percentage of care under either section 49 or 50. This determination is then used to calculate that person's cost percentage for the child which, in concert with other calculations in Part 5 (which factor in the costs of the child and parental income), is used to determine the level of child support payable by each responsible person.

Sections 49 and 50 provide that the Registrar must determine a percentage of care that corresponds to the actual care the person has had, or is likely to have, of the child during a care period.

Once a determination under section 49 or 50 has been made, it will have continuing effect until it is revoked or suspended under Subdivision C of Division 4 of Part 5 of the Child Support Act.

As noted above, a determination under section 49 or 50 generally relies on actual care the person has had, or is likely to have, of a child during a care period. However subsections 49(3) and 50(4) provide an exception to this general rule when section 51 applies.

Section 51 will apply if:

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the Registrar is required to determine a responsible person's percentage of care of a child in accordance with section 49 or 50 (which will occur at the commencement of a child support assessment, or following the revocation or suspension of an earlier determination);

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a written care arrangement (such as a Court order or parenting agreement) applies in relation to the child;

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the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not correspond to the extent of care that the person should have had, or is to have, under the written care arrangement; and

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the parent with reduced care is taking reasonable action to ensure that the written care arrangement is complied with.

If these criteria are met, the Registrar must determine two percentages of care – the first corresponding to be the extent of care that the responsible person should have had, or is to have, under the written care arrangement, and the second being the extent of care that corresponds to the actual care of the child the person is likely to have if the reasonable action they are taking is not successful. In other words, if section 51 applies, there will be a first percentage of care determined on the basis of the written care arrangement and a second percentage of care determined on the basis of actual care.

This first percentage of care determined under section 51 will apply for a specific period of time, known as an interim period. During the interim period, the child support assessment will be based on the amount of care that the responsible person should have had, or is projected to have, under the written care arrangement even if that does not accord with their actual care of the child. This is intended to encourage the parent who is withholding care of the child to comply with the terms of the written care agreement. The duration of this interim period differs depending on certain circumstances, which are outlined in section 53A of the Child Support Act. Once the interim period has ended, the second percentage of care determined under section 51 (based on actual care) will be used for the purpose of the child support assessment.

An interim period determination is not available in some circumstances, which are outlined in section 53 of the Child Support Act. Currently, an interim period determination is not available when:

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an application for administrative assessment of child support is made after the maximum interim period – which is defined in section 5 of the Act to be between 14 weeks and 52 weeks depending on the circumstances;

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the Registrar becomes aware that a parent has another dependent child that was not taken into account for the purposes of an administrative assessment, and the day the Registrar becomes aware of this is after the end of the maximum interim period;

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the Registrar has revoked the determination under section 54F or 54H; or

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the Registrar has previously made a determination of percentage of care under subsections 51(3) and (4) (being the two determinations of percentage of care which correspond to the written care arrangement and actual care described above) and a later determination is made, which relates to the same care arrangement, after the end of the maximum interim period for the earlier determination.

Family Assistance Act

The Family Assistance Act provides that parents of dependent children who care for a child at least 35 per cent of the time, and meet income requirements, qualify for Family Tax Benefit (FTB).

Subdivision D of Division 1 of Part 3 of the Family Assistance Act establishes a similar regime to the process under Subdivision B of Division 3 of Part 5 of the Child Support Act. It allows the Secretary to determine a person's percentage of care of a child for the purpose of determining eligibility for FTB. This includes making a determination of percentage of care under section 35A or 35B, which again considers whether the person has a pattern of care with respect to a child and determines the percentage of care based on care that the person has had, or will have, of the child. A determination made under section 35A or 35B will continue to operate until it is revoked or suspended under Subdivision E.

Section 35C of the Family Assistance Act operates in the same manner as section 51 of the Child Support Act. That is, if section 35C of the Family Assistance Act applies, a determination must be made comprising two percentage of care – the first corresponding to the level of care that the person should have had, or is to have, under a written care arrangement, and the second based on the actual level of care that the person would have if their reasonable action to comply with the care arrangement failed.

Similar to section 51 of the Child Support Act, section 35C of the Family Assistance Act will apply in relation to a person if:

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a care arrangement applies in relation to a child; and

•

the Secretary is satisfied that the actual care of the child that the person has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period; and

•

the individual who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

The first determination will be applied in assessing the person's eligibility for FTB for an 'interim period', after which the second determination will apply.

Similar to the Child Support Act, an interim period determination is not available in some circumstances, which are outlined in section 35F of the Family Assistance Act. This includes where an earlier care determination has been revoked under section 35P or 35Q of the Family Assistance Act.

Interaction between the Child Support Act and the Family Assistance Act

If a person is in receipt of FTB for a child who is also recognised in a child support assessment, the same percentage of care will apply for both purposes. In this circumstance, whenever a percentage of care determination needs to be made it will be made by either the Registrar or the Secretary depending on who is notified of the circumstances leading to the determination being made. Once a care percentage determination has been made, it will apply for both child support and FTB purposes (see section 54K of the Child Support Act and section 35T of the Family Assistance Act).

Due to the alignment of care arrangements between the Child Support Act and Family Assistance Act, the provisions relating to percentages of care in each Act largely mirror the other. As a consequence of this, the amendments to each Act in this Bill are similarly alike. Examples included below to illustrate the operation of the Child Support Act amendments are also intended to aid interpretation of the equivalent amendments to the Family Assistance Act.

Explanation of the changes

Part 1—Amendments

Part 1 includes amendments to the Family Assistance Act and Child Support Act.

A New Tax System (Family Assistance) Act 1999

Item 1 omits the words "the determination; or" from paragraph 35F(1)(b) and replaces them with the words "the determination." This change is consequential to the repeal of paragraph 35F(1)(c) at item 2.

Item 2 repeals paragraph 35F(1)(c), which prevents the Secretary from making an interim period determination where the Secretary has revoked an earlier care determination under section 35P or 35Q. The repeal of this paragraph will enable the Secretary to make an interim period determination in circumstances where an earlier care determination has been revoked, and ensures interim period determinations are able to be made in a broader range of circumstances.

Item 3 omits the words "disregarding paragraph 35F(1)(c)," from paragraph 35P(2)(a). This change is consequential to the repeal of paragraph 35F(1)(c) at item 2.

Item 4 omits the words "disregarding paragraph 35F(1)(b)," from paragraph 35Q(2)(a). The reference to paragraph 35F(1)(b) in paragraph 35Q(2)(a) was made in error, and should have been a reference to "paragraph 35F(1)(c)". The reference has nevertheless been removed as a consequence of the repeal of paragraph 35F(1)(c) at item 2.

Child Support (Assessment) Act 1989

Item 5 omits the words "the determination; or" from paragraph 53(1)(b) and replaces them with the words "the determination." This change is consequential to the repeal of paragraph 53(1)(c) at item 6.

Item 6 repeals paragraph 53(1)(c), which prevents the Registrar from making an interim period determination where the Registrar has revoked an earlier care determination under section 54F or 54H. The repeal of this paragraph will enable the Registrar to make an interim period determination in circumstances where an earlier care determination has been revoked, and ensures interim period determinations are able to be made in a broader range of circumstances.

Item 7 omits the words "disregarding paragraph 53(1)(c)," from paragraph 54F(2)(a). This change is consequential to the repeal of paragraph 53(1)(c) at item 6.

Item 8 omits the words "disregarding paragraph 53(1)(c)," from paragraph 54H(2)(a). This change is consequential to the repeal of paragraph 53(1)(c) at item 6.

Part 2—Application and validation provisions

This Part provides for the application of the amendments, and protects the validity of interim period determinations that may otherwise be at risk of invalidity due to the operation of paragraph 35F(1)(c) of the Family Assistance Act or paragraph 53(1)(c) of the Child Support Act.

The amendments to the Family Assistance Act and Child Support Act are intended to apply to circumstances that occur on or after commencement.

The validation provisions are intended to address the risk to past interim period determinations arising from the Federal Court's decision in CMU23. This decision clarified that paragraph 53(1)(c) of the Child Support Act prevented an interim period determination being made wherever a previous care determination was revoked under section 54F or 54H of the Child Support Act. This judgment could have similar implications for equivalent paragraph 35F(1)(c) of the Family Assistance Act.

This severely limits the circumstances in which an interim period determination can be made, as an interim period determination (or any other care determination) would, in most cases, require revocation of an earlier care determination.

The Federal Court's judgment was not consistent with the Commonwealth's earlier understanding of the law, nor its policy intention – namely, to allow for interim period determinations in a broad range of circumstances, to encourage carers of a child to comply with written care arrangements. The validation provisions will, in effect, ratify past interim period determinations made in accordance with the Commonwealth's policy and earlier understanding of the law.

The validation measures are principally aimed at minimising potential disruption for the parents and caregivers with impacted Child Support and Family Assistance cases. This is achieved by:

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Protecting the validity of interim period decisions that are at risk of invalidity due solely to the operation of paragraphs 35F(1)(c) of the Family Assistance Act, or 53(1)(c) of the Child Support Act;

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Ensuring any decisions to refuse an interim period determination consistently with the Federal Court's decision are left undisturbed; and

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Ensuring any decisions to refuse an interim period determination consistently with the Federal Court's decision are left undisturbed.

The Commonwealth does not pursue retrospective legislation lightly. Although Parliament has the power to legislate retrospectively, it is usual practice for governments to justify the need for retrospective legislation, and outline why it does not unduly impinge on a person's rights or responsibilities. In the circumstances, these retrospectively curative provisions are appropriate because:

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It has been the Commonwealth's intention for interim period determinations to be made in a broad range of circumstances (including following revocation of earlier care determinations) since the Protecting Children Act amendments came into force on 23 May 2018;

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Immediately following the Protecting Children Act amendments, the Commonwealth, through its communications and actions, created a public understanding and expectation that interim period determinations would be widely available as a means to encourage compliance with care arrangements through the Family Assistance and Child Support systems;

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The provisions offer certainty and assurance for impacted parents and caregivers in relation to whom an interim period determination has been made consistently with the intended operation of the interim care regime;

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In the absence of these provisions, there may be a need to revisit historical care determinations, which could cause undue disruption and create difficulties between separated parents and caregivers that are impacted; and

•

The provisions are limited in their operation and appropriately targeted to addressing the issue at hand because:

o

They only operate to protect the validity of interim period determinations (and connected decisions) that are at risk of invalidity solely due to either paragraph 53(1)(c) of the Child Support Act or 35F(1)(c) of the Family Assistance Act. The provisions would not interfere with a person's ability to seek an objection or review if the interim period determination (or a connected decision) were defective for some other reason; and

o

The provisions only operate with respect to decisions that were made during a defined period – commencing from 23 May 2018 (being the day the relevant Protecting Children Act amendments took effect) and concluding on the day before commencement of the Bill.

For all these reasons, the retrospective provisions serve legitimate policy objectives and the interests of participants in the Child Support and Family Assistance systems.

Item 9 provides definitions for this Part.

In this Part:

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Child Support Act means the Child Support (Assessment) Act 1989.

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Child Support (Registration and Collection) Act means the Child Support (Registration and Collection) Act 1988.

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Family Assistance Act means the A New Tax System (Family Assistance) Act 1999.

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Family Assistance (Administration) Act means the A New Tax System (Family Assistance) (Administration) Act 1999.

Item 10 provides for the application of the amendments to care determinations made under the Family Assistance Act. The amendments to the Family Assistance Act made by the Bill apply in relation to a determination that is to be or has been made under sections 35A or 35B on or after the commencement of this item if the change of care day for the individual and child concerned occurs on or after that commencement.

Item 11 provides for the application of the amendments to care determinations made under the Child Support Act. The amendments to the Child Support Act made by the Bill apply in relation to a determination that is to be or has been made under sections 49 or 50 on or after the commencement of this item if the change of care day for the individual and child concerned occurs on or after that commencement.

Item 12 provides that certain past family assistance-related interim period determinations, and connected decisions, are valid.

Subitem 12(1) provides that interim period determinations, or any other decisions covered by subitem 12(2), are valid if:

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The interim period determination would be wholly or partly invalid or ineffective only because of the operation of paragraph 35F(1)(c) of the Family Assistance Act; and

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The change of care day for the individual and the child occurred in the relevant period.

Subitem 12(2) covers decisions made under the family assistance law in the relevant period that are connected with the making of an interim period determination. This may include consequential decisions to vary a person's family tax benefit entitlement under the A New Tax System (Family Assistance) (Administration) Act 1999.

Subitem 12(3) provides that the item does not affect rights or liabilities arising between parties to proceedings heard and determined by a court before the commencement of the Bill, to the extent that those rights or liabilities arose from or were affected by a decision referred to in subitem 12(1).

Subitem 12(4) defines relevant period for the purposes of this item to mean the period beginning 23 May 2018 and ending the day before the commencement of the Bill.

Item 13 provides that certain past child support-related interim period determinations, and connected decisions, are valid.

Subitem 13(1) provides that interim period determinations, or any other decisions covered by subitem 13(2), are valid if:

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The interim period determination would be wholly or partly invalid or ineffective only because of the operation of paragraph 53(1)(c) of the Child Support Act; and

•

The change of care day for the responsible person and the child occurred in the relevant period.

Subitem 13(2) covers decisions made under the Child Support Act or the Child Support (Registration and Collection) Act 1988 in the relevant period that are connected with the making of an interim period determination. This would include decisions to amend an administrative assessment under section 75 of the Child Support Act, which follow and are consequential to an interim period determination.

Subitem 13(3) provides that the item does not affect rights or liabilities arising between parties to proceedings heard and determined by a court before the commencement of the Bill, to the extent that those rights or liabilities arose from or were affected by a decision referred to in subitem 13(1).

Subitem 13(4) defines relevant period for the purposes of this item to mean the period beginning 23 May 2018 and ending the day before the commencement of the Bill.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

SOCIAL SERVICES LEGISLATION AMENDMENT (CHILD SUPPORT AND FAMILY ASSISTANCE TECHNICAL AMENDMENTS) BILL 2024

The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 (the Bill) amends the Child Support (Assessment) Act 1989 (Child Support Act) and the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act) to restore the intended operation of 'interim period' provisions for determining a person's percentage of care for a child.

The Bill proposes technical amendments to support the administration of the Child Support and Family Assistance Schemes as intended under the legislation.

One of the key aspects in the formula used to calculate child support payments and family assistance entitlements is the percentage of care each parent or caregiver has for a child during a particular period. Ordinarily, this is based on each party's actual care of the child over a particular period of time. However, in certain circumstances, a care determination can be made on the basis of the care percentages reflected in a care arrangement (such as a Court order or written agreement between the parties) even if actual care no longer complies with those percentages. This determination will apply for a limited period, known as an 'interim period', after which the care percentage determination will be based on the amount of actual care the person is likely to have if the steps they are taking to comply with the care arrangement are not successful.

The 'interim period' provisions were last amended by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Protecting Children Act), and were intended to reduce the financial benefit that a person may otherwise gain through the child support and/or family assistance system by withholding care in contravention of the care arrangement. This would in turn encourage parties to comply with the care arrangement, as any financial incentive to breach the care arrangement would be minimised.

In Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), the Federal Court clarified that paragraph 53(1)(c) of the Child Support Act (as inserted by the Protecting Children Act) prevented the Child Support Registrar (Registrar) from making an interim period determination wherever a previous care determination was revoked under section 54F or 54H of the Child Support Act.

In practice, this severely limits the circumstances in which an interim period determination can be made, as an interim period determination (or any other care determination) would, in most cases, require revocation of an earlier determination. The implications for the equivalent provisions in the Family Assistance Act are likely to be similar.

The Bill will restore interim period arrangements to address the unintended consequences of the Protecting Children Act. It will ensure interim period determinations are available as they are intended to, consistent with the longstanding policy in the Child Support and Family Assistance Schemes to encourage carers of a child to comply with a written care arrangement where one is in place.

The Bill will also protect the validity of certain interim period determinations that were made between the commencement of the Protecting Children Act amendments and the commencement of the amendments to be made by this Bill. This is intended to address the risk to past interim period determinations arising from CMU23. This aspect of the Bill minimises the impact on parents and caregivers of children who may otherwise be disadvantaged by having past decisions disrupted.

Human Rights Implications

The Bill engages the following rights:

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Right to respect for family – Article 23(4) of International Covenant on Civil and Political Rights (ICCPR)

•

Right of a child not to be separated from his or her parents against their will – Article 9(1) of the Convention on the Rights of the Child (CRC).

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Right to an adequate standard of living – Article 27 of the CRC and Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

•

The right to benefit from social security – Article 26 of the CRC and Article 9 of the ICESCR.

Right to respect for family

The Bill engages Article 23(4) of the ICCPR, which states that appropriate steps should be taken to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. Further the Article states that 'in the case of dissolution [of marriage], provision shall be made for the necessary protection of any children'. The Child Support scheme ensures that both parents take financial responsibility for their children. These amendments engage this right, as they encourage compliance with separated parents' and carers' arrangements for the care of their children, and reduce potential incentives for one party to contravene those arrangements by withholding care from the other party.

This Bill amends existing provisions in the Child Support Act and the Family Assistance Act to ensure an interim period determination will be available in a broader range of circumstances.

In circumstances where a parent or carer withholds care from the other in breach of a care arrangement, an interim period determination allows a child support assessment or family tax benefit (FTB) entitlement to continue to be calculated on the basis of the care that each parent should have under that arrangement for an interim period. This maintains the rate of child support or FTB payable based on the care arrangement, rather than based on actual care. This may result in less or more child support or FTB being paid or received between parents and carers for this period.

These rules encourage compliance with written care arrangements, especially court ordered arrangements, prevent one parent financially benefiting through higher child support payments due to withheld care, and reduce the impact on a parent when the other parent unilaterally withholds care of a child in contravention of a written care arrangement. Existing provisions in the Child Support Act and the Family Assistance Act that include incentives for the person with increased care to attend family dispute resolution to resolve the care dispute, which in many cases will result in a shorter interim period than would otherwise apply, are unfettered by the Bill. Provisions which allow the Child Support Registrar or Secretary to refuse to apply an interim period where it is unreasonable to not apply the actual care that is occurring (for example, the care change has occurred due to a fear of violence), are also unaffected by this Bill.

Right of every child to not be separated from their parents against their will

The Bill engages Article 9(1) of the CRC, which provides that 'State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review, determine [it is in the best interests of the child]'.

The Bill strengthens this right by expanding the availability of interim period determinations. This reduces the financial incentive for a person to withhold care of a child when there is a written care arrangement. This is because the child support assessment and/or FTB entitlements will continue to be calculated on the basis of the care each parent should have had under the care arrangement (rather than on the basis of the withholding party's increased care) for an interim period of up to 52 weeks (depending on the nature of the care arrangement). Interim period determinations are important because they encourage compliance with written care arrangements, especially court ordered care arrangements where a court has made an objective determination about the child's care, taking into the child's best interests.

Interim period provisions provide incentives for parents to comply with court orders and/or resolve the care dispute, by imposing a longer interim period in situations where the person with increased care does not participate in family dispute resolution. The current discretion to decide that an interim period does not apply, such as in cases of family violence, will be retained.

Right to an adequate standard of living – parents and children

The Bill engages Article 27 of the CRC, which states at Article 27(1) that every child has the right to a 'standard of living adequate for the child's physical, mental, spiritual, moral and social development.' Further, Article 27(2) states that 'parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the condition of living necessary for the child's development.' In relation to parents who are separated, whether or not they have ever been married or partnered, Article 27(4) is of particular relevance, and it states that 'States parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad.'

The Bill serves one of the main objectives of the interim period policy, to better recognise care arrangements, particularly where those arrangements were recently made and court-ordered. Given interim periods are not permanent, and it is also within the control of the person with increased care to resume the previous care arrangement, interim period rules strike an appropriate balance between recognising arrangements for the care of children, and ensuring that financial assistance (whether in the form of child support or FTB) goes to the parent or carer who has care of the child.

Right to benefit from social security

Article 9 of the ICESCR recognises the right of every person to benefit from social security. Article 26 of the CRC recognises the right of a child to benefit from social security, taking into account the resources and circumstances of both the child and persons having responsibility for the maintenance of the child.

This Bill broadens existing provisions in the Family Assistance Act that apply to interim periods to ensure that an interim period can apply when an existing care arrangement is not being complied with and all other relevant criteria are met.

During an interim period, a parent's entitlement to FTB is calculated, in accordance with the existing court order, parenting plan or written agreement. This may result in less or no FTB being paid to the person who actually has care of the child for the interim period, which arguably limits this human right. However, existing provisions in the Family Assistance Act include incentives for the person with increased care to attend family dispute resolution to resolve the care dispute, which in many cases will result in a shorter interim period than would otherwise apply, are unfettered by the Bill. Furthermore, this is appropriately balanced against children's rights not be separated from their parents against their will, insofar as the minimised FTB entitlements will encourage the withholding parent to reengage and comply with the care arrangement.

Conclusion

The Bill is compatible with human rights as it gives full effect to the operation of child support law and family assistance law with regard to interim periods that provide recognition for people's arrangements for the care of their children.