Posted 06/05/2024 by Dr Peter Prince
The Federal Court has called for better scrutiny of ‘convoluted’ child support laws, saying such complex legislation puts governance in jeopardy. In Child Support Registrar v CMU23 (1 February 2024), Justice Logan said ministers or parliament should reject complicated drafting:
Our society is governed by the rule of law, but such governance is put in jeopardy when legislation becomes so complex as not readily to admit of administration by ordinary, good, honest civil servants or ready comprehension of ordinary Australians of average intelligence … There must come a time, surely, when Ministers of State discharging their duty, or, if they do not, Parliament, reject out of hand drafting of the present kind that is presented to them by those in public administration for approval.
The case before the Federal Court illustrated the problems caused by complex drafting. The Child Support Registrar changed her position during the course of the dispute, her interpretation of the legislation was rejected by the Administrative Appeals Tribunal (AAT), and the AAT’s interpretation was rejected by the Federal Court. All of this in a matter where there was no dispute about the relevant facts. Instead, the wording of the legislation caused confusion.
Background to the case
From 2009 the parents in the case, who had separated, made child support payments under the federal Child Support (Assessment) Act 1989 in accordance with a court order recording the mother as responsible for 65% care of their two children and the father 35%. But, in 2019, the mother became the sole carer. The parents agreed about when this occurred and that their respective support payments should also be adjusted. However, the complex wording of financial support provisions in the legislation led to a dispute about the start date for the new payments. Even the Child Support Registrar, responsible for administration of the Child Support (Assessment) Act, was unclear about how to interpret these provisions.
‘Interim periods’ and child support payments
When notified of the change in 2019 to 100% care by the mother, the Child Support Registrar originally said Part 5 of the Child Support (Assessment) Act required an ‘interim period’ where the previous support payments would continue for a specified time based on the percentages of care in the court order rather than the actual care that was now occurring.
As the Minister for Social Services Amanda Rishworth explained, ‘interim periods’ in child support laws are important:
… because they encourage compliance with written care arrangements. [They] prevent a parent who is withholding care of a child from financially benefiting through higher child support and FTB payments. They also ensure the other parent is not financially worse off through higher child support obligations and lower FTB payments. Interim periods encourage participation in family dispute resolution.
AAT decision
When the dispute went to the AAT, the Child Support Registrar at first maintained her view that the legislation required an ‘interim period’ to be imposed. However, by the time of the actual AAT hearing, the Registrar had changed her position, submitting, instead, that the ‘interim period’ provisions in section 51 of the Act did not apply. Under amendments made in 2018 to section 53 of the Child Support (Assessment) Act, if the original care arrangements had been revoked—as had happened here—there could be no ‘interim period’ and previous support payments could not continue.
The AAT, however, disagreed with the Registrar’s revised position, stating that if the 2018 amendments ‘had been intended to preclude’ interim periods whenever previous care arrangements were revoked, that would render the relevant provision in the Child Support (Assessment) Act (that is, section 51) ‘null and void’. The AAT noted the Revised Explanatory Memorandum for the 2018 changes did ‘not reveal any such intention’ but, instead, emphasised:
Federal Court criticism of child support laws
On appeal to the Federal Court, Justice Logan lamented the complicated wording of the financial support measures in the Child Support (Assessment) Act. He said this was ‘unfortunate, given the systemic importance of that Act to so many Australians’, observing that the ‘elegant simplicity’ of earlier legislation had been replaced by:
… convoluted and Byzantine provisions which have, for some reason or other, commended themselves to Parliament and are presently found in the Assessment Act … It must be very difficult indeed for the Child Support Registrar … to administer that Act. It must be even more difficult for those Australians who have, for one reason or another, occasion to look to and be subject to that Act to understand the nature and extent of their liabilities.
Justice Logan overruled the AAT, stating that it was ‘not permissible to substitute the text of an explanatory memorandum for the text approved by Parliament’. He agreed with the Registrar’s revised position that, where original care arrangements had been revoked, the wording of current section 53 made the ‘interim period’ provisions in section 51 inapplicable. Justice Logan said any amendments to the legislation to allow an interim period to be imposed even where previous care arrangements had been revoked ‘is a matter for the parliamentary, not the judicial, branch’.
Amending legislation
The Federal Government responded quickly to the Federal Court’s criticism, introducing an amendment to the Child Support (Assessment) Act by the end of February 2024 to allow an ‘interim period’ to be imposed more easily—but without making any further improvements to the legislation.
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 aims to remedy what the government describes as ‘unintended consequences’ of the 2018 amendments. The Explanatory Memorandum says the Bill’s minor changes to section 53 of the Child Support (Assessment) Act—and to a parallel provision in the A New Tax System (Family Assistance) Act 1999—will ensure 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.
Apart from this important correction, however, the Bill does not address the Federal Court’s broader criticism of the Child Support (Assessment) Act. As Justice Logan said, ‘It was put – and rightly so, with respect – in submissions that the provisions of the Assessment Act are complex. That they certainly are’.
Justice Logan highlighted section 53A which defines ‘interim period’ and sets out how long existing support payments are to continue. He described this key provision–containing some 1,100 words spread over 4 pages of the Act—as a ‘dense thicket’. The Bill does not amend this or other provisions in Part 5.