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Child support law needs radical re-examination

When it comes to child support, the law and social reality have parted company, say Victoria University researchers.

In an article published in the VUW Law Review, Reader in Law Bill Atkin and research assistant Andrew Black say that the Child Support Act needs radical re-examination.

“Although the Act appears to be working more efficiently than previous schemes, there are still huge question marks over whether it is the best that New Zealand can do for children and families,” says Atkin.

In looking at particular cases the researchers found that the court focused on the liable parent’s financial circumstances, showing little interest in other social and economic factors.

“Key decisions have narrowed the court’s ability to examine the social facts of a particular case and focused on the parents’ respective financial positions. This means that in most cases crucial information can be ignored,” says Atkin.

“Who is this ‘supporting’? Certainly not the children whose welfare ought, on good family law principles, to have been central to the determination, nor the mother struggling to bring up those children.”

“The legislation and the way it has been applied in court put the focus on financial responsibility rather than the best interest of the child. This runs counter to fundamental family law and international principles, which require the child’s best interests to be a primary consideration.”

Atkin and Black say the scheme does not encourage parental responsibility. “There is nothing in the child support regime which encourages the financial parent to become a real parent,” says Atkin. “Nor is there any incentive on the caregiver to encourage the absent parent to become active in the child’s life”.

The “paper transactions” involved in administering child support in cases where both parents are beneficiaries are another problem with the scheme.

“Around 65 percent of liable parents pay the statutory minimum of $10 per week. When the other parent involved is also a beneficiary, the $10 is paid to the state. This amounts to having a large bureaucracy in place to shift a small amount of money from one branch of government to another.”

Atkin and Black question how this benefits children and their carers, and ask who the scheme is actually supporting - posing a number of issues which they say deserve full scale investigation.

“To what extent does the child support scheme help to stop the cycle of poverty that appears to be becoming predominant among single-parent children? To what extent does it set incentives in place which do not necessarily help families and children? How does it really benefit children and their caregivers? Does it help the non-custodial parent take an active parenting role with the child?” the researchers ask.

A highly controversial piece of legislation since its enactment, the Child Support Act 1991 was introduced to rectify apparent inequities faced by parents caring for children without the immediate financial support of the other parent.

In its six years the act, which Atkin and Black say was riddled with mistakes, has been reviewed more than once. “Much of the original consternation was because the legislation’s retrospective nature meant that arrangements that had been in place for years were suddenly overturned, often with dramatic results,” says Atkin.

“For example, one custodial parent suddenly found the amount she was entitled to receive from the other parent plummeted from $520 to $43.35 per month, while a liable parent saw his obligation sky-rocket from $40 to $675 per month.”

With a 76 percent collection rate, the scheme may appear to be a vast improvement over previous systems, which hovered below 50 percent. However, Atkin and Black say the number of people applying for special payment formulas suggest that for a significant minority of people, both payers and recipients, the standard formula is inappropriate.

Atkin and Black say more research is urgently needed.

“The place of child support in an integrated family law system and the connections between access and child support should be part of this examination. Further, major socio-legal research is required to investigate whether the child support regime is genuinely effective in helping children and their caregivers.”

Victoria University Wellington

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