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Family Matters No. 37 - April 1994

Child support

A step towards changing parenting after separation
Kate Funder

Abstract

In the context of the United Nations Convention on the Rights of the Child, this article looks critically at the attitudes of Australians to the payment of child maintenance and the introduction of the Child Support Scheme. We must, argues the author, change the culture of parenting so that paying child support is no longer controversial. The language of family law must change, as must the process by which parents rearrange their parenting. In parenting, financial support of children should be seen as integral, and not as a separate category. The right of the child to be heard in relation to financial arrangements is advocated. The author concludes by suggesting that we need to normalise parenting after separation, and that to do this requires will, legislation and resources in the service of parents and their children.

The intense scrutiny and vigorous criticism of the Child Support Scheme should come as no surprise since the Scheme, introduced in 1989-1991, represents a quantum leap in thinking about parental responsibilities. Whereas previously a standard of optional financial support of children by the non-resident parent applied, the Scheme makes payment compulsory at rates set to reflect the non- resident parent's capacity to pay and the child's right to share that capacity. People react to change because it challenges their expectations of what is right and proper; the Child Support Scheme is just such a challenge.

In some ways the Child Support Scheme is not nearly as odd as the situation which preceded it. Remarking on the 36 per cent payment rate of an average $20, a visiting German law professor captured the peculiarity of the Australian situation thus: 'You mean you have a law about child maintenance and two-thirds of people do not obey it?'

But in Australia between 1976 and 1989 we did tolerate non-payment of child maintenance, in spite of law to the contrary. For the situation to have endured so long, that acceptance of non-payment, nominal payment, and individual determination of payment by non-resident parents had to have been widespread. Hence the reaction to the shift embodied in the Scheme.

We are so used to talking about separated and divorced parents in a framework of rights and common law process that it seems natural, as if there were no other way. If you want access, you must pay. If you pay, you have bought access to the child. The chips are down and valued; the game is the child.

This view of parenting after divorce is abetted by the language of the law with its echoes of crime and commerce. 'Custody' has overtones of detention as well as care; 'granting access' implies owner's rights ceded to another. This is no way to speak about children, their ongoing relationships with parents and their needs for security, care and love. However, more than a piecemeal approach is required to ensure children's rights after parents separate.

One of the problems with the Scheme is that it was introduced without sufficient regard for the nature of parenting and children's rights. This lack of context has engendered cynical interpretations of motives. For example, there is no doubt the public wished to shift costs from the public purse to the individual while invoking principles of children's rights and parental responsibility. There are good reasons why parents in different family structures should assume primary responsibility for the support of their children, but to begin with the money without validating the fabric of care is more than a tactical error; it devalues parenting, making it instrumental and not intrinsically worthwhile for all concerned. Although Garfinkel (1992) has proposed that where money goes the heart will follow, I think it a better strategy to attend to matters of the heart.

Rethinking the Welfare of Children

The Child Support Scheme derives from an international move to rethink the welfare of children, their rights to certain standards of care, the responsibilities of parents, and the child's voice in these matters. While it is a pragmatic response to the increase in numbers of children who spend all or part of their childhood separated from parent(s), and whose material support has become a drain on the public purse, the Scheme is also part of international rethinking on the rights of children and the responsibilities of parents. Two major reference points for this movement are the United Nations Convention on the Rights of the Child and the United Kingdom's Children Act (1989), and both these suggest ways forward in the controversy over the Child Support Scheme.

The UN Convention on the Rights of the Child vests primary responsibility for the child in the parents to ensure the child such protection and care as is necessary for his or her wellbeing (article 3(2)). Legal recognition that parents continue to be responsible for their children after divorce has been strengthened in the UK Children Act (1989), by specifically refraining from issuing orders unless they can be shown to be in the child's interests. In Australian law, the presumption has been that parents remain joint guardians of the child unless an order is made to the contrary. Parents, however, have been shown to have very poor understanding of their continuing parental roles - that their autonomy as parents continues, that they are both 'full parents' after separation (Weston and Harrison 1989).

The law is a necessary but insufficient basis for changing the culture of parenting after separation. It is essential that children have access to parental support, and that parents have prime responsibility for rearing their children. Article 27 (2) of the UN Convention states that parent(s) have primary responsibility to secure, within their abilities and financial capacities, the living conditions necessary for the child's development. However, a piecemeal approach to parenting after separation - putting money matters first - will not create a change in the parents' beliefs that they no longer have adequate autonomy in rearing their children. Treating money matters first may send a message that a continuing relationship, ongoing interest and love are somehow not as important in the fabric of parenting and child wellbeing. A recent AIFS study of children's adaptation to divorce showed, however, that the web of relationships in the post-divorce family was more important than money in children's wellbeing (Funder forthcoming).

Changing Language and Processes

If we are to change the culture of parenting so that paying child support is no longer so controversial, several changes are required. The language of family law must change, the process by which parents rearrange their parenting needs to change, and the child must be replaced in the centre of all aspects of the proceedings.

The language of law is the common parlance about parents and children after separation. It should not be. We need a language in which parents are in control as they work towards stable, but not inflexible arrangements for continuing to be the primary carers of their children. Just as marriage celebrations are often in the words of the couple and not a formula, so too parental agreements might be more personalised.

In parenting, financial support of children should be seen as integral, and not as a separate category. Currently, parenting is dealt with in discrete bites with 'custody' the sweet, 'access' the sour and 'child support' the bitter components. Both the language and process needs to integrate these elements of continuing parental responsibilities.

Parents drawing up arrangements will often seek advice and guidance. Again, parents primacy should be acknowledged in the language and the process of services provided. The positioning of services within the Court is a powerful symbol of might to parents who otherwise have never had anything to do with the law.

A third area for attention, if child support is to become a normal rather than an extraordinary and contentious issue in post- separation parenting, is the voice of the child. The right of the child to be heard is quite a revolutionary concept, since children's wellbeing has usually been defined through the voices of parents and state authorities. Provisions for children to be represented in Court proceedings exist and are under review. This is particularly the case with custody and access disputes. I have never heard of a submission on behalf of a child on child support - not, however, because they do not have opinions and are not keen observers of equity and justice.

A couple of voices from our AIFS study of children after divorce show that when parenting includes financial arrangements children might be heard to advantage. As 14- year-old boy commented: 'It's really not fair. In the way of giving maintenance, Dad doesn't agree. So we wear college pants and Mum buys cheap stuff. If we lived with Dad we'd wear proper denim jeans instead of being dags.' And the other side of the picture is equally well observed (by a girl aged 12): 'They go halves in our Christmas presents. Dad buys clothes and Mum buys clothes, and in our school stuff, Mum went half with Dad.' The half seems so important.

Normalising Parenting

To return to the wave of criticism of the Child Support Scheme, I think the way forward is to complete the shift toward normalising parenting by separated parents. Rather than limiting the debate to who pays how much and administrative difficulties (all legitimate in their own ways), the terms of reference must extend to parenting the child.

We have an opportunity to normalise parenting after separation so that the difficulties of the crisis are less likely to be compounded by laws and processes which make fully- functioning parents feel defensive and uncertain as they acquire labels of 'single' when another parent is alive and well, or 'non-custodial' when their child is still in the ambit of their love and guidance.

To do this requires will, legislation and resources in the service of parents and their children. I hope the future will see the Child Support Scheme as preliminary to these larger transformations.

References

  • Garfinkel, I. (1992), 'Child-support trends in the United States', in L.Weitzman andM. McMaclean (eds) The Economic Consequences of Divorce, Clarendon Press, Oxford.
  • Funder, K. (forthcoming), Remaking Families: The Long- term Adaptation of Parents and Children to Divorce, Monograph No.16, Australian Institute of Family Studies, Melbourne.
  • Weston, R. and Harrison, M. (1989), Divorced parents' understanding of their rights and responsibilities towards their children, Paper presented at the Australian Institute of Family Studies Third Australian Research Conference, Ballarat, November.