Family Matters No. 86 - March 2011

Mothers who are liable to pay child support

Christine Millward, Monica Campo and Belinda Fehlberg

Abstract

Due to major family law and child support changes implemented during 2006-08, it is now more likely than ever before that mothers will be assessed to pay child support when parents separate. There is, however, a lack of research around mothers who are liable to pay child support to their ex-spouse or partner. This article looks at 11 cases in which mothers were described as being liable to pay child support in 2009. The cases were drawn from a sample of 60 interviews with parents participating in the Post-Separation Parenting and Financial Settlements project - a qualitative, longitudinal study being conducted at the Melbourne University Law School and funded by the Australian Research Council (see Sample and Method boxes at the end of this article for details). The analysis suggests that there are systemic and cultural factors that come into play in cases involving mothers liable to pay child support to fathers, which arise from women's lower wealth and income levels and their greater responsibility for children's daily care and activities both before and after separation.

Due to major family law and child support changes implemented during 2006-08, it is now more likely than ever before that mothers will be assessed to pay child support when parents separate. There is, however, a lack of research around mothers who are liable to pay child support to their ex-spouse or partner. This article looks at 11 cases in which mothers were described as being liable to pay child support in 2009. The cases were drawn from a sample of 60 interviews with parents participating in our Post-Separation Parenting and Financial Settlements project - a qualitative, longitudinal study being conducted at the Melbourne University Law School and funded by the Australian Research Council (see Sample and Method boxes at the end of this article for details). Our analysis suggests that there are systemic and cultural factors that come into play in cases involving mothers liable to pay child support to fathers, which arise from women's lower wealth and income levels and their greater responsibility for children's daily care and activities, both before and after separation.

Recent family law changes

Of central relevance to our study are major changes in relation to post-separation parenting law and processes, as well as child support, that came into effect from 2006-08 (see Caruana, 2007; Fehlberg, Millward & Campo, 2010).

The changes were complex, but one important goal was to encourage separated parents to share the parenting of their children (Fehlberg & Behrens, 2008). To promote this, the new child support formula introduced in 2008 allows a reduction in child support liability if a minority-care parent has the child(ren) for at least 14% of the time (lowering the pre-existing threshold from 30% of nights). A parent is now deemed to have 24% of costs if they have 14-34% of care of children, but can only claim the Family Tax Benefit if their care level reaches 35% or above (Child Support Agency [CSA], 2010a). The new formula also takes both parents' incomes into account when assessing child support liability and allows the same "self-support" amount for each parent. Previously, primary carers (usually mothers) were allowed to earn much more than minority carers (usually fathers) before their income was relevant in reducing how much child support the payer was liable to pay.

Following the 2008 changes, there has been an increase in the proportion of mothers liable to pay child support to their ex-partner; although indications are that mother payers are still very much in the minority. Of the official CSA caseload, which includes cases where the CSA assesses and collects child support (CSA Collect) and assesses but does not collect child support (Private Collect), only 12% of all CSA payers are female, but 23% of paying parents in new cases registered in 2009 were female (CSA, 2009, p. 27).

Previous research on mothers as payers

There has been very little research conducted on mothers as payers of child support. A review of studies from the late 1990s and early 2000s carried out by Maria Vnuk (2010, p. 70) found that child support was less likely to be paid when the father was the "resident" (or primary care) parent. Vnuk suggests that this could be due either to lower expectations (or liability) for mothers to pay or to lower compliance levels of mothers, but that most studies cannot disentangle these causes (Vnuk, 2010, p. 71). Furthermore, compliance data from the CSA, which assesses child support liability for the majority of Australia's separated couples, is based only upon the CSA Collect cases (which are in the minority when compared to Private Collect cases) and no separate figures are available for fathers' versus mothers' compliance rates (CSA, 2009, p. 64).

The AIFS Evaluation of the 2006 Family Law Reforms (the Evaluation) found that fairly low proportions of mothers were liable to pay child support to fathers. Based on a 2008 survey of 10,000 parents derived from the CSA database and who had separated after 1 July 2006, the Evaluation found that 80% of fathers reported a liability to pay child support and 5% reported that they received it, while the reverse pertained to mothers (Kaspiew et al., 2009, p. 192). The Evaluation also found that, where there was an amount of child support to be paid, the proportion of mothers saying no child support was paid was about the same whether they were payees or payers (12% and 13% respectively). However, the proportion of fathers saying nothing was paid was much higher when they were payees rather than payers (21% and 2% respectively) (Kaspiew et al., 2009, pp. 194-195). Mothers' more consistent reports may indicate greater accuracy compared with fathers.

Unfortunately, it is not possible to discern a gendered compliance pattern from official CSA data, as the majority of parents collect or pay child support privately (CSA, 2009, p. 14); Private Collect cases are those for which the CSA does not collect child support. This trend has accelerated in recent years, so that 72% of new cases registered in 2009 were Private Collect (CSA, 2009, p. 28). The CSA assumes that child support liability is paid in full in all Private Collect cases (otherwise, it is assumed, they would ask the CSA to collect for them) (CSA, 2009, p. 55). The CSA also has no compliance data on Self-Administer cases, where the CSA neither assesses nor collects child support. Official CSA figures do indicate that women who are minority carers are more likely to have a Private Collect arrangement than men minority carers (58% compared with 48%), but for all the previously stated reasons the actual compliance rate of men versus women is unknown (CSA, 2009, p. 32).

Given the uncertainty about the extent of mothers' liability and compliance in paying child support, the following analysis draws on the data from our small qualitative study to explore in greater depth the reasons why mothers in our sample paid or did not pay child support. We do this by first providing an overview of cases in our sample where the mother was liable to pay, followed by five illustrative case studies involving payer mothers. We interviewed only one parent per family and the views presented are from both mother payers' and father payees' perspectives. Our discussion suggests a more complex picture of incidence, compliance and parental reasoning than previous research has indicated.

Incidence of mother payers in our sample

In our sample of 60 families, 11 had mothers who were liable to pay child support. In four of these families we interviewed the mother payer and in the remaining seven families we interviewed the father payee. The 11 families had a range of parenting arrangements, including:

  • father (but not mother) "above primary care" (86-100%);
  • substantial shared care (each parent had more than 30% care); and
  • equal shared care arrangements (each parent had 46-55% care).

Father with primary care

Specifically, four of the 11 families involved respondent fathers with 90-100% care of children (fathers were interviewed in each of these cases). This group included two cases in which the father said the mother was unemployed and was paying him the minimum amount, which is currently set by the CSA as $360 per annum or $30 per month (CSA, 2010a) (see also Case study 2). In the third case, the father similarly said the mother was liable to pay the minimum amount, but that no child support was paid by her, nor expected by him, because he had retained the house and contents and the mother suffered from mental illness. In the fourth case, the father said the mother was a high income earner and paid the assessed amount of $300 per week in child support, as well as making other direct payments for their teenage children, including paying for flights for them to visit her, and contributing to their medical and car maintenance costs.

Substantial shared care

For the next four families where mothers were liable to pay child support, the parents substantially shared the care of their children (three mothers and one father were interviewed). Only one case involved a mother having minority (43%) care of children. This mother and another mother (see Case study 4) with substantial shared care said they were paying direct costs for the children instead of periodic child support, and having these direct payments credited against their child support liability. The CSA allows third party payments to be credited as child support where the paying parent directly pays a third party on behalf of the receiving parent for items such as clothing, school fees, medical and dental care, and both parents agree that these payments were made "in lieu of periodic child support" (CSA, 2010c). In the third substantial shared care case, the father said that he and his ex-partner had privately agreed that neither would pay child support and they had notified the CSA. In the fourth case, the mother said she was assessed to pay $20 per week but was disputing this since she had majority care (57%) and claimed her self-employed ex-husband was greatly under-reporting his true income (Case study 5).

Equal shared care

The final three families where mothers were liable to pay child support involved equal shared care of the children (two fathers and one mother were interviewed). In the first case, the father said the mother was paying periodic child support of $300 per fortnight as well as many direct costs, such as private school fees and medical insurance, since she had a much higher income than him (see Case study 1). In the second case, the mother said that she and her ex-husband had agreed that she would pay half the mortgage as well as the child care and school fees instead of periodic child support payments: "We still roughly worked out the amount that I needed to pay, and came to our own arrangements". In the third case, the father said that the parents had, after some dispute, agreed that neither parent would pay child support (see Case study 3).

Mothers' lesser liability to pay child support

Consistent with CSA data and the AIFS Evaluation, among our overall sample it was evident that mothers were much less likely to be liable to pay child support than fathers.

The first reason why mothers in our sample were less liable to pay was because they generally had lower personal incomes than did fathers. Overall, mother interviewees in our study had, on average, personal incomes of about $42,000 per annum, compared with father interviewees, who had an average personal income of $55,800 per annum.

For 9 of our 11 mother payer families it was also possible to compare incomes of ex-partners because respondents either knew their ex-partner's exact taxable income from CSA letters (often shown to interviewers) or gave an estimate based on their knowledge of their partner's income when the relationship was intact and/or their ex-partner's occupation and work hours. In five of these nine cases, the mother payer's yearly income was between $38,000 and $168,000 higher than the father payee's income (according to four fathers and one mother interviewed) and this included two couples who had agreed not to exchange any money. In a sixth case (a mother interviewee), there was a more moderate difference, with the mother's income being $18,000 more than the father's income. However, in the remaining three mother-liable cases (one mother and two fathers interviewed), the mother's yearly income was actually reported to be lower than the father's income by between $6,000 and $30,000: two mothers were unemployed or on a government pension and the father had 100% care, while one mother with equal shared care had just lost her main job and, despite only working 5-10 casual hours per week, continued to pay the children's school and child care costs.

In our overall sample of 60 families, mothers liable to pay child support also had lower incomes than fathers liable to pay child support (including liable fathers who had agreed that no exchange would take place). Table 1 compares these personal income levels. Although income ranges are very broad (especially for Group 4), Table 1 indicates that personal incomes of mothers in the sample who were liable to pay child support (Group 4) were on average lower than those of fathers liable to pay (Group 1). In only seven of our 32 shared care cases were mothers potentially liable to pay fathers due to higher personal incomes.

Table 1: Comparisons of mean income levels for mother and father payers and receivers of child support
Gender and child support liability groups N Mean personal income ($) Income range ($)
1. Fathers liable to pay child support (or no exchange due to 50-50 care) 13 64,690 25,000-127,000
2. Fathers liable to receive child support 7 39,286 17,000-88,000
3. Mothers liable to receive child support (or no exchange due to 50-50 care) 36 42,597 7,000-85,000
4. Mothers liable to pay child support 4 38,000 0-76,000
  Total: 60 Overall (rounded): 46,140 Overall: 0-127,000

Table 1 also shows that the personal income ranges of our mother payers (Group 4) and father payees (Group 2) were reasonably similar. This is consistent with findings from other studies reviewed by Vnuk (2010, p. 65), which describe mother payers as having similar income profiles to father and mother payees; that is, many have moderately low incomes or are reliant upon income support. Thus, many mother payers might be expected to be liable to pay the minimum child support payment of around $30 a month.

The other main (and related) reason why mothers in our sample were less liable to pay child support was that most were primary carers of children. Of our 60 families, 24 involved mothers with primary or "above primary" care (6 with 100% care and 18 with 70-99%), 17 involved mothers with majority care in substantially shared arrangements (57-70% care), one case involved father majority shared care of 57%, 14 involved equal shared care and four involved fathers with "above primary" care (90-100% care). So, fathers were the primary carers in only four of the 28 primary care situations. This is consistent with the AIFS Evaluation - which found that almost 79% of children spent most or all nights with their mother after separation and only 5% spent most nights with their father (Kaspiew et al., 2009, p. 118) - as well as with CSA data, which show that 88% of receiving parents are mothers (CSA, 2009, p. 32).

Compliance of mother payers

In our small study of 60 families, mothers did not exhibit lower child support compliance than fathers, in contrast with suggestions from studies cited by Vnuk (2010, p. 70). One of our 11 liable mothers was not complying, compared with six of our 49 liable fathers, and three liable mothers compared with six liable fathers had any liability disregarded via varying degrees of consensus.

More specifically, in 7 of the 11 cases where mothers were liable to pay, they were complying by paying either periodic child support or direct costs or both. As described above, three mothers preferred to pay costs of children directly and a further two paid direct costs as well as periodic payments. Paying direct costs appeared to relate to mothers' ongoing responsibility for children's lives (including school and after-school activities, medical costs, and incidentals such as clothing), regardless of the post-separation parenting arrangement in place. As our case studies will illustrate, mothers sometimes also believed it was in their children's interests to organise financial support in this way due to concerns about the father's previous financial irresponsibility (see Case study 4).

Of the remaining four cases in which apparently liable mothers were not paying child support, three cases relied upon interviews with the fathers concerned and all three fathers reported agreeing to disregard the mother's liability: two due to the combined effect of shared care arrangements and fathers' feelings of guilt for leaving the mothers, and the other because the "above primary care" father had retained the house and contents and the mother suffered from mental illness.

When our data are understood in this way, it appears that in only one case was the mother truly not complying, and she was in dispute over her own and her ex-husband's child support income. She also had other reasons for objecting to the CSA assessment (see Case study 5).

Our data involving father payers were also complex and revealed a slightly lower level of compliance. Of the 49 families where fathers were liable to pay child support, three ex-couples had privately agreed that neither parent should pay due to 50-50 shared care. In addition, three mothers were not pursuing the father formally via the CSA because they had received a higher percentage of the property or their ex-partner was struggling financially. So, according to these mothers, child support was not expected or "liable" to be paid. Of the remaining 43 cases where fathers were expected to pay child support, 37 were complying. Most fathers (n = 33) were paying periodic child support, but four were paying direct costs instead, such as a mortgage, airfares each school holidays or school or crèche fees (two father and two mother interviews). In six cases, however, fathers were reported by mothers to be non-compliant. Three Private Collect mothers said they received less than the amount stipulated or that payments were sporadic or late. This sort of behaviour was felt to be a way to "control" them or make life financially difficult. The remaining three mothers reported that the father had a CSA order to pay but was paying nothing at all. All three of these ex-couples were in formal disputes over income levels, and one case involved an ongoing dispute over Centrelink benefits.

Illustrative case studies

The following case studies illustrate in greater depth the sorts of circumstances surrounding mothers as payers. They include one mother described as paying above the required CSA level, one described as paying the minimum (unemployed) rate, one with agreement that she would not pay, one who said she paid direct bills instead of periodic child support and, finally, the mother who said she was not complying at all.

Case 1: Mother paying periodic child support as well as direct costs - father report

"Andy", a professional casual worker, said that he separated three years ago from his ex-partner, "Jill", a full-time businesswoman. The separation was amicable. Andy and Jill agreed to an equal shared care arrangement for their two young children, although in reality Andy probably has the children closer to 60% of the time because he often "baby-sits" for Jill when she is required to travel interstate for work.

During their relationship, Andy and Jill jointly owned and ran a successful business. When they separated, they agreed that Jill would retain and conduct the business, which was also their major asset. As a result, Andy received only a small percentage of the property pool. Jill was assessed by the CSA to pay Andy periodic child support largely based on their income discrepancy. Andy lives on Centrelink benefits and casual employment, while Jill has a high annual income from the business (although Andy says that Jill under-reports her income to the CSA).

The CSA assessment has fluctuated frequently in the three years since the couple's separation due to changes in both their incomes and also as a result of the CSA formula changes in 2008. The most recent CSA assessment stipulated that Jill was liable to pay Andy more child support than she had been paying; however, Jill and Andy had decided to disregard this and arranged for Jill to pay child support on the basis of the previous year's assessment. This was partly because Jill more than makes up the extra money by directly paying the children's private school fees, medical, dental and clothing costs, and many other incidental costs.

Andy described an arrangement that compensated for the inequitable property division and his perception that Jill was under-reporting her income to the CSA. While Andy referred to himself as the "poor parent", he had traded off a larger share of the property in exchange for Jill paying for almost all the children's costs. The arrangement also seemed related to the parents' cooperative parenting arrangement and their parenting roles prior to separation. Andy described Jill as being more career-oriented and much more involved in the business than he ever was, while he took on the primary caregiver role for the children. Andy was comfortable with these ongoing roles. While he said that immediately after separation he was "out of pocket" due to being with the children more often and therefore paying more of their daily costs, by the time of interview three years later, the financial arrangements seemed to have become more equitable due to the parents' ability to communicate with each other, including on money issues:

So I don't feel bad about her paying for bits and pieces here and there ... because, like I tried to explain to her, ... because I've got them the majority of the time, I end up clobbering most of the expenses, and because she's not overly focused on what they're doing, they're not her priority really ... But I think just as things settled down and we came to understand what parenting role we each could play ... I'm not sure about the huge income difference - for me it's not too bad because these days if I lean on Jill she'll normally pay for something I can't afford to.

In Andy's case, the parents were cooperative and had their children's best interests at heart. While Andy said that self-employed Jill was minimising her income, he also appeared to believe that she was complying fully (or more) with her financial obligation to support their children.

Case 2: Mother paying the minimum amount - father report

"Karl" said that he and his ex-wife "Eva" had separated after a 10-year marriage. They had two children who were teenagers by the time of interview. After separation, Eva had been the full-time carer of the children but had recently moved in with a new partner while her home unit was being renovated by Karl. As a result, the children had recently moved in full-time with Karl (who had not re-partnered). Both Karl and Eva were unemployed (although Karl drew income from several investment properties). Eva had been privately paying child support to Karl for a few months, at the minimum CSA assessment rate (currently $6.82 per week) due to being unemployed.

When Eva had full care of the children, Karl said he paid no child support to Eva because he had allowed her to live "rent free" in one of the several properties he owned. Karl considered that this was enough financial assistance. In fact, Eva's property share had not been formalised by transferring to her the title deed and was a small percentage of the total pool. A few years later she said she needed some money. Instead of going to court, Karl agreed informally to buy her another car and to renovate her unit. He cashed in his superannuation, bought her a car and is still renovating her unit:

Karl: I had to pay minimum but then what I said to them [was], "Listen we've got this verbal agreement that she can stay in there rent free, which is very good" ... No, because she's under the rent-free thing [and] that's the way we agreed doing it, so, you know, it balances out in a way, ... [she was] actually better off with the rent-free.

Interviewer: But now she's got to pay you the unemployed rate [of child support] as well; the minimum rate?

Karl: Yeah that's right ... It's not much.

Karl's case demonstrates a long-term state of flux of parenting arrangements and child support obligations, and (as in the first case study involving Andy and Jill) the ways in which some parents manage to tailor their financial arrangements to suit their individual circumstances (see Moloney, Smyth, & Fraser, 2009), as well as the interplay in some parents' minds between their use of property and their expectations about paying or receiving child support.

Case 3: Parents had agreed that the mother would not pay any child support - father report

"Jason" described himself as self-employed, having a low income and living in rural Victoria. He and his ex-wife, "Alison", a professional worker employed full-time, had been separated for two years. They had agreed to an equal shared-care arrangement of their young child, and had also divided their modest property by negotiation through their solicitors. They had both re-partnered and while Jason described their current relationship as amicable, he also described ongoing conflict regarding parenting, property and child support arrangements since separation.

Initially, Jason and Alison agreed that since they shared the care of their child, they would also share the costs: "When [my child] was with me I looked after her; any swimming lessons or kinder fees or whatever we just split 50-50." However, one year after separation, Alison applied for a CSA assessment, in Jason's view because she thought he would be liable to pay her child support. However, the CSA assessed that Alison should pay Jason - Alison's taxable income was more than Jason's since he reported running his business at a loss. Alison then lodged CSA objections on two occasions, claiming that Jason was not accurately reporting his business income. On the second occasion:

[S]he was nice enough to go around with a digital camera and take photos of all my plant and equipment etc. ... Next thing, she's objected again and I've got a bloody thousand-page document with photos of nearly everything I own, and she's managed to photocopy lots of my bank statements and stuff - God knows where she got them from - and all this stuff. So we have to go through it all again and they give us another case manager person and she's saying, "Well, your taxable income in that year was [$X]. Because you work for yourself you try and hide everything in the business so you don't pay tax ... so really you're making [a lot more money]". And I said, "No I'm not", and she's going, "Well you bought this and this", and I'm going, "Yeah, that's all in the business; the business turns over X amount of dollars a year, and I pay an accountant lots of money to make it so I don't pay tax".

After a couple of months of arguing the point on the phone I said, "That's it. No, I don't have to pay her money, she doesn't have to pay me money", and finally she rung me and we were both happy with that, and recorded it, and [the CSA] did that.

Jason said that the current "zero-zero" position would only last until later in the year, when they would have to negotiate again through their solicitors. It appeared here that Jason was referring to entering into a binding child support agreement, which can be made "for any amount that both parents agree to" (CSA, 2010b):

I said, "I'm not paying the solicitor any more; you organise it because you're going to be the one having to give me money again". To this day she hasn't done so, so come September I'm waiting to go through it all again - it's heaps of fun.

Jason's case was a complex Private Collect case. He described himself as wanting to keep the peace and behave fairly by waiving his ex-wife's child support liability. Yet his version of events suggested his ex-wife would have told the story very differently, emphasising to a much greater extent the difficulties that Jason's self-employed status placed her in when it came to obtaining a fair child support assessment and disputing what she saw as an unfair CSA assessment. Like Andy, Jason had been the primary caregiver prior to separation and Alison had worked full-time, financially providing for the family, which suggests that she might well be assessed to pay child support. However, unlike Andy's case, the parties were of modest financial means and the circumstances of the marriage breakdown were more acrimonious, with Jason feeling guilty for leaving Alison. These factors may also help explain why Alison was unwilling to accept her child support liability and took steps to inform the CSA that Jason was minimising his income. Alison, like several mothers we interviewed in 50-50 care arrangements, may also have been taking more responsibility for child-related costs (such as clothing, dental, medical and educational costs) than Jason revealed in the interview - his references to costs paid or shared by him were certainly less specific than Andy's or the descriptions given by most mothers in our sample. There were strong indications that Jason's case involved the "differential reporting" of child support arrangements described in other recent research (Smyth et al., 2010). Conversely, as our earlier section on "Incidence" suggests, there were also cases in our sample where father payees indicated that mother payers were paying more than required by the formula.

Case 4: Mother paying direct costs/bills instead of periodic child support - mother report

"Anne" described herself as a full-time professional on a reasonably high salary who had re-partnered. She said that her ex-husband, "Mario", had been mostly unemployed since just after their separation two years previously. Anne was the majority carer in a substantially shared arrangement for their two young children, formalised in a Parenting Plan. Their modest property had been divided 50-50 pursuant to Federal Magistrates Court consent orders drafted by Anne's solicitor, and which were structured in a way that took into account Mario's financial irresponsibility during the marriage, and allowed Anne to remain in the family home.

In the first few months following separation, Mario paid Anne periodic child support in addition to paying half of both the mortgage on their home and their joint health insurance. Then, after he lost his job, Anne became obliged to pay Mario child support. Anne, however, never made any periodic child support payments; instead, she kept receipts for all the child-associated costs she incurred and sent these to the CSA for credit as third party payments (see earlier):

I had to pay him, but I never did pay at all. What I chose to do was I would send every receipt, every piece of information that the Child Support Agency needed to credit me for money spent on the children, in terms of uniforms, school fees, dental appointments, the ENT appointments. All of those things that I was paying the full amount for. I would send that to them and they would credit me for it, so Mario didn't actually physically get any money from me. I just channelled it towards paying for things for the children.

Anne was also aware that, over this period, Mario was working for "cash-in-hand" but that this "doesn't go through the cash system [and] it sort of doesn't count".

Anne's case illustrates a mother who preferred to pay direct costs for children rather than periodic child support. Her decision not to pay Mario directly was largely due to his track record of significant financial irresponsibility during their marriage. Before the separation, Mario had, without Anne being aware, incurred thousands of dollars worth of credit card debt and personal loans. Anne had also said that he used to have a drug problem and that after the property settlement she gave cash amounts to Mario's parents to help with the children rather than directly to Mario. By paying the direct costs of the children herself, she aimed to ensure that her child support was actually spent on the children. Mario did not object to the CSA about these arrangements.

Case 5: Mother was not paying any child support at all - mother report

"Lynn", who had come to Australia quite recently, was a full-time student and mother of a young child. She said that she had separated from her ex-husband, "Leonard", a business owner, three years ago. During their short marriage, she described Leonard as having been emotionally and verbally abusive, as well as financially abusing her; in particular, forcing Lynn to borrow money in her name for his business and a new car. After separation, Lynn had received no share of their property (which was all in Leonard's name) as she had no funds to enter a dispute. She also continued to pay off loans taken out in her name to buy the business and car that Leonard had kept.

Leonard's coercion and control continued following the separation and Lynn described herself as having been pressured from a 100% care arrangement into a substantial shared care arrangement for their child (she could not afford the legal fees to challenge Leonard in court and was advised by her solicitors that the court would decide on equal shared care anyway, so believed there was no point contesting). Lynn believed that Leonard wanted an equal shared care arrangement partly because he wanted to claim the Family Tax Benefit and avoid child support liability, even though he had never paid Lynn any child support when he was assessed and directed to do so.

Following the change to substantial shared care, Lynn was assessed by the CSA as being liable to pay Leonard periodic child support. At the time of interview, Lynn was not complying with this assessment because she disputed Leonard's income estimate, claiming that he made a lot more money from his business than he disclosed. Moreover, her own income estimate was based on her previous year's earnings when she was in full-time employment, whereas her current situation was that she was a full-time student earning no income (although she had re-partnered).

Lynn was extremely angry about the current child support assessment, especially given Leonard's financial abuse during their marriage and non-compliance with the CSA assessment when he was liable to pay. She had lodged an objection to the current assessment and was awaiting a CSA review:

There is a current child support calculation figure there, but as I say I didn't agree ... I don't agree at the moment so we are in dispute and the Child Support Agency is trying to [make me pay ... $X a month]. I asked them why, [and] because ... my income is higher ... much, much higher than him ... they have this strange formula. I still contribute. I don't understand - seriously, I don't ... The figures are based on last financial year's figure, so when I rang I said to them, "Listen, I'm not working at the moment. Whatever figure you've got with you, it's last year". And then I have to prove to them I'm not working. I'm doing this at the moment; I just feel it's ridiculous they only use the old figure. They should have a, you know, updated figure, and it just seems very silly; very, very silly.

While Lynn was not complying with a CSA assessment to pay child support to her ex-husband, she also emphasised both obvious and deeper reasons for her non-compliance. In common with several cases in our sample, there was a dispute about her and her ex-husband's income levels and she accused her husband of deliberate income minimisation. Also relevant was the connection in Lynn's mind between the injustice of being expected to pay child support given the other financial disadvantages she suffered as a result of Leonard's financial abuse.

Sample

The sample of 11 cases was taken from a wider sample of 60 interviews with volunteer parents, separated or divorced, who were resident in Victoria, Australia.

Our sample is rich and varied but is not statistically representative of separated families in Australia.

Method

  • Interviewees were recruited in early 2009 via newspaper and online advertisements (the majority); brochures left at a major provider of mediation and FDR services; and mail-outs accompanying final orders from the Family Court of Australia and the Federal Magistrates Court.
  • In-depth qualitative interviews; 3-year longitudinal design (2009, 2010, 2011)
  • Eligibility criteria of parents:
    1. at least one child under 16 years of age from a previous relationship;
    2. separated from their child's other parent after June 2006 (most had been separated for 1-3 years; a few longer, but around 2 years on average); and
    3. not currently involved in family law court proceedings.
  • Interviewees included non-Australian born parents, but all interviews were conducted in English.
  • Only one parent was interviewed per family, mainly for reasons of confidentiality and sensitivity.
  • Children were not interviewed, mainly due to ethical and sampling challenges, including obtaining parental consent.
  • Where possible, we viewed documentary evidence of CSA assessments, court orders and other legal documents, but this was not always available and parents did not always have at hand the most up-to-date documentation.
Characteristics of the 60 parents Number with characteristic
Fathers 20
Mothers 40
Age of parent (average age 40)
20s or 30s 26
40s 31
50+ 3
Previously married 42
Not previously married (2 never lived with partner) 18
Ages of children
Preschool (aged 0-4 years) 21
Primary school (5-11 years) 42
High school (12-18 years) 18
Location
Victorian rural/regional area 17
Inner Melbourne suburbs (inc. Northern suburbs) 14
Outer Melbourne suburbs (inc. Eastern/Southern suburbs) 29
Employment
Full-time (> 35 hours/week) 15
Part-time 29
Not employed/studying 16
Care arrangement between parents
Equal shared care (at least 46% of nights/time each) 14
Substantial shared care (at least 30-45% of nights/time each) 18
Primary (or "traditional") care (primary carer more than 70% of the time) 28

Discussion

The available evidence indicates that mother payers are not the norm but are now more common following major changes implemented between 2006 and 2008 to post-separation parenting law and the child support scheme. Our study, though small, comprises in-depth cases studies from the perspective of both payer and payee mothers and fathers, which shed light on the variety of situations in which mothers are liable to pay child support and their compliance with that liability.

Among our mothers and fathers, the reasons for non-liability to pay child support were similar (low incomes and high care levels). Reasons for minimisation or dispute were also similar for mother and father payers. For example, we had cases involving CSA Collect mothers and fathers who refused to pay the assessed amount because they disputed the assessed amounts. Our CSA Collect cases also included both mothers and fathers who had the children for less than 30% of time but paid the minimum, unemployed, rate of child support.

Moreover, consistent with CSA data, most cases (n = 40) in our small study were Private Collect, and our mother payers were particularly likely to be Private Collect. Most (eight mother payer cases) involved Private Collect arrangements that were being complied with via periodic or direct payments (or both), or where there was mutual agreement for the mother not to pay.

It appeared that Private Collect via direct payment of children's costs was attractive for mother payers because they were closely focused on children's daily life and needs and generally organised children's weekly activities and school life, almost regardless of the type of parenting arrangement in place (e.g., Case study 4). Private Collect cases where the parents had agreed that the mother would not pay the father the child support amount assessed by the CSA comprised a diverse group, with this outcome apparently being influenced by a range of factors, including guilt at ending the relationship on the part of the father (e.g., Case study 3), the mother's illness, a more favourable property settlement to the father, and the father's decision not to insist on technical compliance in order to keep the peace and achieve or preserve what he viewed as a generally fair outcome to himself and the children (e.g., Case study 1).

Previous research has suggested that reasons for non-compliance with child support obligations may differ between mothers and fathers. Vnuk (2010, p. 71) described an Australian study that found that fathers' non-compliance related to ability to pay (affordability), "access" to children and the "quality" of the parental relationship. In our study, some liable fathers had financial difficulties affecting their ability to pay and, according to mothers, some of our non-compliant fathers considered that the mothers could cope alone due to government assistance. Some respondents were also resentful because they had been left by their spouse or partner, and strained, conflicted relationships particularly seemed to prevent fathers' compliance. The amount of time spent with children also seemed to affect some fathers' compliance, but this did not seem to prevent mothers from paying child support. Where issues of substance abuse and financial irresponsibility by father payees had led three mothers to pay direct costs of children's care and activities instead of periodic child support (see Case study 4), the fathers' decisions to pay direct costs were more related to housing. Several liable fathers owned investment properties where mothers and children were living "for free" (such as Eva in Case study 2) or helped pay a mother's mortgage.

There were also, however, more subtle differences between mother and father payers in our sample that were both financial and normative. Mothers' income levels were generally lower than fathers', and mothers generally had fewer financial assets, such as superannuation and lower earning capacities (which accords with national wealth distribution data analysed by Jefferson & Ong, 2010). There were also fathers who did not see it as the mother's role to provide them with money: "I don't want her bloody money" (Jason, Case study 3). Most mothers in our sample had reduced their work commitments in order to take on the main carer role after having children, or had juggled significant work and family responsibilities, perhaps leaving them more likely to feel aggrieved if, post-separation, they were called on to pay child support to an ex-partner - especially if he was still not perceived to be "pulling his weight" financially or in relation to parenting. For these systemic and cultural reasons, our liable mothers did seem to place an emphasis upon directly paying the daily costs of children's care and activities, while our fathers' financial contributions were more weighted toward periodic child support, especially since they were less likely than mothers to be managing children's weekday care, school and activities.

References

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Dr Christine Millward is a Senior Research Fellow, Professor Belinda Fehlberg is a Professor of Family Law and Chief Investigator, and Monica Campo is a Research Assistant, all at the University of Melbourne Law School. Monica is also a PhD candidate at La Trobe University.

The authors wish to thank Maria Vnuk for her valuable feedback on an earlier draft of this article.

Suggested citation:

Millward, C., Campo, M., & Fehlberg, B. (2011). Mothers who are liable to pay child support. Family Matters, 86, 62-71.