WA Set aside BFA

[Hoang Trang]

Has anyone had success/experience with setting aside their BFA?

long story short...

6 year marriage with two children. Ex wife left
home and the kids in my primary care for 2.5 years until...one day she decided to withhold them. Didn't have contact for 3 months until first court hearing where I signed interim orders for weekend time. I was desperate to see them again and was suffering anxiety and depression. Then came the child support mob hounding me like a dog. During those 2 years in my care she did not pay a cent as her taxable income was non existence even though she was tax invading by doing cash for her home beautician business. Was in the thick of court proceedings and spent close to $20k with no real progress besides lining my lawyers fat pocket. Just before readiness hearing she decides to hand back the kids and only wanted every other weekend despite me offering more time. Catch was to sign her BFA with the only condition to not pay me child support. I figured instead of paying another $25k to go to trial and risk losing more time as she accused me of abuse, neglect and drugs. I was financially in a position to support the kids so agreed.

4 years later COVID happens and now in financial hardship. Schooling, a mortgage and being in and out of lockdown as a cafe owner. My son has since been diagnosed with ADHD and seeing a specialist is not cheap. He also needs speech therapy which I can not afford. I have asked her many times to help out and I don't expect much, just some of the school fees at least.

We didn't exchange financial statements and she was lying about her income to avoid CS. She has a Facebook page advertising her business and even a price list of her services. Could this be seen as fraud or misrepresentation? Financial hardship due to COVID restrictions and my son's medical condition warrant change of circumstances? Under duress due to the pending court cost and allegations?

All I want is for it to be set aside so CS can start collecting.

 

[sammy01]

My thinking is you're wasting your time. (sorry). And I don't like my advice... But i'm trying my best to find you a loop hole.
I'm in a bit of a similar situation. I reckon my ex would go on the dole and become homeless if that is what it takes to avoid paying child support.

Kids at private school? did she sign the enrollment forms? you might get her on the fact that she intended for them to be privately educated and as such has a responsibility there.

CSA are useless in my opinion (this might be a goood thing for you). The amount of times they have made a decision that completely contradicts their rules is astounding. Why not apply for child support through CSA. You just might find the deciding officer calls in your favour based on the fact that the BFA not just and equitable.... OR because the BFA has a flaw in the wording (have a read of the link)
2.7.1 What is a child support agreement? | Child Support Guide
OR just because CSA get it wrong.... You might get lucky and they make the 'wrong' decision...

Plan B - apply to court. Don't bother...

 

[Hoang Trang]

My thinking is you're wasting your time. (sorry). And I don't like my advice... But i'm trying my best to find you a loop hole.
I'm in a bit of a similar situation. I reckon my ex would go on the dole and become homeless if that is what it takes to avoid paying child support.

Kids at private school? did she sign the enrollment forms? you might get her on the fact that she intended for them to be privately educated and as such has a responsibility there.

CSA are useless in my opinion (this might be a goood thing for you). The amount of times they have made a decision that completely contradicts their rules is astounding. Why not apply for child support through CSA. You just might find the deciding officer calls in your favour based on the fact that the BFA not just and equitable.... OR because the BFA has a flaw in the wording (have a read of the link)
2.7.1 What is a child support agreement? | Child Support Guide
OR just because CSA get it wrong.... You might get lucky and they make the 'wrong' decision...

Plan B - apply to court. Don't bother...

Hi mate anticipated you were going to be the first to jump in. Had a read through the link and only thing I could see was to be set aside by court? My dealings with CS have been brutal total double standards. Exact same things they hounded me but wouldn't her. Mate she is too proud to be on the dole, total arrogance and materialistic.

Best interest of the children, Something I have always maintained and hope the courts do too. Change in circumstances in relation to the children and unconscionable conduct? The agreement is so heavily biased, unjust and equitable. Then why did I agree and sign? What other option did I have besides a full blown trial?

 

[Atticus]

The agreement is so heavily biased, unjust and equitable. Then why did I agree and sign? What other option did I have besides a full blown trial?

I highly doubt choosing to sign a BFA over going to trial would satisfy the court of duress. Anyway, the link below from the CSAA covers the power of a court to set aside a BCSA.

CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 136 Power of court to set aside child support agreements or termination agreements

Fighting it in court won't be easy or cheap .... Your best bet is probably 2 (d) of that link >>>> (d) in the case of a binding child support agreement--that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.

As your child has since the signing of the agreement been diagnosed with ADHD & now needs speech therapy as well.

 

[Hoang Trang]

I highly doubt choosing to sign a BFA over going to trial would satisfy the court of duress. Anyway, the link below from the CSAA covers the power of a court to set aside a BCSA.

would unconscionable conduct have merit? Or fall within similar meaning to duress? My income and financial capabilities have been significantly reduced only to be compounded by COVID, but more importantly my son's ADHD. Ones morals and court law differ 🤔

 

[sammy01]

You had independent legal advice. I'm guessing that advice was do not sign. Or at least some sort of out.... So I remember at one point in my debacle toying around with something. Not sure if it was a binding or limited agreement, but there was a clause in there about if my income dropt by more than 20%.

 

[Atticus]

would unconscionable conduct have merit?

Not in the context of a reason to set aside ...

Assuming it is an actual BINDING agreement as per the required definitions, ie, as per >>>> CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 80C Making binding child support agreements

I still think your best chance of having it set aside is that section I pointed to earlier... Worth taking to court? You'd need to see a lawyer... maybe the one who gave you legal advice at the time.. If the ADHD was discovered after the making of the agreement, you may have good grounds. Will the cost of pursuing it be worth it though...

 

[sammy01]

Yeah I don't reckon the ADHD is gonna be that big a deal. It is a common childhood ailment. Hoang, don't get me wrong, trust me I know what a pain ADHD can be. Remember I'm a school teacher. Try keeping 5 kids in their seat that have ADHD while trying to teach a class of 30.

But the expenses invloved in the treatment are not substantial. It isn't slike you need to buy a vehicle that a wheel chair can access.

 

[Hoang Trang]

Objective but fair point. Is a full financial disclosure meant to be exchanged before signing? The objective was solely child support related and no property or assets included which I'd assume would need?

 

[Atticus]

Is a full financial disclosure meant to be exchanged before signing? The objective was solely child support related and no property or assets included which I'd assume would need?

No.... disclosure obligations don't apply to agreements in the same way they do for seeking orders.

The only requirements to make them binding on all parties is as set out in s80C ( link provided in my last post)