WA Clarification of Binding Child Support Agreement

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Dangerfield

Member
6 December 2018
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Hi
I receive non periodic child support in the form of payment of private school fees which includes all fees, uniforms books music lessons - what ever is on school bill. At the end of a year - who owns the items bought? My ex is asking for return of all books, and uniforms and I have had conflicting advice if this is correct.
Thanks.
 

sammy01

Well-Known Member
27 September 2015
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Do you have any sort of written agreement? is the agreement signed by the courts?
Without any sort of agreement then it is impossible to answer.. Common sense would say the kid owns them... But kids have no rights, so the parents own them, so since you guys can't agree, makes sense the person who paid for them owns them.

So I suppose the question is why not return them? I recall my days a private school. Prior to the school year starting parents and kids had an opportunity to purchase second hand books from kids the year above them... Maybe that is the ex's intention?

Suppose you could refuse to return the books... But then I suppose the ex could refuse to buy next year's stuff...

But to clarify, if there is an agreement. Then your answers will be found in that... IF the agreement states the ex must buy the books, uniform, pay fees, then I reckon that means the ex owns the books, uniforms etc (unless of course there is something in the orders that states something different)
 
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The Cheese

Well-Known Member
21 November 2018
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So if you have a Binding Child Support Agreement, that has been accepted by the CSA, its likely the uniforms and books belong to you. When an agreement states that a parent is going to pay for these things, the provision is made under s84(1)(d) or s84(1)(f) of the Child Support (Assessment) Act 1989.

If the payment for books/uniforms reduces the amount of child support he otherwise has to pay, its a payment under s84(1)(d). If payment for books/uniforms is made in addition to his other child support, its a payment under s84(1)(f). The legislation is worded in the following way for both types of payments

"provisions (the non‑periodic payment provisions) that state:

(i) that a party (the liable party) is to provide child support for a child to another party otherwise than in the form of periodic amounts" 84(1)(d)

"provisions under which a party is to provide child support for a child to another party otherwise than in the form of periodic amounts and that are not non‑periodic payment provisions or lump sum payment provisions" 84(1)(f)

The reason why this wording is important is that he is "paying or providing child support for a child to another party" - i.e. he is paying this child support to you. It is yours, it belongs to you.
 

Rod

Lawyer
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27 May 2014
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Hmm, your interpretation is different to mine, but I am by no means confident in my interpretation.

The section of the CSA you refer to denotes the types of provisions that can be included in binding agreements. It does not by itself change other laws on property ownership rights.

I'd be arguing the ex still owns the property he paid for, but must ensure the child/ren have full and unfettered right of use.

I couldn't find any case law law expressing a view one way or the other.
 

The Cheese

Well-Known Member
21 November 2018
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At the risk of semantics, I suppose it comes down to what it means to provide child support. If I had a child support agreement to buy a car for my ex partner and that was to reduce my child support by 100% and then I took the car back off her, it wouldn't exactly be providing child support. Its probably a bad example though, as surely she'd be demanding the car be registered in her name! A better example may be an agreement that stipulates one party pay child support by covering the other parties share of the mortgage payment prior to property settlement. That doesn't increase the payer's share of the asset, they are making a payment to the payee, by virtue of paying a third party. If they were to redraw any of these payments, surely the payment has not been provided. I think that's the closest example I can think of.

I think the safest thing to do if you were drafting one of these would be to include them as periodic amounts, e.g. dad is to pay an additional $x per week and mum will use that to buy books/uniforms. I can find a few case law examples of s124 orders made under the Assessment Act, but those are just ordering that a party pays for the uniforms, no definitive answers on who owns them. I might be better off looking for enforcement proceedings at the FCC or FLC, but there aren't a lot of those around (and the cricket is on)