NSW Court Orders - How Do I Apply to Change Them?

[dedicated-dad]

I am financially separated from my wife and have 100% care of my son. I have been contributing some money for my son's future education since he was 4 years old ( he is 14 now). That fund (ASG) was set up in both me and my wife's name.

During separation I offered that this money remain in both of our names ( hoping that good faith will prevail as far as our son is concerned) and for the benefit of our son to pay for his school expenses. So the court order says "Money to remain in the names of both the parties for the benefit of the son".

I have asked my wife to set up a joint bank account so that the cheque from ASG can be deposited and his school expenses paid. She has refused to comply, saying that she wants to keep the money for herself.( meaning cash it when my son has finished his education and then take half of it). I get 15$ a fortnight child support from her. She sees our son once a month for 5 mins. In a way she is complying with the court order.

How can I go back to court to change the court order? What is the procedure? which forms I should fill? can I ask for court costs as well? I want to do this myself. any help would be appreciated.

 

[Sarah J]

Hi Dedicated-dad,

If the fund was set up as a trust for the benefit of your son, neither you nor the mother can actually take from the fund as the beneficial interest in the fund belongs to the son. Hence, according to the court order, if the mother wishes to take half of it, unless she has the authority of the son, she cannot do so. If she does, your son will have an action in breach of fiduciary duty for the return of that money. She would definitely not be complying with the court order if she withdraws and keeps the money for herself without the consent of the son.

If this is the mother's intention, she should be aware of this. Further, you can seek a clarification from the court in the form for a declaration, that the money beneficially belongs to the son as beneficiary in a trust and will be managed by the parents jointly as trustees until the son attains the age of 18 (or some later age).

 

[dedicated-dad]

Hi Sarah,
Many thanks for your reply.
This fund is for his high school and tertiary education. I understand that neither of us can withdraw singularly (only a cheque in both of our names is issued).
ASG gave cheques ( in joint names ) for my son's year 8 and year 9 school fees ( both cheques I returned them back to ASG as I could afford to pay his fees myself.) but during financial separation I had to redraw a huge mortgage to pay out my wife. Hence I may not be able to pay his next year ( year 10) school fees. ( but my wife insists that as I have 100% care I am liable to pay those fees as well).
So as you said I may have to go back to court to give a clear order in relation to how the fund will be used for my son's education.
So I wanted some guidance as to which clause to refer or which form to fill to modify this order. I really want to do this myself

 

[dedicated-dad]

Can I do this myself ? Or is it a complicated procedure that I need to go to a lawyer again and pay thousands or dollars.

 

[Sarah J]

You do not need a lawyer for a court declaration. A declaration here is essentially a clarification on the original court order. However, as always, having a lawyer will most definitely help.

 

[Sarah J]

Also, your wife should be assisting in the expenses toward your son. Obviously, this will depend on your court order/consent agreement/custody agreement. However, I cannot imagine any order that would give 100% responsibility for raising a child on one party without obliging the other to pay child maintenance.

 

[dedicated-dad]

We have no court order regarding our son, no consent agreement , no custody agreement. Nothing what so ever as far as our son is concerned. She has just taken her share of money and disappeared. Will not answer my messages or emails, does not see my son. Pays 15$ a fornight child support and that's the end of it.
How do I get a court declaration? Which forms do I fill? Which rules/ clauses should I refer to ? Your help will be much appreciated SARAH... Cheers

 

[Sarah J]

1. Have you and your wife separated/divorced? If so, it is best to get a custody agreement and financial agreement drafted up as soon as possible. It is best if you and your wife agree between yourselves. In this case, you can subsequently get a consent order to essentially turn this into a court order. If you cannot agree, you can apply to court for a determination. In any event, it is best to include a provision about the trust/account in the agreement for clarity.

2. As for the declaration, I am not sure which application is more appropriate for your situation as I am not familiar with your case and the account. It is best to call up the court that made the original order and enquire as to which application is best to get a clarification/declaration on the nature of the account. It also helps calling up the ASG fund manager and enquiring as to what instructions they have under which to manage the fund.

 

[dedicated-dad]

We were separated under the same roof since 2011. As our son was going to stay with me I asked my wife to move out. She continued staying , did not work and did not contribute to any expenses. Although staying under the same roof I got 100% care of my son through child support. I started financial separation last year (August 2013) and it was finished (sept2014) this year. After a bitter fight with my son ( 14 years old) she finally moved out in May2014. My son has clearly told her that he will only stay with me. So I never applied for any custodial arrangement. Son being 14 he can decide what he wants. During the process of mediation she verbally agreed that the fund money should be used for our sons education, hence I had no issues in keeping it in both our names. Also I have talked to ASG and they will only issue a cheque in both of our names. I even asked them if they could issue a cheque directly to school. But after talking to my wife they have declined and said they can only follow the court order. Court order is " the funds in ASG to remain in both parties names for the benefit of the son".
I will ring the court and ask them otherwise Will to go a lawyer and sort this out as school starts now. Cheers

 

[Sarah J]

Hope you get some valuable information from the court. If need be, apply for a financial and custody agreement from the court as mediation agreements are not always enforceable.

Best of luck with this matter and keep us updated!