QLD Enforcement of Binding Child Support Agreement (BCSA)

[247mum]

Hi, I'll try and keep this short

I have a BCSA with my children's father that stipulates he pays:
1. normal child support as assessed
2. 50% of school fees (private school)
3. 50% of costs related to them attending their school (private school)

Around 2 years ago he decided he no longer wanted to pay and ""generously" let me know that he was giving me notice that he was going to stop paying the school fees and that I would have to pay the full amount. He also stopped reimbursing me 50% of any other costs. In spite of me requesting that he reimburse me, he has not done so.

For perspective:
His income is more than twice mine
I have the children 100% as his job and his social life are always more important to him
He denies it, but he also has a drug addiction (lots of solid evidence)
He retained all the property with a notation on the property consent orders that this BCSA would be entered into.

At the end of last year the school contacted me to tell me he had stopped paying the school fees and had also written to the school telling them that he will no longer be responsible for any school fees. They have accepted this and have told me that they need paying, and that the children can only attend if I pay the full amount. They have graciously agreed to chase him for amounts prior to this year. I cannot afford it all on my own, and the children are doing so well at their school and with their friendships that it would be terrible for them to move at their age, especially after 7 years.

My question is... is there anyone on here that could give me some insight as to what I can do about this? A Binding Agreement is supposed to be just that yes?

Just for reference, apparently Child Support Agency do not enforce BCSA or collect anything than the standard child support. Change of Assessment will not consider it either. Where and how do I enforce it? Any recommendations for an amazing lawyer in Brisbane? I clearly got duped by his lawyer (represented myself) and now I feel like I am getting stitched up all over again.

He has the resources to pay & bignotes himself about his properties (he's getting almost $1000/wk cash for one of them - I have some weak evidence) and it just seems really unfair if there is nothing that can be done.
Thank you

 

[Rod]

Go back to the court that issued the consent orders and file a contravention of consent orders.

You also have a case for breach of agreement but I'm unsure which is the best court for this matter. It may be possible to run the two issues in the same court.

Did you use the Family Court or Federal Circuit Court for the consent orders?

FYI, your ex cannot just decide to end the agreement without your consent.

If you do go to court make sure you include an order for costs on an indemnity basis. Include any legal costs you incur and extra costs such as fees you may have paid because of his breach of agreement.

Private school fees are not normally cheap and it may be appropriate to get legal advice on your ex's behaviour. See if you can get a lawyer who will accept payment on settlement rather than seeking money upfront if you are short of cash.

BTW, hopefully you are squeaky clean wrt the consent orders and you have not been contravening them yourself. I say this because if the ex's behaviour is a response to you withholding the children the costs order is unlikely to succeed.

 

[247mum]

Thank you for your reply.

Family Court for Property consent orders. BCSA seems to be Federal Circuit from what I can understand.

Thank you for the costs information. That would be very helpful. It is frustrating that I should have to bear the burden for his bad behaviour (yet again lol)

Yes - I was always squeaky clean with the children and property orders - he has contravened pretty much every clause on there. The only change to that has been in the last 2 years with a loose agreement made at mediation, as there were some regular and ongoing safety issues with the children (solid police & neighbour's evidence of children's beds smashed at his house, children hiding in wardrobes scared, drug use, domestic violence etc).

They just don't want to go & I have to say that I wouldn't want to either if I was them or anyone else. I also don't know where he lives anymore and he regularly has my number blocked, so it's difficult to organise anything. I do understand that I need to get the children's orders changed (hopefully to afford me sole responsibility) and will endeavour to do so this year.

In spite of his circumstances, I have still tried to organise where possible for them to see their dad - I even took him and his other child for lunch on Christmas day with our children, and have provided clothes and accommodation for his other child on occasion. The children have seen him once since Christmas for one of their birthdays. I am also trying to organise now for them to see his family interstate & keep those ties. I just do my best for the children.

Previously we attempted mediation to the point that we have now exhausted all mediation services (including ones that cost over $3000) due to reasons they will not disclose to me, but I suspect has something to do with his drug use/wife. He turned up late and off his face and still they issue a certificate to say both parties attempted to mediate :~/.

I don't think it is a response to our dealings, moreso his lack of interest in being a parent to the children. At the last mediation session he almost jumped across the table to sign the paperwork when I asked if he would sign over sole parental responsibility to me...

I have called a couple of lawyers, but they have given me the impression that they only take 'vanilla' cases, and this is a bit out of the ordinary. If I could find a lawyer who knows what to do, that would be great.

 

[Unknown entity]

If you are receiving child support payments, dad is not obligated to pay or contribute to any other financial commitments that are not already covered in his total and regular monthly child support payments to you.

For example, if you as payer are receiving from payee a set amount based on his child support payments, all his costs of raising the child/ren have been complied with. If you want and/or you both made a verbal agreement to have children attend private school, dad does not need to pay any more money beyond the child support payments already being received by mum from dad.

If you believe that dad has capacity to pay more child support based on earning capacity or other available financial reasorces, you can request CSA to undertake another assessment.

 

[247mum]

Thanks for your reply Mark.
Yes, sadly he has also lied to CSA and Centrelink and said he's unemployed, but really he's on a contract earning $120Kpa plus renting properties for cash. He's a treat Change of assessment seems to be sorting his contract income out at least.

In regards to what parents are obligated to pay or contribute towards their children and CSA, what we have a bit different though as it is supposed to be an enforceable Binding Child Support Agreement - that we both had to pay a lot of money to lawyers for, in order to provide certainty, and separately to the ordinary child support obligated both of us to the tune of half of the children's schooling costs at their current school or equivalent. So if they went to live with dad at some point or stayed with me, it wouldn't matter - we would still split the school costs as it is expensive. He also signed the enrolment forms for the school. I just need to know how I go about enforcing that the easiest and cheapest way.

 

[Rod]

Keep in mind consent orders are enforceable over and above whatever CSA say.and that binding agreements are likely enforceable.

CSA are not the be all and end all.of child support.

An issue for the OP is whether a lawyer is going to be needed to enforce rights.

 

[SLB70]

Hello 247Mum, I’m sorry to hear about the above situation and realise it is now 2yrs since you raised the question. My question is did you achieve a successful outcome and if so how, as it looks like I’m headed down exactly the same path ie ex partner breaching the BCSA one month after we signed it, won’t pay half school fees and school are not prepared to bill him as he’s telling them he can’t afford it. Did you pursue enforcement through the court? Many Thanks for any advice.

 

[247mum]

Hello 247Mum, I’m sorry to hear about the above situation and realise it is now 2yrs since you raised the question. My question is did you achieve a successful outcome and if so how, as it looks like I’m headed down exactly the same path ie ex partner breaching the BCSA one month after we signed it, won’t pay half school fees and school are not prepared to bill him as he’s telling them he can’t afford it. Did you pursue enforcement through the court? Many Thanks for any advice.

Hi SLB70

Unfortunately not at this stage. I did try and enforce through CSA but they don't do that with BCSA. They have told me essentially that it needs to be taken through proceedings in the Federal Circuit.

To add insult to injury during this time he has sold the 2 properties he received in our property settlement and squandered the proceeds. Not paid a cent towards his share of the school fees, or his account that I am currently paying off his arrears on so my children can stay in their school. The system certainly is not made to help the person doing the right thing by the children.

He has told me that if I take it to court he will argue that he has had a material change in circumstances since the BCSA and he seems to think that the court will let him off. I still maintain that he has had sufficient funds to pay for the school fees. but it's a gamble at the end of the day not knowing how the court will deal with it.

Happy to stay in touch and let you know if there are any further developments as I do intend to take it to court in the next couple of years - COVID has made it more difficult of course. Please feel free to let me know if you also have any success.

All the best

 

[Atticus]

He has told me that if I take it to court he will argue that he has had a material change in circumstances since the BCSA and he seems to think that the court will let him off.

Was the agreement regarding child support part of a broader BFA under PART VIIIA of the family law act or a stand alone BCSA, & did both parties agree to have it be a registered agreement with the CSA?

Obviously I can't comment on your likelihood of success should you seek to have it enforced via the FCCoA, BUT, depending on the answer to my questions, if it's a accepted as a BCSA then under the CS Assessment act, the test for setting aside is not a material change in circumstances, but exceptional circumstances, which is a higher bar. Also if it was agreed by both parties to be registered with the CSA as a BCSA, then again much less wriggle room for him.

 

[SLB70]

Hi SLB70
Unfortunately not at this stage. I did try and enforce through CSA but they don't do that with BCSA. They have told me essentially that it needs to be taken through proceedings in the Federal Circuit.
To add insult to injury during this time he has sold the 2 properties he received in our property settlement and squandered the proceeds. Not paid a cent towards his share of the school fees, or his account that I am currently paying off his arrears on so my children can stay in their school. The system certainly is not made to help the person doing the right thing by the children.
He has told me that if I take it to court he will argue that he has had a material change in circumstances since the BCSA and he seems to think that the court will let him off. I still maintain that he has had sufficient funds to pay for the school fees. but it's a gamble at the end of the day not knowing how the court will deal with it.
Happy to stay in touch and let you know if there are any further developments as I do intend to take it to court in the next couple of years - COVID has made it more difficult of course. Please feel free to let me know if you also have any success.
All the best