NSW Ex Claiming Backpay for Child Support with Legal Aid?

[Ameer]

Oh that's a bit disappointing, I was actually thinking for once I would have some light in our lives and yes I was hopeful. So what you are saying Rob is that I will have to pay no matter what? because I don't have evidence?

As it was only a verbal agreement, only evidence we have (which I'm sure does not matter) is screenshots of her posting her location at markets where she was selling goods and also screenshots of her on-line business, in addition the last 10 or so years I have always paid the amount in child support without any issue, and have and still do pay for private health insurance (which is my own thing I wanted to do of course), would the court say hmmm, why for 4 months would he all of a sudden not declare he is on full wage and keep paying the 1/2 pay rate (maybe he is telling the truth)? although I'm guessing her lawyer will make out (due to no evidence) that I was trying to get out of paying the required amount?

I guess what I'm asking, is it a pointless fight? 1. We will have to pay the full 6500 and plus court fees and possibly her legal fees.

Thanks everyone again

 

[Ameer]

Also I forgot to add. CSA advised they are not collecting any of the $6500, that my ex requested them to follow it up but they advised as it was mutually agreed they could not take that from me and that my ex would have to go to court to get this amount??

Now the children support is garnished each week.

 

[Rob Legat - SBPL]

old mate the solicitor... do you honestly reckon this bloke could be forced to pay the costs for the ex's legal expenses that have been covered by legal aid....I'll answer for ya (of course not)

Yes. There is scope for it. The general rule is that you can be immune to a costs order if the other side did not have to pay costs. However, courts have found that where a party is indemnified against their own costs (such as by Legal Aid) this is not the same thing as not having to pay costs; and you can be open to a costs order against you.

In fact, I'll go you one better and tell you I've seen it happen in a QCAT proceeding I was involved in. In that instance the parties were legally represented (with the tribunal's consent) and an order was made against the respondent to pay the applicant's legal costs, despite them being represented for free by a community legal agency.

 

[Rob Legat - SBPL]

Ameer: No, I'm not saying that, and I cannot give you an indication of what your chances would be. I simply wanted to bring to your attention that it is not cut and dried, and you do potentially have something to be concerned about.

Since CSA won't collect it, your ex can take you to court for it. In very basic, oversimplified terms: she'll produce the CSA assessments and your lack of payment of those amounts, and then you'll have to prove your basis for not paying it.

 

[Ameer]

Ok thanks for that. Well as everyone knows you need evidence and as it was verbal I have nothing.

 

[sammy01]

Did you pay her cash? bank transfers?
You do have evidence... You have CSA paperwork declaring that they deemed you didn't have to pay...

My thoughts.- do nothing. Wait till you get a court notification and get back to us. But for the moment try not to lose too much sleep over it.

 

[Ameer]

Did you pay her cash? bank transfers?
You do have evidence... You have CSA paperwork declaring that they deemed you didn't have to pay...

My thoughts.- do nothing. Wait till you get a court notification and get back to us. But for the moment try not to lose too much sleep over it.

Yes Sammy, the child support transfers were all direct debited for the last 10 years without fail. But no evidence stating that she was happy for us to keep paying the child support at the 1/2 pay (when I was working fulltime) for four - 6 months to help us out financially (as she was earning a decent amount from her markets and online business) this was verbal and I'm guessing this is what we would need evidence for and we don't.

No CSA never put in writing that the ex would have to take further action to receive the 6500, they advised me that over the telephone. CSA just said that it had nothing to do with them and basically wiped there hands of it.

 

[sammy01]

ok so you can get that info from CSA in writing. (maybe)

Look this isn't going to go to court... It is madness. If you wind up in court, you can explain that you had reasonable access to the kids, she stopped that, then went after you for more money.. None of which looks good on her part...

BTW - to even get into a court room she would need to demonstrate that mediation has been attempted in the last 12 months... Has mediation been attempted?

I honestly think this is a solicitor trying to bully you into forking over money that you don't have to pay... The correct process is CSA - Then CSA appeal - Then Administrative Appeals Tribunal. She hasn't done that because they have told her that she wont win. So she is seeking other avenues and they will only work IF you let yourself be bullied. Do nothing - If you get a served with a court attendance notice, get back to us then...

 

[Rob Legat - SBPL]

sammy01 - Please stop, I think you're wrong and giving Ameer bad information. Here's why:

1. CSA won't give Ameer anything in writing saying he doesn't have to pay, because that's not the truth. They assessed what he had to pay. The reason they won't collect it is because they can't. Section 28A of the Child Support (Registration and Collection) Act legislates a 'maximum arrears period' that CSA can collect for arrears.

2. I would expect the court will likely rule the points in paragraph 2 of your post as irrelevant, especially if no prior action was taken over them. Add to that the points below in 3. I'm happy for a litigator to tell me otherwise here, however.

3. Mediation does not have to be attempted. I think you're thinking this is a matter which falls under the Family Court Rules? It doesn't. Under the Child Support (Assessment) Act an action for recovery of child support falls under section 79. This section states that child support is a "debt due and payable" and may be sued for and recovered in any court having jurisdiction under the Act, including one having jurisdiction for recovery of debts up to the amount of child support (sub-paragraph (a)) - this includes the Federal Circuit Court. Section 100 of the Act then states that while the Family Law Act does apply to proceedings under the Act, it does not apply to proceedings under paragraph 79(a).

To my reading, this treats an action for unpaid child support to be treated like any other action in the relevant court for a monetary liability or debt. That significantly cuts out a lot of the hurdles which I think you consider will be in place.

4. The process is not "CSA - Then CSA appeal - Then Administrative Appeals Tribunal". If CSA was not collecting the debt, and it's outside the legislated arrears period, then it's a matter between the parties. CSA has no jurisdiction and, accordingly, neither does the AAT. The correct process for the payee parent is to issue civil proceedings in a competent court for recovery of a debt - which is exactly what it appears the other parent is doing. Doing nothing runs the risk for Ameer to be sued for the full amount of 'unpaid' child support plus costs.

 

[sammy01]

ok so there does not seem to be an agreement here as to whether this is a legitimate debt.. True? If anyone here actually thought you owed the $$ then the advice would be PAY it... But there is not.

So - While I appreciate Rob's advice - go see a solicitor... I am hoping we can come up with a cheaper option. My thoughts - write back... Explain that you've been paying child support as per CSA rules, continuing to pay health insurance... While you're there explain that you would like the ex to come up with an agreement to re-introduce the children into their father's life and for consent orders to be written up in accordance with any agreement that gets made around the kids.

I think this is worth a read...
2.8. Family law costs management - Legal Aid NSW

Look legal aid will have limits on the amount of help they will provide... I don't think this matter should be funded by them (but that is just an opinion)

So like I said - can we collectively give this guy some advice beyond - PAY UP or pay a solicitor...